Khizer Salim Barkattulla Mirza vs The State Of Mah And Ors
2017 Latest Caselaw 7870 Bom

                                      (1)              Writ Petition No. 891/2010




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD


                      WRIT PETITION NO. 891 OF 2010

 Khizer Salim s/o Barkattulla Mirza
 Age : 40 yrs, occu.: business
 R/o Vidyanagar, Barsi Road,
 Beed.                                                      Petitioner.


          Versus

 1.       The State of Maharashtra
          Through The Secretary,
          Rural Development Department,
          Mantralaya, Mumbai.

 2.       The Divisional Commissioner
          Aurangabad.

 3.       The Zilla Parishad, Beed
          Through Chief Executive 
          Officer.

 4.       The Education Officer (Primary)
          Zilla Parishad, Beed.             Respondents.


                         ***
 Mr.B.A. Dhenle, Advocate for the petitioner.
 Mr.S.N. Morampalle,A.G.P. for State.
 Mr.N.L. Jadhav, Advocate for respondent Nos.3 & 4.
                         ***

                                   CORAM : R.D. DHANUKA &
                                           SUNIL K.KOTWAL,JJ. 

Reserved on : 14.09.2017.

Pronounced on : 06.10.2017.

(2) Writ Petition No. 891/2010

JUDGMENT : (PER SUNIL K. KOTWAL,J.)

1. This petition is filed under Article 226

of the Constitution of India to quash and set

aside the order dated 10.09.2009 passed by

respondent No.3 confirming the dismissal order

dated 21.06.2002 and seeks an order and direction

to the respondents to reinstate the petitioner on

the post of Assistant Teacher with continuity of

service and back wages alongwith other

consequential benefits.

2. Contention of the petitioner is that he

was appointed on the post of an Assistant Teacher

by Zilla Parishad,Beed on 02.08.1995 and since

then he was in service as an Assistant Teacher at

Zilla Parishad Secondary School, Neknoor. Before

joining his service the petitioner was facing

criminal trial in Sessions Case No. 66/1993 for

the offences punishable under Sections 147, 148

and 307 read with Section 149 of the Indian Penal

Code. The petitioner was convicted on 20.04.1996

in the said proceedings for the offences

punishable under Sections 147, 148 and 326 read

(3) Writ Petition No. 891/2010

with Section 149 of the Indian Penal Code and he

was sentenced to suffer Rigorous Imprisonment for

two years and to pay fine of Rs. 500/-.

3. Being aggrieved by the said order, the

petitioner preferred Criminal Appeal bearing No.

315 of 1996 which was pending before the High

Court of Judicature Bombay, Bench at Aurangabad.

The substantive sentence of the petitioner was

suspended by the High Court. However, when the

Education Officer, Zilla Parishad, Beed came to

know about this conviction, on 08.07.1996 he

issued show cause notice to the petitioner calling

upon his explanation for suppression of his

conviction from the Department. The petitioner

submitted his explanation on 23.07.1996. He was

however placed under suspension by Chief Executive

Officer, Zilla Parishad, Beed on 17.10.1996.

4. A Departmental Enquiry was initiated

against the petitioner for the charge of

suppression of his conviction from the Department

as well as for tarnishing the image of Education

(4) Writ Petition No. 891/2010

Department in the Society on account of his

conviction for the serious charge in criminal

case. Shri G.M. Sawai was appointed as an Enquiry

Officer who after holding an enquiry in the

matter, held that out of those two charges, only

first charge was proved that the petitioner

suppressed his conviction in criminal case from

the Department and thereby committed misconduct

under Rule 3 of the Maharashtra Zilla Parishads

District Services (Conduct) Rules, 1967

(hereinafter referred as the "Conduct Rules").

5. On 23.01.2002 a show cause notice was

served upon the petitioner calling upon his

explanation as to why penalty of dismissal should

not be imposed against him. On 01.02.2002 the

petitioner submitted his explanation. However, on

21.06.2002 the Chief Executive Officer, Zilla

Parishad, Beed passed final order and dismissed

the petitioner from service. Being aggrieved by

the said order, the petitioner preferred appeal

before the Additional Commissioner, Aurangabad.

The said appeal was dismissed on 17.11.2003. The

(5) Writ Petition No. 891/2010

petitioner did not challenge the order of

dismissal.

6. On 18.12.2008 Criminal Appeal No. 315 of

1996 filed by the petitioner against the order of

his conviction was allowed and the petitioner was

acquitted of the offences with which he was

charged. After his acquittal, the petitioner, on

16.03.2009 submitted a representation to the Chief

Executive Officer, Zilla Parishad, Beed for his

reinstatement on account of his acquittal. His

representation was not considered by respondent

No.3. The petitioner therefore filed a Criminal

Writ Petition No. 3974 of 2009 in this Court. The

said Writ Petition was disposed of on 17.08.2009

and direction was issued to the respondent No. 3

to decide the representation of the petitioner

seeking reinstatement with all consequential

reliefs.

7. On 10.09.2009 the Chief Executive

Officer, Zilla Parishad, Beed passed an order and

rejected the said representation submitted by the

(6) Writ Petition No. 891/2010

petitioner. The said order is challenged by the

petitioner in the present Writ Petition.

8. By filing reply affidavit, respondent

Nos. 3 and 4 opposed this petition on the ground

that the petitioner was acquitted by giving

benefit of doubt and it was not honourable

acquittal. On the other hand, in the Departmental

Enquiry initiated against the petitioner the

charge was proved that he suppressed his

conviction in criminal trial from the Department

and thereby contravened Rule 3 of the Conduct

Rules. In brief, it is contended by respondent

Nos.3 and 4 that the representation submitted by

the petitioner was considered by respondent No.3

and it was rejected on merits.

9. Learned Counsel for the petitioner

submits that the petitioner was dismissed from

service on account of his conviction by Sessions

Court, Beed. In appeal preferred by the

petitioner before the High Court, the petitioner

was acquitted, and therefore, the petitioner has

(7) Writ Petition No. 891/2010

every right to claim reinstatement in service.

Learned Counsel for the petitioner submits that

respondent No.3-Chief Executive Officer, Zilla

Parishad, Beed did not consider the acquittal of

petitioner and wrongly rejected the Representation

of the petitioner. He placed reliance on the

judgment in the case of "Basanti Prasad Versus the

Chairman, Bihar Examination Board and others",

reported in (AIR 2009 SC 3162).

10. In reply, learned Counsel for respondent

Nos.3 and 4 submitted that Rule 3 of the Conduct

Rules provides that every Parishad servant shall

at all time maintain absolute integrity and

devotion to duty. However, by suppressing his

conviction from the Education Department, the

petitioner had violated Rule 3 of the Conduct

Rules and thus he was dismissed from the service.

The subsequent acquittal of the petitioner in

criminal appeal by High Court is absolutely

irrelevant. He has also pointed out that the High

Court acquitted the petitioner only by giving

benefit of doubt and it was not an honourable

(8) Writ Petition No. 891/2010

acquittal. The Disciplinary Authority has rightly

rejected the representation submitted by

petitioner.

11. In the case at hand the following

events are relevant.

(i) On 21.06.2002 the Chief Executive Officer, Zilla Parishad, Beed passed the order of dismissal of the petitioner.

(ii) On 17.11.2003 Additional Divisional Commissioner, Aurangabad dismissed the appeal preferred by petitioner against the order of his dismissal.

(iii)On 18.12.2008 Criminal Appeal No. 315 of 1996 preferred by petitioner and another co-accused was allowed and the petitioner was acquitted by this Court by giving benefit of doubt.

(iv) On 16.03.2009 petitioner submitted Representation to the Chief Executive Officer, Zilla Parishad, Beed for reinstatement in service.

(v) On 17.08.2009 this Court directed the Chief Executive Officer, Zilla Parishad, Beed to decide the representation of the petitioner within two weeks.

(vi)On 10.09.2009 the representation submitted by petitioner for reinstatement was rejected by Zilla Parishad, Beed.

(9) Writ Petition No. 891/2010

12. After going through the above-referred

chronological events, it emerges that the

petitioner did not challenge the order of

dismissal dated 21.06.2002 and the order dated

17.11.2003 dismissing appeal preferred by the

petitioner. Therefore the dismissal order dated

21.06.2002 passed by the Disciplinary Authority as

well as the order passed by the Appellate

Authority dated 17.11.2003 have attained finality.

Even in this Writ Petition the petitioner has not

challenged both those orders of dismissal, but has

simply challenged the order dated 10.09.2009 by

which the representation of the petitioner for

reinstatement after his acquittal by High Court is

rejected by Disciplinary Authority-Chief Executive

Officer, Zilla Parishad, Beed. This Court thus

need not examine the correctness of the order of

dismissal dated 21.06.2002 passed by Disciplinary

Authority and the order dated 17.11.2003 passed by

the Appellate Authority.

13. Be that as it may, in this Writ Petition

the petitioner has not challenged the order of

(10) Writ Petition No. 891/2010

dismissal on the ground of any illegality

committed by Enquiry Officer in Departmental

Enquiry or on the ground of violation of principle

of natural justice. In our view, the Department

has given full opportunity to the petitioner which

is permissible under Rules and has followed the

procedure prescribed under Rule 6 of Maharashtra

Zilla Parishads District Services (Discipline and

Appeal) Rules, 1964. In our view, in this Writ

Petition the order of dismissal of the petitioner

dated 21.06.2002 even on merit cannot be disturbed

which has already attained finality.

14. Another important aspect is that, in

Departmental Enquiry undisputedly two charges were

framed against the petitioner, which are as

follows:-

(1) The petitioner did not inform the Department regarding his conviction order dated 20.04.1996 passed by the Sessions Court, Beed sentencing him to undergo two years Rigorous Imprisonment and to pay fine of Rs. 500/- for the criminal offence alleged to be committed by the petitioner.

                                       (11)              Writ Petition No. 891/2010




            (2)       On   account   of   conviction   of   the 
                      petitioner   in   criminal   case   the 

image of Education Department was tarnished and thereby the petitioner violated Rule 3 of the Conduct Rules.

15. Out of these two charges, Charge No.2

i.e. tarnishing the image of Department due to

conviction of the petitioner in criminal case was

not established as per the final enquiry report

submitted by Enquiry Officer. Only Charge No.1

was proved that the petitioner kept the Department

in dark by suppressing the fact of his conviction

in criminal case. This report of Enquiry Officer

was accepted by Disciplinary Authority and

accordingly penalty of dismissal was imposed upon

the petitioner. In other words, the petitioner

was dismissed from the service only because he

suppressed his conviction in criminal case from

the Department. Therefore, the conviction of the

petitioner or his acquittal in Criminal Appeal No.

315 of 1996 as per the order of High Court, is not

at all relevant for claiming reinstatement in

service by the petitioner. In other words, the

(12) Writ Petition No. 891/2010

order passed by the Chief Executive Officer, Zilla

Parishad, Beed rejecting the representation of the

petitioner for reinstatement in service cannot be

treated as an illegal order, only because he did

not consider the acquittal of petitioner in

criminal appeal as the same was not an honourable

acquittal. On this ground alone this Writ

Petition fails.

16. The ratio of the case of Basanti Prasad-

versus-Chairman, Bihar School Examination Board

(cited supra) is not applicable in the case at

hand, because in the case before the Apex Court,

services of the husband of the petitioner were not

dismissed as a result of Departmental Proceedings,

but he was dismissed in view of the conviction by

criminal Court. Considering that circumstance the

Apex Court held that on the conviction having been

set aside by superior forum, the dismissal ought

to have been set aside. Facts before the Apex

Court in the said matter being different are

distinguishable in the facts of this case.

(13) Writ Petition No. 891/2010

17. In so far as the judgment in the case of

"Baban Shriram Wafare Versus Zilla Parishad",

[2002 (3) Bom.C.R. 212] relied upon by the

petitioner is concerned, in that case after

conviction of the petitioner, he was dismissed

under Rule 9 (i) of the Maharashtra Zilla Parishad

District Services (Discipline and Appeal) Rules,

1964, without following the regular procedure of

Departmental Enquiry under Rule 6 prescribed for

imposing major penalties and based only on his

conviction in criminal case. The said employee

therefore was reinstated in service, after his

acquittal by the Appellate Court.

18. In this case, the petitioner was

dismissed from service as a result of Departmental

Proceedings, only after following regular

procedure under Rule 6 of Discipline and Appeal

Rules. The ratio of the Authority in the case of

Baban Wafare Versus Zilla Parishad" (supra) is

thus not applicable in the case at hand and is

clearly distinguishable.

(14) Writ Petition No. 891/2010

19. After perusing the judgment passed by

this Court in Criminal Appeal No. 315 of 1996, it

is clear that it was not an honourable acquittal

of the accused/petitioner. Benefit of doubt was

given to the petitioner in view of the prosecution

being failed to prove that the petitioner and

other co-accused were aggressor and the

prosecution had failed to prove the genesis of the

offence and also because the injuries on the

person of the accused were not explained by the

prosecution. Respondent No.3 refused to reinstate

the petitioner on the ground that his acquittal

was not an honourable acquittal and it would not

affect the previous order of dismissal passed by

the Disciplinary Authority. These reasons

assigned by Disciplinary Authority for rejecting

representation of the petitioner are absolutely

correct and not being perverse, this Writ Petition

deserves to be dismissed.

20. Learned Advocate for the petitioner in

alternate submitted that the penalty of dismissal

imposed by Disciplinary Authority is

(15) Writ Petition No. 891/2010

disproportionate and on that count this Court

shall interfere with the punishment. However, in

the case of "Chief Executive Officer, Krishna

District Co-operative Central Bank Limited Versus

K. Hanumanta Rao", reported in [2017 (4) Mh.L.J.

484], the Apex Court observed that,

"It is trite that Courts, while exercising their power of judicial review over such matters, do not sit as the appellate authority. Decision qua the nature and quantum is the prerogative of the disciplinary authority. It is not the function of the High Court to decide the same.

It is only in exceptional circumstances, where it is found that the punishment/penalty awarded by the disciplinary authority / employer is wholly disproportionate, that too to an extent that it shakes the conscience of the Court, that the Court steps in and interferes".

21. While examining whether the penalty of

dismissal awarded by Disciplinary Authority is

wholly disproportionate, that too to an extent

that it shakes the conscience of the Court, in our

view the petitioner being a Teacher was expected

to disclose the employer about his conviction in a

criminal case.

(16) Writ Petition No. 891/2010

22. The Supreme Court in the case of (Avinash

Nagra vs. Navodaya Vidyalaya Samiti) 13 reported

in 1996 DGLS 1526 (soft): 1997 (2) S.C.C. 534, had

an occasion to explain the importance of the

character and conduct of a teacher in the

following words:

"Mahatma Gandhi, the Father of the Nation has stated that "a teacher cannot be without character. If he lacks it, he will be like salt without its savour. A teacher must touch the hearts of his students. Boys imbibe more from the teacher's own life than they do from books. If teachers impart all the knowledge in the words to their students but do not inculcate truth and purity amongst them, they will have betrayed them".

In the same paragraph, it is further observed

thus:

"Dr. S. Radhakrishnan has stated that we in our country look upon teacher as gurus or, as acharyas. An Acharya is one whose aachar or conduct is exemplary. He must be an example of Sadachar or good conduct. He must inspire the pupils who are entrusted to his care with love of virtue and goodness. The ideal of a true teacher is andhakaraniridhata gurur itya bhidhiyate. Andhakar is not merely intellectual ignorance, but is also spiritual blindness. He who is able to remove that kind of spiritual blindness is called a guru. Are we deserving the noble appellation of an acharya or a

(17) Writ Petition No. 891/2010

guru? Swami Vivekananda had stated that the student should live from his very boyhood with one whose character is a blazing fire and should have before him a living example of the highest teaching. In our country, the imparting of knowledge has always been through men of renunciation. The charge of imparting knowledge should again fall upon the shoulder of Tyagis".

23. In the same judgment, the Supreme Court

considered as to why in our Indian society,

teachers are placed on the pedestal below the

parents, and observed thus:

"It is in this backdrop, therefore, that the Indian society has elevated the teacher as Guru Brahma, Gurur Vishnu, Guru Devo Maheswaraha. As Brahma, the teacher creates knowledge, learning, wisdom and also creates out of his students, men and women, equipped with ability and knowledge, discipline and intellectualism to enable them to face the challenges of their lives. As Vishnu, the teacher is preserver of Page 1840 learning. As Maheswara, he destroys ignorance. Obviously, therefore, the teacher was placed on the pedestal below the parents".

24. In another judgment delivered by the

Supreme Court in the case of Manager, Nirmala

Senior Secondary School, Port Blair v. N.I. Khan,

reported in [2003 DGLS 244 (Soft)] regarding the

(18) Writ Petition No. 891/2010

importance of the character of a teacher, the

Supreme Court has observed thus:

"An educational institution runs smoothly when the teacher and the taught are engaged in the common ideal of pursuit of knowledge. It is, therefore, manifest that the appointment of teachers is an important part in educational institutions. The qualifications and the character of the teachers are really important".

The above referred principles declared by

the Apex Court clearly apply to the facts of this

case.

25. In the case at hand the petitioner was

the Assistant Teacher who was expected to be an

honest and an ideal person in the Society. The

image of a Teacher in the Society must be

absolutely clean and free from every doubt.

However, from the facts on record it becomes clear

that the petitioner was involved in a serious

crime like causing grievous hurt by deadly weapon.

He however could get acquittal because the benefit

of doubt was extended in his favour for the

reasons stated above. Therefore, by no stretch of

imagination it can be said that the image of

(19) Writ Petition No. 891/2010

petitioner in the Society is ideal and free from

any doubt for the students who would be

continuously in his contact for the purpose of

education, if he is reinstated. Suppression of

his conviction from Department was wilful and thus

he was not fit for the post of Teacher. In our

view, it was thus just and proper decision of the

Disciplinary Authority not to reinstate a Teacher

who is dishonest and carries such dubious

character. No infirmity can be found with the

decision taken by respondent No.3 while rejecting

the representation of the petitioner for

reinstatement. In these circumstances, it cannot

be said that the penalty imposed upon the

petitioner was shockingly disproportionate.

26. In our view, this petition being devoid

of merit deserves to be dismissed.

27. We, therefore, pass the following order.

                                     ORDER

          a)      Writ   Petition   No   891   of   2010   is 
                  dismissed.





                                       (20)              Writ Petition No. 891/2010



         b)       Rule is discharged.


         c)       No order as to costs. 




          ( SUNIL K. KOTWAL)                      ( R.D. DHANUKA)
               JUDGE                                   JUDGE




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