Bombay High Court
Arun Vittalrao Gadekar vs The State Of Mah And Ors on 20 August, 2025
2025:BHC-AUG:22906
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 5833 OF 2010
Arun s/o Vittalrao Gadekar,
Age:36 years, Occu: Ex. Junior
Assistant (Dismissed) At present Nil,
R/o Sangale Gali, Harsul, Aurangabad
Tq & Dist. Aurangabad. ----PETITIONER
VERSUS
1. The State of Maharashtra
Through its Principal Secretary,
Rural Development Department,
Mantralaya, Mumbai-32.
2.The Divisional Commissioner
Aurangabad Division,
Aurangabad.
3. The Chief Executive Officer,
Zilla Parishad, Jalna.
4. The Headmaster,
Zilla Parishad, High School,
Babulgaon, Tq. Bhokardan,
Dist. Jalna. -----RESPONDENTS
Mr. V. G. Salgare, Advocate for Petitioner
Ms. R. R. Tandale, AGP for Respondent/State
CORAM : R. M. JOSHI, J.
DATE : 20th AUGUST, 2025
JUDGMENT :
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1. This petition takes exception to the order of punishment of
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dismissal from service of the petitioner dated 21.10.2003 issued by Chief
Executive Officer (for Short "CEO"), Zilla Parishad, Jalna and the orders
passed in appeal dated 01.07.2005 passed by Additional Division
Commissioner, Aurangabad and State Minister of Rural Development
Department in Revision dated 18.10.2006 confirming the said order.
2. The facts which led to the filing of this petition can be narrated in
brief as under :-
Petitioner was serving with Zilla Parishad, Jalna as "Junior
Assistant". He was appointed to the said post on 05.08.1996 and worked with
Zilla Parishad upto 21.10.2003. On 09.04.2002, he was issued with show-cause
notice as to why action should not be taken against him for committing act of
misappropriation of funds by not depositing the fees received from OPD
patients to the tune of Rs. 31,736/-. There was further allegation against him
that apart from the misappropriation for the period from September, 1999 to
January, 2001, for the period from February, 2001 to June, 2001, the fees
received from OPD patients was deposited belatedly. There was also allegation
against him that he remained absent without permission. Pursuant to the said
show-cause notice, charge sheet was issued against the petitioner. Inquiry was
conducted into the said charges. The Inquiry Officer held the said charges to be
proved. The report of the inquiry was forwarded to the petitioner and show-
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cause notice was issued on 07.01.2003 calling upon him as to why he should
not be punished for reduction of pay scale. This notice was not replied by the
petitioner. Thereafter another notice came to be issued, seeking show-cause as
to why he should not be dismissed from the service under Rule 4(7) of the
Maharashtra Zilla Parishad, District Services (Discipline and Appeal) Rules,
1964 (for short "Rules of 1964"). This second show-cause notice is duly
replied by the petitioner on 20.08.2003 and he admitted the proof of
misconduct against him. It is stated by him that he is ready to deposit the
amount due and payable along with the interest and sought pardon.
3. The reply of the petitioner to the show-cause notice was not
accepted and the petitioner came to be dismissed from service by impugned
order dated 21.10.2003 passed by CEO, Zilla Parishad, Aurangabad. Petitioner
being aggrieved by the said order preferred appeal before the Additional
Divisional Commissioner unsuccessfully under Rule 14 of Rules of 1964.
Revision filed before the State also came to be rejected. Hence, this petition.
4. Learned counsel for petitioner submits that the issuance of show-
cause notices is not permitted under the relevant rules. It is his submission that
once show-cause notice is issued to the petitioner, it was not open for the Zilla
Parishad to propose higher punishment. To support his submissions, he placed
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reliance on the judgment of Supreme Court in case of Indian Oil Corporation
Limited and others Vs. J. Krishna Murthy in Civil Appeal No. 5447 of 1993.
It is his submission that said issue has been duly raised in this petition and
which deserves consideration. According to him, in addition to other charges,
the charge of subsequent absentism is also included while imposing the
punishment which is not permissible in law. The order passed by the State in
revision is sought to be challenged on the ground that the order is unreasoned
one.
5. None appeared for Zilla Parishad.
6. There cannot be any dispute made with regard to the fact that the
petitioner was issued with show-cause notice for misappropriation of money.
The allegation is in respect of two periods i.e., from September 1999 till
January 2001 of Rs. 31,736 so also deposit of the amount for the period from
August, 2001 to January, 2002 belatedly. There is also allegation that he is
misappropriated the salary payable to the Medical Assistant. He was issued
charge sheet and departmental inquiry was conducted against him.
7. The report of the Inquiry Officer indicates that witnesses were
examined in order to support the said charges. It is not the case that the
petitioner was not given an opportunity of being heard and to defend himself in
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the inquiry. As against this, the response to the show-cause notice by the
petitioner indicates that the factum of proof of charges against him is admitted.
8. Thus, it is clear that the charge of misappropriation has been duly
proved against him. In respect of charge of misappropriation, if the punishment
of dismissal is proposed, no fault can be found that the Zilla Parishad and CEO
in proposing such punishment.
9. It is sought to be argued that once a show-cause notice is issued,
it was not open for CEO to issue another show-cause notice and to change the
proposed punishment to be imposed upon the petitioner. In this regard
reference is made to Rule 6(10) of the Rules of 1964. Perusal of the said rule
indicates that what is contemplated therein is that while issuance of show-
cause notice, the report of the inquiry will all liberty must be provided to the
employee. This would enable him to respond to the show-cause notices. It is
pertinent to note that after issuance of the first show-cause notice, no reply was
given by the petitioner and thereafter CEO probably having realize that for the
act of misappropriation, appropriate punishment would be of dismissal, it was
open for the CEO to issue such show-cause notice. Pertinently, the said show-
cause notice has been responded by the petitioner by admitting the charges.
The petitioner therefore, got opportunity of being heard on the proposed
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punishment and requirement of rule is duly complied with. The charge of
misappropriation is serious misconduct and if committed by Government
Servant it's gravity is increased. Moreover the incident of misappropriation is
not in isolation but series of acts in two different spans of time. Thus having
regard to the nature of misconduct, when there is dismissal effected of an
employee and has committed misappropriation, the punishment cannot be said
to be shockingly disproportionate.
10. In so far as the judgment cited supra in case of Indian Oil
Corporation, it is held by the Supreme Court that since the respondent was
aware that the penalty of removal was proposed against and that he had liberty
to make submissions against the said penalty and availed that liberty, it cannot
be said that he was suffer any prejudice if the penalty that has been imposed on
the respondent under Order dated 21.01.1986 is altered from dismissal of
removal from service. As against this, in the instant case, the petitioner has
accepted that the charges are proved against him in response to the second
show-cause notice. Apart from this if the contention of the petitioner is
accepted then the management would not even be in a position to correct error
in the show-cause notice. What is required to be seen is as to whether the
employee has got opportunity of hearing and could respond to the same before
actual imposition of punishment. Once these conditions are fulfilled, employee
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cannot be heard to say that prejudice is caused to him.
11. In so far as the order passed by the State in Revision is concerned,
while exercising the revision jurisdiction, the State was not required to re-
appreciate the evidence and record independent findings of fact as required to
be done by the Appellate Authority. The State was required to see as to whether
the order is passed within the jurisdiction and after giving opportunity of
hearing to the petitioner. As reflected from the said order, both these conditions
are complied with and hence, there is no substance in the contention of the
learned counsel for the petitioner that the order passed by the State is
unreasoned one.
12. Having regard to the peculiarity of the facts of the case and since
no prejudice has been caused to the petitioner with issuance of the second
show-cause notice, also considering the gravity of misconduct i.e.,
misappropriation has been proved against him, it is not fit case to cause
interference in the impugned order. Hence, petition stands dismissed.
(R. M. JOSHI, J.)
bsj
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