Bombay High Court
Bharat Nagnathrao Khogre vs State Of Maharashtra And Rs on 5 August, 2025
2025:BHC-AUG:21024
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 1541 OF 2008
Shri. Bharat son of Nagnathrao Khogre
died through Legal Heirs
1. Smt. Suman Wd/o Bharatrao Khogare
Age : 59 Years, Occu. Nil R/o N-9
L-159-4, Shivajinagar, CIDCO,
2. Shri. Shivkumar s/o Bharatrao Khogare
Age : 47 Years, Occu. Nil R/o N-9
L-159-4, Shivajinagar, CIDCO, Aurangabad,
3. Sou. Shubhangi W/o Laxmikant Khogare,
Age : 42 Years, Occu. H.W., R/o N-9
L-159-4, Shivajinagar, CIDCO, Aurangabad,
4. Shri. Shashikumar s/o Bharatrao Khoagre,
Age : 42 Years, Occu. Private service, R/o N-9
L-159-4, Shivajinagar, CIDCO, Aurangabad.
... PETITIONERS
VERSUS
1. The State of Maharashtra
2. The Registrar,
Dr. Babasaheb Ambedkar Marathwada University,
Aurangabad, for the University
3. The Presiding Officer, University Tribunal,
Dr. Babasaheb Ambedkar Marathwada University,
Aurangabad.
... RESPONDENTS
Mr. R. B. Dhakane, Advocate for the Petitioner
Mr. M. V. Navandar, Advocate for Respondent No.2
Mr. K. N. Lokhande, AGP for the Respondent/State
CORAM : R. M. JOSHI, J.
DATE : 5th AUGUST, 2025
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JUDGMENT :
-
1. This Petition takes exception to the judgment and order
passed by the University and College Tribunal in Appeal No. BAMU-3 of
1998, dated 20/09/1999, whereby the order passed by the Registrar of
compulsorily retiring the Petitioner from the services came to be
confirmed.
2. The facts which led to the filing of the petition can be
narrated in brief as under:-
(i) The Petitioner has been in service of Respondent-University
in its printing press. He came to be compulsorily retired from service on
allegations of misconduct. An inquiry, he was issued order of suspension
and charge-sheet dated 09/08/1994. He filed statement of defence. On
01/11/1994, notice came to be issued to the Petitioner to remain present
for the departmental inquiry and for recording of the statement before
the Inquiry Officer. The inquiry was concluded on the same day by
relying the confessional statements of the Petitioner and other
employees allegedly recorded during the investigation of the crime. The
Inquiry Officer submitted the report holding Petitioner guilty for the
misconduct alleged against him. Show cause notice came to be issued to
him on 30.01/01.02.1995 along with the inquiry report. He submitted
explanation on 07/02/1995. The Management has not accepted the said
917 WP1541.08.odt 2 of 9
explanation and by relying upon the report of the Inquiry Officer, the
order of compulsory retirement as a punishment came to be issued. The
Petitioner being aggrieved by the said order preferred Appeal before the
University and College Tribunal, Aurangabad.
(ii) The learned Presiding Officer by passing impugned order
dismissed the Appeal. The Appeal came to be dismissed essentially on
the ground that the Petitioner has accepted the charges in the inquiry
proceeding and had permitted the Inquiry Officer to read the statements
recorded by the Investigating Officer during the course of the
investigation of the crime.
3. Learned Counsel for the Petitioner submits that the Petitioner
died during the pendency of the Petition and his LR's are prosecuting the
Petition. It is his submission that at no point of time nor even during the
course of inquiry proceedings the Petitioner has admitted charges of
misconduct levelled against him and as such it was the responsibility of
the Management to prove the said charges by leading evidence. It is his
further submission that the Inquiry Officer as well as the Tribunal has
committed error in considering the communication dated 07/11/1994 to
be admission of the statements recorded by the Investigating Officer. It
is his contention that in any event unless the Investigating Officer was
examined, it was no open for the Inquiry Officer to rely upon the said
917 WP1541.08.odt 3 of 9
statement in order to hold that the Petitioner is guilty of the misconduct.
It is his further submission that even if this Court comes to the
conclusion that the matter is required to be relegated back to the
University for proving of the misconduct, the same cannot not done in
view of the fact that the Petitioner is no more. It is his further
submission that in view of the fact that there is acquittal of the
Petitioner, no further inquiry proceedings even otherwise could be
initiated against the Petitioner. It is his submission by relying upon the
judgment of the Hon'ble Supreme Court in case of Capt. M. Paul Anthony
Vs. Bharat Gold Mines Ltd. And Another, AIR 1999 SC 1416 that where
the departmental proceeding and criminal case based on identical set of
facts, and that the employee is acquitted, dismissal from the service
would be liable to be set aside on the basis of the departmental inquiry.
He further placed reliance on the following judgments in order to seek
the relief of reinstatement with full back wages and continuity of service.
(i) Maharashtra State road Transport Corporation Vs. Mahadeo
Krishna Naik in Civil Appeal No. 13834/2024 (SC), dated
14/02/2025,
(ii) Jayantibhai Raojibhai Patel Vs. Municipal Council, Narkhed
and Ors. in Civil Appeal No. 6188/2019 (SC), dated 21/08/2019,
(iii) Deepali Gundu Surwase Vs. Kranti Junior Adhyapak
Mahavidyalaya (D.Ed.) and others, (2013) 10 SCC 324,
(iv) Ranchhodji Chaturji Thakore Vs. Superintendent Engineer,
Gujarat Electricity Board, Himmatnagar (Gujarat) and Another,
(1996) 11 SCC 603,
(v) Surendra Kumar Verma and Others Vs. Central Government
917 WP1541.08.odt 4 of 9
Industrial Tribunal-cum-Labour Court, New Delhi and Another,
(1980) 4 SCC 443.
4. Learned Counsel for the Respondent-University vehemently
opposed the Petition. It is his submission that the charges levelled
against the Petitioner were serious in nature and in case the charges are
held to be proved, the order of compulsory retirement cannot be
interfered with. It is his submission that the Petitioner has voluntarily
tendered communication dated 07/11/1994 which according to him
indicates that he has permitted the Inquiry Officer to place reliance on
the statements recorded by the Investigating Officer during the
investigation of the crime and hence reliance placed on such statements
is cannot be called as perverse. He also supported the findings recorded
by the Tribunal in this regard. Though he does not dispute the fact that
now no fresh inquiry can be conducted, it is his submission that the
Petitioner cannot be permitted to take advantage of his own wrong and
to get back wages. On the point of the judgment relied upon by the
learned Counsel for the Petitioner in case of Capt. M. Paul Anthony Vs.
Bharat Gold Mines Ltd. And Another (supra) it is submitted that the
evidence in both proceedings is not common in order to apply the said
judgment.
5. There is no dispute about the fact that the Petitioner was
issued with charge-sheet and the allegations made against the Petitioner
917 WP1541.08.odt 5 of 9
on the face of it are serious in nature. There is further no denial of the
fact that the charge-sheet was duly replied by the Petitioner and he
denied the said charges. In view of the said denial, the Inquiry Officer
came to be appointed for conducting an inquiry into the said misconduct.
Before the Inquiry Officer, the Petitioner recorded the statement that the
charges are denied by him. He, however, made request that during the
inquiry, the Inquiry Committee to consider the statement recorded by
the Officer of CID and he should be given justice. The contesting
Respondent seeks this statement to be accepted as an admission on the
part of delinquent for reading the statement recorded by the
Investigating Officer as evidence in inquiry proceedings.
6. A bare perusal of the said statement recorded by the
Petitioner clearly indicates firstly that, he has not admitted the
misconduct. Secondly, he only says that while deciding the inquiry, the
statement recorded by the Investigating Officer may be considered.
Neither expressly nor even impliedly he admits the said statement to be
truth nor permits the Inquiry committee to rely upon the said statement
without its formal proof. Though strict rules of evidence are not
applicable to Departmental/Domestic inquiries, however that would not
mean to dispense with proof of any statement in order to place reliance
upon the same. In such circumstances, unless the Investigating Officer
917 WP1541.08.odt 6 of 9
or the persons who had recorded the said statement was examined in
the inquiry, there was no question of the Inquiry Committee relying upon
the same. The learned Tribunal has failed to take into consideration the
said aspect, which amounts to perversity in the findings recorded by the
Tribunal, requiring interference therein.
7. The law on the point that the fairness of the inquiry is settled
to say that a person who is charged with misconduct would not be
entitled to get reinstatement in the service only for reason that inquiry is
not fair and proper. In such event, the Court is required to give an
opportunity to the employer to prove the charges afresh. This exercise,
however, cannot be done in the present case for the reason that the
Petitioner is now deceased.
8. Now question arises as to whether the order of compulsory
retirement of the Petitioner from the service could be sustained. Since on
the face of it the inquiry is conducted by the Inquiry Committee is not
proper, the order of termination based upon such findings of the
Committee cannot sustain. As a result of which the termination needs to
be set aside.
9. Now question arises as to whether the Petitioner would be
entitled to claim that on the basis of his acquittal in the criminal
proceedings, no further inquiry could have been conducted by the
917 WP1541.08.odt 7 of 9
Management. Perusal of the judgment of the Hon'ble Supreme Court in
case of Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. And Another
(supra) indicates that Hon'ble Supreme Court has held in clear terms
that where the departmental proceeding and criminal case are based on
identical set of fact and evidence in both proceedings is common, only in
such circumstance where the employee has been acquitted, the dismissal
on the basis of departmental inquiry could be set aside. Needless to say
that herein this case no evidence was recorded and hence question of
there being a common evidence does not arise. Moreover, it is not clear
from the record that the same witnesses were sought to be examined in
the inquiry who were these witnesses of the prosecution in the criminal
case. Thus, for want of identical facts being involved in the said case as
compared to the present case, in respectful view of this Court, the said
judgment would not help the Petitioner in any manner to support his
case.
10. In any case, it is settled position of law that the requirement
of the proof of misconduct in a departmental inquiry would be on
preponderance of the probability whereas the proof of the criminal
charge must be beyond reasonable doubt. Of course, herein this case,
since the Petitioner is dead, no question arises of relegating the matter
back to the University for conducting the inquiry into the misconduct.
917 WP1541.08.odt 8 of 9
11. Admittedly, the Petitioner has not made statement before the
Tribunal that he was not gainfully employed during the relevant period
nor any statement has been made in this petition too. The position of law
is settled to say that the employee is required to make a statement
before the Court at first instance that he is not gainfully employed and in
only circumstances the onus will shift upon the employer to prove
otherwise. Once the statement is not made, the Petitioner is not entitled
for any back wages. In such circumstances, this Court of the view that
though the order of compulsory retirement of the Petitioner cannot
sustain and he is required to be granted reinstatement with continuity of
service, but no back wages could be granted.
12. As a result of above discussion, Petition stands partly allowed
in following terms:-
(i) The impugned order passed by the Tribunal is set aside.
(ii) The order of compulsory retirement of the Petitioner is
set aside.
(iii) The Petitioner is directed reinstatement in the service
with continuity of service with consequential benefits
but without any back wages.
(iv) Since the Petitioner is now deceased, the LR's of the
Petitioner would be entitled for the retiral/ pensionary
benefits, as per law.
13. Rule made partly absolute in above terms
(R. M. JOSHI, J.)
ssp
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