Ashok Laxman Dukare vs The Divisional Commissioner ...
2017 Latest Caselaw 728 Bom

                                                                      wp5497-16.odt
              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                         BENCH AT AURANGABAD

                          WRIT PETITION NO.5497 OF 2016

       Ashok  s/o Laxmanrao Dukare                ... Petitioner 
       Age 50 years, Occu: Service,
       R/o Panchayat Samiti Quarters,
       Vaijapur, Tq. Vaijapur 
       Dist.Aurangabad.

       VERSUS

1. The Divisional Commissioner, 
   Aurangabad Division, 
   Aurangabad.

2. The Chief Executive Officer,                   ...  Respondents
   Zilla Parishad, Aurangabad


Mr. A S. Shelke, Advocate for the petitioner,
Smt. S.S.Raut, AGP for Respondent No.1 State,
Mr. Dilip Bankpar Patil, Advocate for respondent No.2.

                             CORAM          :   K. L. WADANE, J.
                             RESERVED ON    :  14th March,  2017

                             PRONOUNCED ON  : 15th March, 2017


JUDGMENT:                              

1. Heard the learned counsel for the parties.

2. Rule. Rule made returnable forthwith. With

consent of parties, the petition is taken up for final

disposal.

3. On 15.02.2010, respondent No.2 initiated

departmental enquiry against the petitioner on three

charges i.e. absenteeism, insubordination and giving

wp5497-16.odt threat of committing suicide. The petitioner submitted

his written say. Enquiry officer found that the charges

of absenteeism and insubordination are partly proved,

whereas the charge of giving threat of suicide is said

to be proved. Consequently, respondent No.2 issued

show cause notice, to which the petitioner replied.

Respondent No.2 passed an order of compulsory

retirement on 29.11.2011. The petitioner preferred an

appeal before the Respondent No.1 against the said

order. Respondent No.1 disposed of the appeal directing

respondent No.2 to reconsider the case for alternative

punishment. Thereafter, on 06.04.2013, after hearing,

the parties, respondent No.2 passed an order of

reduction in pay scale to lowest time scale of the pay.

Being aggrieved by the same, the petitioner filed Writ

Petition No. 3833 of 2013. This Court, after hearing

both the parties, granted liberty to the petitioner to

challenge the order dated 06.04.2013 by way of appeal

before the Competent authority. Respondent No.1, after

hearing the petitioner and perusing the papers,

dismissed the said appeal on 02.09.2015. Hence, this

writ petition.

4. Respondent No2 filed affidavit in reply and ha

stated about the procedure being followed by the

wp5497-16.odt respondents while deciding the departmental enquiry

proceedings as well as appeals filed by the petitioner.

In addition to that, respondent No.2 has specifically

contended that even after completing the first

departmental enquriy, conduct of the petitioner was not

improved and therefore, another show cause notice was

required to be issued to the petitioner. By way of

rejoinder, the petitioner has contended that show cause

notice was issued to the petitioner after thought.

5. I have heard Mr. A. S. Shelke, learned counsel

for the petitioner, Smt. S.S.Raut, learned AGP for

Respondent No.1 State and Mr. Dilip Bankpar Patil,

learned counsel for respondent No.2.

6. During the course of argument, Mr. Shelke, the

learned counsel for the petitioner has stated that

while deciding the appeal filed by the petitioner,

respondent No.1 has not followed the provisions of

Section 21 (2) of the Maharashtra zilla Parishad,

District Services (Discipline and Appeal) Rules, 1964,

particularly sub section (2) (a) and (c), thereof.

The learned counsel has argued that respondent No.1 has

not applied its mind while deciding the appeal. Only

the facts stated in the enquiry report are reproduced

wp5497-16.odt and that respondent No.1 has dismissed the appeal

without assigning any reason or re-appreciation of

evidence.

7. As against this, Mr. Dilip Bankar Patil, the

learned counsel for respondent No.2 has argued that

respondent No.1, while dealing with the appeal, has

gone through the entire proceeding and considered the

material available on record, evidence recorded in the

enquriy report and has rightly dismissed the appeal

and hence respondent No.1 has strictly complied with

the provisions of Section 21 (2) of the Maharashtra

zilla Parishad, District Services (Discipline and

Appeal) Rules, 1964.

8. On perusal of the enquriy report, it appears

that charge of absenteeism and non submission of

explanation appears to have been partly proved, so also

the second charge of insubordination is partly proved.

The third charge about giving threat of committing

suicide is said to be proved. On perusal of the

impugned order, it appears that respondent no.1 has

heard the petitioner as well as respondent authority

and gone through the written submissions, record and

proceedings and has arrived at the conclusion that the

wp5497-16.odt petitioner was remaining absent without explanation, he

was not following orders of the superiors and he was

giving threats to the higher authorities of committing

suicide and for these misconducts, departmental

enquiry was initiated. Therefore, respondent No.1 has

observed that respondent No.2 has followed the proper

procedure and has awarded punishment of reduction in

time pay scale.

9. It is material to note that in the earlier

round of litigation, after conclusion of the

departmental enquiry, respondent no.2 has passed an

order of compulsory retirement of the petitioner.

Respondent No.1, in appeal, on the ground of

disability of the petitioner and on sympathy has

remanded the matter for reconsideration, to the extent

of punishment. Accordingly, after remand, respondent

no.2 has issued show cause notice to the petitioner.

The petitioner replied the said show cause notice.

After hearing the petitioner, respondent No.2 has

imposed punishment of reduction of time pay scale.

Again, this order was challenged before respondent No.1

and and while deciding the appeal, respondent No.1 has

scrutinized oral as well as documentary evidence on

record and has dismissed the appeal. The reasons may be

wp5497-16.odt in short but respondent No.1 has recorded the reasons

in its judgment and arrived at conclusion that it was

not necessary to interfere with the order passed by the

respondent No.2. In such circumstance, respondent No.1

has rightly passed the impugned order.

10. In this behalf, it is useful to refer to the

observations of the Apex Court in the case of Damoh

Panna Sagar Rural Regional Bank Vs. Munna Lal Jain,

reported in 2005 (104) FLR 291, wherein, it is observed

that:

"14. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision- making process and not the decision.

15. To put differently unless the punishment imposed by the Disciplinary Authority or the

wp5497-16.odt Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.

11. I do not feel that punishment inflicted upon

the petitioner is shockingly disproportionate.

Therefore, the observations of the Apex Court is

applicable to the facts of the present case.

12. In view of the above discussion, there is no

substance in the writ petition and therefore it is

dismissed. Rule is discharged. No costs.

(K. L. WADANE, J.)

JPC