Delansingh Surajlal Turkar vs State Of Maharashtra & 3 Others
2017 Latest Caselaw 486 Bom

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  

                           NAGPUR BENCH, NAGPUR.


 WRIT PETITION NO. 2917 OF 1998


 Delansingh s/o Surajlal Turkar,
 Aged 61 years, 
 Occupation - Retired Head Master,
 R/o at Post Kathi, Tahsil - Gondia,
 District - Bhandara.                                           ....       PETITIONER


                     VERSUS


 1) State of Maharashtra,
     through Secretary, Department of 
     Rural Development, Mantralaya, 
     Bombay.    

 2) Zilla Parishad, Bhandara,
     through Chief Executive Officer, 
     Bhandara.

 3) The Chief Executive Officer,
     Zilla Parishad, Bhandara.

 4) Commissioner,
     Nagpur Division, Nagpur.                                   ....       RESPONDENTS

 ______________________________________________________________

              Shri A.M. Dixit, Advocate for the petitioner, 
       Shri A.A. Madiwale, A.G.P. for the respondent Nos.1 and 4,
      Smt. M.P. Munshi, Advocate for the respondent Nos.2 and 3.
  ______________________________________________________________

                               CORAM : Z.A. HAQ, J.

DATED : 6 MARCH, 2017.

                                             th





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 ORAL JUDGMENT : 

Heard Shri A.M. Dixit, Advocate for the petitioner, Shri

A.A. Madiwale, Assistant Government Pleader for the respondent Nos.1

and 4 and Smt. M.P. Munshi, Advocate for the respondent Nos.2 and

3.

2. The petitioner/employee has challenged the orders passed

by the subordinate authorities holding him guilty as per charge Nos.3,

4 and 5 framed against him and directing that one increment be

withheld permanently and an amount of Rs.16,393.84 be recovered

from him and the period under which he was under suspension be

treated as suspension period. By the order passed on 07-12-1998, this

Court has issued Rule admitting the petition only on the point of

recovery of Rs.16,393.84 from the petitioner. This Court had rejected

the challenge of the petitioner to the imposition of penalty directing

stoppage of one increment permanently and to the order that the

period for which the petitioner was suspended be treated as suspension

period.

3. In the charge-sheet given to the petitioner, it is not

mentioned that the petitioner has misappropriated an amount of

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Rs.16,393.84. The learned Advocate for the respondent Nos.2 and 3

has submitted that the charge of misappropriation was levelled against

the petitioner on the basis of paragraph No.36 of the audit report

which is to the effect that the petitioner, while working as Head Master

of the school has committed irregularities in the matter of purchase of

articles worth Rs.13,897.84. It is submitted that the petitioner has not

rebutted the objection pointed out in the audit report.

4. The submission made on behalf of the respondent Nos.2

and 3 cannot be accepted. As stated earlier, the charge-sheet does not

contain a charge against the petitioner that he has misappropriated the

amount of Rs.16,393.84. The respondent Nos.2 and 3 have not been

able to point out any objection in the audit report to the effect that the

petitioner has misappropriated the amount of Rs.16,393.84. The

objection in the audit report is that the petitioner committed

irregularities in purchases of articles worth Rs.16,393.84.

It is well settled that the charge against the delinquent

should be specific and unless it is so, the delinquent cannot be

penalised on its basis.

5. The challenge of the petitioner to this part of the orders

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passed by the subordinate authorities directing recovery of amount of

Rs.16,393.84 from the petitioner is required to be accepted.

6. Hence, the following order :

          (i)      The impugned order is modified.

          (ii)     The directions given in the impugned order that amount of

Rs.16,393.84 be recovered from the petitioner are set

aside.

(iii) The Advocate for the petitioner has submitted that amount

of Rs.16,393.84 is deducted from the retirement benefits.

The amount of Rs.16,393.84 shall be paid to the petitioner

within two months alongwith interest at the rate of 6% per

annum, the interest being chargeable from the date on

which the amount is deducted till the amount is paid to

the petitioner.

Though the learned Advocate for the respondent Nos.2

and 3 has submitted that the interest cannot be granted as

the petitioner has not prayed for it, considering the facts of

the case, I am inclined to grant the interest to the

petitioner as above.

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                    (iv)     If   the   amount  of   Rs.16,393.84  alongwith   interest  at   the

rate of 6% p.a. is not paid to the petitioner within two

months, the respondent Nos.2 and 3 will be liable to pay

interest at the rate of 12% p.a. on the amount of

Rs.16,393.84, the interest being chargeable from the date

on which the amount is deducted till the amount is paid to

the petitioner.

(v) The remaining order passed by the subordinate authorities

directing withholding of one increment permanently and

that the period for which the petitioner was suspended

should be treated as suspension period is maintained.

The petition is disposed in the above terms. In the

circumstances, the parties to bear their own costs.

JUDGE adgokar