J.T.Khambaty vs The Mun.Corpn.Of Greater Bombay & ...
2017 Latest Caselaw 7911 Bom

                                                                      WP 479-02.doc

DDR

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      ORDINARY ORIGINAL CIVIL JURISDICTION
                                  WRIT PETITION NO.479 OF 2002

       Shri J. T. Khambaty
       residing at Room No.49,
       133/A, Beg Mohammed Chawl,
       Babula Tank Road, 2nd Floor,
       A-Block, J. J. Hospital,
       Mumbai 400 009.                                       .. Petitioner
             Vs.
       1. The Municipal Corporation of 
       Greater Bombay, a body corporate
       constituted under the Bombay
       Municipal Corporation Act, 1888,
       having its office at Mahapalika
       Marg, Bori Bunder, Mumbai 400001.

       2. The General Manager,
       Bombay Electric Supply & 
       Transport Undertaking,
       having his office at
       Electric House, Colaba,
       Mumbai 400 001.

       3. Shri Krishna S. Rathod
       the Ex-Bus Conductor-90091
       residing at Head Post Savali
       Sadoba, Taluka - Arni
       Dist. Yavatmal (M.S.)                       .. Respondents

                                       ....
       Ms. Prachi Khandge i/by M.P. Vashi for Petitioner.
       Mr. S.K. Talsani, Sr. Counsel a/w. Arsh Misra and Kavita Kanchan 
       i/by M.V. Kini & Co. for Respondent No.2.
                                       ....

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                                                                          WP 479-02.doc

                                   CORAM                         : A.A.SAYED AND
                                                                    M.S.KARNIK, JJ.

RESERVED ON : 4th AUGUST, 2017

PRONOUNCED ON: 9th OCTOBER, 2017

JUDGMENT (PER M.S. KARNIK, J.) :-

In this petition, filed under Article 226 of the

Constitution of India, the petitioner challenges an order passed

by the disciplinary authority dated 14/2/2001 dismissing him

from the services of the respondents pursuant to the

departmental inquiry conducted for the misconduct alleged

against the petitioner. The petitioner has also challenged the

consequential orders passed by the appellate authorities. The

petitioner prays that he may be reinstated with full back-wages

and continuity of service.

2. The facts in the nutshell are as under :-

The petitioner was employed with the respondent

No.2 Bombay Electric Supply & Transport Undertaking

(hereinafter referred as "the BEST" for short). The petitioner at

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the relevant time was working as Traffic Officer with the

respondent no.2. On 14/10/1998, one Shri Chavan, STR No.708

handed over to the petitioner a packet containing ex-gratia

bonus of Rs.6430/- to be handed over to respondent no.3

Krishna S. Rathod when he would come to collect the said

payment. Respondent No.3 was ex-employee of the Best.

Respondent No.3 went to the concerned department on

11/10/1999 to collect his ex-gratia payment and was informed

about collection of the said amount by the petitioner. On or

about 26/10/1999, the said Krishna S. Rathod-respondent No.3

went to the petitioner's house and collected the said payment

vide Cheque No.209274 dated 26/10/1999 issued by the

petitioner in favour of respondent No.3. On 26/10/1999, a

statement of respondent No.3 - Krishna Rathod was recorded

which reads thus :-

Date : 26-10-99

To, STO (Worli Depot)

I the undersigned Krishna S. Rathod B.C. 190091 state below in writing that, I had resigned on 16.9.98 and had been to my native place. I have not collected any amount from the

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Undertaking such as Provident Fund and ex-gratia for the year 1998.

On dated 11.10.1999, when I approached to enquire about my final dues, it was understood that, the ex-gratia payment for the year 1998 was collected by DO Shri Khambhati. When I asked him how my bonus payment was collected by him, when I have not informed him or any other to collect bonus amount on my behalf. I was informed to see Shri Khambhati, DO. Thereafter, I had visited Worli Depot on 26.10.99 and from there, I had gone to the resident of Shri Khambhati Saheb. When he confirmed that, the bonus amount has been collected by him and issued me a cheque of Rs.6,530/-.

3. The respondents therefore served on the petitioner

charge-sheet dated 9/12/1999 alleging that the ex-gratia

amount meant for respondent no.3 Shri Krishna Rathod, was

taken by the petitioner by using his rights improperly. This

charge-sheet is on the basis of the statement of Shri Kishore

Bagwe, ATS, Worli. In the charge-sheet it is mentioned that the

matter came to light when the respondent no.3 inquired about

his ex-gratia payment for the year 1997-98. From the record it

was revealed that ex-gratia amount was taken by Shri Chavan

Starter No.708 which amount was drawn under his own

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signature. It is alleged that the petitioner had asked Shri Chavan

to bring the amount of ex-gratia payment belonging to

respondent no.3 and as the amount of Rs.6430/- is in the

petitioner's possession, he has usurped the amount. The

following charges were levelled against the petitioner :-

"1. Theft, fraud or dishonesty in connection with the business or property of the Undertaking ;

2. Habitual or gross neglect of work or habitual or gross negligence ;

3. Breach of any rules or regulations or instructions for maintenance and running of any department."

4. During the course of the inquiry several witnesses

were examined. The Trying Officer found the charges as proved

and accordingly imposed the punishment as dismissal from the

services.

5. The Trying Officer has recorded that the service

record of the petitioner is satisfactory. The petitioner had almost

11 years of service in his credit. It is on account of the act of

dishonesty of the petitioner while working as a Senior Officer

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Grade G-IX that the petitioner committed misconduct of

collecting the ex-gratia payment of the staff who was working

under him without his knowledge and that too by misusing his

position as Depot Officer. The respondent No.3 on the date

when the ex-gratia amount was collected on his behalf was no

longer in service as he had tendered his resignation.

6. The appellate authorities dismissed the appeal filed

by the petitioner. We have gone through the inquiry officer's

report and the orders passed by the appellate authorities. We

have heard learned Counsel for the parties. The record reveals

that respondent No.3 had resigned on 6/9/1998 and had not

collected ex-gratia payment for the year 1998. On 14/10/1998,

ex-gratia payment of Rs.6430/- belonging to respondent no.3

was collected on the instructions of the petitioner. The petitioner

has not disputed that the amounts were lying with him and that

he had collected the same on behalf of the respondent no.3. On

the summary sheet Shri Chavan, Bus Starter No.708 had signed

and collected the amount which was handed over to the

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petitioner. Respondent no.3 on 11/10/1999 went to the office of

the BEST (Pay Department) for collecting his final dues when he

was informed that the ex-gratia for the year 1998 was collected

by the petitioner. He, therefore, visited the residence of the

petitioner when the petitioner confirmed that the bonus amount

was collected by the petitioner and the petitioner issued a

cheque Rs.6530/- to the respondent no.3.

7. We find that the proceedings are initiated against the

petitioner not on the basis of the complaint made by the

respondent no.3 but on the report that was submitted by Shri

Fernandes consequent upon the respondent no.3 approaching

the office of the respondents for collecting his ex-gratia amount.

8. The record therefore indicates that what is really

established is that on the instructions of the petitioner ex-gratia

amount of Rs.6530/- has been collected by the petitioner and

retained with him without any written authority. When the

respondent no.3 approached his office to collect the said

amount he is informed that the said amount has been collected

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by the petitioner. The petitioner issued a cheque of Rs.6530/-

when respondent No.3 went to his residence. It is in these

circumstances we have proceeded to examine whether this act

on the part of the petitioner in collecting the amount on behalf

of the respondent no.3 and retaining the same with him and

handing it over to the respondent no.3 immediately when

demanded would constitute a serious misconduct. Admittedly

no complaint against the petitioner has been made by the

respondent no.3 and in fact his statement would indicate that as

soon as he went to the petitioner's residence a cheque of

Rs.6530/- was issued by the petitioner to him. The petitioner

has at no point of time denied receipt of the said ex-gratia

amount though the record receiving the payment does not bear

the signature of the petitioner but is that of Starter Shri Chavan.

Even from the statement of the respondent no.3 it is apparent

that the petitioner confirmed that he had collected the bonus

amount on behalf of respondent No.3 and issued a cheque of

Rs.6530/-.

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9. In the peculiar facts of the present case we are

unable to persuade ourselves that merely collecting the amount

on behalf of the respondent no.3 and retaining the same with

the petitioner till it was actually handed over to the respondent

no.3 would amount to a serious misconduct of theft, fraud or

dishonesty in connection with the business or property of the

undertaking. In the absence of there being any complaint of the

respondent no.3 and/or without examining the respondent no.3

during the course of the inquiry, holding the petitioner guilty of

the charge of theft, fraud, dishonesty in connection with the

business or property of the respondents, in our opinion is

unsustainable.

10. We are conscious of our limitations to interfere with

the findings of facts recorded by the inquiry officer in a

disciplinary proceedings. We find that the petitioner had

collected the amount on behalf of the respondent no.3 which

has been handed over to the respondent no.3 about which

respondent no.3 does not have any grievance. Having regard to

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the facts and circumstances of the case, according to us the

finding of the Trying Officer holding the petitioner guilty of the

charge of theft, fraud and dishonesty in connection with the

business or property of the undertaking as proved is perverse

and unreasonable. As indicated earlier the petitioner does not

dispute that he had collected ex-gratia amount of the

respondent no.3 and that respondent no.3 himself has stated

that the said amount was handed over to the respondent no.3

by the petitioner by issuing a cheque. In these circumstances,

the finding of the Trying Officer that the petitioner has

committed theft or fraud or dishonesty, in the absence of

there being any complaint by the respondent no.3, is harsh and

unsustainable. In these circumstances, we find that the

punishment imposed is not at all proper and is shocking. It is

not as if the allegations against the petitioner are that he has

indulged in similar acts in respect of other employees also. In

this view of the matter we set aside the impugned orders. The

petitioner is out of service since the date of his dismissal from

15/2/2001, therefore, the following order in our opinion will

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meet the ends of justice :

ORDER

(i) The impugned order of dismissal dated 14/2/2001

passed by the Disciplinary Authority is quashed and set aside.

(ii) The order dated 8/5/2001 of the First Appellate

authority and order dated 23/7/2001 of the Second Appellate

Authority are set aside.

(iii) The respondent Nos.1 and 2 are directed to reinstate

the petitioner in service with continuity of service with all the

consequential benefits but without backwages.

(iv) Rule made absolute on the above terms with no

order as to costs.

 (M.S.KARNIK, J.)                                               (A.A.SAYED, J.)









                                                                     WP 479-02.doc

Upon pronouncement of the order, the learned

Counsel for the Respondent No.2 seeks stay of the operation of

this order. Learned Counsel for the Petitioner opposes the

request for stay. Considering the fact that Petitioner is out of

service since the date of his dismissal i.e. February 2001, we are

inclined to stay the operation of the order for a period of eight

weeks from today. Order accordingly.

 (M.S.KARNIK, J.)                                             (A.A.SAYED, J.)