Bombay High Court
Devisingh Sandusingh Rajput vs The State Of Maharashtra Through ... on 6 October, 2022
Bench: Mangesh S. Patil, Sandeep V. Marne
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.11456 OF 2019
Devisingh s/o. Sandusingh Rajput
Age : 52 years, Occu : At present Nil,
R/o. Plot No.31, Vedant Nagar,
Station Road, Aurangabad. .. Petitioner
Versus
1. The State of Maharashtra
Through its Secretary,
Department of Industries,
Labour & Law, Mantralaya,
Mumbai.
2. The Marathwada Development
Corporation Ltd., through its
Managing Director, Vikas Bhavan,
Dr. Rajendra Prasad Road, Aurangabad. .. Respondents
...
Mr. P.S.Dighe, Advocate h/f. Mr. V.R. Dhorde, Advocate for the
petitioner
Mrs. Vaishali N. Patil Jadhav, AGP for Respondent No.1
Mr. N.K. Kakade, Advocate for Respondent No.2
...
CORAM : MANGESH S. PATIL &
SANDEEP V. MARNE, JJ.
RESERVED ON : 30-09-2022
PRONOUNCED ON : 06-10-2022
JUDGMENT ( PER SANDEEP V. MARNE, J.) :
. The petitioner challenges order dated 25.06.2019
imposing the penalty of dismissal from service on him with effect
from 21.10.2002. The petitioner also seeks payment of subsistence
allowance from 21.10.2002 till the date of his retirement i.e.
30.08.2009.
2. While working as Manager (Development) in
Marathwada Development Corporation Ltd., Aurangabad, the
petitioner was served with memorandum of charge-sheet dated
17.05.2002 containing two charges. In Article of charge no.1, it was
alleged that the petitioner prepared forged 'No Dues Certificate' (in
short 'NOC') in the name of M/s. Amit Industries, which was owned
by his wife Mrs. Pushpa Devisingh Rajput, who submitted the same to
Marathwada Development Corporation Ltd for sale of the land in
favour of M/s. Premier Industries Ltd. As a matter of fact, an amount
of Rs.2,25,694/- was due from M/s. Amit Industries in the year 1998-
99 when such forged NOC was issued. It was therefore alleged that
the petitioner caused loss of Rs.2,25,694/- to the Corporation. In the
second charge, it was alleged that he was handed over additional
charge of Ellora Milk Products from 01.08.1998 and company's
employee Mr. S.V. Manjurkar was to retire under voluntary retirement
scheme with effect from 15.01.2002. Despite being intimated in
advance, the petitioner failed to remain present in the office of the
company on 15.01.2002 thereby delaying the voluntary retirement of
Mr. Manjurkar as well as delay in payment of his retirement benefits.
3. In the departmental enquiry conducted against the
petitioner, both the charges were held to be proved in the Enquiry
Officer Report dated 23.08.2002. On receipt of report of Enquiry
Officer, he submitted reply on 14.10.2002. After considering the reply,
the penalty of dismissal from service was imposed on the petitioner
with effect from 21.10.2002.
4. The petitioner assailed the order of dismissal dated
21.10.2002 by filing Writ Petition No.1429 of 2005 before this Court.
The Writ Petition was partly allowed by order dated 31.08.2017 on
the ground that the mandatory provisions of Rule 8 (20) of the
Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 of
generally examining the petitioner in respect of circumstances
appearing against him in evidence was not followed. The dismissal
order was accordingly set aside granting liberty to the respondent -
Corporation to re-conduct the enquiry from the stage of Rule 8 (20)
and thereafter take a fresh decision in accordance with law. It was
directed that the petitioner would claim rights depending upon the
decision in the enquiry proceedings. In the meantime, the petitioner
attained the age of superannuation on 30.08.2009.
5. In pursuance of the liberty granted by this Court by its
order dated 31.08.2017, the respondent - Corporation appointed an
Enquiry Officer who conducted enquiry from the stage of Rule 8 (20)
and submitted his report on 17.12.2018 holding that article of charge
no.1 was fully proved and article of charge no.2 was partly proved.
After considering the reply of the petitioner to the report of the
Enquiry Officer, the respondent Corporation proceeded to pass the
order dated 25.06.2019 once again imposing penalty of dismissal
from service on the petitioner with effect from 21.02.2002.
6. Appearing for the petitioner Mr. Dighe, the learned
Counsel has not made any attempt to point out any further illegalities
in the conduct of enquiry proceedings or even with regard to the
finding of the guilt recorded in the proceedings. He has essentially
confined his submissions to the aspect of proportionality of penalty
contending that the penalty imposed is not proportionate to the
misconduct alleged. He would submit that no loss was caused to the
Corporation by the actions of the petitioner as the amount of
Rs.2,20,000/- was paid to the Corporation on 25.02.2002. He would
further submit that the disciplinary proceedings were triggered
essentially on account of the alleged conduct of the petitioner with
regard to article of charge no.2. However, while issuing a charge-
sheet the respondent - Corporation unnecessarily added charge no.1
in the memorandum. In support of his contentions with regard to the
proportionality of the penalty, Mr. Dighe has relied upon the
following decisions:
(i) H.L. Gulati vs. Union of India and Others, (2015) 12 SCC 408
(ii) Union of India and Others vs. P. Balasubrahmanayam (2021) 5
SCC 662.
(iii) Ganesh Santa Ram Sirur Vs. State Bank of India and another,
(2005) 1 SCC 13.
7. Mr. Dighe has also questioned retrospective effect being
given to the impugned order of dismissal. He would submit that the
respondent - Corporation was not justified in giving retrospective
effect to the dismissal order from 21.10.2002 when the same was
passed on 25.06.2019. In support of this contention, he would place
reliance on the decision of this Court in Assaram Raibhah Dhage vs.
Executive Engineer, Sub Divisional, Mula, 1988 (4) Bom. C.R. 158
and Ashti Taluka Dudh Utpadak and Purwata Sahakari Sangh Ltd vs.
Satish Padmakar Deshmukh & Ors., 1996 (4) ALL MR 705.
8. Lastly, Mr. Dighe has submitted that the petitioner is
entitled to payment of subsistence allowance from the date of initial
dismissal i.e. 21.10.2002 till he attained the age of superannuation
on 30.08.2009. This submission is founded on the provisions of sub-
rule 3 of Rule 4 of the Maharashtra Civil Services (Discipline &
Appeal) Rules, 1979.
9. Per contra, Mr. Kakade, the learned Counsel for
respondent no.2 - Corporation supported the impugned order of
dismissal. He would contend that the penalty imposed on the
petitioner is proportionate to the misconduct alleged. Referring to
the order dated 31.08.2017 passed in Writ Petition No.1429 of 2005,
Mr. Kakade would submit that all the aspects of enquiry are already
gone into by this Court in earlier round of litigation and the
petitioner cannot now be permitted to raise the same again. He
would submit that the impugned penalty order has been passed
strictly in accordance with the liberty granted by this Court by its
order dated 31.08.2017 and that therefore this Court may not
interfere in the same. He prayed for dismissal of the petition.
10. Rival contentions of the parties now fall for our
consideration.
11. Since Mr. Dighe has restricted his submissions to the
issue of proportionality of penalty, we proceed to examine the same.
The charge levelled against the petitioner involved preparation of
forged NOC which was used by his wife for the purpose of sale of the
property. The NOC was not only forged, but also was issued despite
the fact that an amount of Rs.2,25,694/- was due and payable by the
company of petitioner's wife when the same was issued. This charge
has been proved against the petitioner and the finding of guilt is not
questioned before us. We find the charge levelled against the
petitioner to be extremely serious. The petitioner had indulged in the
gross degree of misconduct of forging a document. He did not stop
here, but he prepared a forged document for the benefit of company
of his wife. Knowing that an amount of Rs.2,25,694/- was due and
payable by his wife's company, he prepared a forged NOC solely for
the purpose of causing pecuniary benefits to his wife and
consequently to himself. We, therefore, find that the penalty of
dismissal from service imposed on the petitioner for this degree of
misconduct is adequate and proportionate. The penalty does not
shock our conscious.
12. While determining the issue of proportionality, we need
not even go into the partly proved misconduct in respect of charge
no.2. Charge no.1 levelled and proved against the petitioner is of
serious nature warranting penalty of dismissal from service, which is
not at all disproportionate. We therefore hold that the penalty
imposed on the petitioner is proportionate to the gravity of
misconduct alleged and proved against him. Therefore, reliance of
Mr. Dighe on the decisions of the Apex Court in H. L. Gulati (supra),
Union of India (supra) and Ganesh Santa Ram Sirur (supra) are of no
avail. The gravity of misconduct is required to be judged distinctly in
each case and there cannot be any straitjacket formula in that regard.
After considering the conduct of the petitioner, we have no hesitation
in holding that he has committed misconduct of a grave nature.
Forging a document is one of the highest degrees of misconduct.
Therefore, contentions of Mr. Dighe on the aspect of proportionality
are rejected.
13. Coming to the Second aspect of retrospectivity of the
penalty, the earlier penalty of dismissal dated 21.10.2002 was set
aside by this Court by order dated 31.08.2017 and the enquiry was
remanded to be conducted afresh from the stage of Rule 8 (20) of the
Rules of 1979. After further enquiry, Petitioner was dismissed again
on 25-06-2019 with retrospective effect from 21-10-2002. However
he attained age of superannuation in the meantime on 31-08-2009.
In these peculiar circumstances, the issue of permissibility to pass
retrospective order of dismissal needs to be decided.
14. The Apex Court had somewhat similar situation before it
in State Bank of Patiala v. Ram Niwas Bansal, (2014) 12 SCC 106.
The Respondent therein was removed from service on 23-04-1985.
On 22-03-1998 the High Court set aside the penalty of removal but
remanded the enquiry. After holding further enquiry the Appellant
therein passed fresh order of removal on 22-11-2001 but
retrospectively with effect from 23-04-1985. In the meantime, the
Respondent therein stood retired on attaining the age of
superannuation on 22-02-1992. The Apex Court dealt with the aspect
of permissibility of retrospective order of removal and held as under:
'31. In the case at hand, in the earlier round the punishment was set
aside and direction for reinstatement was passed. Thus, on the face of the
said order it is absolutely inexplicable and unacceptable that the Bank in
2001 can pass an order with effect from 23-4-1985 which would amount
to annulment of the judgment [Ram Niwas Bansal v. State Bank of Patiala,
(1998) 4 SLR 711 : (1998) 119 PLR 768] of the earlier Full Bench. As has
been held by the High Court in the impugned judgment [Ram Niwas
Bansal v. State Bank of Patiala, (2002) 2 SLR 375 (P&H)] that when on
the date of non-furnishing of the enquiry report the delinquent officer was
admittedly not under suspension, but was in service and, therefore, he
would continue in service till he is dismissed from service in accordance
with law or superannuated in conformity with the Regulations. How far
the said direction is justified or not or how that should be construed, we
shall deal with while addressing the other points but as far as the order of
removal being made retrospectively operational, there can be no trace of
doubt that it cannot be made retrospective.
41. In the case at hand, the disciplinary proceeding was initiated
against the delinquent officer while he was in service. The first order of
dismissal was passed on 23-4-1985. The said order of punishment was set
aside by the High Court and the officer concerned was directed to be
reinstated for the limited purpose i.e. supply of enquiry report and to
proceed in the disciplinary proceeding from that stage. The said order was
not interfered with by this Court. The Bank continued the proceeding.
Needless to emphasise, the said continuance was in pursuance of the order
of the Court. Under these circumstances, it has to be accepted that the
concept of deemed continuance in service of the officer would have full
play and, therefore, an order of removal could have been passed after
finalisation of the departmental proceeding on 22-11-2001. We have
already held that the said order would not have been made retrospectively
operative, but that will not invalidate the order of dismissal but it would
only have prospective effect as has been held in R. Jeevaratnam [R.
Jeevaratnam v. State of Madras, AIR 1966 SC 951] .
45. The next issue pertains to how the period from the date of order of
first removal i.e. 23-4-1985 till 25-2-1992 would be treated and to what
benefits the officer concerned would be entitled to. The order of removal
from service, as we have already opined, would come into effect from the
date of passing of the order i.e. 22-11-2001 as it has to be prospectively
operative and, therefore, as a natural corollary he remained in service
from 23-4-1985 till he attained the age of superannuation i.e. 25-2-1992
or till the end of February 1992, being the last day of the month.'
(emphasis supplied)
15. Thus the penalty of dismissal from service imposed on
the Petitioner on 25-06-2019 will have prospective effect. The same
would not operate from 21.10.2002. The Petitioner's contention in
this regard is upheld.
16. We now turn to the last issue of Petitioner's entitlement
to receive subsistence allowance from the date of initial dismissal to
the date of attaining age of superannuation. For determining this
issue, we need to refer to the provisions of Rule 4 of the Maharashtra
Civil Services (Discipline & Appeal) Rules, 1979. Sub Rule 4 of Rule 4
deals with a situation where the order of dismissal is set aside by
court and enquiry is remanded. It reads thus:
'(4) Where a penalty of dismissal, removal or compulsory re-
tirement from service imposed upon a Government servant is
set aside or declared or rendered void in consequence of, or by,
a decision of a court of law, and the disciplinary authority, on a
consideration of the circumstances of the case, decides to hold
a further inquiry against him on the allegation on which the
penalty of dismissal, removal or compulsory retirement was
originally imposed, the Government servant shall be deemed to
have been placed under suspension by the appointing authority
from the date of the original order of dismissal, removal or
compulsory retirement and shall continue to remain under sus-
pension until further orders.'
(emphasis added)
17. Thus, under the provisions of sub-rule 4 of Rule 4, upon
dismissal order being set aside by a Court and the disciplinary
authority deciding to hold further enquiry, the employee is deemed to
have been placed under suspension from the date of original order of
dismissal and continues to remain under suspension till further
orders. Therefore, after the dismissal order dated 21.10.2002 was set
aside by this Court by its order dated 31.08.2017, the petitioner went
under deemed suspension with effect from 21.10.2002 by operation
of sub-rule 4 of Rule 4. He attained the age of superannuation on
30.08.2009. Thus, he remained under deemed suspension from
21.10.2002 to 31.08.2009. Therefore, the petitioner is required to be
paid subsistence allowance from 21.10.2002 to 31.08.2009.
Petitioner's claim in this regard also succeeds.
18. Accordingly, we proceed to pass the following order.
ORDER
(i) The penalty of dismissal from service imposed on the
petitioner is upheld.
(ii) However, the penalty of dismissal from service shall be
given effect from 25-06-2019.
(iii) Petitioner shall be entitled to subsistence allowance as per
rules during the period from 21.10.2002 to 30.08.2009.
Respondent-Corporation shall pay the same to the Petitioner
within a period of four months from today.
(iv) The Writ Petition is partly allowed in the above terms. Rule
partly made absolute. No costs.
( SANDEEP V. MARNE, J. ) ( MANGESH S. PATIL, J. )
GGP
