Writ Petition No.1387 of 2015

2nd April, 2016.

Petitioner Counsel: Mr. SUNIL MANOHAR, Sr. Adv. with Shri S. KHEDKAR
Respondent Counsel: Mr. N.D. KHAMBORKAR

Cases Cited:
Union of India Vs. Mohd. Ramzan Khan, (1991) 1 SCC 588 [Para 9]
Managing Director, ECIL Hyderabad Vs. B. Karunakar, 2008 ALL SCR (O.C.C.) 97=AIR 1994 SC 1074 [Para 9]
State Bank of Patiala and others Vs. S.K. Sharma, AIR 1996 SC 1669 [Para 12]

JUDGMENT

B. P. Dharmadhikari, J. :- Heard Shri Sunil Manohar, learned Senior Counsel with Shri S. Khedkar, learned Counsel for the petitioner and Shri N.D. Khamborkar, learned Counsel for respondent no.1. None appears for respondent nos. 2 and 3 though served. Considering the nature of controversy raised in the petition and with consent of the learned counsel appearing for the parties, Writ Petition is taken up for final disposal at the stage of admission. Rule is therefore made returnable forthwith.

2. The petitioner who has crossed age of 60 years, questions order of compulsory retirement dated 16.10.2014, passed after departmental enquiry.

3. Without prejudice to other contentions raised in the Writ Petition to assail that order, Shri Manohar, learned Senior Counsel submits that the petitioner was not given any opportunity to meet the adverse findings recorded in the enquiry report, and he was straightaway called upon to submit his say upon quantum of punishment. He contends that this is in gross violation of provisions of Rule 9(2A) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (hereinafter referred to as "the 1979 Rules" for short), as also principles of natural justice.

4. In order to demonstrate prejudice, he submits that the enquiry report was served upon the petitioner on 07.08.2014, but, then he was not called upon to submit his say upon it. No steps were thereafter taken and on 29.09.2014, a punishment of compulsory retirement was proposed with stipulation that the period of suspension during enquiry, would be regularized as suspension only. Petitioner was called upon to show cause on this punishment.

5. Accordingly petitioner submitted his say on this punishment by a detailed representation dated 13.10.2014, and sought complete exoneration. Thereafter, petitioner was indisposed and was not extended any opportunity of personal hearing. On 13.10.2014, the petitioner has separately submitted an application for extending him an opportunity of personal hearing. But, without extending any such opportunity, he was served with order of punishment dated 16.10.2014.

6. Shri Khamborkar, learned Counsel appearing for the respondent employer states that as required by law, copy of enquiry report was served upon the petitioner, and thereafter he was also given a show cause notice dated 29.09.2014. He submitted his reply thereto and that reply has been looked into while imposing punishment. He therefore, submits that the procedure prescribed under 1979 Rules, as also principles of natural justice were fully complied with.

7. During hearing in order to demonstrate prejudice, learned Senior Counsel has drawn our attention to the specific submission that the petitioner, otherwise a member from teaching cadre, was named as part of selection committee after everything was over at eleventh hour, and therefore, has actually not played any role in it. Assertion in paragraph no.10 of the reply to show cause notice and also in Writ Petition in Ground Nos. [b] and [c] are pressed into service.

8. The facts disclosed to support ground (b) or ground (c) or then the assertions on those lines in reply to show cause notice, are not in dispute at least at this stage and before us.

9. In (1991) 1 SCC 588 (Union of India .vrs. Mohd. Ramzan Khan), the Hon'ble Apex Court has pointed out that object of serving copy of the enquiry report upon the delinquent. This aspect has been considered further and the Constitution Bench of the Hon'ble Supreme Court in AIR 1994 SC 1074 : [2008 ALL SCR (O.C.C.) 97] (Managing Director, ECIL Hyderabad .vrs. B. Karunakar), has emphatically laid down whether the employment be private or public or whether Service Rules or Standing Orders provide for it or not, copy of enquiry report must be served upon the delinquent and he must be given opportunity to explain the adverse findings in it. The only exception to this is when the departmental enquiry is conducted by the Disciplinary Authority itself.

10. Thus, giving opportunity to show cause on findings recorded by the Enquiry Officer has been found to be a requirement of principles of natural justice by the Hon'ble Apex Court.

11. Here, though the petitioner was served with copy of the enquiry report dated 02.07.2014 on 07.08.2014, the Disciplinary Authority has not called upon the petitioner to submit his say on adverse findings in it. It appears that for the first time on 29.09.2014, after proposing punishment, as already mentioned above, opportunity is extended to petitioner to show cause that too only on the quantum of punishment. The grant of such opportunity on quantum of punishment has been deleted by 42nd Amendment from Article 311 of the Constitution of India, and that aspect also finds consideration in judgments of Hon'ble Apex Court mentioned supra. Thus, it was not necessary for the employer to give opportunity on quantum of punishment, but, to extend an opportunity first on findings recorded by the enquiry officer. Provisions of 1979 Rules, mentioned supra also countenance such procedure.

12. The Hon'ble Apex Court has also explained that mere non service in all cases cannot be held to be fatal and therefore, a prejudice is required to be demonstrated. This aspect is also explained by the Hon'ble Apex Court in case of State Bank of Patiala and others .vrs. S.K. Sharma (AIR 1996 SC 1669).

13. Petitioner has demonstrated that prejudice by inviting our attention to the specific assertions in reply to show cause notice and also through grounds [b] and [c] in the memo of writ petition. In this situation, the impugned order of punishment dated 16.10.2014, cannot be sustained, it is therefore, quashed and set aside. The Disciplinary Authority shall consider the challenge by petitioner to the findings of the Enquiry Officer in his reply submitted on 13.10.2014. His request for extending to him an opportunity of personal hearing shall also be looked into and if the authority finds it necessary, such an opportunity shall be extended to him.

14. After completing this formality in accordance with the provisions of 1979 Rules, if occasion arise, further action in the matter shall be taken. The enquiry shall be accordingly completed within a period of four months from today. However, till then the petitioner shall be deemed to be under suspension in the meanwhile. The period of suspension shall be regularized in accordance with law, contingent upon the outcome of the findings of the disciplinary authority in this respect.

15. Writ Petition is, thus, partly allowed and disposed of. Rule is made absolute in the aforesaid terms, with no order as to costs.

Petition partly allowed.