Bombay High Court
The State Of Maharashtra And ... vs Syed Azam Syed Lal on 20 March, 2017
Bench: T.V. Nalawade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.10226 OF 2016
1. The State of Maharashtra,
through its Secretary,
Finance Department,
Mantralaya, Mumbai-32
2. The Director of Accounts and
Treasuries, M.S. Mumbai
3. The District Treasuries Officer,
Parbhani PETITIONERS
VERSUS
Syed Azam s/o Syed Lal,
Age : 57 years, occu. Service,
R/o Silk Mill Colony,
C/o Dr. Zakir Khan, Aurangabad,
at present c/o Ms. A.N. Ansari,
Advocate, High Court, H.No. 1-19-25,
Opp. Anti Corruption Office,
Junabazar, Aurangabad RESPONDENT
----
Mr. S.B. Joshi, A.G.P. for the petitioners/State
Smt. A.N. Ansari, Advocate for the respondent
----
CORAM : T.V. NALAWADE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 28th FEBRUARY, 2017
JUDGMENT PRONOUNCED ON : 20th MARCH, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Rule, returnable forthwith. Heard finally with
the consent of the learned A.G.P. and the learned
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counsel for the respondent.
2. The petitioners have challenged the judgment
and order dated 14th March, 2016, passed in Original
Application No. 229 of 2009 by the Maharashtra
Administrative Tribunal, Mumbai, Bench at Aurangabad
(hereinafter referred to as "Tribunal", for short),
whereby the order of dismissal dated 25th June, 2007
passed against the respondent by petitioner No. 1 -
Secretary, Finance Department, Mantralaya, Mumbai and
confirmed in administrative appeal vide order passed on
22nd June, 2010 by the Government of Maharashtra, came to
be quashed and set aside and the respondent came to be
exonerated from the charges bearing Nos. 3 to 7 and 9 in
the departmental enquiry held against the respondent.
3. The respondent was serving as a Junior Clerk in
the office of petitioner No. 3 - the District Treasury
Officer, Parbhani. He was looking after the lottery
section. The said section was inspected through the
office of the Director of Accounts and Treasuries,
Mumbai in the year 1993. The inspecting party found
many discrepancies, irregularities and illegalities in
the functioning of the lottery section. It was further
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noticed that there was misappropriation of the amount of
more than Rs. 14,00,000/-. Resultantly, eight employees,
including the respondent, connected with that section
were suspended in the month of July, 1995. After
issuing show-cause notice and considering the reply of
the respondent, a departmental enquiry was initiated
against him. He was served with the chargesheet on 9 th
July, 1996. The respondent filed written statement on
22nd July, 1996 and denied the charges levelled against
him. Since the contents of the written statement were
not found satisfactory, departmental enquiry was
conducted against him. One Shivaji Vithalrao Dhande, a
watchman and Syed Najeeb Razvi, Deputy Accounts Officer
came to be examined as witnesses on behalf of the
petitioners. Certain documents, circulars, letters and
challans were produced before the Enquiry Officer. The
Enquiry Officer found the respondent guilty of charge
Nos. 1 to 5 and 7 to 10 and partly guilty of charge No.
6. Accordingly, the Enquiry Officer submitted the
enquiry report to petitioner No. 1 - Secretary. After
considering the representation of the respondent against
the enquiry report, holding him guilty of the charges
levelled against him, petitioner No. 1 passed an order
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on 25th June, 2007, which was communicated to the
respondent on 25th July, 2007, and dismissed him from
service. The respondent preferred a departmental appeal
against that order. The said appeal came to be dismissed
on 22nd June, 2010. Being aggrieved by those orders, the
respondent filed Original Application No. 229 of 2009.
4. The Tribunal heard both sides and after
considering the evidence recorded by the Enquiry
Officer, came to hold that charge Nos. 1, 2, 8 and 10
only were proved against the respondent. The findings of
holding the respondent guilty of the charge Nos. 3, 4,
5, 6, 7 and 9 were set aside by the Tribunal with the
observations that they were perverse and not supported
by any evidence. This order dated 14th March, 2016 has
been challenged in the present writ petition.
5. Heard the learned A.G.P., representing the
petitioners and the learned counsel for the respondent.
Perused the copies of the record of the departmental
enquiry with reference to charge Nos. 3, 4, 5, 6, 7 and
9, of which the Tribunal has exonerated the respondent.
6. As seen from charge No. 3, the respondent was
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alleged to have facilitated misappropriation of the
amounts collected through sale of tickets by not getting
verified the plus-minus memos prepared in the prescribed
manner and further, mentioned bogus figures in plus-
minus memos. The respondent, in his representation made
to petitioner No. 1 - the Secretary, specifically stated
that one Shri Pathak and Shri Munde were not allowing
him to do any work of lottery section. The Enquiry
Officer referred to the documents P-11 to P-16 in the
reasoning part of the report. P-11 is the Circular
dated 3rd March, 1969, P-12 is the Circular dated 5 th
April, 1984, P-13 is the Circular dated 6th October,
1993, P-14 is the letter dated 30 th September, 1995
addressed by Shri D.V. Pathak, the Deputy Treasury
Officer, Kalamnuri to the Treasury Officer, Parbhani
informing that plus-minus memos were never prepared by
the official concerned working in the lottery section,
during his tenure as Supervisor of Collection Branch.
P-15 is the letter issued by Shri Anand Mundhe, Deputy
Accounts Officer, Parbhani giving his explanation on
certain points to the Treasury Officer, Parbhani and
informing that the official concerned working in lottery
section never prepared plus-minus memos. P-16 is the
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chart containing information about sending and non-
sending of plus-minus memos during the period from June,
1991 to September, 1995. In the letters P-14 and P-15,
it is not mentioned specifically that it was the
respondent who did not prepare plus-minus memos. Both
of the officers, who issued these letters, have not been
examined. The Enquiry Officer did not discuss in detail
as to how the respondent alone was responsible for not
preparing plus-minus memos. The explanation dated 26 th
June, 1995 given by the respondent does not show that he
admitted his guilt for not preparing plus-minus memos.
However, the Enquiry Officer treated explanation of the
respondent as his admission and held him guilty of the
said charge.
7. As per charge No. 4, it was alleged that the
respondent sent bimonthly and quarterly statements to
the Accountant General without getting verified the
amount of sale of lottery tickets with the amount of
collection branch and thereby deceived the superior
officers and misappropriated the amount. No oral
evidence was produced in support of this charge. It was
immensely necessary to examine the concerned officer
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from the collection branch to prove discrepancy in the
bimonthly and quarterly statements sent to the
Accountant General with reference to the record of his
office. There is no mention as to how by sending such
statements, there has been misappropriation of any
particular amount.
8. As per charge No. 5, the respondent is alleged
to have misappropriated the amount of Rs. 52,870/- by
making bogus challans and further misappropriated the
amount of Rs. 85,090/- by making false signatures of the
bank officers and his superior officers and by using
false rubber seals. This is quite a serious charge.
However, no oral evidence was produced in support of
this charge. At least, the officers, who disputed the
signatures on the challans or the record maintained in
the lottery section, as their own, should have been
examined. However, none of such officers has been
examined. There is no evidence to show that the above
stated amounts were actually entrusted with the
respondent. A reference has been made to the alleged
admission given by the respondent, probably in his
explanation dated 26th June, 1995. In that explanation,
8 wp10226-2016
he has stated that after receiving the phone message
about the death of his brother, he left his office on
19th June, 1995 without giving an application for leave
and came back on 23rd June, 1995. Therefore, he could
not make available the record to the inspecting party.
He accepted that the entries in respect of the period
from July, 1994 to march, 1995 had remained to be taken
in the lottery record. However, he clarified that he
has prepared the accounts on the basis of challans,
weekly reports, etc., which record has been
countersigned by the Treasury Officer. He assured that
he would not keep such work pending in future. Nothing
is there in this explanation which would indicate that
he admitted to have misappropriated the above mentioned
amounts. Thus, there was no evidence to establish
misappropriation of the above mentioned amounts on the
part of the respondent.
9. As per charge No. 6, it is alleged that the
respondent did not deposit the sale proceeds of lottery
tickets in the bank, did not make entries about such
sale of tickets in the registers, kept the entries in
the register blank, did not destroy the balance tickets
9 wp10226-2016
and thereby misappropriated Rs. 10,52,775/-. To prove
this charge, there is no oral evidence. The Enquiry
Officer has referred to a document - P-11 which is a
circular dated 3rd March, 1969 issued by the Finance
Department, P-27 is a Circular dated 31st October, 1988,
P-28 is the summary of the lottery tickets found to have
been missing during the tenure of the respondent having
total value of Rs. 10,57,775/-. However, the officer
who prepared this summary has not been examined. The
respondent did not get an opportunity to cross-examine
the officer who prepared that record. P-31 is another
circular dated 31st January, 1990, issued by the Finance
Department. On the basis of such evidence, even the
Enquiry Officer did not hold that charge No. 6 has been
proved against the respondent. Nevertheless, he
mentioned that it has been partly proved. This finding
of the Enquiry Officer is ex-facie perverse.
10. As per charge No. 7, it is alleged that the
respondent did not verify whether the challan in respect
of the price of the tickets sold to the agents were
genuine or not, did not destroy the balance tickets
after the results of the lottery were declared and
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because of not maintaining the registers properly, the
amount of Rs. 1,26,209/- was paid towards prize on the
basis of the tickets which were not actually sold out
from the treasury and for that, the respondent was
responsible. No witness has been examined to prove this
charge though a number of witnesses could have been
produced by the petitioners. The Government Resolution
dated 18th April, 1985 (P-32) has been produced with copy
of the inspection note of lottery section (P-33).
Nobody has been examined to prove the objections in the
inspection note. The respondent has not got the
opportunity to cross-examine any witness on this point.
In the circumstances, on the basis of such mute
evidence, charge No. 7 could not have been proved
against the respondent.
11. As per charge No. 9, the respondent is alleged
to have made forged and bogus signatures of the officers
in the registers, made manipulations in the entries of
the said registers and thereby cheated the Government.
No witness has been examined to prove this charge. The
officers concerned could have certainly been examined to
prove that the signatures appearing in the record of
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lottery section were not made by them. The ex-Additional
Treasury Officers Shri Murumkar and Shri Tare are stated
to have given letters P-37 and P-38 respectively,
informing that certain signatures on the entries in the
registers were not made by them. However, both these
officers were not examined to prove the said fact. No
explanation has been given by the Enquiry Officer for
non-examination of these witnesses. Merely on the basis
of these letters, charge No. 9 is stated to have been
proved against the respondent.
12. The Enquiry Officer seems to have conducted the
enquiry in a most casual manner. The enquiry report so
far as the above referred charge Nos. 3, 4, 5, 6, 7 and
9 are concerned, is ex-facie cryptic. The principles of
natural justice have not at all been followed. The
respondent has not been extended an opportunity to rebut
the value, if it is to be attached, to the above stated
documents which have been relied on by the Enquiry
Officer. Without examining the authors thereof, the
Enquiry Officer has relied on them. In the
circumstances, the findings recorded by the Enquiry
Officer holding the respondent guilty of the said
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charges will have to be held as perverse. The Tribunal
has rightly considered all these aspects. Since the
findings were perverse, the Tribunal was right in
setting aside the said findings. In the circumstances,
the judgment in the case of Union of India and others V.
P. Gunasekaran 2015 (2) SCC 610, cited by the learned
A.G.P., wherein it is held that no interference is
called for with the conclusions drawn in the
departmental enquiry unless the finding of fact is based
on no evidence or perverse or the principles of natural
justice in conducting the proceedings have not been
followed, would not be of any help to the petitioners.
As stated above, the Enquiry Officer, in the present
case, has not followed the principles of natural
justice, has acted upon the evidence which legally was
not liable to be considered and the findings recorded by
him in respect of charge Nos. 3, 4, 5, 6, 7 and 9 are
perverse.
have been proved against the respondent, considering the
nature of the said charges, the punishment inflicted on
the respondent of dismissal from service, apparently,
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appears to be disproportionate.
14. The Tribunal has rightly considered the facts
of the case and has rightly set aside the findings
recorded by the Enquiry Officer in respect of charge
Nos. 4 to 7 and 9 and has rightly set aside the
punishment of dismissal from service recorded against
the respondent. The Tribunal has rightly directed the
petitioners to take necessary action against the
respondent in view of proof of charge Nos. 1, 2, 8
and 10. We do not find any reason to interfere with the
judgment and order passed by the Tribunal. Hence, the
following order:-
15. The Writ Petition is dismissed. Rule is
discharged accordingly. No costs.
Sd/- Sd/-
[SANGITRAO S. PATIL] [T.V. NALAWADE]
JUDGE JUDGE
npj/wp10226-2016
