RESPONDENTSMr v. G. Salgare

Legal Reasoning

IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 5833 OF 2010Arun s/o Vittalrao Gadekar,Age:36 years, Occu: Ex. JuniorAssistant (Dismissed) At present Nil, R/o Sangale Gali, Harsul, AurangabadTq & Dist. Aurangabad. ----PETITIONERVERSUS1. 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. -----RESPONDENTSMr. V. G. Salgare, Advocate for PetitionerMs. R. R. Tandale, AGP for Respondent/StateCORAM: R. M. JOSHI, J.DATE: 20th AUGUST, 2025JUDGMENT :-1.This petition takes exception to the order of punishment of968-WP-5833-2010.odt1 of 7 dismissal from service of the petitioner dated 21.10.2003 issued by ChiefExecutive Officer (for Short “CEO”), Zilla Parishad, Jalna and the orderspassed in appeal dated 01.07.2005 passed by Additional DivisionCommissioner, Aurangabad and State Minister of Rural DevelopmentDepartment in Revision dated 18.10.2006 confirming the said order.2.The facts which led to the filing of this petition can be narrated inbrief as under :-Petitioner was serving with Zilla Parishad, Jalna as “JuniorAssistant”. He was appointed to the said post on 05.08.1996 and worked withZilla Parishad upto 21.10.2003. On 09.04.2002, he was issued with show-causenotice as to why action should not be taken against him for committing act ofmisappropriation of funds by not depositing the fees received from OPDpatients to the tune of Rs. 31,736/-. There was further allegation against himthat apart from the misappropriation for the period from September, 1999 toJanuary, 2001, for the period from February, 2001 to June, 2001, the feesreceived from OPD patients was deposited belatedly. There was also allegationagainst him that he remained absent without permission. Pursuant to the saidshow-cause notice, charge sheet was issued against the petitioner. Inquiry wasconducted into the said charges. The Inquiry Officer held the said charges to beproved. The report of the inquiry was forwarded to the petitioner and show-968-WP-5833-2010.odt2 of 7 cause notice was issued on 07.01.2003 calling upon him as to why he shouldnot be punished for reduction of pay scale. This notice was not replied by thepetitioner. Thereafter another notice came to be issued, seeking show-cause asto why he should not be dismissed from the service under Rule 4(7) of theMaharashtra Zilla Parishad, District Services (Discipline and Appeal) Rules,1964 (for short “Rules of 1964”). This second show-cause notice is dulyreplied by the petitioner on 20.08.2003 and he admitted the proof ofmisconduct against him. It is stated by him that he is ready to deposit theamount due and payable along with the interest and sought pardon.3.The reply of the petitioner to the show-cause notice was notaccepted and the petitioner came to be dismissed from service by impugnedorder dated 21.10.2003 passed by CEO, Zilla Parishad, Aurangabad. Petitionerbeing aggrieved by the said order preferred appeal before the AdditionalDivisional 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 thatonce show-cause notice is issued to the petitioner, it was not open for the ZillaParishad to propose higher punishment. To support his submissions, he placed968-WP-5833-2010.odt3 of 7 reliance on the judgment of Supreme Court in case of Indian Oil CorporationLimited 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 andwhich deserves consideration. According to him, in addition to other charges,the charge of subsequent absentism is also included while imposing thepunishment which is not permissible in law. The order passed by the State inrevision is sought to be challenged on the ground that the order is unreasonedone.5.None appeared for Zilla Parishad.6.There cannot be any dispute made with regard to the fact that thepetitioner was issued with show-cause notice for misappropriation of money.The allegation is in respect of two periods i.e., from September 1999 tillJanuary 2001 of Rs. 31,736 so also deposit of the amount for the period fromAugust, 2001 to January, 2002 belatedly. There is also allegation that he ismisappropriated the salary payable to the Medical Assistant. He was issuedcharge sheet and departmental inquiry was conducted against him.7.The report of the Inquiry Officer indicates that witnesses wereexamined in order to support the said charges. It is not the case that thepetitioner was not given an opportunity of being heard and to defend himself in968-WP-5833-2010.odt4 of 7 the inquiry. As against this, the response to the show-cause notice by thepetitioner indicates that the factum of proof of charges against him is admitted.8.Thus, it is clear that the charge of misappropriation has been dulyproved against him. In respect of charge of misappropriation, if the punishmentof dismissal is proposed, no fault can be found that the Zilla Parishad and CEOin 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 theproposed punishment to be imposed upon the petitioner.In this regardreference is made to Rule 6(10) of the Rules of 1964. Perusal of the said ruleindicates 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 theemployee. This would enable him to respond to the show-cause notices. It ispertinent to note that after issuance of the first show-cause notice, no reply wasgiven by the petitioner and thereafter CEO probably having realize that for theact of misappropriation, appropriate punishment would be of dismissal, it wasopen 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 proposed968-WP-5833-2010.odt5 of 7 punishment and requirement of rule is duly complied with. The charge ofmisappropriation is serious misconduct and if committed by GovernmentServant it’s gravity is increased. Moreover the incident of misappropriation isnot in isolation but series of acts in two different spans of time. Thus havingregard to the nature of misconduct, when there is dismissal effected of anemployee and has committed misappropriation, the punishment cannot be saidto be shockingly disproportionate.10.In so far as the judgment cited supra in case of Indian OilCorporation, it is held by the Supreme Court that since the respondent wasaware that the penalty of removal was proposed against and that he had libertyto make submissions against the said penalty and availed that liberty, it cannotbe said that he was suffer any prejudice if the penalty that has been imposed onthe respondent under Order dated 21.01.1986 is altered from dismissal ofremoval from service. As against this, in the instant case, the petitioner hasaccepted that the charges are proved against him in response to the secondshow-cause notice. Apart from this if the contention of the petitioner isaccepted then the management would not even be in a position to correct errorin the show-cause notice. What is required to be seen is as to whether theemployee has got opportunity of hearing and could respond to the same beforeactual imposition of punishment. Once these conditions are fulfilled, employee968-WP-5833-2010.odt6 of 7 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 tobe done by the Appellate Authority. The State was required to see as to whetherthe order is passed within the jurisdiction and after giving opportunity ofhearing to the petitioner. As reflected from the said order, both these conditionsare complied with and hence, there is no substance in the contention of thelearned counsel for the petitioner that the order passed by the State isunreasoned one.12.Having regard to the peculiarity of the facts of the case and sinceno prejudice has been caused to the petitioner with issuance of the secondshow-cause notice, also considering the gravity of misconduct i.e.,misappropriation has been proved against him, it is not fit case to causeinterference in the impugned order. Hence, petition stands dismissed.(R. M. JOSHI, J.)bsj968-WP-5833-2010.odt7 of 7