Damodhar Pandurang Nandanwar vs Collector Bhandara Dist. ...
2017 Latest Caselaw 979 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       NAGPUR BENCH AT NAGPUR

                           WRIT PETITION NO.1145/2013

      Damodar Pandurang Nandanwar,
      aged about 58 years, Income and 
      Market Manager cum Head Clerk,
      Municipal Council, Tumsar, 
      Dist. Bhandara                                              .....PETITIONER
                         ...V E R S U S...

 1. Collector, Bhandara, District. Bhandara
    & Chairman, District Corruption 
    Eradication Committee, Dist. Bhandara.

 2. Chief Officer, Municipal Council,
      Tumsar, Dist. Bhndara.                                      ...RESPONDENTS
 ---------------------------------------------------------------------------------------------------
 Shri A. Z. Jibhkate, Advocate for petitioner.
 Shri D. P. Thakare, Addl. G. P. for respondent no.1.
 Shri S. P. Palshikar, Advocate for respondent no.2.
 --------------------------------------------------------------------------------------------------
                                   CORAM:-      SMT. VASANTI A. NAIK AND
                                                  V. M. DESHPANDE, JJ.

DATED :- MARCH 23, 2017

ORAL JUDGMENT (Per : Smt. Vasanti A Naik, J.)

By this writ petition, the petitioner challenges the

notice of the Chief Officer Municipal Council, Tumsar dated

08.08.2013 asking the petitioner to show cause as to why the

petitioner should not be punished in pursuance of the Maharashtra

Municipal Council, Nagar Panchayats and Industrial Townships

Act, 1965.

Few facts giving rise to the petition are stated thus:-

The petitioner was working as a Junior Clerk with the

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Municipal Council from 1995 till 2003, when a complaint was

lodged against the petitioner for granting illegal benefits to some

of the employees of the Municipal Council. On the complaint

made by the complainant in the year 2006, the petitioner was

suspended on 02.08.2006. A resolution was passed by the

Municipal Council on 26.10.2006 that since no fault could be

found with the action of the petitioner, the suspension was

required to be revoked. The suspension was consequently revoked

on 21.11.2006. A show cause notice was served on the petitioner

in February-2007 asking the petitioner to submit his explanation

in respect of the allegation of granting illegal benefits to the

employees. The petitioner submitted his explanation on

08.03.2007. Nothing happened in the matter for more than 2 ½

years till the incharge Chief Executive Officer issued a

communication to the respondent-Collector dated 25.08.2009

asking for the cancellation of the order of revocation of suspension

dated 21.11.2006. After a regular Chief Executive Officer took the

charge, the proposal of the incharge Chief Executive Officer that

was addressed to the Collector dated 25.08.2009 was cancelled.

The complainant that had filed the complaint against the

petitioner, then filed a complaint before the Lok Ayukta against

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the petitioner but the same was dismissed. In the meanwhile, the

Collector asked the respondent no.2-Chief Officer of the Municipal

Council to make an inquiry in the complaint against the petitioner

and submit a report. In the meanwhile, the Education Officer also

made the inquiry and filed report dated 02.11.2012 holding that

the petitioner was guilty of granting undue benefits to the

employees. After the Education Officer submitted the report, the

Municipal Council appointed an inquiry officer for making an

inquiry in the complaint against the petitioner and the inquiry

officer, by the report dated 17.04.2013 exonerated the petitioner

of the allegations levelled against him. The petitioner attained the

age of superannuation on 31.05.2013. Instead of granting the

retiral benefits to the petitioner, by the impugned communication

dated 08.08.2013, the Chief officer of the Municipal Council asked

the petitioner as to why action should not be taken against him

under the provisions of the Act of 1965 in pursuance of the report

of the Education Officer dated 02.11.2012. The petitioner has

challenged the said notice in the instant petition.

Shri Jibhkate, the learned counsel for the petitioner,

submitted that the respondents are unnecessarily victimizing the

petitioner for no fault on the part of the petitioner. It is stated that

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certain false allegations were levelled against the petitioner in

respect of his working during the period from 1995 to 2003 by the

complainant in the year 2006 and though the Lok Ayukta as also

the inquiry officer appointed by the Municipal Council found that

the petitioner was not guilty of the charges and allegations that

were levelled against him, on the basis of the report of the

Education Officer, the Municipal Council has illegally sought the

explanation of the petitioner, after the petitioner has retired from

service. It is stated that once the petitioner was exonerated by the

inquiry officer appointed by the Municipal Council, there was no

propriety in the action on the part of the respondent-Municipal

Council of seeking further action against the petitioner on the

basis of the report of the Education Officer that was prepared at an

earlier point of time. It is stated that the Education Officer has

submitted the report dated 03.11.2012 whereas the inquiry officer

appointed by the Municipal Council has submitted a report

exonerating the petitioner dated 17.04.2013. It is stated that the

action on the part of the Municipal Council is tainted and time and

again with the change of the Chief Officers, action is sought to be

initiated against the petitioner through the report of the inquiry

officer and the order in the proceedings before the Lok Ayukta

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clearly show that the petitioner was not at fault.

Shri Palshikar, the learned counsel for the Municipal

Council has supported the action of the Municipal Council. It is

submitted that since the Education Officer has held that the

petitioner was guilty, by acting upon the report of the Education

Officer dated 02.11.2012, the show cause notice was issued

against the petitioner. It is however fairly admitted that after the

Education Officer held that the petitioner was guilty, the inquiry

officer appointed by the Municipal Council has exonerated the

petitioner vide report dated 17.04.2013.

On hearing the learned counsel for the parties, we find

that the Municipal Council was not justified in serving the show

cause notice dated 08.08.2013 on the petitioner. It is clear from

the admitted facts that are recorded hereinabove that though the

Education Officer, who has no concern with the conduct of the

inquiry against an employee of the Municipal Council, had found

that the petitioner was guilty of granting undue benefits to some

of the employees, the inquiry officer appointed by the respondent

Municipal Council had exonerated the petitioner of the charges, by

the report dated 17.04.2013, which is prepared subsequent in

point of time than the report of the Education Officer. The

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inquiry was liable to be conducted against the petitioner by the

inquiry officer appointed by the Municipal Council and the inquiry

officer has exonerated the petitioner. The respondent Municipal

Council could not have relied on the report of the Education

Officer, that was prepared at a prior point of time to serve a show

cause notice dated 08.08.2013 on the petitioner. We find from the

admitted facts on record that the petitioner is unnecessarily being

victimized as submitted on his behalf. Since the petitioner is

exonerated by the inquiry officer and since the disciplinary

authority had not disagreed with the finding of the inquiry officer,

the petitioner could not have been proceeded against. The

impugned notice is clearly bad in law and is liable to be set aside.

For the reasons aforesaid, the writ petition is allowed.

The impugned notice is quashed and set aside. The Municipal

Council is directed to take immediate steps for releasing the retiral

benefits that are not yet released in favour of the petitioner, as

early as possible and positively within four months.

Rule is made absolute in the aforesaid terms with no

order as to costs.

(V. M. Deshpande, J.) (Smt. Vasanti A. Naik, J.)

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