Bombay High Court
Bhaskar Kisanrao Joshi vs The State Of Mah And Ors on 9 October, 2017
Bench: S.P. Deshmukh
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.7212 of 2007
Bhaskar Kisanrao Joshi,
age : 66 years, Occ.: Nil-Pensioner,
R/o Saraswati Nagar, Parbhani PETITIONER
VERSUS
1. The State of Maharashtra,
Through G.P. High Court,
Aurangabad Bench
2. The Secretary,
Finance Department,
Mantralaya, Mumbai RESPONDENTS
----
Mr. Ajay S. Deshpande, Advocate for the petitioner
Mr. S.K. Tambe, A.G.P. for the respondents/State
----
CORAM : SUNIL P. DESHMUKH AND
SANGITRAO S. PATIL, JJ.
RESERVED ON : 25th SEPTEMBER, 2017
PRONOUNCED ON : 9th OCTOBER, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Heard the learned counsel for the petitioner
and the learned A.G.P.
2. The petitioner was serving as an In-charge
Chief Accounts and Finance Officer with Zilla Parishad,
Nanded, from 1990-91 to 1991-92. It was noticed that
during the said period, he committed certain financial
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irregularities and illegalities amounting to misconduct
as explained in Rule 3(1)(i) and (ii) of the Maharashtra
Civil Services (Conduct) Rules, 1979 ("Conduct Rules",
for short). Therefore, it was decided to initiate
disciplinary proceedings against him. Accordingly, after
adopting the procedure laid down in Rule 8 of the
Maharashtra Civil Services (Discipline and Appeal)
Rules, 1979 ("Disciplinary Rules", for short), enquiry
was conducted against him in respect of eight charges.
The Enquiry Officer held him guilty for the charge Nos.
1, 2, 3, 4, 6 and 8. The Disciplinary Authority, after
considering the representation of the petitioner, held
him guilty for charge Nos.2, 4 and 8 only vide the final
order dated 24.08.2005. The petitioner had retired on
attaining the age of superannuation on 31.08.2000.
Therefore, a minor penalty was imposed on him of
deduction of 1% of his pension for a period of one year.
3. The petitioner filed Original Application
No.207 of 2004 challenging the final order dated
24.08.2005, holding him guilty of the charge Nos. 2, 4
and 8 and imposing penalty on him as stated above,
before the Maharashtra Administrative Tribunal, Bench at
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Aurangabad ("Tribunal", for short). The said original
application came to be dismissed on 16.11.2006. The
petitioner filed Review Application No. 399 of 2006
against that order before the Tribunal but the same also
came to be dismissed on 04.09.2007. Ultimately, the
petitioner approached this Court with this writ petition
challenging the final order dated 24.08.2005 as well as
the orders of the Tribunal confirming the said final
order.
4. The learned counsel for the petitioner submits
that the petitioner has served for 37 years with
unblemished record. He did not commit any
irregularities, illegalities or misconduct as alleged by
the respondents. The disciplinary proceedings were
initiated against the petitioner for the alleged
delinquencies pertaining to the year 1990-91. The
petitioner was due for retirement on attaining the age
of superannuation on 31.08.2000. One day prior to his
retirement i.e. on 30.08.2000, he was served with the
memorandum alongwith charges levelled against him for
which the disciplinary proceedings were to be conducted
against him under Rule 8 of the Disciplinary Rules.
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According to him, this sequence of evidence shows that
the superior officers of the petitioner wanted anyhow to
involve the petitioner in the disciplinary proceedings
with a view to harass him, see that he should not retire
with clean image and also to cause delay in payment of
his pension and pensionary benefits. He submits that the
charges levelled against the petitioner were so baseless
and insignificant that no disciplinary proceedings could
have been initiated against him. According to him, the
findings of the Disciplinary Authority, holding the
petitioner guilty for charge Nos.2, 4 and 8, are based
on no evidence. The petitioner clarified in his replies
and pointed out that he did not commit any misconduct as
alleged. However, the replies of the petitioner have
been deliberately ignored and he has been wrongly
penalised.
5. The learned counsel further submits that though
the deduction of 1% from the pension of the petitioner
for a period of one year would hardly amount to
Rs.1000/-, the petitioner challenged the said findings
and penalty since same were perverse and based on no
evidence. He wanted to remove the stigma that was
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attached to his career without there being any fault on
his part. He submits that the Tribunal did not at all
consider the contentions raised by the petitioner and
without applying mind to the facts of the case dismissed
the original application as well as review application.
He, therefore, submits that the impugned orders may be
quashed and set aside.
6. As against this, the learned A.G.P., relying on
the contents of the reply filed by the Joint Director of
Accounts and Treasuries, Aurangabad supports the
impugned orders. According to him, the Tribunal has
considered the charges levelled against the petitioner
and the evidence in support of these charges and has
rightly dismissed the original application as well as
the review application.
7. Keeping in mind the rival contentions raised
before us, we propose to deal with charges levelled
against the petitioner and the evidence produced in
support thereof.
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Charge No.2 :
The petitioner unauthorisedly spent the amount
of Agency Schemes, which was deposited in the district
funds for other schemes.
8. The learned counsel for the petitioner pointed
out to Resolution No.9 dated 25.03.1991 and Resolution
No.11 dated 27.03.1991, which have been signed by the
then Administrator and Chief Executive Officer of Zilla
Parishad, Nanded and the present petitioner. As per the
resolution dated 25.03.1991, the revised budget of 1990-
91 was proposed to be submitted to the Administrator/
Chief Executive Officer of Zilla Parishad for approval.
As per Resolution No.11 dated 27.03.1991, it was
proposed to take loan of Rs.59,67,000/- from the amount
of deposits i.e. Rs.70,20,000/- invested with N.D.C.C.
Bank by the Zilla Parishad and to spend it for
construction of the building of Primary Health Centre,
repairs of the roads which were damaged due to heavy
rains, maintenance of roads, pay, transport allowances
etc. of primary and secondary schools, grants to private
primary schools, pay and allowances of the employees of
General Administration and Minor Irrigation Department.
The said proposal was approved by the Administrator/
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Chief Executive Officer, Zilla Parishad, Nanded vide
Resolution No.29 dated 30.03.1991. The learned counsel
submits that these three Resolutions clearly show that
whatever expenditure was made by the petitioner had been
approved by the Administrator/Chief Executive Officer.
Therefore, the petitioner could not have been blamed for
utilisation of the said amount for the above-mentioned
purposes.
9. We find substance in the contention of the
learned counsel. The above-mentioned three resolutions
sufficiently and clearly show that the petitioner did
not utilize the deposit amounts at his own. He got
approval of the Administrator/Chief Executive Officer
for the purposed expenditure as mentioned above. The
petitioner has specifically mentioned in his
representation dated 15.09.2005 that in case the deposit
amount had not been used, the funds allotted for the
above-mentioned works would have got lapsed and that in
the public interest it was essential to use the deposit
amount. In our view, the enquiry officer has wrongly
held the petitioner guilty of the said charge.
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Charge No.4 :
The petitioner unauthorizedly utilised the
funds of other schemes and created liability of
Rs.1,05,09,455/- without approval of the
Administrator/Chief Executive Officer.
10. The learned counsel for the petitioner submits
that as per the above referred resolution No.11, the
petitioner had sought approval of the Administrator/
Chief Executive Officer for raising loan of
Rs.59,67,000/- on the deposit lying with the Nanded
District Central Co-Operative Bank for being spent for
the purposes mentioned in the said resolution. As per
Resolution No.29 dated 30.03.1991, the approval was
given for raising such loan amount. The expenditure
incurred by the petitioner with the approval of the
Administrator/ Chief Executive Officer has got sanction
at the level of the Government, as seen from the letter
dated 13.09.1991 issued by the Director of Education,
Maharashtra State, whereby the amount spent from the
funds of Zilla Parishad i.e. Rs.2,30,29,420/- was
sanctioned by the Government. He submits that from the
said amount, the amounts of agency schemes have been
repaid and no liability has been created against Zilla
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Parishad.
11. We perused the letter dated 13.09.1991. In
column No.4 of the said letter, there is specific
mention that the amount of Rs.2,30,29,420/- was spent
towards excess expenditure from the funds of Zilla
Parishad, Nanded and the said expenditure was approved
and amount to that extent was sanctioned. It was
directed that from this sanctioned amount, the
expenditure that was already made was to be
appropriated. In our view, the letter dated 13.09.1991
makes it clear that whatever extra expenditure was
incurred by the Zilla Parishad was sanctioned by the
Government and no liability was created against the
Zilla Parishad. We, therefore, find force in the
contentions of the learned counsel for the petitioner.
There was no evidence to hold the petitioner guilty for
charge No.4.
Charge No.8 :
The petitioner unauthorizedly kept the amount
of Rs.18,80,000/- in the District Funds which was meant
for making payment of the bills of 1990-91 towards
street light electricity bills and drinking water supply
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bills of Village Panchayats.
12. The learned counsel for the petitioner pointed
out to the Government Resolution dated 10.10.1990,
whereunder the funds of agency schemes were required to
be kept in district funds instead of keeping them in
individual account. It was specifically mentioned that
the various accounts opened in respect of various
schemes of Zilla Parishad should be immediately closed
and the funds thereof should be kept in district funds.
He submits that the petitioner has followed this
Government Resolution and did not commit any misconduct.
We find substance in this contention also. If the
Government Resolution dated 10.10.1990 is considered,
there is hardly any scope for alleging any misconduct on
the part of the petitioner if he deposits the funds
received in respect of agency schemes in the district
funds.
13. The final order dated 24.08.2005 is rather
cryptic and non-speaking. After reproducing charge Nos.1
to 8, the disciplinary authority has concluded in a
single paragraph that charge Nos.1, 2, 3, 4, 5 and 8
were held to have been proved by the Enquiry Officer.
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After scrutinizing the enquiry report, out of total
charges, charge Nos. 2, 4 and 8 only are found to have
been proved against the petitioner. There is absolutely
no discussion of the evidence that was on record in
respect of charge Nos. 2, 4 and 8. There is no reference
of any resolution of Zilla Parishad or Government
Resolutions, which were specifically mentioned by the
petitioner in his reply to the show cause notice,
whereunder, he had utilised the funds of agency schemes
for other permissible purposes and deposited the amount
of agency schemes in the district funds. The
representation of the petitioner has been totally
ignored by the Disciplinary Authority without assiging
any reason.
14. The Tribunal in the order dated 16.11.2006 has
simply reproduced in vernacular charge Nos. 2, 4 and 8
and the opinion expressed by the Enquiry Officer in
respect of the charges without actually referring to the
resolutions passed by the Zilla Parishad as well as
Government Resolutions on the subject, in order to see
whether the Enquiry officer rightly held the petitioner
guilty. The Tribunal simply recorded that there was
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evidence before Enquiry Officer to come to the
conclusion that charge Nos. 2, 4, and 8 were proved. The
Tribunal further held that the judicial review powers of
the Tribunal are very limited. The Tribunal cannot re-
appreciate and substitute the evidence before it. The
Tribunal observed that it cannot interfere in the order
of punishment passed against the Government employee by
the competent authority. On the basis of these
observations, the Tribunal did not interfere with the
findings of the Enquiry Officer and dismissed the
original application.
15. In our view, this is a fit case wherein the
Tribunal ought to have exercised the jurisdiction vested
in it. As stated above, there was no evidence to support
the allegations made against the petitioner. Tribunal
has been in error in not considering the
representation/reply of the petitioner filed before
Enquiry Officer as well as Disciplinary Authority and
not taking into account the contentions raised by the
petitioner in his original application. The Tribunal has
perfunctorily dealt with the matter and has dismissed
the same. The Tribunal ought to have approached the
original application objectively, an approach which
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could have been appreciated. Reproduction of charges and
the findings of the Enquiry Officer without actually
considering whether the said findings are really
supported with any evidence, would not be said to be an
effective adjudication by the Tribunal in this case.
Such a listless course is difficult to be approved, and
may not serve the very purpose of providing remedy to
the Government Servants to approach the Tribunal against
the disciplinary actions taken against them. The
impugned order of the Tribunal is as such, rendered
improper and untenable.
16. Since the period of more than 12 years has
elapsed after passing of the final order and the period
of 17 years has elapsed after retirement of the
petitioner, we are not inclined to remand the matter to
the Tribunal. We have, therefore, considered the charges
levelled against the petitioner and the evidence in
support thereof. We did not find any evidence which
would establish guilt of the petitioner for charge
Nos.2, 4 and 8. The writ petition is liable to be
allowed. The impugned final order dated 24.08.2005,
passed by the Disciplinary Authority, the order dated
16.11.2006 passed by the Tribunal in Original
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Application No.207 of 2004 and order dated 04.09.2007
passed by the Tribunal in Misc. Application No.399 of
2006 are liable to be quashed and set aside. Hence, the
following order:-
O R D E R
(i) The writ petition is allowed.
(ii) The final order dated 24.08.2005, passed by the
Disciplinary Authority, the order dated
16.11.2006 passed by the Tribunal in Original
Application No.207 of 2004 and order dated
04.09.2007 passed by the Tribunal in Misc.
Application No.399 of 2006 are quashed and set
aside.
(iii) The amount of penalty, if any, recovered from
the petitioner, shall be refunded to him.
(iv) Rule is made absolute accordingly.
(v) No costs.
[SANGITRAO S. PATIL] [SUNIL P. DESHMUKH]
JUDGE JUDGE
sam/wp7212-2007.odt
