Bombay High Court
The State Of Maharashtra Through The ... vs Smt. Prabha Kishnaji Kamble on 6 February, 2024
Author: A. S. Chandurkar
Bench: A. S. Chandurkar
2024:BHC-AS:5675-DB
Tauseef 01.WP.10573.2015.J.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.10573 OF 2015
1. The State of Maharashtra,
through the Principal Secretary,
Social Justice and Special
Assistance Department,
Having office at Mantralaya,
Extension Bhavan,
Mumbai - 400 032.
2. The Director of Social Welfare,
M. S., Pune having office
Pune - 411 001. ..Petitioners
Versus
Smt. Prabha Krishnaji Kamble,
Warden - Class III,
Government Girls Hostel,
At Post/Taluka, Gadhinglaj,
District Kolhapur. ..Respondent
__________
Mr. N. C. Walimbe, Addl. G. P. a/w. Mr. N. K. Rajpurohit, AGP for the
Petitioners.
Mr. Bhushan A. Bandiwadekar for the Respondent.
__________
CORAM : A. S. CHANDURKAR &
JITENDRA JAIN, JJ.
ARGUMENTS HEARD ON : 23rd JANUARY 2024.
JUDGMENT DELIVERED ON : 6th FEBRUARY 2024.
JUDGMENT:
(Per Jitendra Jain, J.)
1. Rule. Rule made returnable forthwith. Heard finally by
consent of the parties.
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2. By this petition under Article 227 of the Constitution of India,
it challenges an order passed by the Maharashtra Administrative
Tribunal, Mumbai (Tribunal) dated 16 th February 2015, whereby the
Original Application (for short "OA") of the Respondent has been
allowed and the Petitioner-State has been directed to realise the services
of the Respondent along with all retirement benefits on account of
exoneration of all the charges framed against the Respondent.
Narrative of the events:-
(i) On 31st March 1979, the Respondent was appointed as a Warden
Class-III and in the year 1981, she joined as warden of Sant
Sakhubai Backward Class Government Girls Hostel at Ahmednagar,
Maharashtra.
(ii) On 8th November 1983, the Respondent was placed on suspension
on account of alleged misappropriation of funds.
(iii) On 17th December 1983, a charge-sheet alleging charges of
misappropriation was issued to the Respondent. The Respondent
submitted her detailed reply to the said charges.
(iv) On 10th August 1984, an Enquiry Officer was appointed to conduct
an enquiry against the Respondent. The FIR was also filed with the
Ahmednagar Police Station against the Respondent and her
husband for the offences punishable under sections 409, 467, 477/
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A, 468, 471 read with section 34 of the Indian Penal Code, 1860,
on 28th May 1984.
(v) On 28th September 1984, the Enquiry Officer submitted his report
to the Disciplinary Authority. In the said report, the Enquiry Officer
came to a conclusion that Charge Nos.1, 3 and 5 are not proved
and Charge Nos.2, 4 and 6 are proved.
(vi) On 12th September 1985, the Respondent was reinstated in her
service, subject to the departmental enquiry being conducted
against her.
(vii) On 8th May 2002, the Judicial Magistrate, First Class, Ahmednagar
acquitted the Respondent and her husband from all the charges.
The learned Magistrate in his order observed that the prosecution
has failed to prove any sort of guilt against the accused-Respondent
and the prosecution has failed to establish requisite ingredients of
the sections of the Indian Penal Code, 1860 which were invoked in
the FIR.
(viii)In the year 2006, the Respondent was called upon to submit her say
on the charges levelled against her in the departmental enquiry
proceedings.
(ix) On 20th November 2008, the departmental enquiry was concluded
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and she was found guilty on account of Charge Nos.2, 4 and 6 and
on the balance charges, she was not found guilty. The
departmental enquiry officer after referring to the order of the
Magistrate passed an order of compulsory retirement of the
Respondent from her services w.e.f. 29th November 2008, under
Rule 5(1)(vii) of the Maharashtra Civil Services (Disciplinary and
Appeal) Rules, 1979. The said order also observed recovery of
Rs.23,824/- from Respondent being financial loss incurred by the
Petitioner-State. The aforesaid order was challenged in appeal by
the Respondent.
(x) On 6th March 2009, the appeal filed by the Respondent was rejected
and the order of compulsory retirement and recovery of the
financial loss was confirmed. The said appeal order was further
subject matter of review proceedings filed by the Respondent.
(xi) On 5th February 2011, the review application made by the
Respondent was also dismissed.
3. Being aggrieved by the aforesaid proceedings and various
orders passed against the Respondent, an OA No.121 of 2012 as came to
be filed by the Respondent with the Tribunal on various grounds stated
therein. The Tribunal vide order dated 16th February 2015, allowed the
OA filed by the Respondent and exonerated the Respondent from all the
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charges and further directed the Petitioner-State to grant all the service
benefit to the Respondent from the date of her suspension till the date of
her superannuation. The Tribunal gave various reasoning in support of
its decision, namely, non-examination of any witnesses and opportunity
of cross-examination being not allowed to the Respondent, delay in the
proceedings, decision of the Magistrate in criminal proceedings, the
nature of offence for which the charges were proved and the quantum
involved, etc. It is on this backdrop that the present petition is filed by
the Petitioner-State challenging the order of the Tribunal.
Submission of the Petitioner:-
4. The Petitioner submitted that the Tribunal ought not to have
relied upon the criminal proceedings because it is settled position that
the disciplinary and criminal proceedings are separate proceedings and
the parameters required to test the veracity of these proceedings are
different. The Petitioners further submitted that Tribunal ought not to
have directed the Petitioner-State to grant all the benefits to the
Respondent, since she was proved to have indulged in misappropriation
of funds and she was found guilty on 3 out of 6 charges. The Petitioners
further refuted the ground of delay for the purpose of allowing the
application filed by the Respondent and quashing the disciplinary
proceedings. The Petitioner submitted that there was sufficient material
on record to prove the charges against the Respondent and the Tribunal
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ought not to have interfere in the disciplinary proceedings. The
Petitioner in support of its submissions have relied upon the decision in
the case of Ex-Constable Ramvir Singh Vs. Union of India & Ors. 1, State
of Gujarat Vs. R. C. Teredesai & Anr.2 and Union of India Vs. H. C. Goel3.
Submission of the Respondent:-
5. The Respondent opposed the Petition and supported the order
of the Tribunal. The Respondent submitted that the disciplinary enquiry
report, appeal order and review order are bad in law inasmuch as the
same are non-speaking and without considering the detailed submission
made by the Respondent in the course of proceedings. The Respondent
further submitted that on account of delay of more than 2 to 3 decades
between the enquiry report and the disciplinary enquiry, the proceedings
are bad in law. The Respondent also submitted that the Petitioner-State
has failed to prove the charges and as relied upon the order passed by
the Magistrate dated 8th May 2002. The Respondent further in
alternative, submitted that the charges which are alleged to have been
proved and the punishment which is imposed on the Respondent is
disproportionate and therefore, even on this account, the proceedings
are bad in law and not justified. The Respondent, therefore, prayed for
dismissal of the Petition.
1 (2009) 3 SCC 97
2 (1969) 2 SCC 128
3 1963 SCC Online SC 16
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6. The Respondent relied upon the case of Yoginath D. Bagde vs.
State of Maharashtra & Anr. 4 in support of the submission in case
Disciplinary Authority disagrees with the findings of the enquiry
authority, then reasons have to be recorded for such disagreement and
in the absence of the same the proceedings are bad in law.
7. We have heard the learned counsel for the Petitioner-State and
the learned counsel for the Respondent and with their assistance have
perused the documents, pleadings, replies, etc. annexed to the Petition.
We have also perused the original record of the Petitioner-State in
connection with the proceedings against the Respondent.
Analysis and conclusion :-
8. In our view, for the reasons stated hereinafter, we do not find
any grounds for interference with the order of the Tribunal.
9. Firstly, the enquiry was initiated in the year 1983 for the
alleged offence of misappropriation during the period September-1982
to December-1982. The Petitioners-State lodged a complaint with the
Police Station on 28th May 1984. On 28th September 1984, the enquiry
officer submitted his report. On 8th May 2002, the Magistrate passed an
order quashing the complaint against the Respondent and her husband
for failure on the part of the prosecution to prove the charges. It was
4 (1999) 7 SCC 739
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only on 20th November 2008, that is after 3 decades, that the
compulsory suspension order came to be passed against the Respondent
and for recovery of the financial loss. In our view, the order imposing
punishment came to be passed almost after 30 years of the initiation of
the enquiry proceedings. There is no explanation whatsoever by the
Petitioner-State for such a long delay. Assuming, the Petitioner-State
waited for the order of the Magistrate, then even in that scenario the
Magistrate has passed an order on 8 th May 2002, whereas order
imposing the punishment was passed on 20 th November 2008 which is
almost after 6 and half years, for which again there is no explanation. In
our view, if allegations made by the Petitioner-State were serious then
they ought to have acted impromptu and ought not to have waited for
such a long period of 30 years to impose the penalty. This delay in
adjudication of the enquiry proceedings would be not only against the
interest of the Petitioner-State, but also against the Respondent. The
Petitioner-State by permitting such an employee against whom
allegations are made of misappropriation of funds would in effect
amount to acceding to and permitting such person to be in charge of
affairs which is against the interest of the Petitioner-State. Insofar as the
employee is concerned the sword of the allegations hanging over for a
period of 30 years is also not proper. Looking from the employer and
employee points of view, in our view, such proceedings ought to have
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been completed within a reasonable period in the interest of the
Petitioner-State and the Respondent. The unexplained delay of 30 years,
in our view, vitiates the proceedings and also it waters down the
deterrent effect, if later it is found the allegations to be true. In the
present case, in our view, such a long unexplained delay would result
into the proceedings being held to be bad in law.
10. Secondly, order dated 20th November 2008 whereby
punishment is imposed on the Respondent is a non-speaking order. The
said report only reproduces the findings of the enquiry officer and
narrates the events in criminal proceedings and thereafter concludes
that the Respondent is guilty of the charges and imposes penalty under
Maharashtra Civil Services (Disciplinary and Appeal) Rules, 1979. There
is no consideration of the Respondent's detailed submission dated 29 th
June 2006 by the said Authority. There is not even a reference to the
said submission in the order. In our view, the Authority ought to have
considered these submissions and given reasons for not accepting the
same before imposing the punishment. In our view, non-consideration of
these submissions and the order imposing the penalty without giving
any reasons would vitiate the proceedings being contrary to the
principles of natural justice and therefore on this count also, we do not
find any fault in the Tribunal's order.
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11. The appeal order dated 25th March 2009 and the review order
dated 5th February 2011 are also non-speaking and therefore the
illegality which crept in the order imposing the penalty/punishment was
carried forward by the Authorities in appeal and review proceedings.
Therefore, even on this count, the proceedings and imposition of
punishment on the Respondent is bad in law.
12. We are conscious of the fact that the criminal proceedings and
disciplinary proceedings are separate and require different parameters
for judging with respect to these proceedings. However, the Petitioner-
State themselves have relied upon the pendency of these proceedings
with respect to certain charges and therefore now they cannot turn
around and submit otherwise. The order of the Magistrate states that
the prosecution had failed to prove the charges although evidence was
led of two witnesses. In our view, on the basis of the same evidence and
charges if criminal proceedings are quashed by the Magistrate then
certainly that would be one of the relevant factors to be considered
along with other factors for testing the reasoning of the Tribunal in
allowing the Original Application. In our view, therefore no fault could
be found in the reasoning of the Tribunal in relying upon the
Magistrate's order for allowing the Original Application, moreso,
because this was not the sole ground on which the Original Application
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has been allowed, but it was one of the grounds/reasoning of the
Tribunal. The Supreme Court in the case of Ram Lal Vs. State of
Rajasthan5, has observed that an order passed in criminal proceedings
can certainly be considered in adjudication of the disciplinary
proceedings and in our view, the present case falls within the parameters
laid down by the said decision.
13. Out of the 6 charges framed against the Respondents, only
following 3 were held by the Disciplinary Authority to have been proved,
namely following:-
"2. That she has produced bogus vouchers in the name of
the supplier and tempered the vouchers which leave scope
to doubt that this was done with a view to misappropriating
the government money.
4. That she is a tried to present as if the rates of the
Adinath Provision Stores, Ahmednagar are the lowest one
so that she should be permitted to make the purchases at
the said rates from the open market. The rates shown as
lowest on the basis of credit bills are higher than the
purchases actually made by her in cash. This leaves scope
to doubt for intention to misappropriate the Government
money.
6. That she has shown the exaggerated wastage of grain
that the approved rate and debited the same to the account
of grain articles and fire wood. By this way an amount of
Rs.3,084-95 has been embezzled".
14. In our view, the financial loss with respect to charge no.4 was
Rs.3,085/-. As against this, imposition of penalty of compulsory
retirement would in our view be disproportionate moreso, since the
Respondent was directed to pay back Rs.3,084/-. Insofar as, charge no.6
5(2024) 1 SCC 175
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is concerned, no witness was examined at the time of disciplinary
enquiry nor the Respondent was allowed to cross-examine the
accountant. In our view, therefore even with respect to the charges
which were proved, the offence does not seem to be grave for passing
order of compulsory retirement.
15. The Respondent is justified in relying upon the decision in the
case of Yoginath D. Bagde (supra) since in the present case also the
Disciplinary Authority has not given any reason from disagreeing with
the findings of the enquiry authority nor appellate authority has given
the same. In the absence of such disagreement being recorded in
writing, in our view, the disciplinary proceedings are required to be
quashed.
16. We now propose to deal with the case laws cited by the
Petitioner-State. The decision in the case of Ex-Constable Ramvir Singh
(supra) has been relied upon for the proposition that a contention not
raised before the lower authority cannot be permitted to be raised. In
our view, the said decision is not applicable to the present case,
inasmuch as, the issue of delay, merits and validity of the proceedings
and the principles of natural justice were raised by the Respondent
before the lower authority. The decision in the case of R. C. Teredesai
(supra) would also not be applicable since the said decision deals with
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the powers of the enquiry officer to recommend punishment or not. The
decision states that if penalty or punishment is recommended by the
enquiry officer then the said material has to be given to the delinquent
officer. In the present case, the Respondent was given the enquiry report
and therefore this issue does not arise in the present proceedings before
us. Insofar as the decision in the case of H. C. Goel (supra) is concerned
on the same line as stated above, the said decision is not applicable to
the facts of the present case.
17. In our view and on a reading of the Tribunal order as a whole,
we do not find any perversity in the order challenged before us. The
Tribunal in paragraph No.26 has observed that even in their
independent assessment, order imposing the penalty cannot stand. In
our view, the order of the Tribunal has considered all the aspects and no
fault can be found in the said order dated 16th February 2015.
18. For the aforesaid reasons, the writ petition stands dismissed.
Rule is discharged with no order as to costs.
(JITENDRA JAIN, J.) (A. S. CHANDURKAR, J.)
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