Ashish Deorao Chandekar v. Mormugao Port Authority

Judgment

#3. Versus Mormugao Port Authority through its Chairman, Headland Sada, Vasco, Goa- 403804. Engineer and Chief Mechanical Disciplinary Authority, Mormugao Port Trust, Headland Sada, Vasco, Goa, 403804. ] ] ] ] ] ] ] The Estate Officer, Under the Public Premises (Eviction of Unauthorised Occupants) Act, 1971, Mormugao Port Trust, Administrative Mormugao Port Trust, Building, Headland Sada, Vasco, Goa-403804 3rd floor, ] ] ] ] ] ] ...Respondents Mr V. A. Lawande, Mr Atul Sadre and Mr Shivam Gurav, Advocates for the petitioner. Mr Y. V. Nadkarni, Ms Simran Khadilkar and Mr Nilay Naik, Advocates for the respondents. Writ Petition No.623 of 2015 CORAM : A.S. CHANDURKAR & NIVEDITA P. MEHTA, JJ. The date on which the arguments were heard : 19 TH MARCH., 2025. The date on which the Judgment is pronounced : 17TH APRIL, 2025. JUDGMENT ( PER Nivedita P. Mehta , J.)

#1. The petitioner has filed the instant Writ Petition assailing the order dated 30.4.2011 passed by the respondent no. 2 removing the petitioner from the service and the orders dated 2.4.2012, 21.5.2013 and 27.1.2015 passed by the Appellate/Reviewing Authority.

#2. Succinctly, the petitioner applied for the post of Hindi Translator based on an advertisement issued by respondent no.1 in the year 1998. After the due selection process was concluded, the petitioner was appointed as a Hindi Translator vide order dated 7.5.1998. The petitioner was also given a training course of three months conducted by the Central Translation Bureau, Department of Official Language, Ministry of Home Affairs, Government of India, at Bangalore as the same was made compulsory to get appointment on a regular basis. After completion of the aforesaid translation course, the petitioner was appointed to the post of Hindi Translator on a regular basis with effect from 2.4.1999 and after completion of the probation period the petitioner was confirmed on Writ Petition No.623 of 2015

8.4.2003. The petitioner at the time of applying for the post of Hindi Translator had submitted his certificates of educational qualification which were duly verified by the respondent No.1.

#3. On 29.7.2003, the respondent no. 1 issued a memo asking the petitioner to submit documents of his educational qualification to consider him for the post of Senior Hindi Translator. Accordingly, the petitioner replied to the said memo vide his reply dated 26.8.2003. On

29.9.2003, the respondent no.1 again sought information from the petitioner as regards the University from which the petitioner had completed his graduation and post-graduation from.

#4. The respondent no.1 issued a chargesheet dated 2.3.2004 to the petitioner for disobeying the order of the Administration in violation of Mormugao Port Employees (Classification, Control & Appeal), Regulations 1964 (hereinafter referred to as “MPE Regulations, 1964”).

#5. During the enquiry in pursuance of the aforesaid chargesheet, the petitioner filed a written explanation on 29.5.2004 informing the respondent No.1 of the University from which the petitioner obtained his graduation and post-graduation degrees. The petitioner informed him that he passed B.A. in 1995 and M.A. in 1997 from the University Bhartiya Writ Petition No.623 of 2015 Shiksha Parishad, Bharat Bhavan, Matiyari Chinhat, Faizabad Road, Lucknow.

#6. The Enquiry Officer submitted a report to the respondent No.2 holding that the charges against the petitioner are proved. The petitioner submitted his written submissions to the Disciplinary Authority, however the same were not accepted and the respondent No.2 issued a memorandum dated 4.5.2005 holding the petitioner guilty of the charges and proposed to impose upon him the penalty of “withholding of two increments of pay with cumulative effect".

#7. The petitioner submitted his written submission in response to the proposed penalty but the same was not considered. The penalty of "withholding of two increments of pay with cumulative effect, with effect from 1.2.2006" was passed vide order dated 18.11.2005. The petitioner preferred an appeal against the same before the Appellate Authority as per MPE Regulations, 1964. However, the said appeal was dismissed by the Appellate Authority vide order dated 29.8.2006 and the matter was closed.

#8. On 27.5.2005, a second chargesheet was issued to the petitioner on the same subject. The article of charge against the petitioner was that he had submitted a statement dated 29.5.2004 to the Enquiry Officer who Writ Petition No.623 of 2015 was appointed vide reference dated 25.3.2004, indicating that he completed his graduation, B.A. in the year 1995 and post-graduation, M.A. in the year 1997 at Bhartiya Shiksha Parishad, Bharat Bhavan, Matiyari Chinhat, Faizabad Road, Lucknow whereas in the attestation form duly filled and signed by the petitioner at the time of his appointment, he had declared that B.A and M.A. degree were obtained by him in the years 1995 and 1997 respectively from K.M.V Mahavidyalaya Mul and S.B.O.M Institute, Madras. This was contrary to the statement given to the Enquiry Officer in the earlier enquiry pursuant to the chargesheet dated 2.3.2004. The petitioner filed Writ Petition No.227/2005 challenging the chargesheet dated 27.5.2005 wherein this Court had stayed the aforesaid chargesheet. After two years, the respondent no.1 prayed for vacating the said stay order dated 23.8.2005 by filing Misc. Civil Application no. 642/2007. This Court vide order dated 27.11.2007 directed the respondent no.1 to conduct an enquiry in lieu of chargesheet dated 27.5.2005 within three months and directed that no adverse orders may be passed against the petitioner without prior permission of the Court.

#9. The respondent no.1 however sought to withdraw the chargesheet dated 27.5.2005 during the pendency of Writ Petition No.227 of 2005. In view of this development, the said writ petition was disposed of with liberty to the respondent no.1 to issue a fresh chargesheet. After Writ Petition No.623 of 2015 withdrawing the chargesheet dated 27.5.2005, the respondent no.1 again issued a third chargesheet dated 12.5.2008 on similar charges. In the aforesaid chargesheet, the Article of the charge against the petitioner was that the petitioner had violated Regulations 3(1)(i) and 3(1)(iii) of the MPE Regulations, 1964, alleging that the petitioner made false and misleading statements by giving two different names of the Educational Institutions through which he obtained the same qualifications i.e. B.A. in 1995 and M.A. in 1997 while in Annexure-I of the application form duly signed by the petitioner and submitted while seeking appointment stating that he had obtained his B.A in 1995 and M.A in 1997 through K.M.V Mahavidyalaya Mul, S.B.O.M Institute, Madras. While filing his written explanation before the Enquiry Officer during the earlier enquiry on

25.3.2004, the petitioner had stated that he had obtained his B.A in 1995 and M.A in 1997 through Bhartiya Shiksha Parishad Bharat Bhavan, Matiyari, Chinhat, Faizabad Road, Lucknow. The petitioner on 15.7.2008 and 11.9.2008 requested the respondent No.2 to provide a copy of the application form signed by him and attested by the Plantation Officer as stated in the statement of Articles of Charge to effectively putforth his defence. The respondent No.2 vide order dated 22.9.2008 replied that the Authority was unable to furnish the said document as no such document existed and that the charges were based on the petitioner’s Attestation Form. The petitioner filed his reply dated 31.7.2008 denying the charges Writ Petition No.623 of 2015 levelled against him and stated that in the absence of the aforesaid document, he was not able to place his defence effectively.

The respondent no.2 appointed Enquiry Officer Shri S. R. Singbal who conducted the departmental enquiry. During the enquiry process, the Enquiry Officer issued a letter dated 13.1.2009 to the Chairman, Bhartiya Shiksha Parishad Bharat Bhavan, Matiyari, Chinhat, Faizabad Road, Lucknow for verifying the certificates which were issued by the said Institution. The Assistant Director, Bhartiya Shiksha Parishad Bharat Bhavan, Matiyari, Chinhat, Faizabad Road, Lucknow replied vide letter dated 5.12.2009 stating therein that the petitioner has completed B.A and M.A from the Institute in 1995 and 1997 respectively.

#11. After the conclusion of the enquiry proceeding, the Enquiry Officer submitted his report dated nil to the respondent no.2 who was the Disciplinary Authority stating therein that charges levelled against the petitioner were not proved. The Disciplinary Authority on 18.3.2011 passed an order stating that he was disagreeing with the findings of the Enquiry Officer and that he had come to the conclusion that the petitioner was guilty of the charge as framed. The petitioner submitted his reply dated 7.4.2011 denying the contentions therein. The Disciplinary Authority without considering the submissions of the petitioner passed an order dated 30.4.2011 overruling the findings of the Enquiry Officer in Writ Petition No.623 of 2015 referring to Clause 10 sub-clause (iv) of the MPE Regulations, 1964 and awarded the penalty of “Removal from service which shall not be a disqualification for future employment" with immediate effect, in terms of Regulation 9(2)(viii) and 11 of MPE (Classification, Control and Appeal) Regulations 1964.

#12. The petitioner filed an appeal before the Appellate Authority Deputy Chairman, Mormugao Port Trust (for short “MPT”) against the order of termination. The said appeal came to be dismissed by the Appellate Authority vide order dated 2.4.2012 without assigning any reasons. Thereafter the petitioner filed a review before the Chairman, MPT and the same was also dismissed vide order dated 21.5.2013. Subsequently, another review application order was preferred by the petitioner before the Ministry of Shipping Government of India and the said review was dismissed as not maintainable. Hence, the present writ petition.

#13. The MPT in its affidavit-in-reply stated that the order dated

30.4.2011 awarding the penalty of removal from service was passed after complying with all the necessary procedures and proper application of mind. Hence it was stated that this Court should not interfere with the order in the exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. It was further stated that the order dated 12.4.2012 Writ Petition No.623 of 2015 passed by the Deputy Chairman as Appellate Authority, and the order dated 21.5.2013 passed by the Chairman as Reviewing Authority did not suffer from any infirmities. Moreover, the disciplinary enquiry conducted against the petitioner had culminated in the order dated 30.4.2011. It is further stated that the MPE Regulations, 1964 annexed by the petitioner to the petition was an unamended version of the said 1964 Regulations which had been subsequently amended in the years 1995 and 1997. The amended 1964 Regulations vide Clause 11(26)(i) did not mandate the Disciplinary Authority to call upon the employee to make a representation against the proposed penalty to be awarded. It is also submitted that it was incorrect on the part of the petitioner to allege that the Disciplinary Authority was vested with no power under Regulation 10(iv) to overrule the findings of the Enquiry Officer. The MPT thus stated that the impugned order did not call for any interference by this Court.

#14. Mr. V.A. Lawande, the learned counsel on behalf of the petitioner advanced his submissions as given hereunder: (a) The order dated 30.11.2011 violates Regulation 11(26) (i) of MPE Regulations, 1964. The Disciplinary Authority disagreeing with the report of the enquiry officer asked the petitioner to show cause within 15 days. It was incumbent upon the respondent no. 2 to issue notice to the petitioner by specifically Writ Petition No.623 of 2015 mentioning the proposed penalty as required under the Regulations. (b) The action of the Disciplinary Authority terminating the services of the petitioner was based upon a chargesheet dated 12.5.2008. However, on the same issue, earlier charge-sheets dated 2.3.2004 and

27.5.2005 were issued to the petitioner. As far as the matter of the chargesheet dated 2.3.2004 is concerned, a full-fledged enquiry was conducted and the petitioner was punished with withholding of two increments of pay. Furthermore, the chargesheet dated 27.5.2005 was withdrawn by the respondents and therefore, the mode and the manner in which the petitioner was on various occasions charged on the same ground is untenable. (c) The Disciplinary Authority in violation of principles of natural justice passed the order dated 30.4.2011. The charges framed against the petitioner in the chargesheet dated 12.5.2008 were fully based upon the application form which was submitted by the petitioner to the General Administration Department, MPT, at the time of his appointment and the copy of the same was not furnished to the petitioner despite numerous requests. Therefore, the petitioner was denied a fair and proper hearing. (d) This Court vide order dated 27.11.2007 had allowed the respondent no.1 to hold an enquiry in pursuance of the chargesheet dated 27.7.2005. The respondent no.1 failed to hold any such enquiry and withdrew the Writ Petition No.623 of 2015 chargesheet and therefore, the respondents are precluded from issuing a fresh chargesheet dated

12.5.2008 on the same grounds. (e) The Enquiry Officer exonerated the petitioner and submitted a report to the Disciplinary Authority. The Disciplinary Authority, while disagreeing with the findings of the Enquiry Officer, should have conveyed its tentative findings on the grounds of disagreement and allowed the petitioner to put forth his defence. (f) The action of the Disciplinary Authority was predetermined and biased. The findings of the Enquiry Officer were overruled in a cryptic manner referring to Clause 10 sub-clause (ii) MPE Regulations, 1964. Moreover, removal from service was illegal as there is no documentary evidence available with the Disciplinary Authority on which the order dated

30.4.2011 had been issued. The Appellate Authority while deciding the appeal of the petitioner was required to pass a speaking order stating the reasons for dismissing the appeal. (g) The Appellate Authority was required to make sure that the procedure laid down has been complied with by the Disciplinary Authority and findings on record were duly supported to warrant penalty of dismissal. (h) With regards to the amended Regulation 11 (26) (i), the provision dictates that if a major penalty is imposed in terms of item no.(s) (vi) to (ix) of Regulation 9 of the MPE Regulations, 1964, it is Writ Petition No.623 of 2015 mandatory to furnish a copy of the record of the Enquiry Officer and where the Disciplinary Authority is different from the Enquiry Officer, a statement as to its findings along with brief reasons for disagreement has to be mentioned. In this case, no such reasons for disagreement with the report of the Enquiry Authority were given by the Disciplinary Authority thus vitiating the entire proceedings.

#15. The learned counsel for the petitioner relied upon the following judgments: - (i) (ii)