Shri. Ahamed Shijauddin Mulla vs Maharashtra Jeevan Pradhikaran ...
2021 Latest Caselaw 14773 Bom

                      Shubhada S Kadam                                         6. wp 13242.2018.doc

                                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                           CIVIL APPELLATE JURISDICTION
                                          WRIT PETITION NO.13242 OF 2018
                      Shri Ahamed Shijauddin Mulla                             ....Petitioner
                           Versus
                      Maharashtra Jeevan Pradhikaran and ors.                  ....Respondents


                      Mr. Suryajeet P. Chavan, advocate for the petitioner.
                      Mr. Ajit R. Pitale, advocate for respondent Nos.1 and 2.


                                                   CORAM : PRASANNA B. VARALE &
                                                           N. R. BORKAR, JJ.

                                                   DATE      : 8th OCTOBER, 2021.


                      P.C. :

1. Heard learned counsel appearing for the respective parties.

2. In our order dated 24th September, 2021, a reference is made

to the judgment and order dated 2nd March, 2020 in writ petition No.8752

of 2017. Learned counsel for the petitioner had submitted that the

present petitioner is similarly circumstanced with the petitioner -Vasant

Yasvant Thorat in writ petition No.8752 of 2017. Mr. Pitale, learned

counsel for Maharashtra Jeevan Pradhikarn (MJP) had prayed for some

time and, as such, the matter was adjourned to 8th October, 2021.

3. The only relevant facts, we may refer are as follows :

         Digitally
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         SHUBHADA
SHUBHADA SHANKAR                                                                            1/6
SHANKAR KADAM
KADAM    Date:
         2021.10.08
         18:44:36
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 Shubhada S Kadam                                          6. wp 13242.2018.doc

The petitioner was working as Sectional Engineer with MJP. A

notice was issued against the petitioner on 31 st July, 2010, for initiation of

departmental enquiry in the backdrop of fall of wall i.e. security wall of one

Narayan Talav at Vengurla. It is not in dispute that composite enquiry

was initiated against four charge officers of MJP viz. (1) V. Y. Thorat,

Executive Engineer (2) Shri S. M. Hasabnis, Executive Engineer (3) A. S.

Mulla, Sectional Engineer (the present petitioner) and (4) Shri S. S.

Kamble, Dy. Engineer. The Enquiry Officer conducted a detailed enquiry

and submitted a report absolving the petitioner and other officers. The

petitioner and other officers were faced with an order dated 2 nd May, 2016

and corrigendum dated 4th March, 2017, whereby re-enquiry was sought

for against the petitioner and other officers. The respondent - MJP

invoked the powers for re-enquiry under Clause 7.3 of the Departmental

Enquiry Manual. It was stated in the order dated 2 nd May, 2016, that on

thorough technical scrutiny, it revealed that there were certain serious

lapses in the earlier enquiry, as such, the earlier enquiry was of no

consequence and, accordingly, the order was passed against the

petitioner and other officers for initiation of re-enquiry/fresh enquiry. This

very issue was the subject matter in writ petition No.8752 of 2017. It was

vehemently submitted before this Court that respondent - MJP could not

have resorted to Clause 7.3 for initiation of re-enquiry against the

petitioner. Considering the factual aspects, the Division Bench, in its

order dated 2nd March, 2020 dealt with all the issues which fell for

Shubhada S Kadam 6. wp 13242.2018.doc

consideration. The Division Bench while referring to the factual aspect

qua the provisions of the manual, particularly Clause 7.3, was pleased to

observe as follow :

"8. First, we note that the enquiry initiated in the year 2010 and which has been concluded by report dated 27 May 2011 was a detailed one. The enquiry went on from 27 October 2010, from the appointment of the Enquiry Officer till submission of the report in May 2011. The Respondents appointed perfunctory officer and also examined witnesses. After considering various aspects, including that of technical nature, the Enquiry Officer submitted his report. The report is of 31 pages. On the face of it, it cannot be said that the report submitted was perfunctory.

9. The clause 7.3 on which reliance is placed by the Respondents reads thus :

7-3 uO;kus pkSd'kh % ¼1½ tj f'kLrHkaxfo"k;d izkf/kdj.k] gh pkSd'kh LokHkkfod U;k;rRoka'kh lqlaxr v'kk izdkjs >kysyh ukgh v'kk fu.kZ;kizr vkys rj] R;kyk rh pkSd'kh jnnckny djrk ;srs vkf.k loZ fdaok dkgh vkjksikackcr uO;kus pkSd'kh dj.;klkBh gs izdj.k ijr ikBork ;srs- ¼2½ ;k ckcrhrhy fo'ks"kkf/kdkj] f'kLrHkaxfo"k;d izkf/kdj.k ;ksX; v'kh dkj.ks ys[kh uewn d#u oki# 'kdrs-

mnkgj.kkFkZ xaHkhj mf.kokaeqGs fdaok dk;Zi/nrhP;k Lo#ike/khy nks"kkaeqGs ifgyh pkSd'kh fu"QG Bjyh ;k dkj.kkLro uO;kus pkSd'kh dj.;kckcr vkns'k nsrk ;srkr] ijarq dsoG ifgyh pkSd'kh gh 'kkldh; deZpk&;kl vuqdwy Bjyh ;k dkj.kklkBh ek+= rls djrk ;s.kkj ukgh- nql&;k izdkjP;k izdj.kkae/;s vfHkys[kke/khy iqjkO;ko#u rls djrk ;s.kkj

Shubhada S Kadam 6. wp 13242.2018.doc

ukgh- nql&;k izdkjP;k izdj.kkae/;s vfHkys[kke/khy iqjkO;ko:u Lor%ph [kk=h iVY;kl f'kLrHkaXkfo"k;d izkf/kdj.k] pkSd'kh izkf/kdj.kkP;k fu"d"kkZ'kh vlgerh n'kZow 'kdsy-

10. Clause 7.3.1 is for restarting fresh enquiry if the enquiry is held in violation of the principles of natural justice. This clause is not attracted. The clause (2) permits fresh enquiry if there are serious lacuna or procedural defects in the first enquiry which makes the outcome void de novo or fresh enquiry can be endorsed. This clause specifically incorporates a mandate to ensure that a fresh enquiry is not ordered only because the outcome of the first enquiry is favorable to government servant. This mandate is important in the context of duty to explain why authority finds a serious lacuna in the first enquiry. Merely by reproducing the language of the clause 7.3.2 in the order will not dislodge the mandate of not starting enquiry merely on the ground of it being favorable to the government servant.

11. In the impugned order, there is absolutely no elaboration as what are the serious technical lacuna in the first enquiry to restart an enquiry. The power for restarting an enquiry may lead to harassment of an employee in whose favour the Enquiry Officer has submitted report, therefore a mandate is specifically incorporated. The reasons cannot be substituted by filing reply subsequently in the Writ Petition. If the disciplinary authority does not agree with the findings of the Enquiry Officer's report, then different methodology is provided.

Shubhada S Kadam 6. wp 13242.2018.doc

12. There are no reason in the order dated 2 May 2016 as to what were the serious technical lacunas In these facts, the contention of the Petitioner that the re-enquiry has been started afresh only because outcome of first enquiry was in favour of the Petitioner will have to be accepted. The power under clause 7.3 could not be have been used merely because conclusion of the first enquiry was in favour of the Petitioner. Second enquiry initiated by order dated 2 May 2016 will have to be thus quashed and set aside."

The Division Bench, thus, by making the observation allowed

the writ petition in terms of prayer clause (a). It was further observed that

if there are any retired benefits of the petitioner withheld only on the

account of the second enquiry, they shall be disbursed.

3. The learned counsel appearing for the respondent - MJP

though made an attempt to submit before this Court that there are certain

factual distinguishing factors in the matter of the present petitioner and in

the matter of the petitioner -Vasant Yashvant Thorat. However, learned

counsel could not point out any distinguishing factor. The petitioner -

Vasant Yashvant Thorat was already retired person when the order dated

2nd May, 2016 was passed. We are not inclined to accept the submission

of learned counsel for respondent - MJP. The Division Bench of this

Court specifically in the backdrop of the provisions resorted to Clause7.3

Shubhada S Kadam 6. wp 13242.2018.doc

delivered its judgment and order. The Division Bench found that there

was absolutely no reason for the respondent -MJP to take resort to

Clause 7.3 so as to initiate enquiry against the petitioner.

4. In our opinion, the present petitioner is similarly circumstanced

with the petitioner in writ petition No.8752 of 2017. As such, we see no

reason to take any different view than the view adopted by the Division

Bench in its order dated 2nd March, 2020 in writ petition No.8752 of 2017.

Considering all these aspects, we are of the opinion that learned counsel

for the petitioner has made out a case for allowing the petition.

Accordingly, the petition is allowed in terms of prayer clause (b) and is

disposed of as such.

( N. R. BORKAR, J.)                           (PRASANNA B. VARALE, J.)