Ku. Mamta Sitaram Bhoskar (Now ... vs State Of Maharashtra, Through Its ...
2017 Latest Caselaw 2192 Bom

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

                                 WRIT PETITION NO.3459/2015

     PETITIONER:                Ku. Mamta Sitaram Bhoskar (Now 
                                Mrs. Mamta Chandrakumar Kerwatkar)
                                aged about 32 years and resident of Girola, 
                                Post Teerghedi, Taluka Salekasa,
                                District Gondia, (Original Applicant).

                                               ...VERSUS...

     RESPONDENTS:     1.  State of Maharashtra, through 
                           its Secretary, Department of Home, 
                           Secretariat Bombay 400 032. 

                                2.  Assistant Collector and Sub-Divisional
                                     Officer, Deori, Distt. Gondia. 

                                3.  Mrs. Veena Kachru Rahangdale,
                                     resident of Girola, Post Teerghedi, Taluka 
                                     Salekasa District Gondia.
                                   
                                     (All original respondents)

     -------------------------------------------------------------------------------------------------
                        Shri S.M. Ukey, Addl. G.P. for respondent nos.1 and 2
     --------------------------------------------------------------------------------------------------

                                                    CORAM  :  SMT. VASANTI  A  NAIK, AND
                                                                      MRS. SWAPNA JOSHI, JJ.

DATE : 04.05.2017

ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)

By this petition, the petitioner challenges the order of the

Maharashtra Administrative Tribunal, dated 19.3.2015, dismissing the

original application filed by the petitioner.

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A proclamation was issued in village Girola for appointment

on the post of Police Patil of village Girola in Taluka Salekasa on

16.4.2010. The petitioner and several others had applied for the post of

Police Patil. After complying with the requisite procedure, the petitioner

was appointed on the post of Police Patil by the order dated 7.4.2012.

Immediately thereafter, 45 residents in village Girola complained that the

petitioner was not a resident of village Girola. As per the advertisement,

one of the conditions for appointment on the post of Police Patil was that

the applicant should be a resident of village Girola for which the

appointment of the Police Patil was to be made and since the petitioner

had claimed to be a resident of village Girola, her appointment was made.

On the basis of the complaint made by the 45 residents of village Girola,

an enquiry was conducted by the Sub Divisional Officer. The Sub

Divisional Officer issued a show-cause-notice to the petitioner calling

upon her to submit her explanation. The petitioner submitted the

explanation and asserted that she was a resident of village Girola. The

Sub Divisional Officer called for the report in the matter. The statements

of some persons including the petitioner were recorded and on an

appreciation of the material on record, the Sub Divisional Officer came to

a conclusion that the petitioner was not a resident of village Girola and

therefore her appointment as a Police Patil was liable to be terminated.

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Since by the order dated 31.12.2013 the Sub Divisional Officer cancelled

the appointment of the petitioner on the post of Police Patil, the petitioner

filed an original application before the Maharashtra Administrative

Tribunal. The Maharashtra Administrative Tribunal dismissed the original

application filed by the petitioner. The petitioner has filed the instant

petition against the order of the Maharashtra Administrative Tribunal.

We have perused the writ petition and the impugned order

with the assistance of the learned Additional Government Pleader.

According to the petitioner, the order cancelling the appointment of the

petitioner could not have been based on the enquiry, as was conducted by

the Sub Divisional Officer in the case and it was necessary for the Sub

Divisional Officer to conduct a full-fledged enquiry before the

appointment was cancelled. According to the petitioner, on the basis of

the documents submitted by her, it could be held that the petitioner was a

resident of village Girola and not Gondia, as was the case of the

complainants. The petitioner has challenged the cancellation of the

appointment order on the ground that the same is not passed after

holding a full-fledged enquiry against the petitioner. It is stated in the

petition that a charge-sheet ought to have been served on the petitioner

and a departmental enquiry should have been initiated against her before

cancelling her appointment.

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On a reading of the provisions of the Maharashtra Village

Police Act, 1967 and the Maharashtra Village Police Patils (Recruitment,

Pay, Allowances and Other Conditions of Service), Order 1968, it appears

that if a departmental enquiry or a criminal proceedings are pending

against the Police Patil, the Police Patil could be suspended during the

pendency of the same. The Act of 1967 and the Rules of 1968 merely

provide that during the pendency of the departmental enquiry or criminal

prosecution, a Police Patil could be suspended and if the trial against the

Police Patil results in its discharge or acquittal, an appropriate action

could be taken. The Act and the Rules however do not provide as to in

which matters a departmental enquiry is liable to be conducted against a

Police Patil. In our view, normally, if a Police Patil misconducts himself or

does not perform the duties that are required to be performed by him/her

under the Act of 1967 or Rules of 1968, an enquiry could be conducted

against the Police Patil. The present case is not a case where an enquiry is

required to be conducted against the petitioner as the petitioner is not

charged for any act of malfeasance or misfeasance while performing her

duties as a Police Patil. An action was sought to be taken against the

petitioner for cancellation of her appointment as the petitioner had

allegedly fraudulently represented that she was a permanent resident of

village Girola, though according to the complainants, she was the resident

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of Gondia after the solemnization of her marriage. An investigation was

therefore rightly made by the Sub Divisional Officer in the complaints

made by the residents of village Girola and it was found from the

statements of the concerned authorities that they had not issued any

certificate in favour of the petitioner, on which she had relied for proving

that she was a resident of village Girola. On the basis of the available

material collected in the enquiry pertaining to the

misrepresentation/fraud on the part of the petitioner in securing the

employment by asserting that she was the resident of village Girola, the

Sub Divisional Officer rightly held that there was no truth in the case of

the petitioner that she was a resident of village Girola. The Sub Divisional

Officer had recorded his satisfaction after considering the material on

record and the Tribunal, after applying its mind to the material produced

on record, held that the order of the Sub Divisional Officer was not liable

to be interfered with, as the decision of the Sub Divisional Officer was

based on the material on record. We find that in this case, while

considering the allegations against the petitioner in respect of her false

claim of being the resident of village Girola, the Sub Divisional Officer had

granted sufficient opportunity to the petitioner, inasmuch as a

show-cause-notice was issued to the petitioner, her statement was

recorded, she was asked to give her say and a hearing was also granted to

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her. The material was collected by the Sub Divisional Officer from both

the sides and after due appreciation of the same, it was found by the Sub

Divisional Officer that the petitioner was not a permanent resident of

village Girola. In the instant case, since the authorities were considering

whether the petitioner had rightly claimed that she had fulfilled the

conditions for appointment on the post of Police Patil, it cannot be said

that a full-fledged departmental enquiry was required to be conducted in

the matter. It is rightly submitted on behalf of the respondent nos.1 and 2

that in this case the petitioner's services were not terminated but the

appointment order issued in her favour was cancelled as she had secured

the appointment on a wrongful claim that she was a permanent resident

of village Girola and hence, a full-fledged enquiry was not necessary. The

reliance placed by the petitioner on the Act of 1967 and the Rules of 1968

is not well founded. The order of the Tribunal could be supported by the

judgment of the Hon'ble Supreme Court in the case of District Primary

School Council...Versus...Mritunjoy Das and Ors., reported in 2011 (5)

ALL MR 491 (S.C.) in which the Hon'ble Supreme Court has held that an

advantage secured by an employee by playing fraud while seeking the

appointment could be withdrawn and the employee could be dismissed

from service after issuing a show-cause-notice and giving an opportunity

of hearing to the employee. In the instant case also the respondents -

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authorities were considering whether the claim of the petitioner that she

was a resident of village Girola while seeking her appointment was correct

or not and hence, a full-fledged departmental enquiry, that is, required to

be conducted while imposing a major penalty on the employee, was not

necessary.

Since the order of the Tribunal is just and proper, we

dismiss the writ petition with no order as to costs. Rule stands discharged.

                     JUDGE                                                               JUDGE



     Wadkar