The State Of Maharashtra, Through ... vs Shri. Suryakant Tukaram Shinde
2021 Latest Caselaw 131 Bom

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      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
           CIVIL APPELLATE SIDE JURISDICTION
                WRIT PETITION NO.7557 OF 2017
                            WITH
           INTERIM APPLICATION ST. NO.93904 OF 2020


The State of Maharashtra & Anr.                  ..     Petitioners
      Versus
Suryakant Tukaram Shinde.                        ..     Respondent
      --
Mr.B.V. Samant, AGP for the Petitioners.
Mr.Anil Anturkar, Senior Advocate, with Mr.Yashodeep
Deshmukh, Mr.Rajesh Togrikar, Ms. Sonali Pawar, Ms. Vaidehi
Deshmukh and Mr.Kapadia for the Respondent.
      --

                     CORAM        :         DIPANKAR DATTA, CJ. &
                                            G.S. KULKARNI, J.

                     DATE         :         JANUARY 5, 2021


ORAL JUDGMENT: (PER DIPANKAR DATTA, CJ.)


1.    This writ petition, at the            instance    of the      State of

Maharashtra,     through    the           Principal    Secretary,     Urban

Development Department and the Director, Department of Town

Planning and Valuation, registers challenge to a judgment and

order dated January 18, 2017 passed by the Maharashtra

Administrative Tribunal, Mumbai (hereafter "the Tribunal", for

short). The Tribunal, while allowing Review Application No. 7 of

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2016 (hereafter "the said application", for short), recalled the

judgment and order dated October 24, 2013 in Original

Application No.1235 of 2009 under review; and upon such

review, the Tribunal quashed the order dated May 3, 2006

whereby the review applicant/original applicant (hereafter

"Shinde", for short) was dismissed from service as well as the

appellate order dated May 20, 2009 confirming the order of

dismissal. It was declared that Shinde was eligible to be

reinstated in service with all consequential benefits and the

respondents in the original application (hereafter "the

petitioners", for short) were directed to take Shinde back in

service within three months from the date of the order.

2. Shinde, at the relevant time, was employed as the Town

Planner of Ambernath Municipal Council. A charge-sheet dated

August 19, 2002 was drawn up against him by the Director Town

Planning, Maharashtra State, Pune. The English version of the

two charges leveled against Shinde reads as follows:

"Charge No.1: While the applicant was working as a Town Planner in Ambernath Municipal Council, on deputation, has granted the permission of excess FSI for building construction in City Survey No. 4909 to 4913 as well as violated the

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Development Control Rules which amounts to misconduct as per Rule 3(1) and (2) of MCS (Conduct) Rules, 1979.

Charge No.2: That the applicant has violated the Government Notification dated 4.12.1997 and granted permission for building construction without spot inspection and granted excess FSI without verifying the Revenue Records of City Survey office and violated Rule 2.2.1 which amounts to violation of Rule 3(1) and (2) of MCS (Conduct) Rules, 1979."

3. Bare reading of the aforesaid charges would reveal that

Shinde was charged with permitting excess FSI for construction

on plots bearing City Survey Nos. 4909 to 4913 and 4848

(hereafter "the said plots", for short) in violation of the

Development Control Rules, amounting to misconduct within the

meaning of the Maharashtra Civil Services (Conduct) Rules,

1979. According to Shinde's disciplinary authority, FSI "1" was

permissible but Shinde had permitted FSI in excess of that.

4. In his reply dated September 23, 2002, Shinde denied and

disputed the charges and raised two-fold contentions. First, the

said plots were located in "Gaothan" area and maximum

permissible FSI for plots located in such area is "2"; therefore,

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there was no violation of any law. Secondly, FSI permitted by him

was "1" and not anything in excess as wrongfully alleged.

5. An inquiry into the charges followed, which culminated in

submission of report dated February 24, 2004 by the Inquiry

Officer. Shinde was held guilty of the charges. Based on such

inquiry report, Shinde was dismissed from service by an order

dated May 3, 2006. The order of dismissal was challenged by

Shinde before the Tribunal which, by its order dated October 4,

2007, held the original application to be not maintainable

because the stature remedy of appeal had not been pursued by

him. Shinde then filed a departmental appeal on October 31,

2007 addressed to the Hon'ble Governor, State of Maharashtra.

By an order dated October 15, 2008, the Hon'ble Governor

empowered the Hon'ble Deputy Chief Minister, Maharashtra

State to hear Shinde's appeal after granting opportunity of

hearing to him. The Appellate Authority by an order dated May

20, 2009 dismissed the appeal. The appellate order, in which the

order of dismissal merged, was then subjected to challenge by

Shinde before the Tribunal in Original Application No.1235 of

2009. By a judgment and order dated October 24, 2013, the

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Tribunal dismissed the original application. The tribunal, inter

alia, recorded the following finding:

"17. ....... As stated in paragraphs 14 and 15 and elsewhere the matter of enquiry has gone through a number of stages before arriving at a decision to institute a DE and in the DE and in the order of the appellate authority sufficient evidence have been adduced to prove the charges against the applicant. It cannot be said that the enquiry or appeal proceedings are vitiated for want of evidence or malafide. Paragraph 13 supra refers to verification of records, when the applicant was present. It cannot be said that there was any non-application of mind. Between appraisal of evidence and total lack of evidence there is a massive difference. The applicant's arguments pertain to appraisal of evidence about which naturally there can be differences of opinion between the delinquent and the disciplinary authority. The enquiry officer and appellate authority, it is seen, has assessed adequate evidence on record before coming to a conclusion. It cannot be said that same are based on conjectures and surmises. The contentions of the applicant in paragraph 4 supra are not acceptable........."

6. The said judgment and order formed the subject matter of

challenge in Writ Petition No.521 of 2014 at the instance of

Shinde. When the writ petition came up for hearing on February

1, 2016 before a coordinate Bench of this Court, of which one of

us was a member (G.S. Kulkarni, J.), counsel appearing for

Shinde sought leave to withdraw the same and to approach the

Tribunal in its review jurisdiction. The coordinate Bench

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disposed of the writ petition. Paragraph 3 of the said order dated

February 1, 2016 being relevant, is quoted below:

"The writ petition is disposed of as withdrawn with liberty. The MAT to consider the same in the background of filing the petition in this Court and its disposal as recorded above."

(emphasis supplied)

7. Availing the liberty granted by the order dated February 1,

2016, Shinde presented the said application before the Tribunal.

It is this application that has succeeded before the Tribunal by

reason of the judgment and order dated January 18, directing

the petitioners to reinstate Shinde in service upon quashing of

the order of dismissal and the appellate order.

8. Mr. Samant, Additional Government Pleader, appearing in

support of the writ petition has placed before us his written notes

of arguments, which is taken on record. It appears, on perusal of

such notes and on consideration of Mr. Samant's oral

arguments, that in essence the legality and/or propriety of the

impugned judgment and order of the Tribunal is sought to be

assailed on two-fold grounds:

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           (i)    The Tribunal overstepped its jurisdiction as if it

were rehearing the original application, without

bearing in mind the limited grounds on which

review of a judgment is permissible; and

(ii) Notwithstanding any error in jurisdiction

committed by the Tribunal, the findings

recorded by it in the impugned judgment and

order dated January 18, 2017 are not supported

by the records; in fact, the Tribunal exercised

jurisdiction as if it were sitting in appeal over

the decision of the appellate authority dated

May 20, 2009.

9. In support of the first ground of challenge, the decision of

the Supreme Court in State of West Bengal v. Kamal

Sengupta, reported in (2008) 8 SCC 612, as well as the

provisions of Order XLVII Rule 1 of the Code of Civil Procedure,

1908 (hereafter "the CPC", for short) is relied on. To buttress the

second ground of challenge, reliance is placed on the decision of

the Supreme Court in the case of B.C. Chaturvedi v. Union of

India, reported in (1995) 6 SCC 749.

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10. Opposing the writ petition, Mr. Anturkar, learned senior

counsel, submits that the Tribunal has very rightly exercised the

jurisdiction to review the judgment and order dated October 24,

2013, upon noticing that the same suffers from errors apparent

on the face of the record. According to him, the Tribunal

proceeded on a misconception of law and fact that Shinde was

urging it to reappreciate and reanalyze the evidence on record

without realizing that to reach the conclusion that a finding is

perverse, in the sense that documents produced in defence were

not at all considered, requires perusal of the evidence. He further

invites our attention to that part of the judgment and order

under challenge wherein the Tribunal considered and applied the

law laid down by the Supreme Court in its decision in Board of

Cricket Control in India and Another v. Netaji Cricket Club &

Others, reported in (2005) 4 SCC 741, to the effect that a

misconception of law may give rise to a case for review. Our

attention was also drawn to paragraph 16 of the impugned

judgment to demonstrate how the Tribunal arrived at the finding

that there were sufficient reasons to review and recall the

judgment and order dated October 24, 2013, which did not at all

look into the evidence on record on the mistaken ground that a

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tribunal constituted under the AT Act is precluded from

reappreciating and reanalyzing the evidence led in a

departmental inquiry. The contention advanced is that Shinde

never urged that the evidence be reappreciated and reanalyzed;

the prayer was to examine the evidence for ascertaining whether

the findings are perverse.

11. In support of the contention that the impugned judgment

and order does not deserve to be touched even on merits, Mr.

Anturkar contended that Shinde, by invoking the machinery

under the Right to Information Act, 2005 (hereafter "the RTI Act",

for short), had procured copies of official records. These records,

according to him, constitute 'information' under the RTI Act and

support Shinde's plea that the said plots were located within the

"Gaothan" area and, therefore, even if Shinde had permitted FSI

more than "1", there was no violation of any law; however,

despite a point having been raised touching it in the appeal dated

October 31, 2007 in defence of the disputed permission granted

by Shinde, the Appellate Authority had failed and neglected to

consider such point. Having taken us through paragraph 11 of

the appeal of Shinde as well as the appellate order dated May 20,

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2009, Mr. Anturkar contends that not a single word has been

spared by the Appellate Authority to deal with such point as

raised in paragraph 11 and non- consideration thereof amounted

to the order of the Appellate Authority being vitiated by

perversity. It was also contended that the disciplinary authority

of Shinde sought to take action against him under the draft

Development Control Rules and since it is an admitted position

that the draft rules had not been finalized and brought into

operation even as on date the charge-sheet was issued, Shinde

could not have been proceeded against for violation of such draft

rules. Accordingly, Mr. Anturkar prays for dismissal of the writ

petition.

12. Responding to the argument of Mr. Anturkar, Mr. Samant

reiterated his contentions as noted above.

13. We record the statement of Mr. Samant, made in the course

of his concluding address, that reference to the draft rules in the

charge-sheet was by way of a mistake. He, however, hastens to

add that even in terms of the rules which were applicable on the

relevant date, FSI permissible was "1" for construction to be

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raised on the said plots and, therefore, nothing turns on the

mistaken reference.

14. Having heard Mr. Samant and Mr. Anturkar at some length,

we are not inclined to examine the last point raised by Mr.

Anturkar, for, law is well-settled that erroneous reference to a

statutory provision by a public authority will not vitiate an

action/order if the power is otherwise available to be exercised by

him.

15. The Tribunal is a creature of the Administrative Tribunals

Act, 1985 (hereafter "the AT Act", for short). Sub-section (1) of

section 22 of the AT Act ordains that the Tribunal shall not be

bound by the procedure laid down in the CPC but shall be guided

by the principles of natural justice. Sub-section (3) thereof,

however, provides that the Tribunal shall, for the purposes of

discharging its functions under the AT Act, have the same

powers as are vested in a civil court under the CPC while trying a

suit in respect of matters specified in clauses (a) to (i) including,

inter alia, 'reviewing its decision'. In terms of powers conferred on

the State Government by section 36 of the AT Act, the

Maharashtra Administrative Tribunal (Procedure) Rules, 1988

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(hereafter "the Rules", for short) have been framed. While rule 18

thereof provides that "(N)o application for review shall be

entertained unless it is filed within thirty days from the date of

the order of which the review is sought", rule 25 empowers the

Tribunal to "make such orders or give such directions as may be

necessary or expedient to give effect to its orders or to prevent

abuse of its process or secure the ends of justice." Thus, the

power conferred by rule 25 is akin to the inherent powers of a

civil court, preserved by section 151 of the CPC.

16. If one has to literally construe rule 18 of the Rules, and

there is no reason as to why it should not be so construed having

regard to its intendment starting with negative phraseology, an

application for review had to be presented before the Tribunal on

November 23, 2013. Shinde did not apply for review within such

time; instead, he presented Writ Petition No.521 of 2014 on

December 6, 2013, which was disposed of as withdrawn on

February 1, 2016 with liberty to Shinde to apply for review. The

said application was filed on March 18, 2016, i.e., more than

thirty days after liberty in that behalf was granted. It does not

appear from the judgment and order dated January 18, 2017

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that the said application was opposed on the ground of the same

being barred by time. On the contrary, the said application was

contested by asserting that Shinde had not been able to point out

any error apparent on the face of the record and that all the

issues raised by him therein were raised in the original

application, which ultimately stood dismissed. It is in such

background that the Tribunal proceeded to hear the parties to

ascertain whether there were errors apparent on the face of the

record and whether a case for review had been set up or not.

17. At first blush, on reading the impugned judgment and

order, it would seem that the Tribunal did, in fact, rehear the

original application of Shinde on merits instead of applying the

principles of review. One might perceive that the error committed

by the Tribunal while dismissing the original application by the

judgment and order dated October 24, 2013 was such an error,

which could have been corrected by an appropriate Court

exercising the power of judicial review, and not by the Tribunal in

exercise of the power of review under section 22(3) of the AT Act.

This is indeed a formidable ground of challenge raised by Mr.

Samant based on Kamal Sengupta (supra). However, in such

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decision, it has been held that "a tribunal can review its

order/decision on the discovery of new or important matter or

evidence which the applicant could not produce at the time of

initial decision despite exercise of due diligence, or the same was

not within his knowledge or if it is shown that the order sought to

be reviewed suffers from some mistake or error apparent on the

face of the record or there exists some other reason, which, in the

opinion of the Tribunal, is sufficient for reviewing the earlier

order/decision." (emphasis supplied). In Netaji Cricket Club

(supra), the Supreme Court held that "sufficient reason" in Order

XLVII Rule 1 would depend on the facts and circumstances and

also cover 'misconception of fact or law by the court'. Viewed

from such angle, we observe that the contention of Mr. Anturkar

has sufficient merit in that the Tribunal, in the first round before

it, totally misconstrued its power of judicial review and applied a

test different from the one that was required to be applied on

facts and in the circumstances, i.e., the test applied to find out

whether findings in a report of inquiry and/or the order following

it, whether original or appellate, are perverse. We, therefore, are

of the view that a case for review was indeed set up by Shinde.

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18. That apart, we are also of the view that while applying the

dicta of the Supreme Court in a given case, the facts of the case

under consideration before the concerned Court assumes

relevance. While examining the ground raised by Mr. Samant,

one cannot proceed oblivious of the contents of paragraph 3 of

the order dated February 1, 2016 passed on Shinde's writ

petition, quoted above, which the petitioners never challenged.

Normally, a party seeks withdrawal of the proceedings to go back

to the original authority for a review of its decision, if permissible

in law, or to the alternative forum available under law, when it

finds the court of writ to be disinclined to entertain the writ

petition. In such cases, the proceedings are disposed

of/dismissed as withdrawn with a simple liberty to the petitioner

to pursue the remedy that law provides to him, without

expressing any opinion on merit or conditioning it by any rider as

such. However, the present case is quite different. The coordinate

Bench did not stop at granting liberty; it said something more.

Some meaning has to be attributed to the portion of the order

directing consideration of the application for review. Such order,

in our view, constituted a mandate to the Tribunal to consider

the said application in the background of filing of the writ

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petition in this Court and its disposal by grant of liberty,

implying thereby that the coordinate Bench wished the Tribunal

to go behind its judgment and order dated October 24, 2013,

hear the parties on the merits of the rival contentions and to

make such order to secure the ends of justice. We are unable to

comprehend such order differently, having regard to the said

application being completely time-barred and by necessary

implication, recourse to condonation of delay too not being

available under the AT Act read with the Rules. Had it not been

for such mandate, which remained unchallenged at the instance

of the petitioners, the Tribunal was left with no other option but

to hear the said application on merits.

19. We cannot also rule out the possible circumstance, having

regard to Shinde's conduct since he was dismissed from service,

of a fresh approach before the writ court against the order of the

Tribunal if it were not inclined to exercise its power of review. In

such a situation too, the contentions on merits could fall for

consideration of the writ court. In a case of the present nature,

where a Government servant has lost his service and

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consequently his livelihood, technicalities ought to stay at a

distance.

20. For the reasons as aforesaid, we see no reason to upset the

impugned judgment and order dated January 18, 2017 on the

first ground of challenge urged by Mr. Samant.

21. Turning to the other ground of challenge to the judgment

and order impugned, we cannot but accept Mr. Anturkar's

contention that the Appellate Authority turned a blind eye to the

point raised by Shinde in paragraph 11 of his appeal dated

October 31, 2007. We are inclined to the view that failure and/or

neglect of an authority exercising appellate powers to consider a

point raised in an appeal provided by law, which we find to be

relevant and material for the purpose of a decision on such

appeal, would render the ultimate appellate order perverse. It is

indeed true, as contended by Mr. Samant, that Shinde had

invoked the machinery of the RTI Act after his dismissal from

service vide order dated May 3, 2006 and, therefore, the order of

dismissal cannot be branded illegal for non-consideration of the

information that Shinde received, but judicial notice of facts that

we propose to take is sufficient to prove such contention

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unsound and unacceptable. The RTI Act was enforced on October

12, 2005. By that time, the inquiry before the Inquiry Officer had

concluded and the report of inquiry dated February 24, 2004 had

seen the light of the day. Shinde, therefore, had no occasion to

invoke the RTI Act while the inquiry was in progress and to

produce documents in defence by taking recourse to the

machinery envisaged therein. Also, a show cause notice dated

May 25, 2005 preceded enforcement of the RTI Act which called

upon Shinde to explain why punishment of dismissal from

service as per the provisions of Rule 5(1)(9) of the Maharashtra

Civil Services (Discipline and Appeal) Rules, 1979 should not be

imposed on him.

22. These aspects are adverted to only for the purpose that

before the RTI Act was enforced, the respondents had agreed with

the inquiry report and taken a decision to punish Shinde,

meaning thereby that the stage of proving innocence was over

and what survived was the stage of extending opportunity to

Shinde to persuade the disciplinary authority to impose a lesser

penalty, other than dismissal.

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23. Returning to the point raised by Mr. Samant that the

information gathered by Shinde under the RTI Act was not there

before the disciplinary authority, we may observe that Shinde

could not have possibly been in possession of the documents

that could have helped him in his defence of the charges prior to

the RTI Act being made enforceable. He did apply for information

under the RTI Act prior to preferring an appeal before the Hon'ble

Governor and brought on record the documents and urged

contentions to persuade the Appellate Authority rule in his

favour.

24. Unfortunately, as noticed above, there was no consideration

worth the name of the point raised by Shinde that the said plots

were within the "Gaothan" area and the records obtained by him

under the RTI Act supported such contention. We are

constrained to observe that the Appellate Authority decided the

appeal of Shinde in a casual manner by not adverting to the

relevant point that Shinde had raised. Even if the point was not

worth consideration, the minimum expected of the Appellate

Authority was to say so and support the same by giving reasons.

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This is a serious flaw in the process of decision-making which

renders the judgment and order perverse and hence, bad in law.

25. There is one more illegality in the process of decision making

of the Appellate Authority. It is revealed from the appellate order

that the Appellate Authority observed certain discrepancies and

followed it up by returning a finding that reads as follows:

"From this it becomes clear that Shri Shinde helped the landlord and the constituted attorney Shri Ashok Patil by acting contrary to the rules and made recommendation to sanction additional FSI beyond the admissible FSI."

This finding seems to impute motive. When considered in the

light of the charge-sheet issued to Shinde, it would appear to be

at variance with the charges. Neither of the two charges refers to

any allegation of Shinde helping the landlord and the constituted

attorney, with any motive. In such a situation, we are of the

considered view that the Appellate Authority exceeded its

jurisdiction in returning such a finding and, thus, the process

suffers from the vice of illegality.

26. The process of reasoning adopted by us for our reluctance to

interfere with the impugned judgment and order does not conflict

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with the ratio of the decision in B.C. Chaturvedi (supra). We

have not re-appreciated or re-analyzed evidence that was led

before the Inquiry Officer, since considered by the disciplinary

authority. Exception, which we have taken, is with regard to non-

consideration of relevant materials by the Appellate Authority

and returning of a finding by the Appellate Authority beyond the

charges, thereby vitiating the appellate order.

27. We find on perusal of the impugned judgment and order

dated January 18, 2017 that the Tribunal looked into the report

of the City Survey Officer, Ulahasnagar dated September 14,

2006, which Shinde obtained by invoking the machinery of the

RTI Act, and recorded the same to be conclusive evidence that

the said plots were within the "Gaothan" area and further that

Shinde had "gone by Revenue records" and not by applying his

own parameters; hence the charges were not established. The

Tribunal also recorded a finding that the claim of the

respondents before it that the revenue records would have no

relevance in so far as the Development Control Rules are

concerned, was unacceptable. We see no reason to take a view

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different from the one taken by the Tribunal and affirm the

same.

28. For all the reasons aforesaid, the impugned judgment and

order dated January 18, 2017 passed by the Tribunal is upheld.

The writ petition stands dismissed and the Rule stands

discharged. The interim application stands disposed of. There

shall be no order as to costs.

29. This order will be digitally signed by the Private

Secretary/Personal Assistant of this Court. All concerned will act

on production by fax or e-mail of a digitally signed copy of this

order.

                      (G. S. Kulkarni, J.)                              (Dipankar Datta, CJ.)

Jayant V.
Salunke
Digitally signed by
Jayant V. Salunke
Date: 2021.01.08
19:36:48 +0530