High Court
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wp-12800-2018 judg.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 12800 OF 2018Abdul Saeed Abdul Razzak ShaikhAge : 63 years, Occu : Nil,R/o. B.No.16, Plot No.90, Kamgar Nagar,Hazarkoli Dhule Tq. & Dist. Dhule..PetitionerVersus1.The State of MaharashtraThrough Secretary Energy Department Mantralaya Mumbai-32.2.Maharashtra State Electricity DistributionCompany Ltd., Prakash Gad, Bandra [East] Mumbai Through Managing Director3.Superintendent Engineer/First Appellate Authority, Maharashtra State Electricity Distribution Company Ltd., Circle Office, Dhule Plot No.8, Sahyadri Anandnagar, Deopur Dhule Tq. & Dist. Dhule4.Chief Engineer/Second Appellate Authority, Maharashtra State Electricity Distribution Company Ltd., Vidyut Bhavan Old Industrial Area, Ajantha Road, Jalgaon Tq. & Dist. Jalgaon5.The Executive EngineerMaharashtra State Electricity Distribution Company Ltd., Urban/Rural Division, Sakri Road, Dhule Tq. & Dist. Dhule...Respondents...Mr. A.R. Syed, Advocate for the Petitioner.Mr. S.B. Pulkundwar, AGP for Respondent/State.Mr. Anil M. Gaikwad, Advocate for Respondent Nos.2 to 5.... wp-12800-2018 judg.odt(2) CORAM : R.G. AVACHAT & ABASAHEB D. SHINDE, JJ. RESERVED ON : SEPTEMBER 09, 2025 PRONOUNCED ON : SEPTEMBER 30, 2025JUDGMENT : (PER : ABASAHEB D. SHINDE, J.).Rule. Rule made returnable forthwith. With the consentof parties, taken up for final hearing at the admission stage.2.This writ petition filed under Article 226 of Constitutionof India takes an exception to the termination order dated 26.05.1995by which the petitioner has been terminated from service while hewas working as Sub-Engineer with respondent no.2/MaharashtraState Electricity Distribution Company Ltd (‘MSEDCL’ for short). Thepetitioner has also impugned the orders passed by the First AppellateAuthority dated 20.07.2018 by which the termination order issuedagainst the petitioner dated 26.05.1995 has been confirmed and hasalso assailed the order dated 05.10.2018 passed by the SecondAppellate Authority, thereby confirming both the orders oftermination and the order passed by the First Appellate Authority. 3.It is a case of the petitioner that he was appointed as Sub-Engineer by respondent no.2/MSEDCL vide order dated 12.03.1979.The petitioner further contends that while he was posted at Dhuleworkshop, he was entrusted with the work of cutting, welding anddrilling of electric poles. He was further assigned the work ofreceiving and collecting the material from the Nasik Store and as and
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wp-12800-2018 judg.odt(3)when the said material was required, he used to send the saidmaterial as per the instructions of his superior authorities. It isfurther the case of the petitioner that one Mr. G.K. Garge was workingas Deputy Executive Engineer and one Mr. B.S. Pagar was working asExecutive Engineer. The petitioner was working under them andthus, he was under obligation to follow their instructions. It is furthercontended that the petitioner used to issue the material as perdemand raised by way of indent. It is further contended that as perinstructions of the superior authorities on some occasions, thematerial from the workshop was issued without indent by recordingan entry in the daily progress register. It is the case of the petitionerthat after receipt of indent, the rest of the formalities were beingcompleted including issuance of gate pass. The petitioner has tried tocontend that there were as many as 34 instances of like nature bywhich even without indent and gate pass, the material was taken outof the workshop. 4.The petitioner also further asserted that as the work ofinstallation of electric poles was in progress at Muslim Nagar andother adjoining areas, the petitioner was directed to issue 10 poles on15.05.1993 and 5 poles on 17.05.1993 and those 15 poles were sentoutside the workshop without gate pass. However, there is an entryeffected in the daily progress register. wp-12800-2018 judg.odt(4)5.The petitioner has also further asserted that thepetitioner thereafter was again instructed by the higher authorities toissue 11 electric poles and accordingly, the same was sent on07.06.1993 and the entry was accordingly taken in the progressregister. The indent was not received hence, the gate pass was notprepared. The petitioner has also further contended that thepetitioner was acting under the instructions of his higher authoritiesand whatever poles were taken outside the workshop, the same wascut into pieces and there is an entry to that effect. The petitioner hasalso further contended that on 08.06.1993, the said Mr. Garge and Mr.Pagar has pressurized the petitioner to give his confessional statementabout issuing poles without indent or gate pass and accordingly, thesame was recorded. The petitioner further asserts that the saidconfessional statement was given upon a false assurance. It is furthercase of the petitioner that thereafter on the next day, the petitionerwas again directed to issue 10 more poles and the entry was taken inthe daily progress register. It is further the case of the petitioner thathe himself was directed to lodge an FIR in respect of theft of polesand accordingly, the petitioner has lodged an FIR on 09.06.1993. 6.However, the petitioner contention is that he was notresponsible for the material which was already issued. The petitionerfurther contended that the said Mr. B.S. Pagar lodged an false offenceagainst the petitioner alleging that 10 poles were found near the B wp-12800-2018 judg.odt(5)and C Guest House and after inquiry, it was revealed that those poleswere taken away by the petitioner and thus, the petitioner hascommitted an offence of theft regarding 10 poles and accordingly, on10.06.1993, FIR came to be registered with the Mohalinagar PoliceStation, Dhule. It is further contended by the petitioner thatultimately on 10.06.1993, the petitioner was placed under suspensionand after serving with charge sheet, the petitioner was charged for 5charges levelled in the said charge sheet. It is further the case of thepetitioner that in order to file reply to the said charge sheet, he madean application on 13.10.1993 requesting for supplying the documentsuch as daily progress register etc. However, the same was notprovided.7.The petitioner has further contended that said Mr. Gargewas himself party to the incident. Even while registering FIR, he waspresent, as he has seen the incidents for which the inquiry was soughtto be initiated. The petitioner has also contended that said Mr. Gargewas witness to the incidents and the petitioner wanted to examinehim as a witness. However, Mr. Garge was himself appointed ascompanies representative in an inquiry initiated against the petitionerand therefore on 22.07.1994 he made an application for keeping saidMr. Garge away from the proceedings as he cannot be called as awitness to be examined during the inquiry. It is further contention ofthe petitioner that the petitioner has made an application on wp-12800-2018 judg.odt(6)10.10.1994 before an inquiry officer for staying the departmentalinquiry till the decision in the criminal trial is rendered. Thepetitioner further contended that to the charges framed against thepetitioner, he submitted his interim defense statement andemphasized on the ground about participation of Mr. Garge and Mr.Pagar in the departmental inquiry. The petitioner further contendedthat without considering these objections raised by the petitioner, theinquiry officer prepared the inquiry report without taking intoconsideration the defense statement submitted by the petitioner andsubmitted the said inquiry report to the disciplinary authority on30.01.1995.8.The petitioner further contended that pursuant to thesaid inquiry report, a show cause notice was issued to the petitioneron 17.04.1995 and the petitioner in order to reply the said showcause notice, has made an application on 20.04.1995 therebydemanding certain documents, so as to meet out the allegations in theshow cause notice. The petitioner has further contended that thepetitioner ultimately on 05.05.1995, submitted his explanation to theshow cause notice again by raising an objection regardingparticipation of Mr. Garge and Mr. Pagar in the inquiry and claims thathe has refuted each and every charge levelled against him.9.The petitioner further submits that the said competentauthority Mr. Pagar did not consider the explanation offered by the wp-12800-2018 judg.odt(7)petitioner to the show cause notice and ultimately by the impugnedorder dated 26.05.1995, the petitioner came to be terminated. It isfurther contention of the petitioner that the petitioner has preferredfirst appeal under the regulations framed by respondent no.2 namelythe Maharashtra State Electricity Board Employee’s ServiceRegulations (hereinafter referred to as ‘Regulations’). However,without properly considering the grounds raised in the appeal, hisfirst appeal came to be rejected by the First Appellate Authority by anorder dated 09.01.1996. The petitioner further submits that thepetitioner thereafter preferred second appeal as per the Regulationsbefore the Second Appellate Authority thereby challenging thetermination order as well as the order passed by the First AppellateAuthority. It is the contention of the petitioner that ultimately on17.03.2001, the appeal preferred by the petitioner came to be rejectedby the Second Appellate Authority without considering the groundsraised in the appeal.10.The petitioner further contends that against the orderspassed by the Second Appellate Authority, the petitioner has preferredWrit Petition No.4951 of 2002 before this Court and this Court setaside the said orders and remanded the matter back to the FirstAppellate Authority by directing the said Appellate Authority toconsider the submissions and grounds raised by the petitioner in theappeal in its proper perspective. Pursuant to the order passed by this wp-12800-2018 judg.odt(8)Court dated 12.02.2018 in Writ Petition No.4951 of 2002, thepetitioner appeared before the First Appellate Authority and filedcertain documents. However, the First Appellate Authority by anorder dated 20.07.2018, again rejected the appeal filed by thepetitioner finding that the charges have been proved against thepetitioner and therefore, the punishment imposed on the petitionerthereby terminating his services did not suffer from any infirmity. 11.The petitioner therefore carried the said order of FirstAppellate Authority in second appeal and Second Appellate Authorityby an order dated 05.10.2018 maintained the order passed by theFirst Appellate Authority. The petitioner further submitted that on thebasis of same allegations, the criminal trial instituted on the basis oftwo FIR lodged in respect of theft of poles, the learned JudicialMagistrate First Class, Dhule by an order dated 01.11.2001 in R.C.C.No.104 of 1993 has acquitted the petitioner. Not only that even insecond FIR, pursuant to which R.C.C. No.208 of 1993 was instituted,the learned Judicial Magistrate First Class, Dhule by its judgment andorder dated 14.09.1999 has acquitted the petitioner and thus, it is thecontention of the petitioner that in the light of aforesaid facts, theentire inquiry proceeding vitiates for the reason that firstly, thepetitioner was not given sufficient opportunity of hearing, thedocuments as prayed for have not been supplied to the petitioner,secondly since the said Mr. Garge and Mr. Pagar were the wp-12800-2018 judg.odt(9)instrumental in the alleged incidents of theft and have acted ascompany representatives and competent authority, therefore, theentire inquiry vitiates. Thirdly, as the petitioner has been acquitted bythe competent criminal Court in respect of same allegations andevidence, impugned termination order dated 26.05.1995 issued byrespondent no.2 deserves to be quashed and set aside. It has alsobeen contended that, as the First and Second Appellate Authoritieshave not passed the order in accordance with law, the said ordersdated 20.07.2018 and 05.10.2018 also deserves to be quashed and setaside. 12.Respondent no.2 has filed its affidavit through ExecutiveEngineer on behalf of respondent nos.2 to 5 and has resisted the writpetition on the ground that the petitioner is involved in the incidentsof theft of poles and the said incidents of theft have occurred on manyoccasions and the petitioner is an instrumental of the said incidents.It has also been averred in the affidavit in reply on behalf ofrespondent no.2 that the allegations that the documents were notsupplied to the petitioner is devoid of any substance and all thedocuments as prayed for were duly supplied to the petitioner. It hasalso been stated in the affidavit in reply that, the allegations aboutparticipation of two members against whom the petitioner has raisedan objection, since the petitioner has participated in the inquiryproceeding, the petitioner cannot be allowed to take the said stand. It wp-12800-2018 judg.odt(10)has also been contended that merely because the petitioner has beenacquitted in criminal complaints, it does not mean that thedepartmental inquiry cannot be held and concluded as, in criminaltrial, only four witnesses have been examined, whereas, indepartmental inquiry, as many as 11 witnesses have been examined.It is further stated in the affidavit in reply that, the impugned order oftermination has been rightly passed after considering the report ofinquiry and duly considering the reply filed by the petitioner. So faras the allegations regarding deciding of the appeals filed by thepetitioner in hasty manner and without adhering to the observationsof this Court in Writ Petition No.4951 of 2002 is concerned, it hasbeen stated in the affidavit in reply that, the First and SecondAppellate Authorities have heard the petitioner and no new materialwas placed before the Appellate Authorities and considering the factthat the petitioner has been found guilty of misconduct, the chargeshave been proved during the course of inquiry, the respondent no.2has rightly terminated the services of the petitioner as per the ServiceRegulations of respondent no.2 and therefore has prayed for dismissalof writ petition.13.Learned counsel for the petitioner in support of hiscontention has relied on the judgment of the Hon’ble Apex Court inthe case of Ranjit Thakur Vs. Union of India1, as well as anotherjudgment of the Hon’ble Apex Court in the case of Arjun Chaubey Vs.11987 (4) SCC 611 wp-12800-2018 judg.odt(11)Union of India2, to contend that any person who has a personal stakein an inquiry must keep himself aloof from the inquiry. In the presentcase, as per the contention of the learned counsel for the petitioner,the said Mr. Garge and Mr. Pagar have participated as companyrepresentatives and the competent authority and therefore, theinquiry stands vitiated. Learned counsel for the petitioner has alsorelied on the judgment of the Hon’ble Apex Court in the case ofChamoli District Co-operative Bank Limited through itsSecretary/Mahaprandhak and another Vs. Raghunath Singh Rana andothers3, to contend that the inquiry vitiates on the ground that thedelinquent is not supplied with the documents on which he wish torely. Learned counsel for the petitioner has also relied on thejudgment of the Hon’ble Apex Court in the case of Pawan KumarAgarwala Vs. General Manager-II and Appointing Auth. State Bank ofIndia and others4, to buttress his submission that sufficientopportunity should be given to meet out the charges against thedelinquent even by permitting him to cross-examine the witnessexamined by the other side. Learned counsel for the petitioner hasalso further relied on the judgment of the Hon’ble Apex Court in thecase of Shashi Bhushan Prasad Vs. Inspector General CentralIndustrial Security Force and Ors5, to submit that if the delinquent isacquitted by the competent Criminal Court in respect of same charges21984 AIR (SC) 135632016 AIR (SC) 251042015 AIR (SCW) 69105AIR 2019 SC 3586 wp-12800-2018 judg.odt(12)as are levelled in departmental inquiry, he should be reinstated.Lastly, learned counsel for the petitioner relied on the judgment of theHon’ble Apex Court in the case of M. Paul Anthony Vs. Bharat GoldMines Ltd and Ors6, to contend that if the delinquent on the basis ofsame allegations which is subject matter of departmental inquiry isacquitted by the competent Criminal Court, in that case, thedelinquent should be reinstated by setting aside the termination order.14.On the other hand, learned counsel appearing on behalfof respondent nos.2 to 5, has placed reliance on the judgment of theHon’ble Apex Court in the case of The Indian Oil Corporation and OrsVs. Ajit Kumar Singh and Anr7, to contend that this Court whileinterfering with the matter pertaining to the departmental inquiryshould be slow and this Court cannot convert itself into the Court ofappeal. Learned counsel for respondent nos.2 to 5 further relied onthe judgment of the Hon’ble Apex Court in the case of Union of Indiaand Others Vs. Subrata Nath8, to contend that this Court under Article226 of the Constitution of India should refrain from interfering withthe findings of fact recorded in departmental inquiry subject tocertain exceptions. Lastly, learned counsel for respondent nos.2 to 5relies upon the judgment of the Hon’ble Apex Court in the case of TheState of Rajasthan and Ors Vs. Bhupendra Singh in Civil AppealNos.8546-8549 of 2024 decided on 08.08.2024 to contend that6AIR 1999 SC 141672023 LiveLaw (SC) 47882022 LiveLaw (SC) 998 wp-12800-2018 judg.odt(13)normally, under Article 226 of the Constitution of India, this Courtmay not interfere with the findings recorded by the inquiry officerand the punishment imposed on the basis of same.15.We have given our thoughtful consideration to thesubmissions advanced on behalf of the learned counsel for thepetitioner and learned counsel for the respondent nos.2 to 5 and withtheir able assistance have also gone through the contents of writpetition and an affidavit in reply. As far as the first ground ofchallenge that the petitioner has not committed any misconduct isconcerned, admittedly, there has been a theft of electric poles, thattoo while the petitioner was in-charge of the said electric poles andthough the petitioner has tried to contend that those poles were oftentaken away without indent and the gate pass, cannot be believed and,therefore, the contention of learned counsel for the petitioner that nosuch incidents have ever occurred cannot be believed and accepted.The further contention of the learned counsel for the petitioner thateven the petitioner has also filed one FIR on 09.06.1993 regardingtheft of poles and that itself makes it clear that the petitioner has noconcern with the alleged theft is also unacceptable as, lodging of FIRby himself will be of no avail to the petitioner for the reason that thepetitioner has himself accepted his mistake and has given aconfessional statement on 08.06.1993 itself. Though now thepetitioner is trying to resile from it by contending that the said wp-12800-2018 judg.odt(14)confessional statement was recorded under false assurance, it ishowever pertinent to note that whether said confessional statementwas obtained by false assurance or otherwise cannot be gone into atthis stage and the fact that the petitioner has given a confessionalstatement about his mistake/misconduct and then lodging the FIRafterthought on 09.06.1993, cannot be ruled out. The furthercontention of learned counsel for the petitioner that said two officersnamely Mr. Garge and Mr. Pagar have accompanied him for lodgingthe FIR also do not inspire confidence as admittedly, second FIR hasbeen lodged on 10.06.1993 by said Mr. Pagar about theft of electricpoles and therefore, the respondents have decided to initiatedepartmental inquiry against the petitioner. 16.The contention of the learned counsel for the petitionerthat said two persons namely Mr. Garge and Mr. Pagar have acted ascompany representatives and competent authority to which thepetitioner has objected in the departmental inquiry and on that countof their participation, the departmental inquiry vitiates is also devoidof any substance, as the petitioner has continued to participate in thesaid inquiry proceeding and allowed the same to be completed and itis only when the petitioner found that the result is likely to be adverseto the petitioner, therefore, the petitioner has come out with the saidstand that the participation of these two persons in inquiryproceeding is objectionable. Even otherwise the petitioner has not wp-12800-2018 judg.odt(15)been able to demonstrate as to why these two persons would falselyimplicate the petitioner. 17.It is pertinent to note that if at all the petitioner wasvigilant enough to see that the inquiry cannot be proceeded in thepresence of these two persons, the petitioner could have been welladvised to challenge the said inquiry itself by approaching thecompetent forum. However, as observed above, the petitioner hascontinued to participate in the inquiry proceeding and allowed it to becompleted thus, this contention of the petitioner cannot be accepted.It is settled position of law that a person who participates in theproceedings and allow the same to be completed cannot challenge thecomposition or otherwise of the said proceedings.18.The third ground raised by the petitioner about non-supply of documents because of which the inquiry proceeding standsvitiated is also devoid of any substance for the reason that, thepetitioner has not been able to point out as to what prejudice hasbeen caused to the petitioner by non-supplying of the documents, asdemanded by the petitioner and in what manner the inquiry standsvitiated and, therefore, in absence of any prejudice shown to havebeen caused by the petitioner, we are not inclined to consider the saidsubmission. 19.It is pertinent to note that, it is not the case of thepetitioner that he was not served with the enquiry report. According wp-12800-2018 judg.odt(16)to us, when respondent nos.2 to 5 in their affidavit in reply havecategorically stated that whatever documents have been requested bythe petitioner, all those have been supplied to the petitioner and thepetitioner has not countered the said contentions by filing rejoinder inthat regard. The next ground on which the petitioner has placedmore emphasis is that, since on the basis of same allegations thecriminal trial was conducted bearing R.C.C. No.104 of 1993 andR.C.C. No.208 of 1993, wherein the learned Judicial Magistrate FirstClass in both said criminal trials have acquitted the petitioner by theirjudgment and order dated 01.11.2001 and 14.09.1999 and therefore,since the petitioner has been acquitted in the criminal trials in respectof same allegations, such an incident of alleged theft has neverhappened and therefore, the impugned termination order and thesubsequent orders passed in first appeal and second appeal deservesto be quashed and set aside. 20.As far as the said ground is concerned, admittedly, indepartmental inquiry as many as 11 witnesses were examined and allhave deposed against the petitioner. Whereas, in criminal trial, onlyfour witnesses were examined. It is settled position of law that in sofar as the proceedings of criminal trial are concerned, in criminal trialoffence is required to be proved beyond reasonable doubt. Whereas,in departmental proceedings, the charges are required to be provedon preponderance of probability and therefore, the said contention of wp-12800-2018 judg.odt(17)the petitioner that merely because the petitioner has been acquittedby the competent criminal Court in respect of same incidentstherefore the impugned termination order deserves to be quashed andset aside, is devoid of any substance. 21.As far as the judgments relied upon by the petitioner areconcerned, with due respect, those are on the fact and circumstancesof the particular case and are not applicable in the present case. Weare of the considered view that merely because the petitioner hasbeen acquitted in criminal trial, that fact would not result inexonerating him from the charges levelled against the petitioner indepartmental proceedings, as in so far as the departmentalproceedings are concerned, it is ultimately the expectation of theemployer that his employee shall act with a sense of responsibilityand every employer expects his employee to act with utmost honestyand integrity. Ultimately, the relationship between the employer andemployee involves a degree of trust and if the employee is chargedand is arraigned in any criminal case, the employer may feel loss ofconfidence and faith in such employee and would test the employeefrom the angle as to whether he is fit to continue his relationship withhim or not. Moreover, the scope of criminal proceeding and thedepartmental inquiry as stated above are distinct, being different inthe mode of enquiry, scope of enquiry, standard of proof and varyfrom purpose of conduct of such proceedings. The purpose of criminal wp-12800-2018 judg.odt(18)prosecution is to inflict proper punishment as an offender, whereasthe purpose of departmental proceedings of the public servant is tomaintain integrity, honesty and truthful conduct in performance of thepublic duty. In the present case, charges levelled against thepetitioner are of theft which is a serious charge and said aspectcannot be lost sight of.22.Last but not the least, the contention of the learnedcounsel for the petitioner that, the First and the Second AppellateAuthority have not decided the appeals preferred by the petitionerchallenging the impugned termination order in accordance with thelaw and in the teeth of observation of this Court in Writ PetitionNo.4951 of 2002 is concerned, we have gone through the orderspassed by the First and the Second Appellate Authority and we findthat the petitioner has not presented any amended appeal by addingany new ground nor had filed any fresh appeal setting out thegrounds of appeal and thus whatever grounds were raised by thepetitioner in first appeal, those appears to have been duly consideredby the First Appellate Authority and had rejected the first appeal filedby the petitioner. Similarly, we have also perused the order passed bythe Second Appellate Authority who has confirmed the terminationorder and the order passed by the First Appellate Authority and afterperusing the entire record, the authorities have come to a conclusionthat no case whatsoever has been made out by the petitioner to
Decision
wp-12800-2018 judg.odt(19)interfere with the impugned termination order as well as the orderpassed by the First Appellate Authority and thus have dismissed thesecond appeal filed by the petitioner. 23.In writ jurisdiction under Article 226 of the Constitutionof India, this Court will not undertake re-appreciation of evidence indepartmental inquiry proceedings, we therefore are of the view thatwhile exercising the jurisdiction under Article 226 of the Constitutionof India, which is discretionary in nature will not interfere with theconcurrent findings of fact recorded in departmental inquiry as wellas the first appeal and the second appeal as, we do not find anyinfirmity or perversity nor any violation of principles of naturaljustice, so also this Court cannot re-appreciate the evidence thoughthe learned counsel for the petitioner has tried to take this Court intofactual matrix, we are not inclined to go into the factual matrix inview of what we have already held herein-above, we therefore are notinclined to interfere with the impugned orders. The writ petition sansmerit and the same is liable to be dismissed.24.Hence, the writ petition stands dismissed.25.No order as to costs. 26.Rule is discharged. (ABASAHEB D. SHINDE, J.) (R.G. AVACHAT, J.)Mujaheed//