Writ Petition No. 2611 of 2008. Case: Shri Masuood Alam Khan-Pathan, Adult, Occ. at present Advocate Vs State of Maharashtra, through the Secretary, Medical Education and Drugs Department, The Secretary, Medical Education and Drugs Department and The Commissioner. High Court of Bombay (India)
| Case Number | Writ Petition No. 2611 of 2008 |
| Counsel | For Appellant: S.P. Saxena, Adv. and For Respondents: V.A. Sonpal, AGP |
| Judges | V.C. Daga and Mridula Bhatkar, JJ. |
| Issue | Constitution of India - Articles 14, 41, 226 and 227; Maharashtra Civil Service (Pension) Rules, 1982 - Rule 27; Maharashtra Civil Service (Discipline and Appeal) Rules, 1979 - Rules 5, 8(18), 8(20) and 27 |
| Judgement Date | May 07, 2009 |
| Court | High Court of Bombay (India) |
Judgment:
Mridula Bhatkar, J.
-
This Writ Petition is directed against the Order dated dated 27th November 1998 passed by the Maharashtra Administrative Tribunal, Mumbai. Factual Matrix:
-
The Petitioner was working as the Administrative Officer in the office of the Administrative Medical Officer, E.S.I.S. at Mumbai. At the time of audit of the Hospital account, misappropriation of some amount was revealed and the investigation was carried out. The Petitioner was prosecuted along with some other person for misappropriation of the property and falsification of the account and criminal cases bearing Nos. 111 of 1984 & 112 of 1984 were registered against him. On the other hand, Respondent No. 1 had started departmental proceedings against the Petitioner.
-
The aforesaid enquiry was conducted by a Special Officer for Departmental Enquiries, Nashik and Pune Division, Pune. The said enquiry was concluded holding the Petitioner guilty and accordingly a report was submitted by the Special Enquiry Officer. Pursuant to the said outcome of the enquiry, the Disciplinary Authority under provisions of Rule 27 of the Maharashtra Civil Service (Pension) Rules, 1982 directed that 50% of the pension payable to the Petitioner be withheld and the said punishment was imposed on the Petitioner. It was further directed that the period which was spent that is the period of suspension from 20th December 1983 to 31st July 1988 be treated as "suspension period" for all the purposes. In order to implement this decision, the Government of Maharashtra passed the Government Resolution dated 14th March 1991 which was challenged by the Petitioner before the Maharashtra Administrative Tribunal (MAT).
-
The MAT, after hearing the parties, confirmed the action of the State Government to the extent it holds Petitioner guilty of misconduct leading to loss of funds and, consequent penalty imposed on him. However, in view of breach of principles of natural justice, it quashed and set aside the order treating the petitioner under suspension during the period of suspension and remanded the matter to the competent authority to take its decision afresh after giving the petitioner an opportunity of hearing.
-
The petitioner, however, has approached this Court against the said order of MAT upholding the penalty including quantum thereof by filing this petition under Article 226 and 227 of the Constitution of India, with a prayer to quash and set aside the order passed by the MAT in Original Application No. 1150/1992.
Submissions:
-
Learned Counsel for the Petitioner has submitted that the findings given in the departmental proceeding are not correct. The charges leveled against the Petitioner were not serious in nature like corruption but were of mere negligence leading to misconduct, which, in fact, ought not to have been held as proved. The grievance was made that the documents which were asked for by the Petitioner were not furnished to him. It was also submitted that the disciplinary authority ought to have considered the fact that the Petitioner was acquitted in Criminal Case Nos. 111/1984 and 112/1985 and no appeal was preferred by the State against the decision of acquittal. It was further submitted that the disciplinary authority did not follow the procedure of the enquiry prescribed under Sub-rules 18 and 20 of Rule 8 of Maharashtra Civil Service (Discipline and Appeal) Rules of 1979 [the "MCS (D & A) Rules" for short]. Learned Counsel for the Petitioner tried to demonstrate serious prejudice suffered by the Petitioner by not following Sub-rule 20 of Rule 8 of MCSR (D & A) Rules. It was further submitted that the order of the disciplinary authority and subsequent order of the MAT holding the Petitioner guilty of misconduct is liable to be set aside. It was, alternatively, urged that the penalty withholding 50% of the pension amount and the gratuity should be modified and rigour thereof be reduced looking to disproportionate punishment inflicted on the Petitioner merely because he happened to be a retired officer of the State.
-
While countering the arguments, the learned AGP, made submissions that the Enquiry Officer has followed the requisite procedure under MCSR Rules during a departmental enquiry. It was argued that the delinquent was given an opportunity to defend himself properly, and that there was no question of denial of any opportunity to the delinquent. It was further submitted that in para 7 of the order dated 25th January 1991 passed by the disciplinary authority, it is categorically stated that the opportunity was given to the petitioner to show cause as to why the penalty based on the enquiry report be not imposed. According to him, the principles of natural justice were not violated since the procedure laid down was followed. He tried to urge that non-compliance of Sub-rule 20 of Rule 8 referred to hereinabove will have no effect on the enquiry, even if it was not followed...
To continue reading
Request your trial