Shirish Deodas Ramteke vs The Chief Minister And Minister ...
2017 Latest Caselaw 8972 Bom

                                     (1)                            wp5961.16

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                       WRIT PETITION NO. 5961 OF 2016

Shirish s/o. Deodas Ramteke                           ..       Petitioner
Age. 56 years, Occ. Service,
R/o. C-17, Akruti Enclave, 
Khadkeshwar, Aurangabad,
Dist. Aurangabad.

                                    Versus


1.    The Chief Minister &                            ..       Respondents
      Minister for Urban Development 
      Department,
      State of Maharashtra,
      Mantralaya, Mumbai - 32.

2.    The State of Maharashtra
      through the Secretary (II)
      Department of Urban Development,
      Mantralaya, Fort, Mumbai - 32.

3.    The Aurangabad Municipal Corporation,
      Aurangabad, though its Commissioner,
      Aurangabad.


Mr.B.L. Sagar-Killarikar, Advocate for the petitioner.
Mr.P.S. Patil, AGP for respondent/State.
Mr.S.B. Deshpande, Advocate for respondent No.3.


                                     CORAM :  S.V.GANGAPURWALA &
                                              S.M.GAVHANE,JJ.

DATED : 23.11.2017

(2) wp5961.16

ORAL JUDGMENT [PER : S.V. GANGAPURWALA,J.] :-

1. Rule. Rule made returnable forthwith. With the

consent of the parties, the petition is taken up for

final hearing.

2. The petitioner assails the order dated

28.04.2016 passed by respondent No.1, thereby setting

aside order of the Standing Committee in favour of the

petitioner.

3. The departmental inquiry was initiated against

the petitioner and one Mr. Dattatray Anand Giri. The

disciplinary authority upon receipt of inquiry report,

held both of them guilty and imposed major punishment of

stoppage of increments, withholding of further promotions

and recovery. The petitioner preferred appeal before the

Standing Committee. The Standing Committee allowed the

appeal of the petitioner so also of Mr. Giri. Said Mr.

Giri had retired. He filed petition before this Court

(3) wp5961.16

bearing Writ Petition No. 4146 of 2014 seeking directions

against the respondents to pay full pension and other

retiral benefits in the light of decision of the Standing

Committee. This Court allowed the said writ petition,

directing the respondent to sanction his proposal and pay

his full pension and other retiral benefits.

4. In case of present petitioner, the Corporation

on 24.04.2015 moved under section 451 of the Maharashtra

Municipal Corporations Act to the Government. Under the

impugned order, the Government allowed the said

application and set aside the order of the Standing

Committee.

5. Mr. Killarikar, learned advocate for the

petitioner submits that a common inquiry was initiated

against the petitioner and Mr. Giri. Punishment imposed

was also same by the disciplinary authority. Both of

them preferred appeals before the Standing Committee.

The Standing Committee allowed the appeals. After the

(4) wp5961.16

appeal was allowed by the Standing Committee, the then

Commissioner accepted the order of the Standing Committee

and directed to proceed further as per order of the

Standing Committee. A noting to that effect has also been

made by the then Commissioner. After the new Commissioner

came and four years after the Standing Committee's order

was passed, he moved under 451 of the Maharashtra

Municipal Corporation Act. Said proceeding was not

maintainable after such a long period. Even if no period

of limitation is provided, three years is the reasonable

period. Learned counsel submitted that the petitioner

could not have been treated differently than other

delinquents. Even as per section 128 of the Maharashtra

Provincial Municipal Corporation Act, the amount is to be

recovered from the Contractor, but the Corporation did

not take such steps. The charges were proved to be false

as against petitioner by the Standing Committee. In-

spite of these aspects, respondent No.1 passed the

impugned order. In-fact, the impugned order tantamounts

to contempt of order of Division Bench of this Court in

(5) wp5961.16

Writ Petition No. 4146 of 2014 dated 08.05.2015. In the

said judgment, this Court has observed that if action is

to be taken against resolution, same ought to have been

at-least within three years. The Corporation cannot

treat the employees differently. According to the learned

advocate, the order of the Government is bereft of any

reason. On that count also it is required to be set

aside.

6. Mr. Deshpande, learned advocate for respondent

No.3 submits that departmental inquiry proceeding was

initiated against the petitioner as per the charge-sheet.

The inquiry officer upon conclusion of the inquiry, found

the charges levelled against the petitioner to be

partially proved and recommended various penalties. The

Chief Auditor was directed to calculate the loss and he

calculated it to the tune of Rs.11,06,993/-.

Accordingly, by order dated 28.03.2008, it is directed to

recover the amount from his salary. The Standing

Committee allowed the appeal under resolution No.225

(6) wp5961.16

dated 15.04.2011. However, though the appeal was allowed

in the year 2011, the petitioner did not take any step

for implementation of it and it is only on 02.08.2014,

the petitioner filed application requesting to give him

annual increments. While processing said application,

it was opined that the order passed by the Standing

Committee is contrary to the provisions of section 56(4)

of the Maharashtra Municipal Corporation Act and on that

basis it was decided to send resolution under the

provisions of section 451 of the Maharashtra Municipal

Corporation Act to the State. The delay was caused as

the petitioner himself had not approached the Corporation

earlier for the benefits. The petitioner cannot place its

reliance on the judgment of this Court in the case of Mr.

Giri as the same is distinguishable on facts. The loss

caused to the Corporation is to be recovered from the

petitioner.

7. Learned AGP also supports the impugned order.

(7) wp5961.16

8. It is a matter of record that common

departmental inquiry was initiated against the petitioner

and Mr.Giri on similar charges. The Inquiry Officer in

his report held charges to be partially proved. The

punishment was proposed against the petitioner. The

petitioner filed an appeal before the Standing Committee.

The Standing Committee allowed the appeal under

resolution No.225 dated 15.04.2011.

9. The said decision of the Standing Committee was

accepted by the then Commissioner and noting to that

effect has also been made by him. In the meantime, Mr.

Giri retired and his benefits were withheld. He had

filed petition in this Court bearing Writ Petition

No.4146 of 2014. This Court allowed the said writ

petition. The basis of the said writ petition was that

in case of present petitioner, Corporation has accepted

decision of the standing committee and though similarly

situated, he is being discriminated and the benefits are

not being released. This Court allowed the said writ

(8) wp5961.16

petition giving reference of the case of present

petitioner. The Division Bench of this Court in the said

judgment had observed that if the Corporation had to file

proceedings under section 451 of the Maharashtra

Municipal Corporation Act, it ought to have been done at

least within three years. It is also not disputed that

the judgment of this Court in Writ Petition No. 4146 of

2014 in case of Mr.Giri has been accepted by the

Corporation and the same is not assailed by the

Corporation before the Apex Court.

10. Be that as it may, in the present matter, the

Corporation had accepted the decision of the Standing

Committee and noting to that effect is made by the

Commissioner, which is at page No.44-A, subsequently

after the transfer of the said Commissioner, new

Commissioner has taken another view and took the decision

to forward it under 451 of the Maharashtra Municipal

Corporation Act, that too after four years of the order

of the Standing Committee. The delinquent against whom

(9) wp5961.16

same charges were levelled and common inquiry has been

conducted, cannot be treated differently. The decision

has already been taken by the Corporation to implement

and accept the order of the Standing Committee.

Moreover, no steps are taken by the Corporation for three

years as has been observed by the Division Bench of this

Court in Writ Petition No. 4146 of 2014.

11. Apart from the aforesaid, perusal of the

impugned order passed by respondent No.1, it is manifest

that the said order is bereft of any reason. No reasons

are given for not accepting the resolution of the

Standing Committee. When the resolution is not accepted,

some reasons ought to have been given more particularly

when statutory appeal provided by the Statute was filed

by the petitioner and the same was allowed. There are

absolutely no reasons, much less any discussions of any

grounds upon which respondent No.1 came to the conclusion

to set aside the resolution of the Standing Committee.

Said order also suffers from lack of reasons. On that

( 10 ) wp5961.16

count also it cannot be sustained.

12. Considering the aforesaid, the writ petition is

allowed. The order dated 28.04.2016 [Exh."C"] and order

dated 11.08.2016 [Exh."E"] are quashed and set aside.

Rule made absolute accordingly. No costs.

[S.M.GAVHANE,J.] [S.V.GANGAPURWALA,J.]

snk/2017/NOV17/wp5961.16