The State Of Maha. Thr. Secretary, ... vs Wasudeo Madhukarrao Pande
2021 Latest Caselaw 9641 Bom

                                1   judgment in wp3248 of 2020.odt

        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  NAGPUR BENCH, NAGPUR

                     WRIT PETITION NO.3248 OF 2020

1. The State of Maharashtra,
   through its Secretary,
   Rural Development & Water
   Conservation Department,
   Mantralaya, Mumbai.

2. The Commissioner (Agriculture),
   Commissionerate,
   State of Maharashtra,
   Pune.

3. The Regional Joint Director (Agriculture),
   Civil Lines,
   Nagpur.                                 ... Petitioners

     Versus

Wasudeo Madhukarrao Pande,
Aged about 60 years,
Occupation : Retired Agriculture Officer,
R/o Plot No.41, Ganesh Colony,
Pratap Nagar, Nagpur.                                     ... Respondent


Ms N.P. Mehta, Assistant Government Pleader for Petitioners.
Mr. Shaikh Majid, Advocate for Respondent.


CORAM : DIPANKAR DATTA, C.J. & A.S. CHANDURKAR, J.

DATE : JULY 23, 2021

ORAL JUDGMENT (Per DIPANKAR DATTA, C.J.) :

1. Original Application No.170 of 2015, on the file of the

Maharashtra Administrative Tribunal, Bench at Nagpur

(hereafter "the Tribunal", for short) has been allowed by a

judgment and order dated January 24, 2019. By presenting

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this writ petition, the petitioners (who were the respondents in

the said original application) have laid a challenge to such

judgment and order.

2. The facts reveal that the respondent, who was the

original applicant before the Tribunal, was suspended by an

order dated September 30, 1999, in contemplation of

disciplinary proceedings. Such order of suspension stood

revoked on January 12, 2001 and, accordingly, the respondent

resumed service. More than five years later, on February 3,

2006 to be precise, charge-sheet memorandum was issued

against the respondent by the petitioner no.3. The six charges

levelled against the respondent, inter alia, included a charge

accusing him of having indulged in irregularities in discharge of

official duties while he was working at Nagbhid during 1998-99

under the control of the Sub-Divisional Soil Conservation

Officer, Bramhapuri, resulting in misappropriation of

Government funds. The respondent replied to the charge-sheet

on March 27, 2006. An inquiry followed. The Inquiry Officer in

his report dated October 22, 2008 held that four of the six

charges levelled against the respondent stood proved. The

report of inquiry being furnished to the respondent, he

submitted a detailed reply dated April 13, 2009. More than

forty-two months after submission of such reply, the

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Disciplinary Authority of the respondent passed an order of

penalty dated November 3, 2012 directing recovery of

Rs.1,94,497/- from the respondent as well as reducing two of

his increments permanently. This order was followed by a

further order dated December 23, 2013, whereby the period

between October 18, 1999 and January 18, 2001 spent by the

respondent under suspension was directed to be treated as a

period under suspension. In the meanwhile, however, the

respondent retired from service on attaining the age of

superannuation on November 30, 2012. It is these orders

dated November 3, 2012 and December 23, 2013 that formed

the subject-matter of challenge in the said original application

before the Tribunal, which stood allowed as noticed above.

3. The Tribunal set aside the impugned orders dated

November 3, 2012 and December 23, 2013 on the sole ground

that the respondent was deprived of 'fair hearing' in course of

the disciplinary proceedings initiated against him. The Tribunal

observed that ordinarily when a final order is set aside on the

ground that the delinquent-employee was not afforded 'fair

hearing', the Disciplinary Authority is granted liberty to

proceed from the stage the inquiry or the proceedings, as the

case may be, stood vitiated. However, since the respondent

had retired from service, subjecting him to face the inquiry

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afresh, at this distance of time, would result in great injustice.

Considering such aspects, the Tribunal did not grant liberty to

the Disciplinary Authority and allowed the said original

application in terms of prayer clauses 5(2), (3) and (4).

Consequently, the impugned orders dated November 3, 2012

and December 23, 2013 were set aside and the period spent

under suspension by the respondent was directed to be treated

as period spent on duty. There was a further direction for grant

of all retiral benefits to the respondent, which he was entitled

to upon superannuation.

4. It would be appropriate to note at this stage why the

Tribunal returned a finding that the respondent was not

afforded 'fair hearing'. Since the respondent was proceeded

against under the Maharashtra Civil Services (Discipline and

Appeal) Rules, 1979 (hereafter "D & A Rules", for short), the

inquiry into the charges levelled against him had to be

conducted by the Inquiry Officer in substantial compliance with

the provisions of Rule 8 thereof. Point was taken by the

respondent before the Tribunal that sub-rule (20) of Rule 8 of

the D & A Rules was followed in the breach by the Inquiry

Officer, though mandatory in nature. Although the respondent

had not examined himself as a witness in defence of the

charges, he was not questioned by the Inquiry Officer generally

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on the circumstances appearing against him in the evidence;

instead, the Inquiry Officer, by his letter dated March 17, 2008

merely called upon the respondent to offer his submissions on

the statements of witnesses which had been recorded in course

of the inquiry and had been supplied to him from time to time.

Such point succeeded, as it was held that a procedural

safeguard provided by Rule 8 was not extended to the

respondent and that the mandatory provisions of the D & A

Rules had been violated by the Inquiry Officer.

5. For facility of appreciation, sub-rule (20) of Rule 8 is

quoted below :

"8. Procedure for imposing major penalties ...

(20) The inquiring authority may, after the Government servant closes his case and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him."

6. Before the Tribunal, reliance was placed on behalf of the

respondent on a Bench decision of this Court in Vijay s/o

Shamrao Bhale v. Godavari Garments Ltd., Aurangabad1 for the

proposition that the provisions contained in sub-rule (20) of

1 2011(2) Mh.L.J. 983

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Rule 8 of the D & A Rules are mandatory.

7. The relevant finding of the Tribunal is challenged by

Ms Mehta, the learned Assistant Government Pleader,

appearing for the petitioners. According to her, the opportunity

extended to the respondent to offer his submissions on the

statements of the witnesses amounted to substantial

compliance of sub-rule (20) of Rule 8 of the D & A Rules and

the Tribunal fell in error in nullifying the impugned orders dated

November 3, 2012 and December 23 2013 only on this count.

Ms Mehta also submits that assuming that there was a violation

of the provisions of sub-rule (20) of Rule 8 of the D & A Rules,

the Tribunal was absolutely unjustified in not granting liberty to

the petitioners to resume the inquiry from the stage it stood

vitiated. According to her, the charges against the respondent

are rather serious and he having indulged in acts resulting in

misappropriation of funds, this is a fit and proper case in which

liberty ought to have been granted to the petitioners to

proceed against the respondent despite his retirement on

superannuation.

8. Having heard Ms Mehta patiently, we did not consider it

necessary to call upon Mr. Sheikh Majid, the learned Advocate

for the respondent, to answer.

7 judgment in wp3248 of 2020.odt

9. Rule 8 of the D & A Rules lays down a detailed

procedure to be followed by the Inquiry Officer, appointed to

conduct inquiry into charges against a Government employee

in connection with disciplinary proceedings. Not only sub-rule

(20) of Rule 8 but also the other provisions in the D & A Rules

provide procedural safeguards as part of requirements of a

'fair hearing'. Reasonable opportunity of hearing is considered

to be synonymous to 'fair hearing' and is an important

ingredient of the rule of audi alteram partem. The rule of 'fair

hearing', which embraces almost every facet of fair procedure,

requires that the party proceeded against and who could be

affected by reason of any final order passed in the proceedings,

is given the opportunity to meet the case against him

effectively. What this means is that reasonable and adequate

opportunity to raise effective defence should be given to the

party proceeded against or else the ultimate action of

imposition of penalty based on such procedure which falls short

of the requirements of a 'fair hearing' could be annulled if the

procedural safeguards that the statutory rules envisage are not

adhered to. We may in this connection note the celebrated

opinion of Justice Felix Frankfurter of the United States

Supreme Court in the decision in Vitareli v. Seaton.2 The

learned Judge observed:

2 1859 (359) US 535

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"An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.... This judicially evolved rule of administrative law is now firmly established and, if I may add, rightly so. He that takes the procedural sword shall perish with the sword."

The aforesaid passage has been cited with approval by the

Constitution Bench of the Supreme Court in its decision in

Ramana Dayaram Shetty v. The International Airport Authority

of India and others3.

10. Based on the above, it can safely be held that every

executive authority empowered to take an administrative

action having the potential of visiting a party with civil

consequences must take care to ensure fairness in procedure

and action, so much so that any remissness or dereliction in

connection therewith would be at the pain of invalidation of the

decision eventually taken.

11. Keeping in mind the aforesaid guiding principle, let us

test whether the action of the Inquiry Officer in not adhering to

sub-rule (20) of Rule 8 of the D & A Rules and acting in

3 AIR 1979 SC 1628

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substitution thereof by seeking the respondent's submissions

on the depositions of witnesses, as recorded, by his letter

dated March 17, 2008 amounts to substantial compliance of

the said sub-rule. The answer to this question is found in

paragraph 7 of the decision of the co-ordinate Bench of this

Court in Vijay Bhale (supra), where sub-rule (20) of Rule 8 was

read and interpreted. We can do no better than reproduce the

opinion of the co-ordinate Bench, as under :

"7. ... On perusal of the said Rule, it is manifest that the said Rule mandates the inquiring authority to question the delinquent on the circumstances appearing against him in the evidence, so that the delinquent may get opportunity to explain any circumstances appearing in the evidence against him. In the present case, the delinquent has not examined himself. If the delinquent has not examined himself, in that case the Inquiry Officer is not left with any discretion but has to question the delinquent about the circumstances appearing against him. The use of the word shall shows that the said provision is imperative and the same is mandatory. In the first part of the said sub-rule the legislature has used the word 'may', but when the delinquent has not examined himself has used the word 'shall', which itself clarifies that the word shall has to be considered as mandatory. The use of the word 'may' at one place and 'shall' at another place in the same rule would strengthen the inference that these words have been used in their primary sense, and that 'shall' should be considered as

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mandatory. The use of the word 'shall' therein as against 'may' shows that the same is mandatory. The use of the word 'shall' with respect to one matter and the used word 'may' with respect to another matter, in the same rule, would lead to the conclusion that the word 'shall' imposes an obligation. Whereas the word 'may' confers a discretionary powers. If, the delinquent has not examined himself, then it is obligatory on the inquiring authority to question the delinquent on the circumstances appearing against him in the evidence for the purposes of enabling him to explain any circumstances appearing in the evidence against him, and if the delinquent has examined himself, then the discretion vests with the Inquiry Officer to question the delinquent or not. In the present case, it is not disputed that the delinquent has not examined himself, in such circumstances it was mandatory for the Inquiry Officer to question the petitioner regarding the circumstances appearing against him. The said Rule has not been complied, and as such inquiry stands vitiated. The Division Bench of this Court in the case of Masuood Alam Khan-Pathan vs. State of Maharashtra and others4 referred supra has also observed that rule of Audi Alteram Partem is pregnant in the sub-rule (20) of Rule 8, departure therefrom would tantamount to violation of natural justice. On this count itself the inquiry vitiates, there cannot be any doubt that by non-observance of the said rule the petitioner could not get the opportunity to explain regarding the circumstances which were prejudicial to him in the evidence."

4 2009(5) Mh.L.J. 68

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12. While sharing the views expressed by the co-ordinate

Bench in Vijay Bhale (supra), we may also place on record that

much the same view has been expressed by the Calcutta High

Court in its decision in Gopal Chandra Barik v. Punjab National

Bank.5 Hon'ble S.B. Sinha, J. (as His Lordship then was), upon

considering a pari materia provision in Regulation 6(17) of the

Punjab National Bank Officers Employees' (D & A) Regulations,

1977, held that non-grant of opportunity of the nature

envisaged in Regulation 6(17) would result in violation of a

procedural safeguard provided by statutory regulations to the

delinquent officer and that it was obligatory on the part of the

Inquiry Officer to comply with the said provision generally.

13. A similar provision is found in Section 313 of the Code

of Criminal Procedure, 1973. Although in Gopal Chandra Barik

(supra) it has been held that the decision of the Supreme Court

in Sharad Birchichand Sarda v. State of Maharashtra6 cannot be

apposite in disciplinary proceedings, the object and purpose

that sub-rule (20) of Rule 8 of the Discipline and Appeal Rules

seeks to achieve cannot be over-emphasized. The relevant rule

ordains that the delinquent employee upon being generally

questioned, must be made aware of the circumstances in the

evidence appearing against him. The object of providing

adequate and reasonable opportunity of defence and the 5 1999(2) SLR 517 6 AIR 1984 SC 1622

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purpose of making the delinquent aware of the circumstances

in the evidence that could be relied on against him while the

report of inquiry is prepared cannot be achieved by calling

upon the delinquent employee to make his submissions on the

depositions of witnesses which have been recorded in course of

the inquiry. We, therefore, see no reason to accept the

contention of Ms Mehta that the letter dated March 17, 2008

issued by the Inquiry Officer ought to be treated as substantial

compliance of sub-rule (20) of Rule 8 of the D & A Rules. We

hold that the Inquiry Officer, on his own, devised a procedure

that Rule 8 does not postulate.

14. Moving on to the other contention of Ms Mehta, we find

it to be attractive at first blush. However, on deeper scrutiny,

we find no reason to tinker with the discretion exercised by the

Tribunal in not granting liberty to the petitioners to resume the

inquiry from the stage it stood vitiated. From the preface of

the factual events leading to institution of the said original

application before the Tribunal, it can be noticed that although

disciplinary proceedings against the respondent were in

contemplation as on the date of the order of suspension, i.e.

September 30, 1999, it took the Disciplinary Authority more

than 6½ years to issue the charge-sheet. It could be true that

not only the respondent but several other Government

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employees had to be proceeded against jointly since the

incidents of irregularities were common, but we feel that an

inordinately long period of time was taken to draw up charges

against the respondent. Not only that, the order of penalty

dated November 3, 2010 was passed nearly 3½ years of

receipt of the respondent's reply against the inquiry report

dated October 22, 2008. The reason for the Disciplinary

Authority to take such a long time to conclude the proceedings

has not been explained. It is also not explained as to why more

than a year thereafter, an order had to be made on

December 23, 2013 in regard to the period spent by the

respondent under suspension. It is of significance to note that

the respondent retired on November 30, 2012 and the last

order was passed a year later. It is true that the said original

application before the Tribunal took more than four years to be

finally decided; yet, the unduly long period taken by the

Disciplinary Authority at various stages of the disciplinary

proceedings appears to us to be indefensible in the absence of

any explanation in support of such delay. The Tribunal

although did not cite specific reasons why it would be

inappropriate to grant liberty, for the reasons that we have

discussed it is clear that no illegality was committed in

declining the liberty to the petitioners to resume the inquiry.

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15. For the foregoing reasons, we hold that this Writ

Petition has no merit. The same stands dismissed, without,

however, any order as to costs. If the retiral benefits have not

been released in favour of the respondent, the same ought to

be released as early as possible but positively within three

months from date of receipt of a copy of this order.

                       (A.S. Chandurkar, J.)                         (Chief Justice)


Lanjewar, PS