High Court · 2024
Legal Reasoning
(1) WP-6890-2023.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.6890 OF 2023Sachin Eknath Chitte,Age: 44 years, Occu. Service,R/o. Mondha Road Ashti (D.J.)Tq. Partur, Dist. Jalna...PetitionerVersus1.The State of MaharashtraAdditional Divisional Commissioner,Division Aurangabad.2.The Chief Executive Officer,Zilla Parishad, Jalna.3.Education Officer, (Primary),Zilla Parishad, Jalna...Respondents.....Mr. D. R. Irale Patil, Advocate for Petitioner.Mr. A. V. Lavte, AGP for Respondent No.1.Mr. P. D. Suryawanshi, Advocate for Respondent Nos.2 and 3.... CORAM : S. G. CHAPALGAONKAR, J. DATED : 31st JULY 2024.JUDGMENT:- 1.Rule. Rule made returnable forthwith. By the consent of theparties, matters is taken up for final hearing at the stage ofadmission.2.The petitioner impugns the order dated 23.12.2021 passed bythe Chief Executive Officer, Jalna-respondent no.2 as well as orderdated 19.12.2022 passed by the Additional DivisionalCommissioner, Aurangabad Division-respondent no.1 in AppealNo.12/2022.3.Mr. Irale Patil, learned Advocate appearing for the petitionersubmits that the petitioner is employed as Teacher underestablishment of Zilla Parishad, Jalna. He was posted at ZillaParishad High School, Tirthpuri. As per transfer policy
Decision
(2) WP-6890-2023.odtpromulgated under Government Resolution dated 18.04.2013, thepetitioner submitted online application for request transfer fromTirthpuri to Zilla Parishad High School, Paradh, Tq. Bhokardhan.Accordingly, he was transferred to Primary School, Paradh inBhokardhan Taluka. However, the petitioner was never servedwith reliving order. The petitioner made application dated18.05.2013 seeking withdrawal of his “request transfer”. However,cognizance of his request was not taken. The petitioner madecontinuous representations and finally approached this Court videWrit Petition No.8854/2014 challenging transfer and relievingletter dated 16.05.2013. This Court disposed of Writ Petition videorder dated 06.07.2015 with direction that petitioner may apply fortransfer at nearby place where his wife is transferred and in casesuch application is made, respondent no.1 shall take decisionwithin a period of two months. Consequently, vide order dated22.09.2015, petitioner was restored to Zilla Parishad School atGhansavangi. However, when the petitioner made request to treatperiod from 16.05.2013 to 22.09.2015 as “in service period”, he wasserved with show cause notice and departmental inquiry wasinitiated vide statement of imputation containing five charges. 4.On conclusion of enquiry, a report was submitted holdingthat he is partially guilty of two charges. The petitioner was calledupon to furnish his explanation as regards to the findings recordedby the Inquiring Officer. The petitioner submitted hisrepresentation, however, respondent no.2-Disciplinary Authoritywithout application of mind passed non-speaking order to imposepenalty of withholding three increments permanently and directedto treat period of absence as non-duty period (Dise Non) in terms ofGovernment Resolution dated 02.06.2003. The petitionerapproached the Appellate Authority under Rule 13 of theMaharashtra Zilla Parishad District Services (Discipline and (3) WP-6890-2023.odtAppeal) Rules, 1964 (for short ‘Rules of 1964’). However, theAppellate Authority without application of mind confirmed theorder of respondent no.1.5.Mr. Irale Patil further submits that Disciplinary Authority isrequired to follow procedure under Rules of 1964. In the presentcase, procedure under Rule 6 was undertaken, the definite chargeswere framed and inquiry was conducted, however, furtherprocedure in terms of Rules 7, 8, 9 and 10 was not followed. Finallynon-speaking order has been passed. The Appellate Authorityconfirmed order but on basis of charges, which are held to be notproved as per report of enquiry.6.He submits that order passed by the Disciplinary Authorityas also Appellate Authority are required to be speaking orders. Insupport of his contentions he relies upon the judgment of theDivision Bench of this Court in case of Gajanan Babu Patil Vs.State of Maharashtra and Others1. He would further submitthat when Disciplinary Authority has acted as a rubber stamp orfailed to independently examine the material of inquiry andendorsed opinion of Inquiring Officer, such orders cannot besustained in law.7.Per contra, Mr. Suryawanshi, learned Advocate appearing forrespondent nos.2 and 3 submits that the petitioner was absentfrom duty for more than two and half years. His transfer waseffected on his request. Thereafter, he made representation toretain him at original place and absented himself from dutywithout leave. Considering the conduct of the petitioner,appropriate steps in tune with Rules of 1964 were taken and afterfollowing due process of law, punishment has been imposed. Hewould submit that considering nature of mis-conduct on the part of12003 (1) Mh.L.J. 988. (4) WP-6890-2023.odtthe petitioner, grievous penalty could have been imposed, however,pragmatic view is taken and punishment of withholding threeincrements has been imposed and absence period is treated as non-service period. He would, therefore, submit that no interference isrequired in Writ jurisdiction of this Court.8.Having considered submissions advanced on behalf of thelearned Advocates appearing for the respective parties and onperusal of the material tendered into service, it can be observedthat the petitioner was transferred taking into account his requestfrom Tirthpuri to Paradh, Taluka Bhokardhan. Once such requestfor transfer was accepted at the place of choice, the petitioner wasexpected to join duties at the place of transfer. However, becauseof supervening events, the petitioner found the place of requesttransfer inconvenient for him and made representation to cancelsuch transfer and retain him at original place. Admittedly, thepetitioner did not join his duties at the place of transfer andremained absent without authority for the period from 16.05.2013to 22.09.2015. Petitioner also made an application to treat the saidperiod as service period in terms of Sub-Rule 14(F) of Rule 9 of theMaharashtra Civil Services (General Condition of Services) Rules,1981. Thereafter, the petitioner was served with the statement ofimputation for five different charges. The enquiry was conducted.The petitioner was given ample opportunity to put up his defence.Finally Inquiring Officer concluded that the petitioner is partiallyguilty of two charges i.e. unauthorized absent from duty for theperiod from 16.05.2013 to 22.09.2015 and flouting orders of thesuperior by not joining the post on request transfer. The petitionerwas served with final show cause notice in pursuance to the reportof enquiry and after considering his representation, DisciplinaryAuthority i.e. respondent no.2 imposed penalty in terms of Rule4(ii) of Rules of 1964 to permanently withhold three increments (5) WP-6890-2023.odtand treat period from 16.05.2013 to 22.09.2015 as Dise Non. InAppeal filed under Rule 13 of the Rules of 1964, respondent no.1confirmed the order. 9.In the present case, admittedly the petitioner was servedwith charge-sheet and procedure for imposing major penalty wasundertaken. Rules of 1964 prescribes that the DisciplinaryAuthority shall, if it is not Inquiring Authority, consider the recordof inquiry and record its finding of each charge and then passfurther orders in terms of Sub-Rule (10) or (11) of Rule 6 andcommunicate such order to the delinquent. In the present case, itdoes not appear from record that the Disciplinary Authority hasindependently applied mind to the findings recorded by the InquiryOfficer against findings on each charge. The impugned orderappears to be cryptic and non-speaking order. It is true thatrespondent no.1 while considering Appeal filed by the petitionerhas recorded some reasons. However, observations of guiltrecorded by appellate authority are inconsistent to findings ofinquiry officer. Apparently, Disciplinary Authority as well asAppellate Authority has mechanically passed the orders withoutapplication of mind. The Division Bench of this Court in case ofGajanan Babu Patil (supra) observed in paragraph no.8 asunder:“8.The legal position that the disciplinary authority as alsothe appellate authority has to give reasoned order is alwayssettled and has now been finally laid down by the Full Benchof this court interpreting the provisions of Maharashtra Rulesregarding conduct of departmental enquiry and proceedings.This court has specifically laid down the manner in which theorders are to be passed. We introduced what has been laiddown by the Full Bench suffice to say that the orders passed bythe disciplinary authority as also the appellate authorityrequired to be speaking order. As observed already the order ofthe disciplinary authority as also the appellate authority is nota speaking order and consequently they are not sustainable inlaw. Even if it is assumed in favour of the respondent that the (6) WP-6890-2023.odtdisciplinary authority itself being enquiring authority and ithas given an enquiry report holding the petitioner guilty, noadditional reasons need be given in the order of punishment.In such a case, according to law, more responsibility lies onthe earlier authority to give its finding on each point raised.”10.Considering the aforesaid observations, the impugned ordercannot be sustained in law. However, since no defect in conduct ofenquiry is discernible, it would be appropriate to quash and setaside the impugned orders and relegate matter to respondent no.2-Disciplinary Authority to pass reasoned order after applying mindto the report of inquiry and representation made by the petitionerto such report. Hence, the following order:ORDERa.Writ Petition is partly allowed.b.The impugned order dated 23.12.2021 passed by the ChiefExecutive Officer, Jalna-respondent no.2 as well as order dated19.12.2022 passed by the Additional Divisional Commissioner,Aurangabad Division-respondent no.1 are hereby quashed and setaside.c.The matter is remitted back to the Disciplinary Authority i.e.respondent no.2, who shall apply his mind to the findings recordedagainst each charge in the enquiry report and representation madeby the petitioner and then pass fresh reasoned order within aperiod of twelve (12) weeks from the date of this decision andcommunicate the same to the petitioner.d.Writ Petition is disposed of.e.Rule is made absolute in above terms.(S. G. CHAPALGAONKAR) JUDGEDevendra/July-2024