Bombay High Court
Shri. Dyaneshwar Valiba Avhad vs The State Of Maharashtra Through ... on 27 March, 2023
Bench: Sandeep V. Marne
2023:BHC-AS:9566-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 9749 OF 2018
Shri. Dnyaneshwar Valiba Avhad .....Petitioner
V/s.
The State of Maharashtra ....Respondent
-----
Mr. Rajesh Kolge, Advocate for petitioner.
Mr. B.V. Samant, AGP for the State.
CORAM : S.V. GANGAPURWALA, ACJ &
SANDEEP V. MARNE, J.
DATED : 27TH MARCH, 2023.
P.C. :
1. By this petition, petitioner challenges judgment and
order dated 31.01.2018 passed by the Maharashtra Administrative
Tribunal in Original Application No.519/2015 to the limited extent of
denial of backwages during the period of dismissal from service till
reinstatement. The Tribunal has partly allowed the Original
Application by setting aside the order dated 17.03.2015 by which
punishment of dismissal from service was imposed. The Tribunal has
directed Petitioner's reinstatement in service. The Tribunal has also
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granted continuity to him by directing that the period between
dismissal till reinstatement be considered as continued service for the
purposes of pensionary benefits, if any. The Tribunal has however
denied any pay and allowances including arrears for the period
between dismissal and reinstatement. Petitioner is aggrieved by the
order of the Tribunal to the limited extent of denial of backwages.
2. Petitioner came to be appointed as Police Constable on
15.04.1995. A complaint was made by one Smt. Jijabai alleging that
petitioner contracted marriage with her without divorcing his first
wife, Vandana D. Avhad. Jijabai also accused petitioner of abusing
and threatening her. Based on complaint filed by Jijabai, First
Information Report was registered against him on 16.6.2008.
Simultaneously, Memorandum of Chargesheet dated 8.07.2008 was
issued alleging a solitary charge of contracting second marriage with
Jijabai during subsistence of marriage with Vandana. It was alleged
that petitioner abused and threatened Jijabai and threw her out of
the house.
3. It appears that Vandana had also lodged FIR No.
334/2004 against petitioner at Bhiwandi Police Station under Section
498A of the Indian Penal Code. The disputes between them were
however amicably resolved and by order dated 8.10.2008 passed by
this Court in Criminal Application No. 3553/2008, the said FIR came
to be quashed by consent.
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4. In the meantime, the departmental enquiry in pursuance
of the Memorandum of Chargesheet dated 8.07.2008 was conducted.
In the departmental enquiry, Petitioner set up the defence of non-
solemnisation of marriage with Jijabai. The Enquiry Officer
submitted report dated 24.11.2008 holding that the charge was
proved and recommended imposition of penalty of dismissal from
service. Accordingly, a show cause notice dated 1 st December 2008
was issued to petitioner, proposing the penalty of dismissal from
service. After considering petitioner's representation, order dated
30.01.2009 was passed by the disciplinary authority imposing the
penalty of dismissal from service.
5. Petitioner preferred appeal before the State Government
on 18.02.2009. The Appellate Authority passed order dated
20.10.2009 allowing petitioner's Appeal and set aside the penalty of
dismissal from service. Petitioner was directed to be reinstated in
service. It was further directed that the decision with regard to
treatment of period from the date of dismissal till reinstatement,
shall be taken separately. By order dated 13th November 2009
petitioner was reinstated in service. The State Government, however,
conducted suo-moto review of its decision under Section 27-B of the
Maharashtra Police Act, 1951 and passed order dated 15.04.2010
dismissing petitioner from service. Petitioner filed Original
Application No. 439/2010 before the Tribunal challenging the
dismissal order. By order dated 13.05.2010, the Tribunal partly
allowed the Original Application setting aside the dismissal order
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dated 15-04-2010 on the ground of non-issuance of show cause
notice in review proceedings taken under Section 27-B. Respondents
were however granted liberty to adopt appropriate proceedings
against petitioner in accordance with law. By order dated
07.06.2010 the petitioner was reinstated in service.
6. By exercising the liberty granted by the Tribunal in its order
dated 13.05.2010 the State Government took up Petitioner's case in
suo-moto review under Section 27-B. It appears that petitioner was
heard on 10.06.2010 and thereafter order dated 21.07.2010 was
passed directing that the penalty of dismissal from service imposed
on petitioner on 30.01.2009 stood confirmed. Petitioner once again
approached the Tribunal by filing Original Application No. 669/2011.
By judgment and order dated 09.07.2014, the Tribunal remanded
the matter to the Commissioner of Police, Nashik to start
proceedings against the petitioner de-novo under Section 27-B and
for rendering decision afresh after affording opportunity of hearing
to petitioner. It was directed that till conclusion of the proceedings,
petitioner shall not be reinstated. In accordance with the order
passed by the Tribunal, the State Government took up the
proceedings under Section 27-B and conducted hearing on 12th
February, 2015 and passed order dated 17-03-2015 holding that the
charge levelled against the petitioner was fully proved and confirmed
the order of dismissal from service. Petitioner once again
approached the Tribunal by filing Original Application No. 519/2015
challenging the dismissal order dated 17.03.2015. By its judgment
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and order 31.01.2018 the Tribunal has partly allowed the Original
Application setting aside the punishment of dismissal from service
and directing petitioner's reinstatement. While petitioner is granted
continuity of service, he is denied pay and allowances including
arrears during the period from last dismissal till the date of
reinstatement. Petitioner has been reinstated in service by order
dated 26.02.2018. The petitioner has filed the present petition to the
limited extent of denial of backwages.
7. Appearing for petitioner, Mr. Kolge the learned Counsel
would submit that the petitioner has been kept away from duties on
account of actions of respondent, which have repeatedly been found
illegal by the Tribunal. That the petitioner was required to approach
the Tribunal on three occasions for the purpose of his reinstatement
in service. That despite direction of the Tribunal to conduct de novo
proceedings, the State Government once again conducted proceedings
for review under Section 27B by treating the proceedings as if the
same were an appeal filed by petitioner. That in such
circumstances, the Tribunal ought to have granted backwages. He
would submit that petitioner was not gainfully employed during the
intervening period.
8. Mr. Sawant, the learned AGP would oppose the petition
submitting that the Tribunal has correctly denied backwages. That
petitioner was facing charge of serious nature of contracting second
marriage and abusing and threatening his second wife. That since the
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dismissal order is set aside on technical grounds, denial of
backwages in such circumstances is warranted.
9. After having heard the learned counsels for the parties,
the short question that falls for our consideration is whether the
petitioner is entitled to backwages during the intervening period
from the date of dismissal till the date of reinstatement. The
Tribunal has already granted continuity of service to the petitioner
during the intervening period.
10. Petitioner was last dismissed from service by order dated
21.07.2010. Though, the order states that the State Government
confirmed the order of petitioner's dismissal issued on 30.09.2009 we
do not find any such order dated 30.09.2009. The first order of
petitioner's dismissal was issued on 30.01.2009. He was reinstated
in service in pursuance of the order of the Appellate Authority on
13.11.2009. He was once again dismissed on 15.04.2010 but
reinstated in pursuance of the Tribunal's order dated 7.06.2010. He
was once again dismissed from service on 21.07.2010. Though the
Tribunal directed conducting de novo proceedings under Section 27B
by its order dated 09.07.2014, petitioner was directed not to be
reinstated. In pursuance of such de novo proceedings, petitioner was
once again dismissed from service by order dated 17.03.2015. Since
petitioner was not reinstated in service in pursuance of order dated
09.07.2014 passed by the Tribunal in O.A. No. 669/2011, the last
date of dismissal of the petitioner from service would be 21.07.2010.
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Petitioner has ultimately been reinstated in service on 26.02.2018.
Thus, the exact period under consideration for deciding the issue of
backwages is from 21.07.2010 to 26.02.2018.
11. The chronology of events narrated above, would indicate
that the disciplinary proceedings against petitioner have been
protracted on account of several erroneous decisions taken by the
State Government while exercising power of review under Section
27B of the Act. The State Government initially allowed petitioner's
Appeal by setting aside the order of dismissal and directed
petitioner's reinstatement by order dated 20.10.2009. However,
within a short span and without following the principles of natural
justice, the order of dismissal was passed on 15.04.2010 by
exercising power of review under Section 27B of the Act. The
Tribunal set aside the order on 13.05.2010 and petitioner was
reinstated in service on 7.06.2010. Without issuing any show-cause
notice, the State Government took decision on 21.07.2010 and once
again dismissed the petitioner from service under Section 27B of the
Act. The Tribunal was required to intervene once again in O.A. No.
669/2011 by setting aside the penalty and granted liberty to conduct
de novo proceedings under Section 27B. Such de novo proceedings
under Section 27B by the State Government resulted in passing of
order dated 27.03.2015, once again imposing the penalty of dismissal
from service. By judgment impugned in the present petition, the
Tribunal has set aside the order dated 17.03.2015. The State
Government is not aggrieved by the decision of the Tribunal. Infact,
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the Tribunal's order is implemented by the State Government by
reinstating petitioner by order dated 26.02.2018. The State
Government accepts the position that petitioner was erroneously
dismissed from service from time to time.
12. Thus, petitioner has been kept away from duties since
21.07.2010 on account of erroneous proceedings conducted by the
State Government under Section 27B of the Act. He was required to
knock the doors of the Tribunal thrice. Petitioner was not gainfully
employed during the intervening period of dismissal.
13. Considering the overall facts and circumstances of the
case and especially the fact that petitioner was not gainfully
employed during the intervening period of dismissal, we are of the
considered view that ends of justice would meet if Respondents are
directed to be pay 50% of the backwages from 21.07.2010 till
25.2.2018. The Tribunal has already granted the benefit of continuity
of service to petitioner during the intervening period of dismissal.
14. The order passed by the Tribunal therefore deserves to be
modified to the extent of denial of backwages. We accordingly
proceed to pass the following order:
O R D E R
(i) The Writ Petition is partly allowed. The
order of the Tribunal is modified to the
extent that the respondents shall pay 50% of
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the backwages to petitioner from 21.07.2010
till 25.02.2018.
(ii) The backwages shall be paid within a
period 3 months.
(iii) The Writ Petition is disposed of. No
costs.
(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)
