Shirish Vasudeorao Joshi vs The State Of Mah And Ors
2021 Latest Caselaw 7633 Bom

                                                                   wp.4531.12.odt


            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                       BENCH AT AURANGABAD

                         WRIT PETITION NO.4531 OF 2012

Shirish s/o. Vasudeorao Joshi,
Age : 42 years, Occ. Service,
r/o. Labour Colony, House No.198,
Latur                                                    ..Petitioner

                Vs.

1.      The State of Maharashtra

2.      The Additional Divisional Commissioner,
        Aurangabad

3.      The Chief Executive Officer,
        Zilla Parishad, Latur                            ..Respondents

                                ----
Mr.D.R.Irale-Patil, Advocate for petitioner
Mr.S.P.Tiwari, AGP for respondent nos.1 and 2
Mr.P.R.Tandale, Advocate for respondent no.3
                                ----

                          CORAM : R.G. AVACHAT, J.

RESERVED ON : MARCH 10, 2021 PRONOUNCED ON : JUNE 10, 2021

JUDGMENT :-

The petitioner was working as a Civil Engineering

Assistant on the establishment of Zilla Parishad, Latur. In 2006,

he was serving with Panchayat Samiti, Nilanga. `Indira Awas

2 wp.4531.12

Yojna (इंददिरा आवरासा योजनरा)' ("the scheme", for short) was to be

implemented in the village at Kasar Sirsi. Beneficiaries of the

scheme have to be below poverty line. They should have been

residents of the village. Selection of the beneficiaries was to be

done in Gramsabha. The Gramsabha was to be attended by

the Extension Officer or Junior Engineer or Sectional Engineer.

The Gramsabha was held. The petitioner was nominated as a

representative of the B.D.O./C.E.O. as Observer of the

proceedings of the Gramsabha.

2. It was found that five of the beneficiaries selected,

were not below poverty line. Some other grave irregularities

were also noticed. The petitioner was, therefore, issued with a

notice to show-cause, as to why he should not be subjected to

departmental enquiry. His response to the show cause-notice

was not accepted. Departmental Enquiry was held against the

petitioner with six charges. The Enquiry Officer held the

petitioner guilty of all the charges. The disciplinary authority

accepted the enquiry report and on hearing the petitioner,

imposed penalty of dismissal from service. The petitioner

3 wp.4531.12

challenged the order of dismissal before the appellate authority,

Additional Divisional Commissioner (Revenue). He has,

however, been unsuccessful. The appellate authority affirmed

the decision of the disciplinary authority dismissing the

petitioner from service. The petitioner is, therefore, before this

Court.

3. The charge/s framed against the petitioner is as

follows:-

(i) When the valuation of the house of beneficiary

- Shankar Swami was Rs.1,50,000/-, it was shown at Rs.28,500/-;

ii) Wrong measurements were recorded of the house of Shankar Swami;

(iii) When Shankar Swami was financially sound and was raising construction worth Rs.1,50,000/-, the same was ignored;

(iv) When three of the beneficiaries were not below poverty line, still, they were given the benefit of the scheme;

                                                4                                    wp.4531.12



                  (v)      Responsibility of loss of Rs.85,500/- caused to
                  the Government;

(vi) Though the beneficiary - Shankar Swami was financially sound, still, with a view to assist him in availing benefit of the scheme, the petitioner turned blind eve towards his financial status and acted so as to favour him;

The Enquiry Officer, after following the principles of natural

justice, held all the charge/s to have been established. The

disciplinary authority accepted the report and imposed penalty

of dismissal. The appeal preferred thereagainst has been

dismissed.

4. Mr.Irale-Patil, learned counsel for the petitioner,

would submit that the petitioner was not charged with

misappropriation of funds. The service record of the petitioner is

unblemished. A Civil Engineering Assistant was not to be

appointed as a representative of the B.D.O. for selection of the

beneficiaries of said scheme. As per the Government

Resolution dated 10.11.2003, if any wrong selection is noticed,

5 wp.4531.12

the Gramsevak alone was to be held responsible. The logic

behind the same is that the Gramsevak knows each and every

person residing in the village. It was the B.D.O., who had

issued the certificate of below poverty line to Shri Shankar

Swami. The beneficiary has utilised the funds provided under

the scheme. It is only thereafter, he undertook construction of

a big house in R.C.C. Rest of the amount of construction was

invested by the beneficiary himself. The petitioner had no

occasion or reason to raise any objection thereto. Completion

Certificate was issued by the Deputy Engineer. All these facts

had not been considered by the Enquiry Officer.

Learned counsel further submits that the appellate

authority also failed in discharge of its duty. The relevant Rules

of the Maharashtra Zilla Parishads District Services (Discipline

and Appeal) Rules, 1964 ("the Rules of 1964", for short) has not

been followed in letter and spirit.

Learned counsel for the petitioner, relying on the

decisions of the Apex Court in the cases of (i) Divisional

Controller, KSRTC (NWKRTC) vs. A.T.Mane, 2004 AIR SCW 5427

6 wp.4531.12

and (ii) Director (Marketing), Indian Oil Corp. Ltd. and anr., Vs.

Santosh Kumar, 2006 AIR SCW 2849, ultimately, urged for

allowing the petition.

5. Mr.Tiwari, learned AGP for respondent nos.1 and 2

and Mr.Tandale, learned counsel for respondent no.3 - Zilla

Parishad supported the impugned orders. An affidavit-in-reply

has been filed for and on behalf of respondent no.3.

6. In the case of Union of India and ors. Vs. P.

Gunasekaran, AIR 2015 SC 545, the Apex Court observed:-

"13. .............. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

                  (d)  the authorities        have      disabled themselves
                  from   reaching    a         fair     conclusion by some





                                         7                                   wp.4531.12

considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience.

8 wp.4531.12

In paragraph 14, the Apex Court observed thus :-

14. In one of the earliest decisions in State of Andhra Pradesh and others Vs. S. Sree Rama Rao, AIR 1963 SC 1723, many of the above principles have been discussed and it has been concluded thus:

"7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory

9 wp.4531.12

rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

7. I have considered the submissions advanced by

learned counsel appearing for the parties. Perused the

impugned orders.

8. Admittedly, the petitioner was nominated as a

representative of the B.D.O., as Observer in the Gramsabha held

for selection of the beneficiaries of the scheme. The petitioner

10 wp.4531.12

accepted the nomination without any demur. He, therefore,

could not be heard to say that the official of some other

designation and rank has been prescribed in the Government

Resolution dated 10.11.2003 itself, to be the nominee of the

B.D.O. as Observer of the Gramsabha. It is true that the

Government Resolution dated 10.11.2003 speaks of

implementation of said scheme. As per the terms of the said

Government Resolution, the beneficiaries were to be selected in

the Gramsabha. The Extension Officer or the Sectional

Engineer or Junior Engineer has to attend the Gramsabha. The

Grampanchayat has to certify that the selection of the

beneficiaries, is in accordance with the guidelines issued by the

Central Government regarding implementation of the scheme.

The list of the beneficiaries need not be approved by the

Panchayat Samiti. The C.E.O. before granting approval to the

selection of the beneficiaries, has to satisfy himself that no

ineligible person has been selected. The construction of the

house under the scheme has to be undertaken by the

beneficiary himself. He shall be paid the funds provided under

11 wp.4531.12

the scheme. If it is found that an ineligible person has been

selected as a beneficiary, the Gramsevak would be solely

responsible therefor.

9. Learned counsel for the petitioner has strongly relied

upon the aforesaid terms of the Government Resolution, to

contend that the petitioner did not have any responsibility or

role in the selection of the beneficiaries. I do not agree with his

submission.

10. The Government Resolution specifically states that

the Gramsabha has to be attended by the Extension Officer or

sectional or Junior Engineer. The petitioner accepted his

nomination as an Observer of the Gramsabha held for election

of the beneficiaries. The findings recorded by the Enquiry

Officer, undoubtedly, indicate the petitioner to have

countersigned the list of selectees to be the beneficiaries of the

scheme. The Enquiry Officer found that the names of three of

the beneficiaries did not figure in the list of persons below

poverty line. On appreciating the evidence, the Enquiry Officer

12 wp.4531.12

has rightly held the petitioner to have been grossly negligent in

discharge of his duties. The petitioner was also found to have

recorded wrong measurements in the measurement book and

gave his nod for release of grant/funds in favour of the

beneficiary, Shankar Swami, when it was found in the inspection

of the C.E.O. of Zilla Parishad that the construction was in

R.C.C. worth Rs.1,50,000/-. It is not the case of the petitioner

that the Enquiry Officer did not observe the principles of natural

justice. I have already observed that the petitioner cannot

escape his liability relying on the Government Resolution dated

10.11.2003.

11. Learned counsel for the petitioner then turned to the

order passed by the appellate authority. He relied on Rule 23 of

Rules of 1964 to contend that the appellate authority has not

applied its mind in deciding the appeal.

12. Rule 21 of the Rules reads thus :-

21. Consideration of appeals and revisions.-

               (1)      .....
               (2)      In the case of an appeal or revision





                                             13                                  wp.4531.12

application against an order imposing any of the penalties specified in Rule 4, the appellate or revisional authority, as the case may be, shall consider-

(a) whether the procedure prescribed in these rules had been complied with, and, if not, whether such non-compliance has resulted in failure of justice;

(b) whether the findings are justified; and

(c) whether the penalty imposed is excessive, adequate or inadequate; and pass orders,-

(i) setting aside, reducing, confirming or enhancing the penalty; or

(ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case:

.....

13. In the case of Director (Marketing), Indian Oil Corp.

Ltd. and anr. (supra), it has been observed:-

Constitution of India, Art.311-Dismissal- Passing of order-Non-application of mind- Appellate authority simply adopted language employed by disciplinary authority, inflicted punishment of dismissal on delinquent- It only reveal total non-application of mind-Order

14 wp.4531.12

passed by Disciplinary authority and Appellate Authority liable to be set aside.

14. I have carefully perused the order passed by the

appellate authority. The submissions made on behalf of the

petitioner and respondent - Zilla Parishad have all been

adverted to in the order passed in the appeal. The appellate

authority, after having appreciated the rival contentions and on

going through the evidence in the matter, concluded :-

izdj.kkrhy miyC/k vfHkys[;kps voyksdu dsys vlrk dklkjflj"kh, rk- fuyaxk ;sFks lu 2005&06 ;k vkfFkZd o'kkZe/;s bafnjk vkokl ;kstusrhy ykHkkF;kZaph fuoM dj.;klkBh xzkelHksps vk;kstu dj.;kr vkys gksrs o lnj xzkelHkse/;s "kklu fu.kZ;kr uewn dsysY;k vVhps ikyu d:u ykHkkF;kZaph fuoM dj.;kph tckcnkjh fujh{kd ;k ukR;kus vfiykFkhZ ;akpsoj lksifoyh gksrh- ek= vfiykFkhZ ;akuh R;akps drZO;kr fu'dkGthi.kk dsY;kps fnlwu vkys- vfiykFkhZ ;akuk ik= ykHkkF;kZaph [kjh oLrqfLFkrh ikgwu o "kklu fu.kZ;ke/khy ik=rsP;k fud'kkuqlkj fuoM dj.;kph tckcnkjh gksrh ek= nfjnz js'ks[kkyhy ulysY;k fdaok vkFkhZd n`'V;k l{ke vlysY;k ykHkkF;kZaph fuoM dsyh rlsp dkgh ykHkkF;kZaps iDds ?kj vlrakuk gh ckc vkiyk vgoky lknj djrakuk tk.khoiwoZd VkGyh R;kewGs "kklu fu.kZ;kuqlkj ik= ulysys ykHkkFkhZ lq/nk fuoM.;kr vkys o ik= ykHkkFkhZ ;k "kkldh; ;kstusP;k ykHkkiklwu oafpr jkfgys- ;kf"kok; vfiykFkhZ ;akuh LFkkiR; vfHk;akf=dh lgk¸;d ;k ukR;kus ?ksrysY;k ekstekike/;s ns[khy pqdhP;k o fn"kkHkwy dj.kkÚ;k uksanh ?ksrY;kewGs R;kpk ykHk vik= ykHkkF;kZauk feGkyk-

izLrwr izdj.kkrhy bafnjk vkokl ;kstus lanHkkZrhy "kklu fu.kZ; fnuakd 10-11-2003 ps voyksdu dsys vlrakuk ykHkkF;kZaph fuoM dj.;kph lfoLrj dk;Zi/nrh uewn dsyh vkgs- R;kpizek.ks vik= ykHkkF;kZauk ;k ;kstuspk ykHk feGw u;s Eg.kwu lfoLrj ekxZn"kZd ckch ? kkywu fnysY;k vkgsr R;kewGs dVk{kkus ik= ykHkkF;kZaph fuoM gks.ks vko";d gksrs o R;klkBh vfiykFkhZ ;akph fujh{kd Eg.kqu fu;qDrh

15 wp.4531.12

dj.;kr vkyh gksrh ek= vfiykFkhZ ;akuh vkiY;k drZO;kr dlqj dsY;kewGs "kklu fu.kZ;kpk o ;kstuspk mÌs"k lQy >kyk ukgh o ik= ykHkkFkhZ ,soth vik= ykHkkFkhZaph fuoM dj.;kr vkyh-

vfiykFkhZ ;akpsfo:/n dsysY;k foHkkxh; pkSd"khe/;s Bsoysys lgkgh nks'kkjksi fl/n >kY;kewGs eq[; dk;Zdkjh vf/kdkjh] ftYgk ifj'kn] ykrwj ;akuh izLrwrph dk;Zokgh dsysyh vlY;kewGs R;ke/;s gLr{ksi dj.;kph vko";drk okVr ukgh-

lcc] egkjk'Vª ftYgk ifj'knk] ftYgk lsok ¼f"kLr o vfiy½ fu;e] 1964 ps fu;e 21 vUo;s vij foHkkxh; vk;qDr ;akuk iznku dj.;kr vkysY;k vf/kdkjkUo;s [kkyhy izek.ks vkns"k ikjhr dj.;kr ;sr vkgs-

15. For the aforesaid reasons, the appellate authority did

not interfere with the findings recorded by the Enquiry Officer

and the penalty imposed by the disciplinary authority.

16. The facts in the case of Director (Marketing), Indian

Oil Corp. Ltd. and anr. (supra), were altogether different. For

better appreciation, the orders passed by the appellate authority

with which the Hon'ble Supreme Court did not agree with, on

the ground of appellate authority to have not applied its mind,

mentioned in paragraph 10 of the judgment, are reproduced

below for ready reference:-

10. For the sake of convenience, we extract both the orders available at page 51-52 of the

16 wp.4531.12

paper book:

"I have carefully gone through Shri Santosh Kumar, Emp. No. 19957, Ex-AM(Ops) Hissar Depot's appeal dated 25.3.2000 together with all papers relating to the disciplinary case initiated against him vide charge-sheet No. IR/1461/(N-113) dated 24.6.97 in the capacity of the Competent Disciplinary Authority.

I have applied my mind and I find that Shri Santosh Kumar has not brought out any point in his appeal dated 25.3.2000 which may warrant any change in the said final order passed by me as the Competent Disciplinary Authority.

The appeal of Shri Santosh Kumar is hereby forwarded to Director(M)-the Appellate Authority for his kind consideration and orders.

General Manager (Operations )

I have carefully gone through Shri Santosh Kumar, Emp. No. 19957, Ex-AM(Ops) Hissar Depot's appeal dated 25.3.2000 together with all papers relating to the disciplinary case initiated against him vide charge-sheet No. IR/1461/(N-113) dated 24.6.97. Shri Santosh Kumar has preferred an appeal against the order of penalty of "Dismissal", inflicted upon him by GM(Ops.) - the Competent Disciplinary Authority vide reference No. IR/1461/(N-113) dated 30.12.1999 as a measure of disciplinary action against Shri Santosh Kumar.

I have applied my mind and I find that Shri Santosh Kumar has not brought out any point which may warrant my interference with the said orders passed by the Competent Disciplinary Authority. Accordingly, I hereby reject the appeal

17 wp.4531.12

of Shri Santosh Kumar. Let Shri Santosh Kumar be advised accordingly.

Director (Marketing)"

17. On appreciation of the entire material on record, I do

not find it to be a case to interfere with the findings holding the

petitioner guilty of the charge/s. I also do not find the penalty

imposed to be shockingly disproportionate. There is, however,

other aspect of the matter.

18. The Executive Engineer, Zilla Parishad (respondent

no.3) has filed his affidavit-in-reply. It has been specifically

averred therein that the petitioner and the Gramsevak both

were equally liable for the loss caused to the Government. Both

of them have played fraud on the Zilla Parishad and the

Government as well. The Gramsevak has been compulsorily

retired from service.

When the equally responsible Officer/employee

namely, Gramsevak, has been dealt with the penalty of

compulsory retirement from service, to my mind, the petitioner

too, needs to be dealt with imposition of the same kind of

18 wp.4531.12

penalty.

19. It is reiterated that the Government Resolution dated

10.11.2003 places sole responsibility on the Gramsevak, in case

of any mischief or any wrong selection of the beneficiaries.

True, the petitioner cannot escape his liability since he was

nominated as Observer to ensure that the selection of the

beneficiaries would be in accordance with the guidelines issued

by the Central Government as regards implementation of the

scheme. The petitioner has not been charged with

misappropriation of any funds. It also appears that the Deputy

Engineer had issued completion certificate. It is not known

whether he was subjected to disciplinary enquiry. The

Officer/employee equally responsible with that of the petitioner,

has been imposed with penalty of compulsory retirement from

service.

20. I find it to be a fit case to interfere with the order

imposing penalty of dismissal from service. The order of

dismissal from service has been passed way back on

19 wp.4531.12

15.01.2008. It has been thirteen years since then. I, therefore,

do not propose to remand the matter back to the disciplinary

authority for imposition of penalty. The petition, therefore,

partly succeeds in terms of the following order:-

(i) The Writ Petition is partly allowed.

(ii) The order imposing penalty of dismissal from service

is substituted/replaced with penalty of compulsory retirement

from service.

(iii) Rule is made absolute accordingly.

[R.G. AVACHAT, J.]

KBP