Deepak Kbhaskar Shinde vs The Secretary Rural Dev And Water ...
2017 Latest Caselaw 796 Bom

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  IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
         AURANGABAD BENCH, AURANGABAD


               WRIT PETITION NO. 483 OF 2011 

Deepak s/o Bhaskar Shinde,
age 47 years, occ. Service, 
(Ex.Section Officer Panchayat
Samittee Muktainagar)
Presently working as Office
Superintendent,
Panchayat Samiti Earandol
District Jalgaon, 
R/o 42 Punai Apartment
Near Vidya Bhavan Ladies Hostel,
Deopur Dhule                          ...Petitioner
                 
         VERSUS

1]     The Secretary,
       Rural Development and
       Water Conservation
       Department, 
       Govt. of Maharashtra,
       Mantralaya, Mumbai - 32,

2]     The Divisional Commissioner,
       Nashik Division, Nashik,

3]     The Additional Divisional
       Commissioner, Nashik Division, 
       Nashik,

4]     The Chief Executive Officer,
       Zilla Parishad, Jalgaon,

5]     Dr. Ramaswami N. (I.A.S.)
       The Then Chief Executive Officer,
       Zilla Parishad, Jalgaon
       Now working as Collector, Buldhana
       District Buldhana,

6]     The Block Development Officer,
       Panchayat Samiti, Dharangaon   ...Respondents



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                         .....
Shri U.S.Malte, advocate for the petitioner 
Smt. S.S.Raut, A.G.P. for respondent nos. 1 to 3
Shri Vijay Sharma, A.G.P. for respondent nos. 4 to 6 
                         .....


                    CORAM : K.L.WADANE, J.

                DATE OF RESERVING
                THE JUDGMENT          :  16.3.2017

                DATE OF PRONOUNCEMENT
                OF THE JUDGMENT       :  17.3.2017


JUDGMENT (Per K.L.Wadane, J.)  

The petitioner has challenged the order of

his reversion dated 25.2.2009, passed by

respondent no.4, based upon the inquiry report

dated 10.11.2008 and the order passed by

respondent no.3, dated 7.9.2009.

2. The brief facts of the case may be stated

as follows :-

Respondent nos. 4 and 5 have initiated

departmental inquiry against the petitioner though

there was no complaint or adverse report against

the petitioner by respondent no.6.

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The petitioner was appointed as a Senior

Assistant by respondent no.4 on 1.2.1992. In 2002

he was promoted as Office Superintendent. In 2007

he got second promotion as a Section Officer. On

18.12.2005 the petitioner was served with the show

cause notice on the allegations of in all seven

charges for signing the seven proposals to provide

stitching machines, pico fall machines, ladies

bicycles, tin sheets, loud speaker, tin storage

box to the beneficiaries as well as to the Women

under below poverty line (hereinafter referred to

as, "the proposals") to be submitted to the Zilla

Parishad for approval.

The main charge against the petitioner was

that he has signed and recommended the proposals

in the capacity of Block Development Officer.

In the inquiry, two witnesses were

examined by the Department. No defence witness

was examined by the petitioner. After conclusion

of the inquiry, the inquiry officer has submitted

the report on 10.11.2008. According to the

petitioner, the inquiry officer submitted the

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report without verifying the relevant documents

and the finding recorded by the inquiry officer is

perverse and contrary to the evidence on record.

Therefore, the inquiry report is against the

natural justice. According to the petitioner,

the petitioner has not acted as a Block

Development Officer nor he signed and recommended

the proposals as a Block Development Officer,

since such proposals were to be sent to the Zilla

Parishad for its approval and on that day it was

the last day for submission of the proposals. The

concerned Block Development Officer was not

present at the headquarters. Sabhapati of the

Panchayat Samiti was insisting to send such

proposals immediately. The petitioner contacted

to the Block Development Officer on telephone and

the Block Development Officer instructed him to

sign such proposals on his behalf.

It is further contended that the powers

to sign such administrative proposals

were already delegated to the petitioner

by the Block Development Officer in 2004

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and even the post facto sanction was given by the

Block Development Officer to send such proposals.

Hence, sum and substance of the defence of the

petitioner is that he has acted for and on behalf

of the Block Development Officer as per the

authority and delegation of powers given by the

Block Development Officer in the year 2004 itself.

According to the petitioner, the proposals were

examined by the concerned authority.

Consequently, the proposals were approved and the

relevant articles were delivered to the

beneficiaries and nowhere it is the case of the

Department that the petitioner has misappropriated

any articles and caused loss to the Government.

In view of the above, the petitioner has

prayed to allow the petition.

3. I have heard Mr. U.S.Malte, learned

counsel for the petitioner, Mrs. S.S.Raut, learned

A.G.P. for respondent nos. 1 to 3 and Shri Vijay

Sharma, learned counsel for respondent nos. 4 to

6.

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4. During the course of arguments, Mr. Malte,

learned counsel submitted that the charge against

the petitioner was that he acted as the Block

Development Officer and in the capacity of the

Block Development Officer he sent the proposals to

the Zilla Parishad by his recommendation and under

his signature as a Block Development Officer. By

referring the relevant documents, Mr. Malte,

learned counsel submitted that all the proposals

were signed by the petitioner for and on behalf of

the Block Development Officer in view of the

authority and delegation of powers by the then

Block Development Officer to the petitioner on

3.5.2004. The said delegation of powers was much

prior to the alleged incident, and therefore, this

document is not the creation of the petitioner,

more particularly Mr. Malte, learned counsel has

submitted that this document, the authority

letter, delegating the powers to the petitioner

dated 3.5.2004 has not been specifically denied by

the department. The respondents have only stated

that such document is suspicious.

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5. On this background now it is necessary to

consider whether there is sufficient evidence

against the petitioner to hold him guilty of

misconduct of usurping powers of the Block

Development Officer.

6. There are seven charges against the

petitioner. Sum and substance of the charge is

that the petitioner has sent various proposals

without scrutiny and without any authority to sign

it, and therefore, the petitioner has committed

serious misconduct inviting major punishment.

7. Mr. Sharma, learned counsel appearing for

respondent nos. 4 to 6 has argued that there is no

provision under law enabling the petitioner to

sign proposals in the capacity of the Block

Development Officer. He submitted that signing

the proposals and sending such proposals for

approval to the higher authority without any

authority amounts to severe misconduct. The

Department has established the misconduct on the

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part of the petitioner by adducing the evidence of

the two witnesses. So, Mr. Sharma, learned

counsel submitted that the finding given by the

inquiry officer by its report dated 10.11.2008 and

the consequent order of reversion passed by

respondent no.4 against the petitioner from the

post of the Section Officer to the Office

Superintendent passed by respondent no.4, was

challenged before the respondent no.3 in appeal

and the finding of the inquiry officer and the

order of reversion was confirmed by respondent

no.3, is proper and calls for no interference.

8. I have perused the Roznama of the

departmental inquiry. On perusal of the same, it

appears that on 13.6.2006 the petitioner has

denied the charges. Then the matter was posted on

21.7.2008. On that day, evidence of witness PW 1

D.A.Chinchore and PW 2 R.L.Patil was recorded.

Besides the oral evidence of these two witnesses,

no evidence is adduced on behalf of the

department. No defence evidence is adduced on

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behalf of the petitioner.

9. Looking to the oral evidence of PW 1

Chinchore, it appears that in all seven charges

were framed against the petitioner i.e. the

petitioner has signed the proposals as Block

Development Officer and before signing the

proposals he has not verified whether said

proposals were complete in all respect.

During the cross-examination, this witness

has admitted that the proposals were approved and

subsequently as per the approved proposals the

articles were distributed to the beneficiaries. He

further admitted that the articles were

distributed as per the sanctioned proposals by the

Child Welfare Department. So, from the evidence

of this witness, it appears that the articles were

distributed to all the beneficiaries as per the

approved proposals. Subsequently, the audit was

conducted and no objection was noted by the audit

department.

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10. So far as evidence of PW 2 Patil is

concerned, it appears that this witness has

deposed about the alleged illegalities and

irregularities committed by the petitioner on the

basis of the note given to this witness for

reading, at the time of deposition. Based upon

such note he had deposed, that information of the

beneficiaries at Sr. Nos. 53 to 329 in column nos.

4 to 9 was not filled in and such applications

were not attested, however, such proposals were

signed in the capacity of the Block Development

Officer. On the face of record, it appears that

this witness has deposed on the basis of note

given to him for perusal at the time of

deposition. Nowhere it is clarified who has

prepared the said note, whether the note was

correct and why the papers or original proposals

were not brought at the time of inquiry so as to

clarify and establish the actual fact of the

irregularity or non-filling of the material

information. The oral evidence of these two

witnesses is recorded in a very casual manner.

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Further more, though the other witnesses were

present at the time of inquiry, they chose not to

depose. It is material to note that it is the

defence of the petitioner that as per the

authority letter the petitioner has signed all the

proposals for and on behalf of the Block

Development Officer, and if at all there was any

lacuna in the proposals, then the authority who is

supposed to scrutinize such proposals must have

rejected such proposals. On the contrary, it

appears from the record that all the proposals

were sanctioned and the articles were distributed

to the beneficiaries.

11. It is material to mention that the charge

against the petitioner about recommending and

signing the proposals in the capacity of Block

Development Officer has not at all been

established, because it is apparently clear from

the record that the petitioner signed the

proposals for and on behalf of the Block

Development Officer.

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12. In such circumstances, the Writ Petition

is allowed in terms of prayer clauses 'C' and 'D'.

The order passed by respondent no.4 dated

25.2.2009 and the order passed by respondent no.3

dated 7.9.2009 are quashed and set aside. Rule is

made absolute accordingly. No costs.

(K.L.WADANE) JUDGE

dbm/483.11