Bombay High Court
Sachin Vijaykumar Kharate vs The State Of Maharashtra And ... on 13 October, 2021
Bench: Mangesh S. Patil
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1493 OF 2020
Sachin s/o Vijaykumar Kharate,
Age 32 years, Occ. Nil.
R/o. Shivaji Nagar, Bhure Mamledar
Plot, Pushpanjali Park, Shivaji Nagar,
Jalgaon, Dist. Jalgaon. ... Petitioner.
VERSUS
1) The State of Maharashtra,
Through its Village Development Department,
Mantralaya, Mumbai-32.
2) The Additional Commissioner,
Divisional Commissioner Office,
Nashik Division Nashik.
3) The Chief Executive Officer,
Zilla Parishad, Jalgaon. ... Respondents.
...
Advocate for the Petitioners : Mr. S. R. Patil.
A.G.P. for the Respondent Nos. No. 1 & 2 : Mr. Y.G. Gujrathi.
Advocate for the Respondent No. 3 : Mr. M.S. Sonwane.
CORAM : MANGESH S. PATIL, J.
RESERVED ON : 08.10.2021.
PRONOUNCED ON : 13.10.2021.
JUDGMENT :
Heard. Rule. The Rule is made returnable forthwith. Learned A.G.P.
waives service for the respondent Nos. 1 & 2. The learned advocate Mr.
Sonwane waives service for the respondent No. 3. At the request of the
parties the matter is heard finally at the stage of admission.
2. The petitioner is aggrieved by the order of his dismissal from the
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employment of the respondent No. 3 Zilla Parishad pursuant to a Disiplinary
Proceeding under the provisions of the Maharashtra Zilla Parishads District
Services (Discipline and Appeal) Rules, 1964 (hereinafter 'the Rules'),
having been found guilty of two charges, firstly, of persistent absenteeism
and, secondly, for forging signature of the Medical Officer of the Primary
Health Centre where he was working as a Junior Assistant (Clerical grade)
and on his own salary certificate, to enable him to stand as a surety for one
Dnyaneshwar Vairale. His statutory appeal under the Rules and even the
Revision has been dismissed by the judgments and orders impugned in this
Writ Petition.
3. The learned advocate Mr. Patil for the petitioner submitted that the
Disciplinary Enquiry was not conducted fairly. Principles of natural justice
were not followed. Plausible explanation was given by the petitioner for his
absenteeism. He was suffering from jaundice and had to be hospitalized
and therefore he could not submit any leave application. His mother had
informed the Medical Officer such a cause for his absence and since such
absence was not willful as has been laid down in the case of Krushnakant B.
Parmar Vs. Union of India and Anr. 2012 AIR SCW 1633, he could not have
been held guilty for Charge No. 1.
4. Mr. Patil would further submit that even the second charge was not
duly proved. Even on preponderance of probabilities there was no
acceptable evidence on the record to prove it. The Disciplinary Authority
has grossly erred in imposing the punishment. Even the punishment of
dismissal is grossly disproportionate to the charge and applying the
principle of proportionality, the punishment is harsh and deprives the
petitioner of his livelihood. He would therefore submit that the impugned
order of upholding the dismissal be quashed and set aside. His termination
may be set aside and in the alternative the punishment be reduced.
5. The learned advocate for the respondent No. 3-Zilla Parishad would
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support the action. He would submit that a proper opportunity of being
heard was extended to the petitioner. He had participated in the
departmental enquiry. There was sufficient evidence to prove both the
charges. In fact the petitioner has admitted his absence but failed to
substantiate his defence which he had put forth. As regards the second
charge, it is more serious. He has forged the signatures of the Medical
Officer who was examined as a witness. The forged documents were
brought to his notice. The surety bond and salary statement which were
forged one were sent by the concerned Corporation for his verification and it
is thereafter that he having realized that there was a forgery. Therefore,
there was sufficient evidence to prove the charges on preponderance of
probability. He would submit that strict proof was not necessary and the
evidence was sufficient to reach the conclusion. The learned advocate
would, lastly, submit that considering the gravity of the charges and
particularly the Charge No. 2, the punishment of dismissal is not
disproportionate.
6. I have considered the rival submissions and perused the record. The
enquiry report (Exh. 'F') clearly demonstrates as to how even the petitioner
was duly issued with the first notice. He was served with the statement of
imputations and thereafter the charges. The witnesses in the form of
petitioner's colleague in the Primary Health Centre, where he was in the
employment, were examined regarding his absence. Even the Medical
Officer was examined under whom he was working. There is also a
reference as to how the Medical Officer by his communication dated
20.05.2016 had informed the Deputy Chief Executive Officer of the Zilla
Parishad about the concerned Corporation, with whom the petitioner had
submitted the surety bond and salary statement, were forwarded to the
Medical Officer and it is thereafter that he having realized that those were
forged one. It has also been noticed that though the salary statement was
furnished as if he was posted in that Primary Health Centre, in fact, he was
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recently transferred to that post from some other office and for want of Last
Pay Certificate (L.P.C.) no salary was drawn by this Office and therefore
there was no question of this office issuing any salary statement of his and
still he had produced it with that Corporation. Even the signatures of the
Medical Officer were forged on it. It is on the basis of such clinching
material that the Enquiry Officer had held both the charges having been
duly proved.
7. After conclusion of the enquiry a final show cause notice was served
to him (Exh. 'G'). In spite of service of such notice he did not turn up to
make any submissions either in writing or orally and it is thereafter that the
dismissal order was passed by the Disciplinary Authority/respondent No. 3.
8. Pertinently, in his appeal preferred under Rule 13 of the Rules before
the Joint Divisional Commissioner (Exh. 'I') though the petitioner tried to
demonstrate as to how the charge regarding absenteeism was not duly
established, nothing was mentioned in respect of the second charge much
less touching the evidence led before the Enquiry Officer and his
appreciation thereof. After extending appropriate opportunity to the
petitioner the Joint Divisional Commissioner dismissed his appeal and even
the Revision under Rule 21 is dismissed by the State Government.
9. Resultantly, I find no infirmity and illegality in the disciplinary
proceeding that was initiated against the petitioner and the conclusions
drawn by the Enquiry Officer or in the judgment and orders passed by the
appellate and revisional authorities.
10. Suffice for the purpose to observe that considering the gravity of the
charge particularly in respect of the second charge which is in respect of the
forgery committed by the petitioner, in my considered view the punishment
of dismissal by no stretch of imagination can be said to be disproportionate.
He was an employee of clerical grade working with the Health Department
of the Zilla Parishad. Preparing bogus salary statements and even forging
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signatures of the Medical Officer is indeed a serious matter and deserves a
drastic consequence.
11. I find no merit in the Writ Petition. It is dismissed.
12. The Rule is discharged.
(MANGESH S. PATIL, J.)
mkd/-
