BAPURAO SHANKARRAO SARTAPEVERSUSTHE STATE OF MAHARASHTRA AND OTHERSMr v. P. Latange
Legal Reasoning
IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABAD15 WRIT PETITION NO. 3545 OF 2022BAPURAO SHANKARRAO SARTAPEVERSUSTHE STATE OF MAHARASHTRA AND OTHERSMr. V. P. Latange, Advocate for the petitioner Mr. S. B. Jadhav, AGP for the respondent/StateMr. P. P. Kothari a/w Adv. Nandini Chittal, Advocate for respondent Nos.3 and 4.CORAM: R. M. JOSHI, J.DATE: 15th APRIL, 2025PER COURT :-1.By consent of both sides, this petition is heard finally at thestage of admission.2.This petition takes exception to the orders dated 27/12/2018passed by the Minister, Rural Development Department, Mumbai in CaseNo. DEN-2018/C.N.123/Est.12, whereby the order passed by theCommissioner upholding the dismissal of the petitioner came to beconfirmed.3.Facts which led to the filing of writ petition can be narrated inbrief as under:(i) The petitioner joined the services of respondent No.4- ZillaParishad, Ahmednagar on 01/08/2006 as Gram Sevak. He was posted at15.wp3545.22.odt1 of 8 Gram Panchayat Kalewadi, Tq. Karjat, Dist. Ahmednagar. The petitionerclaims that he has rendered spotless services. On or around 24/12/2013allegations came to be made against the petitioner with registration offirst information report against him for misappropriation of funds. He wassuspended by order dated 31/12/2013. After about 23 months of thesuspension, charge-sheet was issued to him alleging misappropriation offunds. Petitioner filed reply explaining the circumstances in which theamounts were withdrawn and deposit thereof. An inquiry was initiatedagainst the petitioner under provisions of the Maharashtra Zilla ParishadsDistrict Services (Discipline and Appeal) Rules. In the said proceedingspetitioner participated. Inquiry Officer submitted report dated31/01/2017 holding charges being proved against the petitioner. It wasobserved that it is a case of temporary misappropriation of the funds. Onthe basis of the said report of inquiry, show cause notice was issued tothe petitioner as to why punishment of dismissal should not beimplicated upon him. He responded the said show cause notice. It isthereafter by passing order dated 27/06/2017 petitioner was dismissedfrom the service. Against this order of dismissal he preferred Appealbearing No. 82/2017 before the Additional Commissioner, NashikDivision, Nashik. The Appellate Authority by judgment dated 21/12/2017dismissed the appeal. This order was challenged before the Minister in arevision unsucessfully. Hence this petition.15.wp3545.22.odt2 of 8
Legal Reasoning
4.Learned counsel for the petitioner submits that the petitionerhas been suspended from 31/12/2013 whereas the charge-sheet hasbeen issued against him on 14/10/2015. He drew attention of the Courtto the Government Resolution dated 27/11/1990 which according to himmandates the initiation of disciplinary proceedings within a period of sixmonths and if the proceedings are not possible to be initiated within thisperiod, appropriate permission was required to be obtained from theState Government. It is his submission that since no such permission hasbeen obtained in this case, the inquiry proceeding stands initiated.Without prejudice to this submission he drew attention of the Court tothe findings recorded by the Inquiry Officer which according to him donot indicate that the charge of misappropriation of funds is proved.According to him the petitioner has provided satisfactory explanation andbrought on record the circumstances in which the amounts were withheldby him. It is his submission that even before any action to be initiatedagainst the petitioner, he has deposited the amount which indicates thathe had no intention to misappropriation the funds. On these amongstother contentions he seeks interference in the impugned order andultimately setting aside order of dismissal of the petitioner from theservice.5.Learned counsel for the respondent-ZP vehemently opposed15.wp3545.22.odt3 of 8 the petition. It is his submission that admittedly the petitioner haswithdrawn the amounts and retained the same without authority. Hedrew attention of the Court to the reply of the petitioner to the charge-sheet which according to him proves the fact that in the year 2008-2009petitioner has withdrawn a sum of Rs.2,40,676/-. It is his submissionthat it is immaterial as to whether there is a permanent misappropriationor misappropriation for a temporary period. According to him in view ofthe reply so also considering the evidence led in the inquiry, the findingsrecorded by the Inquiry Officer with regard to the proof of the chargesdoes not deserve any interference. It is his submission that theGovernment Resolution dated 27/11/1990 cannot be construed as aground for setting aside the inquiry proceedings initiated against thepetitioner as the same aims at not providing undue advantage to thegovernment employees. Finally it is his submission that having regard tothe nature of misconduct proved against the petitioner, the order ofdismissal can not be said to be a disproportionate punishment.6.At the outset this Court would like to deal with the issueraised by the petitioner with regard to the applicability of GovernmentResolution dated 27/11/1990 and the consequence of non compliance ofdirection issued therein. Perusal of the said Government Resolutionindicates that it was issued for the purpose of substituting the authority15.wp3545.22.odt4 of 8 which was supposed to grant permission for issuance of the charge-sheetafter the lapse of six months of the suspension of the employee. Perusalof the original Government Resolution dated 25/02/1988 which is placedon record by the learned counsel for the respondents indicates that thesole intention of the issuance of the said resolution is to ensure that thecharge-sheet is issued in specified time and that in case such charge-sheet is not issued, the benefit of the same need not be given to theemployee who has committed misconduct involving moral turpitude.There is no dispute about the fact the provisions of the the MaharashtraZilla Parishads District Services (Discipline and Appeal) Rules areapplicable to the present case, wherein no specific time limit has beenprescribed for issuance of charge-sheet. In any case the non initiation ofthe departmental enquiry in the stipulated time as proved in GovernmentResolution, would have bearing only on continuation of the suspensionperiod and not for the merit of charge-sheet/departmental enquiry. ThisCourt finds substance in the contention of the learned counselrespondent that the purpose behind issuance of G.R. dated 25/02/1988and 27/11/1990 to ensure that inquiry proceeding is initiated andconcluded at the earliest, in respect of suspended employee. 7.In this regard it is pertinent to note that the petitioner hasnot raised any objection in the inquiry proceeding taking exception to the15.wp3545.22.odt5 of 8 maintainability of the proceeding on this ground. The petitioner hassubmitted himself to the inquiry proceeding and participated thereinwithout resisting the same. Now, therefore it is not open for thepetitioner to take exception thereto. In any case the non compliance ofthe said Government Resolution will not lead to setting aside of theinquiry proceeding which is conducted in accordance with rules and byfollowing principles of natural justice. The petitioner has failed to showany prejudice being caused to him for want of such approval from theauthority as provided in this resolution.8.Coming to the merits of the case, there is charge-sheetissued against the petitioner making out specific case of misappropriationof funds. There are five charges levelled against him indicating that thework orders in respect of which the misappropriation has been done. Inthis regard it will be material to take note of the reply submitted by thepetitioner. In his reply he is practically accepts all the allegations ofwithdrawal of the amount and withholding the same. He however tries toprovide explanation thereto by claiming occurrence of certain events.Even if the explanation is accepted, it is a matter of the fact the amountof Rs.2,00,947/- was withdrawn in the year 2008-09, and the same waswithheld by the petitioner over a period of 4 years i.e. up to at least May,2013. It is for the first time on 21/05/2013 he deposited a sum of15.wp3545.22.odt6 of 8 Rs.60,000/- and the balance amount came to be deposited on20/12/2013. In respect of this transaction the explanation provided bythe petitioner is not justified. He vaguely states that for some reason thework could not commence and therefore he deposited the said amount.Learned counsel for the respondent has drawn attention of the Court tothe audit regulations which require the cash in hand to be depositedwithout any delay. Though there is no specific time limit prescribed forthe same, withholding of the amount more than Rs.2 lakhsapproximately period of 4 years is sufficient to indicate it is a case ofmisappropriation of the funds, may be for a temporary period.9.Now question arises as to whether it is open for the petitionerto take exception to the order of dismissal passed against him on theground that there is findings recorded by the Inquiry Officer with regardto it being a financial irregularity. The petitioner is a governmentemployee. He is expected to discharge his duties honestly. Once it isproved that he has committed misappropriation may be even fortemporary period, the punishment of dismissal would be the onlyappropriate punishment. Having regard to these facts and consideringthe findings recorded by the Inquiry Officer so also the observationsmade by the Appellate Authority which are confirmed by the Minister, thisCourt does not find it judicious to cause interference therein in the15.wp3545.22.odt7 of 8 exercise of writ jurisdiction.10.As a result of above discussion, petition stands dismissed.(R. M. JOSHI, J.)ssp15.wp3545.22.odt8 of 8