Murlidhar Ramchandra Yelamwar vs The Chief Conservator Of Forests ...
2017 Latest Caselaw 2671 Bom

208-J-WP-764-02                                                                           1/5


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

                          WRIT PETITION NO.764 OF 2002


Murlidhar Ramchandra Yelamkar 
aged about 62 years, Occ. Retired 
Govt. servant, Morgaon, Arjuni, 
Dist. Bhandara                                               ... Petitioner

-vs-

1.  The chief Conservator of Forests, 
     Maharashtra State, Pune. 

2.  The Conservator of Forests,
     Nagpur Circle, Nagpur. 

3.  The State of Maharashtra,
     Department of Forests, Mantralaya, 
     Mumbai 32, Thr. Its Secretary.     

4.  Vice Chairman, Maharashtra Administrative Tribunal,
     Nagpur, Nagpur Bench Nagpur, 
     Administrative Building, Civil Lines, 
     Nagpur.                                               ... Respondents.   


Ms T. Khan, Assistant Government Pleader for respondent Nos.1 to 3.  

                                                  CORAM  : B.P.DHARMADHIKARI &
                                                             Z. A. HAQ, JJ. 

DATE : May 30, 2017

Oral Judgment : (Per Z. A. Haq, J.)

None appeared for the petitioner on 29/05/2017 and the matter was

kept back. Again when the matter is called out today, there is no appearance

on behalf of the petitioner.

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Heard Ms. T. Khan, learned Assistant Government Pleader for

respondent Nos.1 to 3.

02. The petitioner has challenged the order passed by the Maharashtra

Administrative Tribunal by which the application of the petitioner is

dismissed and the order passed by the Disciplinary Authority imposing

punishment is maintained.

03. After conducting departmental enquiry against the petitioner, the

Disciplinary Authority passed an order on 19/05/1982 holding him guilty of

gross negligence in discharge of his duties which resulted in monetary loss to

the Government. By this order it was directed that the petitioner be brought

on minimum pay scale of Rs.290/- from basic pay of Rs.420/- per month and

the period of suspension (26 months) be treated as suspension period. It was

further directed that an amount of Rs.7210/- be recovered from the

petitioner.

4. The petitioner had challenged the order before the Appellate

Authority and by order dated 20/02/1987 the Appellate Authority modified

the order of Disciplinary Authority and directed that the appellant by brought

on pay scale of Rs.290-390-15-465 for period of two years. The Appellate

Authority maintained the order of Disciplinary Authority directing that the

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period for which the petitioner was under suspension be treated as

suspension period. Being aggrieved in the matter, the petitioner had filed

W.P. No.2786 of 1987 before this Court which was transferred to the

Tribunal and is decided by the impugned order.

04. After going through the documents placed on the record of the petition,

we find that it is the specific contention of the petitioner that there was no

negligence on his part in discharging the duties while carrying out the work

of felling of trees and the charge levelled against him that he had not

discharged his duties properly and it resulted in felling of trees beyond the

prescribed area, is not correct.

05. In the writ petition filed before this Court, the petitioner has raised

specific ground that is ground No.6(iii) as follows :

' The learned respondent No.4 failed to consider that in order to refute the charge No.3 for which the petitioner is held to be guilty, the petitioner, besides giving his detailed statement, had examined Shrawan Waghmare, Sadashiv Dhawale who clearly stated that at the time of measurements, they were present and had clearly stated that the surveyor had drawn the boundaries and had given the marks by means of "Geru" on the trees and the trees within the boundaries were cut by them. It is thus clear that the petitioner had nothing to do with the illegal cutting of the trees.'

We find that same ground was raised by the petitioner in

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W.P.No.2786 of 1987 which was transferred to the Tribunal and which is

decided by the impugned order. In paragraph 4 of W.P. No.2786 of 1987

(T.A. No.392/1992) the petitioner had specifically urged that he was not

involved in the alleged illegal felling of trees and the Tahsildar, Surveyor and

the Supervisor were involved in the alleged illegal act and the petitioner was

made a scapegoat.

06. We find that the Tribunal has not adverted to the contentions of the

petitioner and the challenges raised by him. In the impugned order the

Tribunal has recorded the submissions made by the respective parties and

then the conclusions are recorded in paragraph No.7 stating that after

considering the enquiry report, the evidence recorded by the Investigating

Officer and his conclusions and recommendations made to the Disciplinary

Authority, the orders passed by the Disciplinary Authority and the Appellate

Authority are proper and the submissions made on behalf of the petitioner

cannot be accepted.

07. We further find that another aspect which should have been

considered by the Tribunal is not adverted to. The final notice issued by the

Investigating Officer shows that the explanation of the petitioner to the

conclusions of the Investigating Officer have not been called for and the

petitioner is asked to show cause on the quantum of punishment. Neither

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the Appellate Authority nor the Tribunal has considered whether it was

necessary for the Disciplinary Authority to give a show cause notice to the

petitioner (delinquent) giving him an opportunity to represent against the

findings of the Investigating Officer and whether the explanation of the

petitioner in the matter is properly considered by the Disciplinary Authority

or not. The Tribunal and the Appellate Authority have not considered the

matter as per the proposition laid down by the Honourable Supreme Court in

the judgment given in case of Managing Director, ECIL, Hyderabad and

ors. vs. B. Karunakar and ors. reported in 1993(4) SCC 727.

08. For the above reasons, we find that the order passed by the

Tribunal is unsustainable and has to be set aside and the matter is required

to be remitted to it for consideration afresh. Hence the following order is

passed :

(i) The impugned order of Maharashtra Administrative Tribunal, Nagpur passed in T. A. No.932 of 1992 on 08/12/1999 is set aside.

(ii) The matter is remitted to the Tribunal for fresh decision according to law.

(iii) Rule is made absolute in the above terms. In the circumstances, the parties to bear their own cost.

                                                    JUDGE                               JUDGE

Asmita