Tejram S/O Natthuji Gabhane Dead, ... vs State Of Mah., Rural Devel. And ...
2022 Latest Caselaw 8830 Bom

                                                                                    J-222-WP-475-2010.odt
                                              1

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

                 WRIT PETITION NO.475 OF 2010

PETITIONER                             :      Tejram S/o Natthuji Gabhane (Dead)
(Amendment carried out as per Courts
                                              through L.R. Pramod Tejram Gabhane
order dated 08.07.2019.)                      Aged about 45 years, Occ : Business,
                                              R/o Zilla Parishad Colony, Ganeshpur,
                                              Bhandara
                                              ..VERSUS..

RESPONDENTS                            : 1. State of Maharashtra,
                                              Rural Development and Water
                                              Resources Department, Mantralaya
                                              Mumbai - 400 032, Through its
                                              Principal Secretary.

                                           2. The Additional Commissioner,
                                              Nagpur Division, Nagpur.
                                           3. Chief Executive Officer,
                                              Zilla Parishad, Bhandara.
                                           4. The Deputy Director of Vocational
                                              Education and Training Regional
                                              Office, Civil Lines, Nagpur.
                                           5. The Education Officer (Secondary)
                                              Zilla Parishad, Bhandara,
 -----------------------------------------------------------------------------------------
      Shri O. Ghare, Advocate for the Petitioner.
      Ms N. P. Mehta, AGP for the Respondent No.1/State.
      Ms M. P. Munshi, Advocate for the Respondent Nos.3 and 5.
 --------------------------------------------------------------------------------------------------------

                       CORAM : SUNIL B. SHUKRE AND
                               VALMIKI SA MENEZES, JJ.

                       DATE                : 6th SEPTEMBER, 2022.
                                                     J-222-WP-475-2010.odt


ORAL JUDGMENT : (PER : SUNIL B. SHUKRE, J.)

1. Heard Shri Ghare, learned counsel for the petitioner,

Ms Munshi, learned counsel for the respondent nos.3 and

5/Zilla Parishad and also Ms Mehta, learned Assistant

Government Pleader for the respondent no.1/State.

2. Shri Ghare, learned counsel for the petitioner, on

instructions, does not press the challenge to the extent of order

of dismissal of the deceased Tejram Natthuji Gabhane, but he

presses his challenge to the extent of the recovery order

directing recovery of Rs.33,75,500/- (Thirty Three Lakhs

Seventy Five Thousand Five Hundred Only) from the deceased

employee of Zilla Parishad, Bhandara.

3. According to the learned counsel Shri Ghare, the

recovery order cannot be allowed to sustain in law as

criminality of the deceased employee could not be established

on account of his untimely death resulting in abatement of the

criminal proceedings against him and that there was no charge

levelled against the petitioner that he was the ultimate

beneficiary and also the charge that he himself had forged the

fraudulent bills. He further submits that in-fact the J-222-WP-475-2010.odt

beneficiaries were some third parties from whom the amount

wrongly paid should have been recovered by Zilla Parishad,

Bhandara.

4. Ms Munshi, learned counsel for the respondent nos.3

and 5/Zilla Parishad, submits that the schools to whom the

amounts were paid under EBS Grants Scheme were not in

existence, and therefore, there was no question of making any

effort of recovering the amount from the non existent schools

and in such a case, the disbursed amount was required to be

recovered only from the deceased employee. Ms Mehta, learned

Assistant Government Pleader for the respondent no.1/State,

adopts the argument of the learned counsel for Zilla Parishad.

5. We would have accepted the argument of the learned

counsel for Zilla Parishad and also the learned AGP had there

being a specific charge levelled against the deceased employee

that he was the sole beneficiary or that he himself had forged

the bills in question. The charge which was levelled against the

deceased employee was only to the effect that he did not

perform his duty properly in verifying the bills and making his

recommendations for sanction and payment of the bills. There J-222-WP-475-2010.odt

is also no finding recorded anywhere in the impugned order

passed by the Disciplinary Authority that the deceased

employee had himself forged the bills, and therefore, there was

a reason to believe that the deceased employee could have been

one of the beneficiaries of the wrong payments made by the

Zilla Parishad. Such being the nature of enquiry and findings

recorded in the enquiry held against the deceased employee, we

do not think that it would be just and proper to say that the

deceased employee himself was entirely responsible for the loss

caused to Zilla Parishad and was therefore liable to refund the

whole amount. In-fact, in such a case, it is necessary that Zilla

Parishad, Bhandara, makes an effort to recover the loss from the

actual beneficiaries but, there is no material placed on record to

enable us to reach any conclusion in this regard. But, from the

documents available on record, it appears that entire

responsibility for causing of loss to Zilla Parishad exchequer

cannot be fastened upon the deceased employee.

6. The learned counsel for the petitioner has rightly

submitted that guilt of the petitioner in the criminal case

registered against him now cannot be established as the J-222-WP-475-2010.odt

criminal proceeding has abated on account of his death during

the pendency of the criminal proceeding. If this is the case, it

would be not proper for Zilla Parishad, Bhandara to proceed

with the recovery of the amount from the legal heirs of the

deceased employee, as per the order passed by the Disciplinary

Authority.

7. In the result, we are inclined to partly allow the

petition and we direct that no recovery of the amount of

Rs.33,75,500/- (Thirty Three Lakhs Seventy Five Thousand

Five Hundred Only) be made from the legal heirs of the

deceased employee and to this extent, the impugned order of

the Disciplinary Authority is quashed and set aside. Rest of the

impugned order shall stand as it is.

8. Rule is made absolute in above terms.

(VALMIKI SA MENEZES, J.) (SUNIL B. SHUKRE, J.)

TAMBE

Digitally Signed By:ASHISH ASHOKRAO TAMBE Personal Assistant to Hon'ble JUDGE Signing Date:07.09.2022 17:38