Anil Amrut Atre vs District and Sessions Judge & another

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2002 Supreme(Bom) 438

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
Thakker C.K., C.J., Marlapalle B.H. Patil N.H., JJ.
Anil Amrut Atre .... Petitioner.
Versus
District and Sessions Judge another.... Respondents.
Writ Petition No. 2534 of 2000, decided on 2-5-2002.
Advocates appeared :
S.R. Barlinge, for petitioner.
E.P. Sawant, G.P., for respondents.
A.H. Joshi appeared as Amicus Curiae.

Headnote:Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 - Rule 23(2) - Removal from service - Enquiry by disciplinary authority - Appeal against rejected - Ground - No reason to interfere with finding of Disciplinary authority - Appellate authority should have considered, if Rule 23 was properly followed or not - It was not done - Decision of appellate authority set- aside - Directed to be re-decided giving proper hearing to petitioner. - With respect, this Court is unable to agree with the above observations of Division Bench. Apart from the fact that the decision of the Supreme Court in R.P. Bhatt has not been understood and applied in its correct perspective, the Division Bench was not right in observing that the Maharashtra Rules did not provide for consideration. Court has already extracted the relevant part of Rule 23 of the Rules as also the relevant Rules of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, which came to be considered in the Railway Servants (Discipline and Appeal) Rules, 1968 which came up for consideration in Ram Chander. The Maharashtra Rule is almost similar to both the Rules. In all the three Rules, the expression consider is used. It was, therefore, obligatory on the part of the appellate authority to consider the relevant facts and circumstances. Again, clause (a) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965, as well as the Railway Servants (Discipline and Appeal) Rules, 1968 enjoined the appellate Authority to consider whether the procedure laid down in the Rules "has been complied with". The Maharashtra Rules mandates the appellate authority to consider whether the provision of the Rules "has been followed". Thus, the change in the phraseology is of no consequence whatsoever. (In Central Rules, the phrase used is "has been complied with", whereas in the Maharashtra Rules, it is "has been followed"). The mandate of law and direction of the Supreme Court would be applicable with equal force to Maharashtra Rules also. It was, therefore, the duty of the appellate authority to consider whether the procedure laid down in the Rules "has been followed", i.e. "has been complied with". The order passed by the appellate authority is not in accordance with law and liable to be set-aside, Court expresses no opinion on quantum of punishment. As and when the appellate authority will take up the matter for consideration, it is open to the first respondent to content that in the facts and circumstances, punishment imposed on the petitioner could not be termed as illegal, arbitrary or otherwise unreasonable.

JUDGMENT - THAKKER C.K., C.J.:---This petition has been referred to a Full Bench, in view of a decision of the Division Bench of this Court in (Anant Sadashiv Chandwandkar v. District Judge and Disciplinary Authority, District Court, Thane and others)1, 1997(3) Bom.C.R. 171, as it was contended by the learned Counsel for the petitioner that Anant Sadashiv Chandwandkar does not lay down correct law, and the decision of the Supreme Court in (Ram Chander v. Union of India and others)2, A.I.R. 1986 S.C. 1173, has not been properly understood and correctly applied by the Division Bench.

2. Before we advert to the question raised in the petition, few relevant facts may be stated:---

"On August 10, 1990, the petitioner was appointed as Peon by the District and Sessions Judge, Aurangabad, respondent No. 1 herein, after following due process of selection. It was the case of the petitioner that he was duly elected as the President of Class-IV Employees Association in the District Court. As the President of the Association, he was required to place grievances of members of the union before the first respondent to take steps for bringing awareness in respect of working conditions of the employees in the department. As averred by the petitioner, it caused inconvenience to respondent No. 1, who, in connivance with other Judicial Officers, attempted to pressurize the petitioner asking him to tender apologies from time to time. It is also his case that certain Judicial Officers developed grudge against him, and even false complaints were filed by them. An enquiry was instituted, and one V.V. Shahapurkar, Vth Joint Civil Judge, Senior Division, Aurangabad, was appointed as Enquiry Officer. A charge-sheet was served upon the petitioner on November 29, 1996 making several allegations therein. The petitioner filed his reply on December 7, 1996, and also submitted a list of witnesses whom he wanted to examine in his defence. It is the say of the petitioner that the department examined witnesses in support of the allegations levelled against the petitioner, but the petitioner was not permitted to examine witnesses in his defence which had caused material prejudice to him. On March 14, 1997, the Enquiry Officer submitted his report to the Disciplinary Authority-respondent No. 1. Respondent No. 1 issued a show-cause notice along with a copy of the enquiry report and by asking the petitioner if he wanted to say anything in the matter. The petitioner filed his reply controverting the findings recorded by the Enquiry Officer, as also making complaint against not allowing him to examine witnesses in his defence. Finally, on August 6, 1998, the in-charge District and Sessions Judge, Aurangabad, held the charges levelled against the petitioner proved and imposed penalty of removal from service upon the petitioner.

3. The petitioner preferred an appeal before the High Court, and the Registrar of the High Court, respondent No. 2 herein, communicated to the petitioner vide a communication dated June 25, 1999 that the High Court does not see any reason to interfere with the findings recorded by the Disciplinary Authority and accordingly, the appeal was dismissed.

4. The present petition is filed against the above orders, passed by the Disciplinary Authority, respondent No. 2, and confirmed by the administrative side of the High Court.

5. When the matter came up before a Division Bench it was argued that Anant Sadashiv Chandwandkar did not lay down correct law and the ratio in Ram Chander had not been properly applied. Since Anant Sadashiv Chandwandkar was decided by a Division Bench wherein Ram Chander was specifically referred to, relied upon and followed, the Division Bench thought it fit to place the matter before a larger Bench, and, accordingly, the matter has been placed before us.

6. We have heard the learned Counsel for the parties.

7. The learned Counsel for the petitioner raised the following contentions:

(1) The order passed by the Disciplinary Auth

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2002 Supreme(Bom) 438

Cases Referred (3)