Aniruddha Nagorao Chinchkhedkar vs Additional Commissioner & Ors
2017 Latest Caselaw 8199 Bom

                                      (1)              Writ Petition No. 369/2004




          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      BENCH AT AURANGABAD

                      WRIT PETITION NO. 369 OF 2004

 Aniruddha Nagorao Chinchkhedkar
 Age : 45 yrs, occu.: service
 R/o Nilkantnagar, Gouri Housing,
 Old Jalna, District Jalna.                                 Petitioner.


          Versus

 1.       The Additional Commissioner
          Aurangabad Division,
          Aurangabad.
          (Copy to be served on G.P.
          High Court of Bombay, Bench
          at Aurangabad).

 2.       The Chief Executive Officer
          Zilla Parishad, Jalna.                              Respondents.


                         ***
 Mr.D.R. Irale Patil, Advocate for the petitioner.
 Mr.A.R. Borulkar,A.G.P. for respondent No.1.
 Mr.Bhushan Kulkarni, Advocate for respondent No.2.
                         ***

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

Reserved on : 26.09.2017.

Pronounced on : 13.10.2017.

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

1. This petition is filed under Article 226

of the Constitution of India to challenge the

order dated 12.09.2002 passed by the respondent

(2) Writ Petition No. 369/2004

No.2-Chief Executive Officer, Zilla Parishad,

Jalna and the order dated 09.12.2003 passed by the

respondent No.1 - Additional Commissioner,

Aurangabad imposing penalty upon the petitioner

under Rule 4 (iv) of Maharashtra Zilla Parishad

District Services (Discipline and Appeal) Rules,

1964 (hereinafter referred as "Discipline and

Appeal Rules"), reducing to lower stage in a time

scale.

2. Contention of the petitioner is that he

works as a Leprosy Technician on the establishment

of the Zilla Parishad,Jalna. On account of

ailment of Tuberculosis, he proceeded on leave

from 01.06.1994 to 14.06.1995. Despite filing of

medical certificate, his medical leave was not

sanctioned by the Competent Authority and he was

referred to Medical Board, Aurangabad. He was

examined on 13.12.1995 by the Medical Board and he

was found fit to resume his duties. Thereafter

petitioner produced medical certificate before

respondent No.2 and requested him to permit the

petitioner to join his duties. However, for the

(3) Writ Petition No. 369/2004

period of 9 months no posting order was issued.

On 30.03.1996, respondent No.2 issued posting

order and the petitioner was posted at Primary

Health Centre, Wakulni.

3. The next contention of the petitioner is

that on 10.05.1999, respondent No.2 served a show

cause notice to the petitioner as to why

Departmental Enquiry should not be initiated

against him. Without awaiting for reply of the

petitioner, the Departmental Enquiry was initiated

by respondent No.2 under order dated 22.06.1999.

Six different charges were levelled against the

petitioner for his unauthorised absence on duty

without submitting leave application, making

direct correspondence with higher authority and

disobeying the orders of the superiors. On

23.03.1999, the petitioner was placed under

suspension by respondent No.2, when he was posted

at Primary Health Centre, Tembhurni. After his

suspension, the petitioner joined at Zilla

Parishad Office, Jalna since 07.08.1999. After

completion of Departmental Enquiry, final enquiry

(4) Writ Petition No. 369/2004

report was submitted in the year 2000. Contention

of the petitioner is that despite his application

dated 09.08.1999 for providing certain documents,

those documents were not provided to him and

Departmental Enquiry was proceeded without giving

proper opportunity to the petitioner. As the

Enquiry Officer held the petitioner guilty, on

20.02.2002 shows cause notice was served on the

petitioner as to why major penalty of compulsory

retirement should not be imposed against him.

That notice was replied by the petitioner on

20.03.2002 and 16.04.2002. However, without

considering the reply of the petitioner,

respondent, respondent No.2 passed the impugned

order dated 12.09.2002 and petitioner was placed

in the lowest pay scale of Rs. 4000 to 6000. The

suspension period from 23.03.1999 till 30.09.2002

was treated as 'suspension' and the period from

01.06.1994 to 28.01.1999 was treated as

'unauthorised absence' from the duty.

4. Being dis-satisfied by this order, the

petitioner filed an appeal under Rule 13 of the

(5) Writ Petition No. 369/2004

Discipline and Appeal Rules. On 09.12.2003,

respondent No.1 dismissed the said appeal.

Therefore, the petitioner was constrained to file

this Writ Petition to challenge both the impugned

orders.

5. Learned Counsel for the petitioner

submits that after service of show cause notice to

the petitioner, the respondent No.2, without

waiting for the say of the petitioner, immediately

passed order for initiating Departmental Enquiry

against the petitioner.

6. In reply, the learned Counsel for the

respondents submits that despite sufficient

opportunity, petitioner did not submit his reply,

and therefore, on 22.06.1999 an order was passed

by respondent No.2 to initiate Departmental

Enquiry against the petitioner.

7. However, under Rule 6 of the Discipline

and Appeal Rules, the procedure is prescribed for

passing order imposing on a Parishad servant any

(6) Writ Petition No. 369/2004

of the penalties specified in Clauses IV to VII of

Rule 4. Under Rule 6 (2) order of such major

penalty cannot be passed except after holding

enquiry. The procedure for holding enquiry is

prescribed under Rule 6 (2) to (12) of Discipline

and Appeal Rules. Rule 6 (2) only provides that

Disciplinary Authority shall frame definite

charges on the basis of the allegations on which

the enquiry is proposed to be held. Such charges

together with the statement of allegations on

which they are based shall be communicated in

writing to the Parishad servant and he shall be

required to submit within such time as may be

specified by Disciplinary Authority, to such

authority a written statement of his defence and

also to state whether he desires to be heard in

person.

8. On perusal of the record placed before

the Court, it emerges that in compliance with Rule

6 (2) of Discipline and Appeal Rules, on

10.05.1999, notice (Exhibit-C) was issued and

served to the petitioner together with charges on

(7) Writ Petition No. 369/2004

the basis of allegations on which enquiry was

proposed to be held, with statement of allegations

on which they are based. Direction was given to

the petitioner to file written statement of his

defence within 10 days from the date of service of

notice and opportunity of personal hearing was

also given to him. However, as within prescribed

time limit the petitioner did not file his written

statement of defence. On 22.06.1999 the respondent

No.2 passed an order to proceed with Departmental

Enquiry against the petitioner and appointed

Enquiry Officer as well as Presenting Officer in

compliance with Rule 6 (5) of the Discipline and

Appeal Rules. We do not find any illegality in

the procedure followed by the Department as stated

above.

9. The next objection of learned Counsel for

the petitioner is that the copies of required

documents were not provided to the petitioner, and

therefore, he could not file written statement of

his defence. In reply, learned Counsel for the

respondents submitted that petitioner did not pay

(8) Writ Petition No. 369/2004

requisite fees for obtaining certified copies of

the required documents and thus he is responsible

for not providing documents to him.

10. Rule 6 (4) of the Discipline and Appeal

Rules provides that a Parishad servant shall for

the purpose of preparing his defence be permitted

to inspect and take extract from such official

record as he may specify. However, Disciplinary

Authority or Enquiry Officer may refuse such

permission if such record is not relevant for the

purpose of enquiry or it is against the public

interest to allow the Parishad servant access

thereto.

11. However, on perusal of record, it emerges

that on 09.08.1999, the petitioner submitted

application to District Health Officer, Zilla

Parishad, Jalna for supply of copies of five

documents. District Health Officer, Zilla

Parishad, Jalna is not the Competent Officer who

can provide inspection of record or copies of

required document to the petitioner. In view of

(9) Writ Petition No. 369/2004

Rule 6 (4) of the Discipline and Appeal Rules,

such application should have been filed by the

petitioner before Enquiry Officer or Disciplinary

Authority i.e. the respondent No.2. However, the

petitioner has not filed copy of application for

documents submitted to Enquiry Officer or

Disciplinary Authority. When petitioner did not

file application for certified copies before

Disciplinary Authority or Enquiry Officer, he

cannot blame the Enquiry Officer or Disciplinary

Authority for not providing copies of required

documents to him.

12. Subsequently, on 11.08.2000 petitioner

filed application before Enquiry Officer for

supply of copies of the documents. However, this

application itself shows that he did not specify

exactly which documents were required by him. As

per letter dated 15.09.2000 addressed to the

petitioner, he was informed to give particulars of

the documents required by him and to pay necessary

fees as per rules for copies of those documents.

However, instead of providing such particulars,

(10) Writ Petition No. 369/2004

petitioner issued letter dated 11.10.2000 and

refused to pay copying fees on the ground that he

was under suspension and without pay. Even in

reply letter he did not give particulars of

required documents. If this letter correspondence

is taken into consideration, it becomes clear that

due to his own conduct the petitioner could not

get copies of the required documents. Therefore,

now he cannot blame the Department for not

providing copies of required documents to him.

13. The next limb of the argument of learned

Counsel for the petitioner is that the charges

levelled against the petitioner are vague. He

placed reliance on the judgment in the case of

"Sawai Sing Versus State of Rajasthan", reported

in (AIR 1986 SC 995) wherein the Apex Court

observed that, "where the charges framed against

the delinquent were vague and no allegations

regarding it have been made by him before Enquiry

Officer or before the High Court, the fact that he

has participated in the enquiry would not

exonerate the Department to bring home charges.

(11) Writ Petition No. 369/2004

The enquiry based on such charges would stand

vitiated being not fair".

14. In reply, learned Counsel for the

respondents submitted that the charges levelled

against the petitioner are not vague and fair

opportunity was awarded to the petitioner to face

those charges.

15. After going through the charges and

statement of imputation annexed with the charge-

sheet, it emerges that total six charges were

framed against the petitioner. Those are as

under:

(i) unauthorised absence from the duty.

(ii) absence from the duty without prior permission of Competent Authority and without giving intimation or leave application to the office or the Competent Authority.

(iii) seeking permission to join duty by showing false reason of illness.

        (iv)       remaining absent from duty despite 
                   joining   orders   by   the   Office   and 
                   thereby   causing   obstruction   in 





                                       (12)              Writ Petition No. 369/2004



                   providing   health   services   to   the 
                   public.

         (v)       making   direct   correspondence   to   the 
                   Higher Office.

(vi) disobeying the orders of superiors and not replying show cause notices issued by the superiors.

16. In statement of imputations every

particular of alleged misconduct of the petitioner

is mentioned. Therefore, we hold that the

objection raised by the learned Counsel for the

petitioner regarding vagueness of the charges in

Departmental Enquiry, is baseless and thus

rejected.

17. The next objection of learned Counsel for

petitioner is that though the petitioner was

absent on duty from 01.06.1994 to 16.04.1995,

Departmental Enquiry was initiated after

inordinate delay i.e. on 22.06.1999 and the

enquiry report was submitted on 30.10.2001.

18. However, we do not find any substance in

the above objection for the reason that the

(13) Writ Petition No. 369/2004

enquiry was not initiated only on the ground of

unauthorised absence from 01.06.1994 to

16.04.1995, but the enquiry was initiated for all

along unauthorised absence of the petitioner from

01.06.1994 to 07.06.1996 and from 09.06.1996 to

28.01.1999. Therefore, it cannot be said that the

Departmental Enquiry was initiated after

inordinate delay from the alleged misconduct. So

also, from the enquiry report, it emerges that on

account of absence of the petitioner or

adjournment sought by the petitioner, the enquiry

could not be completed till 30.10.2001. The

petitioner cannot take benefit of his own wrongs

and blame the department for the reason of delay

in completing the Departmental Enquiry.

19. The next objection raised by learned

Counsel for the petitioner is that though the

petitioner submitted medical certificate issued by

T.B. Medical Board and fitness certificate issued

by Medical Board, Medical College Hospital,

Aurangabad, the Enquiry Officer erroneously held

the period from 01.06.1994 to 16.04.1995 as

(14) Writ Petition No. 369/2004

"unauthorised absence''.

20. Trite law is that, while examining

correctness of the orders passed in domestic

enquiry, while exercising writ jurisdiction, this

Court cannot re-appreciate the evidence like

Appellate Court. Unless the order passed by

Disciplinary Authority or Appellate Authority is

perverse, this Court cannot interfere.

21. After going through the certificate

issued in Form-5 (Exhibit-A) relied on by the

petitioner, it emerges that in fact this

certificate is merely a certificate of "fitness"

and not medical certificate regarding Tuberculosis

illness for the period from 01.06.1994 to

16.04.1995. Another important aspect to be noted

is that, in this certificate (Exhibit-A), it is

nowhere mentioned that the petitioner was treated

at T.B. Centre, Aurangabad for the disease

'Tuberculosis' during the period from 01.06.1994

to 16.04.1995. Therefore. the medical certificate

(Exhibit-A) relied on by the petitioner cannot be

(15) Writ Petition No. 369/2004

treated as a medical certificate issued by the

Competent Medical Officer or Board regarding the

ailment of the petitioner as Tuberculosis from

01.06.1994 to 16.04.1995.

22. The record shows that respondent No.2 did

not accept the medical certificate filed by the

petitioner and therefore, he was referred for

medical examination to Medical Board, Medical

College Hospital, Aurangabad. On 28.11.1995,

Medical Board, Medical College Hospital,

Aurangabad issued letter to Medical Officer,

Tuberculosis Centre, Aurangabad and called his

remarks for the reason that the medical

certificate issued by T.B. Centre, Aurangabad as

well as the medical certificate issued by private

practitioner Dr. D.E. Jawlekar covered same period

of treatment i.e. 01.06.1994 to 16.04.1995. Thus,

it reveals that Medical Board, Government Medical

Hospital, Aurangabad was doubtful about

correctness of medical certificate issued by T.B.

Centre, Aurangabad, relied on by the petitioner.

The certificate issued by Medical Board, Medical

(16) Writ Petition No. 369/2004

College Hospital, Aurangabad shows that Medical

Board expressed its inability to opine on illness

of the petitioner for the period from 01.06.1994

to 16.04.1995 and it only issued fitness

certificate in favour of the petitioner. This

material on record is certainly sufficient to hold

that because petitioner failed to satisfy that

from 01.06.1994 to 16.04.1995 he was under medical

treatment for Tuberculosis, the Department as well

as the Enquiry Officer held this period as

unauthorised absence of the petitioner.

23. The report of the Enquiry Officer shows

that on the basis of material placed on record, he

held that the petitioner was unauthorisely absent

from 01.06.1994 to 07.06.1996 and again from

09.06.1996 to 28.01.1999. Even in the reply

(Exhibit-F) to final show cause notice, in para 4

petitioner has admitted that after receipt of

posting order dated 30.03.1996, he joined his duty

at Primary Health Centre, Wakulni on 08.06.1996

and since 09.06.1996 he was absent on account of

illness of his mother. He has also admitted in

(17) Writ Petition No. 369/2004

this reply that he did not file leave application

in the prescribed proforma. Otherwise also, the

petitioner has not filed any documentary evidence

on record to show that during his absence period,

he submitted leave application to the Department

or he had given prior intimation to the Department

about his absence. In the circumstances, we do

not find perversity in the finding of Enquiry

Officer, that petitioner was absent from duty from

01.06.1994 to 07.06.1996 and from 09.06.1996 to

28.01.1999, without prior intimation and without

submitting leave application.

24. Under Rule 6 (1) of Maharashtra Zilla

Parishad District Services (Conduct) Rules, 1967

(hereinafter referred as "Conduct Rules"), no

Parishad servant can address directly any

communication to any superior authority other than

that to which he is immediately subordinate in any

matter relating to his official duties. One of

the charge against the petitioner is that he

directly communicated with superior authority

other than that to which he is immediately

(18) Writ Petition No. 369/2004

subordinate. In para 5 of reply to final show

cause notice, petitioner has admitted such direct

correspondence with District Health Officer in

contravention with Rule 6 (1) of the Conduct

Rules.

25. In the circumstances, after perusal of

material placed on record, we are fully satisfied

that the finding of Enquiry Officer that all

charges are proved against the petitioner cannot

be termed as perverse finding.

26. The next submission of the learned

Counsel for the petitioner is that, multiple

punishment was imposed against the petitioner.

However, we do not find any substance in this

submission for the simple reason that in the order

dated 09.12.2003 passed by respondent No.1 in

Departmental Appeal, he has made it clear that

only single punishment was imposed on the

petitioner i.e. he was brought to the basic pay in

the pay scale. The other part of the order of

punishment is regarding regularisation of his

(19) Writ Petition No. 369/2004

absence period. Regularisation of absence period

of the petitioner cannot be called as

'punishment'. Thus, the objection regarding

imposing multiple punishment to the petitioner is

not acceptable.

27. Learned Counsel for the petitioner

submits that in the show cause notice punishment

of compulsory retirement was proposed, but while

imposing punishment, instead of compulsory

retirement, punishment of reducing to lower pay

scale was imposed.

28. However, reduction of lower pay scale is

not a severe punishment than the punishment of

compulsory retirement. The Disciplinary Authority

is not bound by law to impose the same punishment

which is mentioned in final show cause notice.

The imposed punishment can be lessor than

mentioned in the show cause notice. Accordingly,

the above objection raised by learned Counsel for

the petitioner is rejected.

(20) Writ Petition No. 369/2004

29. The next limb of the argument of learned

Counsel for the petitioner is that the punishment

of reducing to basic pay scale is absolutely

disproportionate with the charges proved against

the petitioner. He requested to remand this

matter to the Disciplinary Authority with

direction to reconsider the penalty imposed. He

placed reliance on the judgments in the cases of

"Dev Singh Versus Punjab Tourism Development

Corporation Ltd.", reported in (AIR 2003 Supreme

Court 3712) and "Kailash Nath Gupta Vs. Enquiry

Officer, Allahabad Bank and others", reported in

(AIR 2003 Supreme Court 1377). The ratio of these

authorities is that, "if the punishment imposed by

Disciplinary Authority is shocking conscience of

the Court, the Court may direct the Authority to

reconsider the penalty imposed or in rare case,

itself impose the appropriate punishment".

30. However, the ratio of the above cited

both authorities is distinguishable, because in

the cases before the Apex Court the petitioners

were dismissed from the service. The case before

(21) Writ Petition No. 369/2004

us is not the case in which the petitioner is

dismissed from the service. Recently 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".

31. While examining whether the penalty of

reduction to lower pay scale awarded by the

Disciplinary Authority is wholly disproportionate,

that too to an extent that it shakes the

conscience of the Court, we must consider the

circumstances of the present case. In the present

case, the petitioner was serving as Leprosy

Technician in the Health Department. Therefore,

(22) Writ Petition No. 369/2004

he was directly connected with the health of

public at large and specifically with suspected

leprosy patient. As held in the Departmental

Enquiry, the petitioner unauthorisely remained

absent from his official duty without prior

permission of higher officer and without prior

intimation to his own office for the period for

more than 4 years and 6 months. The reasons

assigned by the petitioner for his absence are

absolutely lame and not acceptable. The overall

conduct of the petitioner indicates that he is

nothing but a dead wood in the Health Department

of Zilla Parishad, Jalna. In fact, the

Disciplinary Authority has shown most lenient

approach while awarding such lessor punishment of

only reduction to lower pay scale. We hold that

the punishment imposed by the Disciplinary

Authority is not disproportionate, that too to an

extent that it shakes the conscience of the Court.

Therefore, we find no reason to interfere with the

punishment imposed by the Disciplinary Authority

against the petitioner.

(23) Writ Petition No. 369/2004

32. The last submission of the learned

Counsel for the petitioner is that the respondent

No.1 did not apply mind while deciding the appeal

preferred by the petitioner against the order

passed by respondent No.2. He placed reliance on

the judgment in the case of "Director (Marketing),

Indian Oil Corporation Ltd., Vs. Santosh Kumar",

reported in [ (2006) 11 Supreme Court Cases 147].

In that case, in appeal against order of dismissal

passed by Disciplinary Authority, the Appellate

Authority by simply adopting the language employed

by Disciplinary Authority, refused to interfere

with the dismissal order. There was total non

application of mind. Therefore, the matter was

remitted for fresh consideration by Disciplinary

Authority.

33. However, in the case at hand, after going

through the order passed by respondent No.2 dated

12.09.2002, it emerges that the Disciplinary

Authority has considered the Enquiry Report as

well as explanation submitted by petitioner

delinquent and thereafter passed an order of

(24) Writ Petition No. 369/2004

punishment of reduction to initial pay scale.

Thus, it cannot be said that there was total non

application of mind by Disciplinary Authority. So

also, the order passed by respondent No.1 in the

Departmental Appeal filed by petitioner shows that

even the Appellate Authority has considered what

were the charges levelled against the petitioner

as well as what were the various objections raised

by the petitioner. The appellate authority has

explained the order of punishment imposed by

Disciplinary Authority that it was not an order of

multiple punishment, but the punishment was only

regarding reduction to basic pay scale and the

order regarding suspension period or unauthorised

absence period of the petitioner was only

regularisation of that respective period. Thus,

there was certainly application of mind by the

Appellate Authority, while dismissing the

Departmental Appeal preferred by petitioner. The

above cited authority relied on by the petitioner

can be distinguished.

34. Accordingly, our conclusion is that the

(25) Writ Petition No. 369/2004

orders passed by Disciplinary Authority as well as

the Appellate Authority are not perverse, and even

the punishment imposed by Disciplinary Authority

is not disproportionate which shakes conscious of

this Court. This petition being devoid of merit,

deserves to be dismissed.

35. Accordingly we pass the following order.

                                     ORDER

          a)      Writ   Petition   No   369   of   2004   is 
                  dismissed.
         b)       Rule is discharged.
         c)       No order as to costs. 




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




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