Bombay High Court
Deepak G.Chandane vs The Railway Goods Clearing & ... on 9 October, 2017
Bench: A.A. Sayed
WP 2539.doc
Urmila Ingale
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 2539 OF 2000
Deepak G. Chandane
Indian Inhabitant of Mumbai
Residing at Jayesh Co-operative
Housing Society Ltd., B/206,
Ramchandra Nagar - 2, Opposite
Nitin Company, Vaity Wadi,
Panchpakhadi, Thane(W), 400 604 .. Petitioner
Vs.
1. The Railway Goods Clearing and
Forwarding Establishments
Labour Board for Greater
Bombay, a Statutory Board
establishing under the
provisions of the Maharashtra
Mathadi, Hamal and other Manual
Workers (Regulation of Employment
and Welfare) Act, having its
office at 84/A, Broach Sadan,
Devji Ratanshi Marg,
Dana Bunder, Mumbai 400 009.
2. Shri D.R. Bothale,
Assistant Commissioner of
Labour and Chairman of the
first respondent board - having
his office at 84/A, Broach Sadan,
Devji Ratanshi Marg,
Dana Bunder,
Mumbai 400 009. .. Respondents
Mr.Kiran Bapat a/w Ms.Radha Ved i/b Sanjay Udeshi & Co., for the
Petitioner.
Mr.Sanjay Prabhakar Shinde, for Respondent No.1.
1/20
::: Uploaded on - 09/10/2017 ::: Downloaded on - 10/10/2017 01:56:54 :::
WP 2539.doc
CORAM : A.A.SAYED AND
M.S.KARNIK, JJ.
RESERVED ON : 25th JULY, 2017
PRONOUNCED ON : 09th OCTOBER, 2017
JUDGMENT (PER M.S.KARNIK, J)
:
1. The petitioner's challenge by this Petition under Article
226 of the Constitution of India is to an order of dismissal dated
30/08/1999 passed by respondent No.1 with a further prayer that he
may be reinstated in service with continuity of service and full back
wages. The petitioner joined service of the first respondent - Board
in the clerical cadre on 25/07/1977. After successful completion of
probation, he was confirmed in the post of clerk. On 06/02/1981
the petitioner was promoted to the post of Supervisor-cum-Senior
Clerk. The petitioner was promoted as an Accountant on
01/12/1989. The first respondent detected alleged fraud in RCF
unit. The said fraud related to the period from 1987 to 1992. The
petitioner was suspended from the service. According to the
petitioner, he had no concern with the said fraud.
2. The petitioner was served with a charge-sheet dated
15/02/1994 on the following charges.
WP 2539.doc
1. There was a financial responsibility of the Board on
you while working as an Accountant, but that responsibility
was not executed, Board's important financial work such as to
keep control over the monthly payable wages and paid wages
to the workers, but while working as an accountant, not to
keep control over the wages paid during the period 1987-88 to
1991-92 misappropriating by showing excess wages and made
financial losses.
2. During the audit period for the financial year 1991-92,
to hide the factual financial account from the Auditor and
prepared two separate Report, to change the figures after
completion of Audit.
3. Not to check properly the summary sheets of workers
payment received from Table Clerks, to show that the figures
are correct as and when the figures of the summaries are
wrong and to sign on it and to take the signature of the
Secretary.
4. To alter the figures in the Cash Book and Ledger to
show less and more figures, deliberately, making wrong entries
in the Ledger.
5. Not to confirm the worker's wages figures of the
Branch Office as per the Summary by preparing excess amount
of cheques, after making wage payment to show carelessness
while depositing balance amount of the sub-branch in the
Bank.
6. Not to collect payment sheets of wages from the R.C.F.
Branch to head office, not to take care of important documents
such as Register, Rough cash book, pay sheets, pass book.
7. Deliberately destroying the documentary proof by not
disclosing the misappropriation instead of taking care of the
important documents while working as an Accountant, to
destroy the financial documents such as paysheet, rough cash
book, bank pass book etc.
8. Not to apply proper method which is suitable for
financial account while working as an accountant as also not
to submit financial position day to day to the Board, to keep
the Board in dark.
WP 2539.doc
9. To do false signatures of the Chairman and Secretary
on the Annual Report and to submit it, to deceive the Board
and the Government by showing wrong figures, alternatively
by cheating the workers of keeping away from profit.
10. From the above it is clear that withholding
inconnection to Boards administration and Assets, to be
falsehood and faithless, violating the code of Discipline, not to
obey, whether a confenderay is done with other or not, bad
result on the discipline in the Board's place and to demolish
the good conduct by doing any act, by showing carelessness in
the work, by doing negligence in the office work, to prepare
false documents, to threat the office bearers, etc. such charges
are lodged on you."
3. The petitioner filed his reply to the said charge-
sheet on 12/03/1994 pointing out that charge-sheet was issued for
the alleged irregularities of the years 1987-88 to 1991-92. However,
in the year 1987-88, the petitioner was not working as an
Accountant, therefore, the basis of the charge-sheet that the
petitioner was guilty of irregularities for the period from 1987 to
1991 itself is without application of mind.
4. Shri Arvind Vaidya was appointed as Enquiry Officer vide
order dated 12/12/1994. The examination-in-chief of the only
witness Shri Pednekar commenced on 26/12/1996. By order dated
08/12/1997 Shri B.A. Sakhardande was appointed as Enquiry Officer
in place of Shri Arvind Vaidya. The examination- in- chief of the sole
WP 2539.doc
witness on behalf of respondents concluded on 02/05/1998. The
petitioner demanded certain documents vide letter Exhibit 81. The
petitioner however commenced the cross examination. By another
letter dated 20/05/1998, the petitioner sought further documents
below Exhibit 82. He nevertheless continued with the cross
examination on 02/06/1998.
5. On 02/07/1998 because of heavy rains, the Enquiry
Officer was absent. The enquiry was hence adjourned. As the
petitioner's defence representative was an aged person and since he
was not keeping well on 09/07/1998, request for adjournment was
sought. It is the grievance of the petitioner that in a very highhanded
manner the Enquiry Officer closed the cross examination. In the
submission of the learned Counsel for the petitioner, the enquiry has
been conducted in the most highhanded manner and in breach of
principles of natural justice.
6. Learned Counsel for the petitioner pointed out that on
20/07/1998, an application was filed by the petitioner praying that
order of closing the evidence of witness Shri Pednekar be revived and
he may be recalled for cross examination. However, the Enquiry
WP 2539.doc
Officer refused to recall the said witness. The petitioner therefore,
filed Writ Petition No. 1558 of 1998 challenging the said action on
the part of the respondents refusing to recall the witness. This Court
was pleased to dispose of the Petition by granting liberty to the
petitioner to raise all the issues including the issues raised in the Writ
Petition No. 1558 of 1998. After the conclusion of enquiry, enquiry
came to be closed on 04/08/1998. The Enquiry Officer by his report
dated 12/10/1998 held the petitioner guilty of misconduct alleged.
Upon issuance of show cause notice, the petitioner came to be
dismissed from service by the impugned order dated 30/08/1999.
7. Learned Counsel for the petitioner invited our attention
to the Enquiry Officer's report and took us through the relevant
portion of evidence of Shri Pednekar. In his submission, the charge-
sheet is as vague as it can be. The charge-sheet does not specify as to
what misconduct actually the petitioner has committed. Learned
Counsel for the petitioner submits that though the charge-sheet does
not disclose the charge of the misappropriation, the Enquiry Officer
has held the petitioner guilty of misappropriation on which ground
itself the order of dismissal deserves to be interfered with.
WP 2539.doc
8. Learned Counsel for petitioner submitted that
respondent No.1 - Board is not governed by any service rule and the
suspension which was not supported by service rules itself is illegal.
In his submission, the petitioner therefore is entitled as per model
standing order to 100% subsistence allowance after completion of
180 days of suspension. Learned Counsel would submit that as the
petitioner has not been paid subsistence allowance, the subsequent
conduct and continuance of the departmental enquiry has become
illegal. Consequently the order of dismissal is rendered illegal and
void.
9. In the submission of the learned Counsel for the
petitioner, the enquiry was conducted in most high-handed manner
and the enquiry officer acted with bias. He submits that the Enquiry
Officer was vindictive and the proceedings were conducted in such a
manner so as to throw the petitioner out of the service. To
demonstrate this contention, learned Counsel for the petitioner
pointed out that the Enquiry Officer closed the cross examination of
Shri Pednekar when the petitioner was asking for adjournment on
the ground that the defence representative was an aged person and
suffering from illness and therefore, unable to attend the enquiry on
WP 2539.doc
that particular date. One date before closing the cross examination,
the Enquiry Officer himself was unable to remain present. In the
midst of the enquiry on 02/04/1997 earlier Enquiry Officer Shri
Arvind Vaidya could not remain present and enquiry came to be
adjourned to 06/01/1998 which indicates that 9 months were
wasted by first respondent. Learned Counsel would thus contend
that he was always available for the enquiry but the delay was mainly
at the behest of the the Enquiry Officer. Only on one day, when the
petitioner's defence representative was absent, the cross examination
was abruptly closed. Learned Counsel for the petitioner was at pains
to point out that this abrupt closure of the cross examination was at
the stage when witness was about to reveal the truth. In his
submission, it is at this juncture the Enquiry Officer at the behest of
the first respondent - Board chose to adopt the course of rejecting
application for adjournment and closing the cross examination.
10. Learned Counsel for the petitioner invited our attention
to the evidence of witness Shri Pednekar to submit that as the said
witness was completely exposed in cross examination and when the
Enquiry Officer realised that the said witness is unable to withstand
the cross examination that he chose to close the cross examination.
WP 2539.doc
11. Learned Counsel for the petitioner then pointed out that
though he had demanded certain documents which were necessary
for his defence vide his letter - Exhibits 81 & 82, the same were never
supplied to the petitioner. In the submission of the learned Counsel
for the petitioner those were material documents and therefore the
petitioner has been deprived of opportunity to effectively cross
examine the witness Shri Pendekar on the basis of the documents
which ought to have been supplied to him. Learned Counsel would
submit that this has prejudiced his defence and the enquiry stands
vitiated.
12. Learned Counsel for the petitioner relied upon the
decision of the Apex Court in the case of Anant R.Kulkarni Vs. Y. P.
Education Society and ors. (2013) 6 Supreme Court Cases 515 to
submit that the enquiry has to be based on specific, definite and clear
charges giving details of incident which formed basis of charges
particularly in respect of an order involving adverse or penal
consequences. In his submission, no enquiry can be sustained on
vague charges. Learned Counsel also relied upon the above decision
to contend that the purpose of holding enquiry against delinquent is
not only with a view to establish charges levelled against him, but
WP 2539.doc
also to establish truth of the matter which may either result in
establishing or vindicating his stand. A fair action on the part of the
authority concerned is of paramount importance. Learned Counsel
therefore would contend that refusing the petitioner's request to
adjourn cross examination and closing cross examination at the stage
when the witness Shri Pednekar was about to reveal the truth has
severally prejudiced the petitioner's case and this would have the
effect of vitiating the enquiry.
13. Learned Counsel for the petitioner also relied upon the
decision of the Division Bench of this Court dated 07/09/2009 in
the case of Pandurang D. Dhumal Vs. Railway Goods Clearing
and Forwarding Establishments Labour Board for Greater
Bombay in Writ Petition 1445 of 1998 in similar circumstances, this
Court had held that the sole witness not having stated that the
documents which are produced are from the record regularly
maintained by the Board renders the finding of the Enquiry Officer
that the petitioner is guilty of misconduct alleged against him only on
the basis of such documents cannot be sustained in the absence of
the documents being proved. This Court had quashed the impugned
order of dismissal and directed holding of fresh departmental
WP 2539.doc
enquiry. Learned Counsel for the petitioner also invited our
attention to a chart which was produced by him as regards the
deposition and non- deposition of Shri Vijay Pednekar. Learned
Counsel for the petitioner on the basis of the said chart tried to
contend that no reliance can be placed on the evidence of Shri
Pednekar and the same is not sufficient to hold the charges levelled
against the petitioner as proved.
14. Learned Counsel for the respondents on the other had
supported the findings of the Enquiry Officer. According to him, the
evidence of Shri Pednekar and the documentary evidence on record
are sufficient to sustain the findings recorded by the Enquiry Officer
holding the charge of misconduct as proved. He invited our attention
to the findings recorded by the Enquiry Officer. In his submission,
adequate opportunity was given to the petitioner to cross examine
Shri Pednekar. Learned Counsel invited our attention to the cross
examination of witness Shri Pednekar. He pointed out that Shri
Pednekar was cross examined on various dates. In his submission,
the petitioner's representative had asked as many as 90 question to
the witness Shri Pednekar and therefore, it cannot be said that the
petitioner was not given adequate opportunity to cross examine him.
WP 2539.doc
In these circumstances, the Enquiry Officer was justified in refusing
the request of the petitioner to allow further cross examination of the
witness and has rightly closed cross examination of witness Shri
Pednekar. Learned Counsel further pointed out that most of the
documents which the petitioner asked for were not connected with
the enquiry. However the petitioner was asked to inspect all those
documents required by him which were related to the enquiry. He
invited our attention to the finding of the Enquiry Officer that copies
of all documents pertaining to the enquiry were given to the
petitioner. The Enquiry Officer took into consideration the evidence
of Shri Pednekar who has deposed that the petitioner was required to
keep strict watch on income and expenditure and is required to check
bank books to see entries made in the bank books are correct. It has
come in evidence that during the financial years 1989-90, 1991-92
amounts of Rs.9,18,169.37 & Rs.9,45,865.12 respectively have been
shown as wages paid. The witness has deposed that the petitioner
was working as an Accountant and it was duty of the petitioner as an
Accountant to keep watch on the finance of the Board. Learned
Counsel invited our attention to the admissions made by the
petitioner in his letter dated 02/08/1993 at Exh. 56. Learned
Counsel for the respondents contended that the Enquiry Officer's
WP 2539.doc
findings are based on the material on record and it should not be
easily interfered with by this Court in exercise of its extra ordinary
writ jurisdiction under Article 226 of the Constitution of India. In his
submission, the findings of the Enquiry Officer are supported by the
materials on record, therefore, the same cannot be said to be
perverse.
15. Learned Counsel relied upon the following decisions in
support of his submissions.
i) State of A.P and ors Vs. S.Sree Rama Rao AIR 1963 Supreme
Court 1723.
ii) Union of India & ors. Vs. Alok Kumar 2010(5) Supreme Court
Cases 349.
iii) Mulin Sharma Vs. State of Assam & ors. 2016 (6) JT 467.
iv) Union of India and ors. Vs. P. Gunasekaran (2015) 2 Supreme
Court Cases 610.
v) Tripathi K.L. Vs. State Bank of India and ors. 1984 (1)
Supreme Court Cases 43
15. We have considered the submissions of learned Counsel
WP 2539.doc
at length. With the assistance of the learned Counsel, we have also
gone through the Enquiry Officer's report and the material portion of
the evidence of the witness Shri Pednekar to which learned Counsel
invited our attention. Insofar as the contention of the petitioner that
charge-sheet is vague, we find that the petitioner has participated in
the enquiry and defended the charges levelled against him. We find
that the charges are specific and not at all ambiguous. The petitioner
was well aware of the charges that he was required to meet and has
accordingly defended himself. We therefore do not find any merit in
the submission of the learned Counsel for the petitioner that charge-
sheet is vague and ambiguous.
16. We further find that the petitioner has cross examined
the witness Shri Pednekar at length. The Enquiry Officer has
recorded the finding that most of the documents demanded were
supplied to the petitioner and inspection of those documents which
are material to the enquiry was given to him. Even other wise we
find that the findings of the Enquiry Officer are based on the
materials which are there on record and on the basis of deposition of
witness Shri Pednekar. In this view of the matter, we do not find any
merit in the contention of the petitioner that enquiry is vitiated on
the ground of non-supply of some of the documents. In any event,
WP 2539.doc
we find no prejudice is caused to the petitioner on account of non-
supply of some of the documents.
17. It is also pertinent to note that the Enquiry Officer took
into consideration the fact that the defence representative of the
petitioner had put as much as 90 questions to the witness Shri
Pednekar in cross examination. The witness has been cross examined
at length. In these circumstances, if the Enquiry Officer was of the
view that the cross of the witness is required to be closed by refusing
the application for adjournment made on behalf of the petitioner, no
prejudice can be said to have been caused to the petitioner It is also
pertinent to note that the Enquiry Officer in his report has considered
the aspect that almost 90 questions were asked in cross examination
out of which not more than 5 questions pertained to the enquiry.
The Enquiry Officer in his report has given reasons why he closed
cross examination. Even on the adjourned date, the Enquiry Officer
called upon the petitioner to cross examine managements witness in
the absence of the defence representative after taking into
consideration the petitioner's vast knowledge of Labour Law. In our
opinion, the petitioner has been granted adequate and ample
opportunity to cross examine the witness in the facts of the present
case.
WP 2539.doc
18. The Enquiry Officer has also found that various
documents filed by the management representative from time to time
were shown by the management representative to the witness as and
when he put question to the witness during his cross examination.
After taking into consideration the deposition of Shri Pednekar he has
arrived at a finding that it is the job of an Accountant to keep a strict
watch on the income and expenditure and that he is required to take
bank books with a view to seeing that entries made in the pass books
are correct. It has come in his evidence that during the financial
years 1989-90, 1991-92, amounts of Rs.918169.37 & Rs.945865.12
has been paid more than wages actually to be paid. It has also come
in his evidence that statutory auditor audits the accounts of the
Board and submits its report to the Board and copy thereof to the
government. The audit report for the year 1991-92 was submitted
by M/s.S.D.Gunjal and Company Auditors to the Government but
they failed to submit the audit report to the board. However, the
audit report sent by them to the Government and copy thereof
obtained from them shows that reports were different. The
Government auditors take the help of the Board's Accountant while
preparing profit and loss accounts and annual reports which are duly
signed by the Accountant and Secretary and the Chairman of the
WP 2539.doc
Board and only thereafter the statutory auditors put their signatures
thereon. The witness deposed that any discrepancy if found in the
auditors report, it is the duty of the Accountant to bring it to the
notice of the auditor. The audit report for the year 1991-92
submitted to the Government shows the total expenditure during the
year was Rs.13,97,10,702.29 while copy of the said report sent to the
Board shows the expenditure of Rs.12,84,97,734.76. Thus, there is
difference of Rs.1,12,12,967.53 and the petitioner has put his
signature on both abovementioned reports.
19. Shri Pednekear has further deposed that Exh.72 are
summary sheets of one Shri Davkave. The same have been signed by
Shri Yewale, the petitioner and Shri Hadkar who was the then
Secretary of the Board. In these summary sheets, Rs.2,00,000/- more
has been shown as gross pay. So also the summary sheet of Shri
N.D.Nashikkar shows Rs.2,00,000/- more as gross pay. Even
summary sheet at Exh.74 which is signed by the petitioner shows
more gross pay. Thus Exhibits 72 to 75 indicate that Rs.9,00,000/-
have been shown more as gross pay. All these aspects have been
taken into consideration by the Enquiry Officer while recording his
findings. The Enquiry Officer has also recorded discrepancies which
WP 2539.doc
are credited into the Board's account and thus, credited into the
Bank. The finding indicates that amount of Rs.1,25,000/- has not
been credited into the said Bank, which finding is based taking into
consideration Exhibits 78 & 80. Upon consideration of the material
on record, the Enquiry Officer has observed thus :
"It would appear from the various irregularities committed by
the C.S.E that wages etc. shown in the documents 1 to 28
mentioned hereinabove are in excess of net wage. Had the
C.S.E. been alert, and wedded to the duties assigned to him, he
could have very well avoided the payments made to the
Mathadis.
Mr.Chandane has in this letter dated 02/08/1973 (Exh.56)
admitted that various irregularities made in the accounts for the
year 1991-92 have been made with the connivance of Mr.Yevale
and some other employees. He has also admitted that the
annual reports for 1991-92 submitted by the Auditors to the
Govt. and the Board were different, which fact was known to
him but he preferred to remain silent which proves that he was
very much involved in the same.
All the charges alleged by the Management against the C.S.E.
have been proved to the hilt as the C.S.E has been entirely
responsible for the misappropriation of the Board's funds, and
as such I find the C.S.E guilty of all the charges against him.
Had he been prompt, misappropriation would have been easily
avoided, but he failed in his duty miserably. The Board may
now proceed to take such further action against the delinquent
as it may deem fit and proper."
20. From what is observed by the Enquiry Officer, it is apart
from that letter dated 02/08/1993 - Exhibit 56, the petitioner has
admitted the various irregularities made in accounts in the year
1991-92 which have been made with connivance of Mr.Yewale,
himself and some other employee. The petitioner has also admitted
WP 2539.doc
that annual reports for the year 1991-92 submitted by the auditors to
the Government and the Board were different which fact was known
to him but he preferred to remain silent which proves his
involvement in the incident. The Enquiry Officer has recorded a
finding that had the petitioner been prompt and diligent,
misappropriation would have been easily avoided, but petitioner
failed in his duty.
21. The scope of interference by this Court in disciplinary matters
is well settled by various decisions of the Apex Court as well as this
Court. Learned Counsel for the respondents has already relied upon
some of the decisions which we have cited hereinbefore. We find
that the Enquiry Officer has on the basis of the materials on record
and deposition of the witness Shri Pednekar has arrived at the
finding of fact that charges levelled against the petitioner has been
proved. The petitioner was working as an Accountant. The charges
levelled against him are of serious nature. We do not find that
punishment of dismissal for the proved charges is in any manner
disproportionate or excessive. Based on the materials on record, the
Enquiry Officer has come to the conclusion that charges against the
petitioner are proved. In our opinion, ample opportunity has been
WP 2539.doc
given to the petitioner to defend himself during the course of enquiry.
We do not find that the enquiry has been conducted in breach of
principles of natural justice. We are also of the opinion that the
findings recorded by the Enquiry Officer which is based on the
documents available on record and the deposition of Shri Pednekar
cannot be perverse or irrational so as to warrant any interference in
exercise of our extra ordinary writ jurisdiction under Article 226 of
the Constitution of India.
22. In this view of the matter, we do not find any merit in
this Petition. Writ Petition is therefore dismissed with no order as to
costs.
(M.S.KARNIK, J.) (A.A.SAYED, J.)
