Bombay High Court
Digambar Marotrao Gudup vs The State Of Maharashtra And ... on 1 March, 2017
Bench: S.V. Gangapurwala
1 W.P.No.2001/15
UNREPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.2001 OF 2015
1. Digambar S/o Marotrao Gudup,
Age 56 years, Occ.Nil,
R/o Ambekar Nagar, Near
Saibaba Mandir Nanded, Dist.
Nanded-5. ... Petitioner.
Versus
1. The State of Maharashtra
through its Secretary,
Department of Water
Resources, M.S.Mantralaya,
Mumbai-32.
2. The Chief Engineers &
Chief Administrator,
Command Area Development,
Irrigation Department,
Aurangabad.
3. The Superintendent Engineer,
Jayakwadi Project Circle,
Aurangabad.
4. The Executive Engineer,
Majalgaon Canal Division No.2,
Gangakhed, Dist.Parbhani. ... Respondents.
...
Mr.R.P.Bhumkar, advocate for the petitioner.
Mr.V.M.Kagne, A.G.P. for the State.
Mrs.Kalpalata Bharaswadkar, advocate for
Respondent No.4.
...
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2 W.P.No.2001/15
CORAM : S.V.GANGAPURWALA AND
K.L.WADANE,JJ.
Date : 01.03.2017
JUDGMENT (Per S.V.Gangapurwala,J.)
1. Heard.
2. The petitioner was working as Junior
Engineer with the Respondents. From 22.1.1991,
the petitioner remained absent on duty without
sanctioned leave. Departmental Inquiry was
initiated against the petitioner. Subsequently,
the petitioner was dismissed from service from
21.8.1996. The petitioner remained absent from
duty for a period from 22.1.1991 to 20.8.1996.
The petitioner assailed the order of dismissing
him from service before the appellate authority.
The appeal was dismissed. Thereafter, the
petitioner preferred Original Application before
the Maharashtra Administrative Tribunal,
Aurangabad, bearing O.A.No.66/2008. The Original
Application filed by the petitioner is dismissed
under order dated 29.8.2013. The petitioner has
assailed the said judgment in the present Writ
Petition.
3. Mr.Bhumkar, learned counsel for the
petitioner strenuously contends that the
petitioner had started suffering from anxiety and
mental stress, due to which he had even
subsequently lost his mental balance. Under such
circumstances, the petitioner all of a sudden on
21.1.1991 started feeling uneasy, as a result of
which he was constrained to proceed to Nanded for
being with his family members. According to the
learned counsel, no Departmental Inquiry is
conducted. The petitioner was not issued any
charge-sheet. After communication dated
30.5.1996, the petitioner did not receive any
further communication and straightway was issued
order dated 21.8.1996, dismissing the petitioner
from service. The learned counsel submits that
one Mr.D.P.Shirke, was Disciplinary Authority,
who had imposed punishment of dismissing the
petitioner from service. Said Mr.Shirke,
thereafter came to be promoted as Chief Engineer.
Against the order of dismissal, the petitioner
preferred an appeal. The appellate authority was
the same person, who acted as a Disciplinary
Authority. Said Mr.Shirke, should not have
decided the appeal. He could not have been a
Judge of his own cause. The learned counsel
submits that the order removing the petitioner
from service itself states that the period the
petitioner was absent from duty should be treated
as an extra-ordinary leave. This itself shows
that the leave of the petitioner was sanctioned
and regularised. The absence was regularised and
as such the charge of misconduct did not survive.
The learned counsel relies on the judgment of the
Apex Court in the case of "State of Punjab and
others Vs. Bakshish Singh" reported in (1998) 8
Supreme Court Cases 222. The learned counsel
further submits that even otherwise the
punishment of dismissal from service is
disproportionate. The absence was not willful.
4. Mrs.Bharaswadkar, learned counsel for
Respondents submits that number of letters were
sent to the petitioner for joining the duty,
however, the petitioner remained absent
continuously from 22.1.1991. His absence
hampered work. The petitioner neither replied
any letter nor remained present. The Respondent
No.3 issued the charge-sheet to the petitioner
under Rule 8 of the Maharashtra Civil Services
(Discipline and Appeal) Rules, 1979 for
unauthorised absence. The petitioner submitted
his say vide his letter dated 4.4.1996. The
petitioner was present before Respondent No.3 on
18.5.1996 and accepted the unauthorised absence
and could not give satisfactory reason. The
charge-sheet was issued to the petitioner through
Executive Engineer vide Memorandum dated
22.2.1996 with special messenger and the
petitioner gave acknowledgment on 23.2.1996. The
petitioner submitted his say. Even he was given
opportunity to remain present. The petitioner
remained present in the office of the
Superintending Engineer. The Inquiry was
completed in presence of witnesses as mentioned
in the charge-sheet. The petitioner did not
produce any documentary evidence justifying his
unauthorised absence from duty. The petitioner
was unauthorisedly absent for almost five years.
Even show cause notice along with Inquiry Report
was issued to the petitioner. He was given 15
days time to reply. The petitioner did not reply
and thereafter the decision was taken by the
Disciplinary Authority. The appeal filed by the
petitioner with the Respondent No.2 was after
delay of 8 years. The delay was not at all
explained. As such the appeal was dismissed as
barred by limitation. The Tribunal has
considered all the relevant aspects. The learned
counsel submits that the period of unauthorised
absence was granted as extra-ordinary leave under
Rule 63(vi) vide order dated 29.4.2006. For a
period of 22.1.1991 to 20.8.1996 it was
specified that this period can not be considered
for any purpose including the pensionary
benefits. The learned counsel relies on the
judgment of the Apex Court in the case of "Maan
Singh Vs. Union of India and others" reported in
AIR 2003 Supreme Court 1800, "Om Prakash Vs.
State of Punjab and others" reported in AIR 2012
Supreme Court (Supp) 413 and another Judgment of
the Apex Court in the case of "State of Punjab
Vs. Dr.P.L.Singla" decided on 31.7.2008.
5. We have considered the submissions
canvassed by the learned counsel for respective
parties. We have also gone through the judgment
delivered by the Tribunal.
6. It is not disputed by the petitioner
that he continuously remained absent from
22.1.1991. He never reported for duty nor had
filed any application seeking leave. The
petitioner was absent for more than five years
unauthorisedly.
7. The contention of the petitioner that
the Departmental Inquiry was not conducted is ex-
facie erroneous and false. The record shows that
petitioner was given notice of the inquiry being
initiated against him. He was served with the
charge-sheet. He also remained present before
the Inquiry Officer. He could not substantiate
his long absence of five years before the
Disciplinary Authority and thereafter the
decision is taken, dismissing him from service.
The petitioner at the relevant time was working
as a Junior Engineer. The conduct of the
petitioner was callous and irresponsible. Not
once in five years, the petitioner ever tendered
any application for leave. Only after receiving
the notice, the petitioner gave application that
he is ready to join service. During the
interregnum many times the petitioner was issued
notices by the Respondents but the petitioner did
not respond. The Tribunal has considered these
aspects. Even if the contention of the
petitioner is accepted that the Appellate
Authority ought not to have heard the appeal as
eight years back when the decision was given
dismissing the petitioner from service, the
Appellate Authority was the Disciplinary
Authority, still, the Tribunal has considered the
whole record and the factual matrix. There does
not appear to be a case of miscarriage of
justice. The petitioner was given every
opportunity in the disciplinary proceedings. The
petitioner came with false plea that he was not
aware of the Departmental Inquiry, whereas the
record shows that the petitioner was in receipt
of the charge-sheet. He had also filed his say.
He also appeared before the Inquiry Officer.
Even final show cause notice was issued to the
petitioner. Such a long absence from duty
amounts to misconduct. The judgment of the Apex
Court in the case of "State of Punjab and others
Vs. Bakshish Singh" referred to supra has been
considered by the Apex Court in a subsequent
judgment delivered by three Judges bench of the
Apex Court in a case of "Maan Singh Vs. Union of
India and others" referred to supra. In the said
case before the Apex Court the employee was
dismissed and the period from the date of his
absence till passing of the order of dismissal
was directed to be treated as leave without pay.
It was observed that reading the order of the
dismissal as a whole, it can not be said to have
condoned the absence by regularising the absence
from duty subsequent to termination of
employment. The Apex Court held the order of
dismissal to be legal and valid. Similar view is
taken by the Apex Court in the case of "Om
Prakash Vs. State of Punjab and others" referred
to supra. The Apex Court observed that subsequent
regularisation of period of leave only for
purpose of maintaining correct record does not
wipe out charge and the order of dismissal is not
liable to be set aside. In the present case
also the absence of the petitioner from 22.1.1991
till 20.8.1996 was directed to be considered as
extraordinary leave. The same was along with
order of dismissal. It can not be said that the
act of absence was condoned.
8. The order of dismissal is not
disproportionate, considering long unauthorised
absence of the petitioner from duty. The
Tribunal has not committed any error in
dismissing the Original Application.
9. In light of the above, the Writ
Petition is dismissed. However, there shall be
no order as to costs.
(K.L.WADANE,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp2001.15
