SUPREME COURT OF INDIA
Pandit D. Aher
Vs
State of Maharashtra
Appeal (Civil) 4612 of 2006 (Arising Out of S.L.P. (Civil) No. 121 of 2006)
(S. B. Sinha and Markandeya Katju, JJ)
31.10.2006
S. B. SINHA, J.
Leave granted.
This appeal is directed against a judgment and order dated 22.7.2005 passed by
a Division Bench of the High Court of Judicature at Bombay in Writ Petition No.
4467 of 2005 whereby and whereunder the writ petition filed by Appellant herein
was dismissed. The appellant at all material times was working as Block
Development Officer. A departmental proceeding was initiated against him on the
purported charge that he had committed serious misconduct, causing loss to the
government to the tune of Rs. 2, 85, 658/-. A departmental inquiry was
conducted on the said charges. The Inquiry Officer in his report held the
appellant to be guilty thereof. Two show cause notices were issued to him. On
21.12.1998, in the show cause notice, imposition of punishment of recovery of
government losses to the tune of Rs. 2, 85, 658/- and forfeiture of pension for
a period of five years was proposed. Another notice was serviced on him on
20.07.2000 proposing imposition of punishment of forfeiture of the entire
pension and gratuity and to recover the amount of the government losses to the
tune of Rs. 2, 85, 658/- which were not recoverable as per the earlier notice
dated 21.12.1998. By an order dated 17.5.2002, the Disciplinary Authority
imposed a punishment of forfeiture of entire pension and gratuity permanently.
An appeal was preferred by him before the Appellate Authority which was
dismissed. The appellant filed an application before the Maharashtra State
Administrative Tribunal at Mumbai being O.A. No. 559 of 2004. The said original
application was dismissed by the Tribunal.
Before the High Court, contentions raised by the appellant were:
(i) A copy of the preliminary inquiry report had not been furnished to him as a
result whereof he was prejudiced in raising a proper defence in the
departmental proceedings;
(ii) Disciplinary Authority had not followed the procedures laid down in the
Maharashtra Civil Service (Pension) Rules, 1982 (for short "the
Rules").
By reason of the impugned judgment, the High Court rejected the said contentions
stating that the preliminary inquiry report having not been relied upon nor
having been referred to in the report of the Inquiry Officer. It was found that
a copy of the report in fact had been supplied to him and he also
cross-examined the witnesses on the basis thereof. It was, therefore, held that
the appellant was not prejudiced by reason of non-supply of the preliminary
inquiry report as alleged or otherwise.
In regard to the purported non-compliance of Rule 27 of the Rules, the High
Court opined that show cause notice having been served upon the appellant and
he having shown cause thereto, the question of non- compliance of the
principles of natural justice did not arise. It was further held that it was
not necessary to specifically state in the impugned order that the appellant
had committed grave misconduct or negligence.
Mr. Shivaji M. Jadhav, learned counsel appearing on behalf of the appellant
would, however, submit that the inquiry proceeding was vitiated as several
documents asked for by the appellant had not been supplied.
Rule 27 of the Rules reads thus:
"27. Right of Government to withhold or withdraw pension (1) Government
may, by order in writing, withholding or withdraw a pension or any part of it,
whether permanently or for a specified period, and also order the recovery from
such pension, the whole or part of any pecuniary loss caused to Government, if,
in any departmental or judicial proceedings, the pensioner is found guilty of
grave misconduct or negligence during the period of his service including
service rendered upon re-employment after retirement:
Provided that the Maharashtra Public Service Commission shall be consulted
before any final orders are passed in respect of officers holding posts within
their purview:
Provided further that where a part of pension is withheld or withdrawn, the
amount of remaining pension shall not be reduced below the minimum fixed by
Government.
(2)(a) The departmental proceedings referred to in sub-rule (1), if instituted
while the Government servant was in service whether before his retirement or
during his re-employment, shall after the final retirement of the Government
servant, be deemed to be proceedings under this rule and shall be continued and
concluded by the authority by which they were commenced in the same manner as
if the Government servant had continued in service.
(b) The departmental proceedings, if not instituted while the Government
servant was in service, whether before his retirement or during the
re-employment.
(i) Shall not be instituted save with the sanction of the Government;
(ii) Shall not be in respect of any event which took place more than four years
before such institution, and;
(iii) Shall be conducted by such authority and at such place as the Government
may direct and in accordance with the procedure applicable to the departmental
proceedings in which an order of dismissal from service could be made in
relation to the Government servant during his service"
The question as to whether the proceedee has committed grave misconduct or
negligence during his tenure of service is essentially a question of fact. The
power of the government to pass an order of withholding or withdrawing the
pension or part thereof in terms of the said Rule is not in dispute. It is also
not in dispute that a departmental proceeding was initiated and the appellant
was found guilty of commission of the alleged misconduct therein. A finding of
fact has been arrived at that a copy of the inquiry report was supplied to him.
A copy of the document which has not been relied upon, is not required to be
supplied to a delinquent officer. The documents which are required to be
supplied are only those whereupon reliance has been placed by the Department.
Charges levelled against the appellant were:
"(1) Violated Rule 136 of Zila Parishad and Panchayat Samiti conduct of
Account Code 1968 while implementing the Jewandhara Well Scheme in Surgana.
(ii) Has violated Government Decision bearing No. JRY-1090- CR - 1674 - 52
dated 16.11.1996 and an excess amount of Rs. 1, 75, 198.00 has been distributed
and thus has committed misconduct as contemplated under Rule 3 of Maharashtra
Civil Services (Conduct) Rules, 1979.
(iii) While working as Block Development Officer in Panchayat Samit, Surgana
during the period from 6th November, 1987 to 16th April, 1991 having spent an
amount on housing under Gharkal Scheme. The quality of work was inferior and
that the same had become dilapidated and was inhabitable and thus an amount of
Rs. 1, 13, 587.17 though was spent has gone waste and thus a misconduct as
contemplated under Rule 3(3) of Maharashtra Civil Services (Conduct) Rules 1979
has been committed."
Indisputably, the charges are of grave nature. The appellant has not only been
charged with negligence in his duty, the State is also said to have suffered
losses on account of his action and/ or inaction in implementing the
Jeevandhara Well Scheme. In its counter-affidavit, Respondent herein stated
that the preliminary inquiry had been conducted by one Shri Nagargoje. As the
appellant had cast aspersions against him, the preliminary inquiry was
entrusted to three different officers, viz., Chief Accounts and Finance
Officer, Zila Parishad, Nashik, Executive Engineer (B&CD), Zila Parishad
Nashik and Executive Engineer (Minor Irrigation), Zila Parishad Nashik. The
appellant had been indicted by all the said officers. Preliminary inquiries
further were confidential in nature. They were meant for arriving at a
satisfaction by the disciplinary authority as to whether a departmental
proceeding should be initiated or not.
It is now well-settled that what was necessary for imposition of punishment was
to arrive at a finding of misconduct which is of grave nature or misconduct
involving negligence on the part of delinquent officer. The chargesheet issued
against the appellant fulfills the aforementioned conditions. He was found
guilty of commission of alleged acts of misconduct. Thus, on the basis of the
findings arrived at in the departmental inquiry that he was guilty of such misconduct,
in our opinion, it was not required to specifically mention therein that the
delinquent was guilty of grave misconduct or negligence.
The appellant was a Block Development Officer. He was incharge of the Scheme
which was to be implemented in his Block. He, being a Supervisory Head, had a
duty to see that the Scheme is implemented in its letter and spirit. Two of the
charges framed against him as noticed hereinbefore clearly relate to
administrative lapses on his part. In the departmental inquiry also, the said
charges have been proved.
Submission of the appellant to the effect that documents had not been supplied
to him does not appear to have been raised by him before the High Court. As no
such contention had been raised, we are of the opinion that he cannot be
permitted to be raise it for the first time before us.
As noticed hereinbefore, a finding of fact has been arrived at that all the
procedures laid down under Rule 27 of the Rules have been complied with. We do
not see any reason to interfere therewith.
For the reasons aforementioned, we do not find any merit in this appeal which
is dismissed accordingly. No costs.