D. Aher Vs. State of Maharashtra  Insc 707 (31 October 2006)
Sinha & Markandey Katju
out of S.L.P. (Civil) No. 121 of 2006] S.B. SINHA, J :
appeal is directed against a judgment and order dated 22.7.2005 passed by a
Division Bench of the High Court of Judicature at Bombay in Writ Petition No. 4467 of 2005
whereby and whereunder the writ petition filed by Appellant herein was
appellant at all material times was working as Block Development Officer. A
departmental proceeding was initiated against him on the purported charge that
he had committed serious misconduct, causing loss to the government to the tune
of Rs. 2,85,658/-. A departmental inquiry was conducted on the said charges.
The Inquiry Officer in his report held the appellant to be guilty thereof. Two
show cause notices were issued to him. On 21.12.1998, in the show cause notice,
imposition of punishment of recovery of government losses to the tune of Rs. 2,85,658/-
and forfeiture of pension for a period of five years was proposed. Another
notice was serviced on him on 20.07.2000 proposing imposition of punishment of
forfeiture of the entire pension and gratuity and to recover the amount of the
government losses to the tune of Rs. 2,85,658/- which were not recoverable as
per the earlier notice dated 21.12.1998.
order dated 17.5.2002, the Disciplinary Authority imposed a punishment of
forfeiture of entire pension and gratuity permanently. An appeal was preferred
by him before the Appellate Authority which was dismissed. The appellant filed
an application before the Maharashtra State Administrative Tribunal at Mumbai
being O.A. No. 559 of 2004. The said original application was dismissed by the
the High Court, contentions raised by the appellant were:
copy of the preliminary inquiry report had not been furnished to him as a
result whereof he was prejudiced in raising a proper defence in the
Disciplinary Authority had not followed the procedures laid down in the Maharashtra
Civil Service (Pension) Rules, 1982 (for short "the Rules").
reason of the impugned judgment, the High Court rejected the said contentions
stating that the preliminary inquiry report having not been relied upon nor
having been referred to in the report of the Inquiry Officer. It was found that
a copy of the report in fact had been supplied to him and he also
cross-examined the witnesses on the basis thereof. It was, therefore, held that
the appellant was not prejudiced by reason of non-supply of the preliminary
inquiry report as alleged or otherwise.
regard to the purported non-compliance of Rule 27 of the Rules, the High Court
opined that show cause notice having been served upon the appellant and he
having shown cause thereto, the question of non- compliance of the principles
of natural justice did not arise. It was further held that it was not necessary
to specifically state in the impugned order that the appellant had committed
grave misconduct or negligence.
M. Jadhav, learned counsel appearing on behalf of the appellant would, however,
submit that the inquiry proceeding was vitiated as several documents asked for
by the appellant had not been supplied.
27 of the Rules reads thus:
Right of Government to withhold or withdraw pension
Government may, by order in writing, withholding or withdraw a pension or any
part of it, whether permanently or for a specified period, and also order the
recovery from such pension, the whole or part of any pecuniary loss caused to
Government, if, in any departmental or judicial proceedings, the pensioner is
found guilty of grave misconduct or negligence during the period of his service
including service rendered upon re-employment after retirement:
that the Maharashtra Public Service Commission shall be consulted before any
final orders are passed in respect of officers holding posts within their
further that where a part of pension is withheld or withdrawn, the amount of
remaining pension shall not be reduced below the minimum fixed by Government.
The departmental proceedings referred to in sub-rule (1), if instituted while
the Government servant was in service whether before his retirement or during
his re-employment, shall after the final retirement of the Government servant,
be deemed to be proceedings under this rule and shall be continued and
concluded by the authority by which they were commenced in the same manner as
if the Government servant had continued in service.
The departmental proceedings, if not instituted while the Government servant
was in service, whether before his retirement or during the re-employment.
not be instituted save with the sanction of the Government;
not be in respect of any event which took place more than four years before
such institution, and;
shall be conducted by such authority and at such place as the Government may
direct and in accordance with the procedure applicable to the departmental
proceedings in which an order of dismissal from service could be made in
relation to the Government servant during his service" The question as to
whether the proceedee has committed grave misconduct or negligence during his
tenure of service is essentially a question of fact. The power of the
government to pass an order of withholding or withdrawing the pension or part
thereof in terms of the said Rule is not in dispute. It is also not in dispute
that a departmental proceeding was initiated and the appellant was found guilty
of commission of the alleged misconduct therein. A finding of fact has been
arrived at that a copy of the inquiry report was supplied to him. A copy of the
document which has not been relied upon, is not required to be supplied to a delinquent
officer. The documents which are required to be supplied are only those
whereupon reliance has been placed by the Department.
levelled against the appellant were:
Violated Rule 136 of Zila Parishad and Panchayat Samiti conduct of Account Code
1968 while implementing the Jewandhara Well Scheme in Surgana.
Has violated Government Decision bearing No. JRY-1090 CR 1674 52 dated
16.11.1996 and an excess amount of Rs. 1,75,198.00 has been distributed and
thus has committed misconduct as contemplated under Rule 3 of Maharashtra Civil
Services (Conduct) Rules, 1979.
While working as Block Development Officer in Panchayat Samit, Surgana during
the period from 6th November, 1987 to 16th April, 1991 having spent an amount
on housing under Gharkal Scheme. The quality of work was inferior and that the
same had become dilapidated and was inhabitable and thus an amount of Rs. 1,13,587.17
though was spent has gone waste and thus a misconduct as contemplated under
Rule 3(3) of Maharashtra Civil Services (Conduct) Rules 1979 has been
committed." Indisputably, the charges are of grave nature. The appellant
has not only been charged with negligence in his duty, the State is also said
to have suffered losses on account of his action and/ or inaction in
implementing the Jeevandhara Well Scheme.
counter-affidavit, Respondent herein stated that the preliminary inquiry had
been conducted by one Shri Nagargoje. As the appellant had cast aspersions
against him, the preliminary inquiry was entrusted to three different officers,
viz., Chief Accounts and Finance Officer, Zila Parishad, Nashik, Executive
Engineer (B&CD), Zila Parishad Nashik and Executive Engineer (Minor
Irrigation), Zila Parishad Nashik. The appellant had been indicted by all the
said officers. Preliminary inquiries further were confidential in nature. They
were meant for arriving at a satisfaction by the disciplinary authority as to
whether a departmental proceeding should be initiated or not.
now well-settled that what was necessary for imposition of punishment was to
arrive at a finding of misconduct which is of grave nature or misconduct
involving negligence on the part of delinquent officer. The chargesheet issued
against the appellant fulfills the aforementioned conditions. He was found
guilty of commission of alleged acts of misconduct. Thus, on the basis of the
findings arrived at in the departmental inquiry that he was guilty of such
misconduct, in our opinion, it was not required to specifically mention therein
that the delinquent was guilty of grave misconduct or negligence.
appellant was a Block Development Officer. He was incharge of the Scheme which
was to be implemented in his Block. He, being a Supervisory Head, had a duty to
see that the Scheme is implemented in its letter and spirit. Two of the charges
framed against him as noticed hereinbefore clearly relate to administrative
lapses on his part. In the departmental inquiry also, the said charges have
of the appellant to the effect that documents had not been supplied to him does
not appear to have been raised by him before the High Court. As no such
contention had been raised, we are of the opinion that he cannot be permitted
to be raise it for the first time before us.
noticed hereinbefore, a finding of fact has been arrived at that all the
procedures laid down under Rule 27 of the Rules have been complied with. We do
not see any reason to interfere therewith.
the reasons aforementioned, we do not find any merit in this appeal which is
dismissed accordingly. No costs.