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2012 Supreme(Bom) 1442
In the High Court of Bombay at Nagpur
VASANTI A. NAIK & A.B. CHAUDHARI
Sudhakar s/o Shankar Chapke
Versus
The Maharashtra State Electricity Distribution Company Limited, through its Managing Director & Another
WRIT PETITION NO.4006 OF 2008
Decided on : 02-08-2012
For the Petitioner:R.L. Khapre & K.S. Narwade, Advocates.
For the Respondents:A.D. Mohgaonkar, Advocate.
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Headnote:Constitution of India, 1950 - Articles 226 and 227 - Removal from service.
Though order of removal from service pursuant to summary proceedings under Regulation No. 90 was illegal for not holding regular departmental enquiry under Regulation 88 yet relief of reinstatement cannot be granted in exercise of writ jurisdiction. - In the case at hand also, no regular departmental enquiry under Regulation No. 88 has at all been held against the petitioner. The first reason is that this is a case of a person having been caught red handed with a sum of Rs. 50,000/- as the first instalment towards the bribe amount and in the decisions rendered by Aurangabad Bench of Bombay High Court, the question whether extraordinary writ jurisdiction should be exercised in such cases to grant relief of reinstatement was not considered by the Court, that too in the context of the aforesaid binding judgments of the Apex Court. In other words, having found that the action under Regulation No. 90 was not justified, the Division Bench at Aurangabad Bench of Bombay High Court in those cases straightway granted the relief of reinstatement by quashing the orders of removal/termination of the petitioners in those cases. In the instant case, the Court in the fact situation should mechanically grant the relief of reinstatement only because the Court finds that the action under Regulation No. 90 taken against the petitioner by removing from service cannot be countenanced. Court’s answer is, the discretionary writ jurisdiction cannot be exercised to order reinstatement, but to follow the course pronounced by the Apex Court.
As noted above, in the said Constitution Bench judgment, the Supreme Court was of the view that where an enquiry report was not furnished to the delinquent employee in the disciplinary proceedings, the Court should not mechanically set aside the order of punishment or order reinstatement on that score by resorting to the short-cuts, but the Court should examine the ma tter and after examining, if it sets aside the order of punishment, the proper relief that should be granted is to direct reinstatement of the employee with liberty to the Authority/Management to proceed with the enquiry, by placing the employee under suspension and continuing the enquiry from the stage of furnishing him the report and a ll other questions should be left open to be decided at the final stage.
Constitution of India, 1950 - Articles 226 and 227 - Removal from service.
Where employee, an Engineer, caught red handed accepting bribe from contractor and criminal appeal is pending in High Court therefore issuance of charge-sheet by way of summary proceedings under Regulation No. 90 by employer is invalid. - It is noteworthy that a criminal appeal against the judgment and order of acquittal of the petitioner is pending in the High Court of Bombay. The decision of the Supreme Court in the case of G.M. Tank v. State of Gujarat and others, (2006) 5 SCC 446 will have no application as in that case, regular departmental enquiry was in respect of charge of acquisition of movable and immovable properties disproportionate to his known sources of income and for which criminal charge, he was also acquitted. In the case at hand, no regular departmental enquiry was held in the matter of taking bribe amount of Rs. 50,000/- and criminal appeal is pending in the High Court. Similar is the position on facts in the decided cases at Aurangabad Bench where regular departmental enquiry under Regulation No. 88 was not held, but summary enquiry under Regulation No. 90 was held, which was obviously found to be invalid.
(A.B. Chaudhari, J.):
By this petition, the petitioner has put to challenge the order dated 8/8/2008 passed by the respondent no.2 Executive Director and Competent Officer removing the petitioner from service with effect from 9/2/2008 and treating the suspension period as a part of the punishment.
2) The petitioner was appointed in the year 1982 as a Junior Engineer in the Maharashtra State Electricity Board. He was promoted in the year 2003 as an Executive Engineer. During the course of his service, on 8/2/2008, on a complaint lodged by one Keshav Shende, Contractor from Pune, the Anti Corruption Bureau caught the petitioner red handed with a bribe amount of Rs.50,000/-, which he had asked for clearing the pending bills of Keshav Shende to the tune of Rs.15 – Rs.17 lakhs. On 9/2/2008 the petitioner was put under suspension. Thereafter the respondent no.2 issued him a charge-sheet by way of summary proceedings, inter alia, levelling the charge of dishonesty. He filed reply to the charge-sheet and thereafter on 30/6/2008 he was issued a show cause notice by the respondent no.2 as to why he should not be removed from service. He submitted his reply on 5/7/2008 to the said show cause notice and thereafter on 8/8/2008 he was removed from service by the impugned order.
3) In support of the writ petition, Shri Khapre, the learned Counsel for the petitioner, made the following submissions:
“Admittedly, the petitioner was served with the charge-sheet for proceeding against him under Regulation No.90 by way of summary proceedings. The regular departmental enquiry was not held as contemplated by Regulation No.88 since recourse was taken to Regulation No.90. In the absence of any evidence in support of the charge levelled against the petitioner about taking bribe of Rs.50,000/-in cash and being caught red handed as alleged, since none was examined in the summary proceedings and since the petitioner was deprived of the opportunity of being heard, he could not have been removed from service in a summary manner. In other words, without holding a regular departmental enquiry, no such order could have been passed under Regulation No.90. He further argued that the charge-sheet issued to the petitioner by the respondent no.2 and the charge in the criminal case was the same. It is an admitted fact that the petitioner was acquitted in the anti corruption case by the judgment and order dated 5/10/2011 passed by the Special Judge, Sindhudurg. The acquittal of the petitioner for the same charge for which the show cause notice was issued under Regulation No.90, therefore, must be regarded as a clear-cut proof of his innocence even in the proceedings of charge-sheet in the summary enquiry. In that view of the matter also, the impugned order of removal will have to be set aside being illegal.
He relied on the decisions of the Aurangabad Bench of Bombay High Court on the said Regulation No.90 in the case of Vasant Raghunath Tupekar vs. Maharashtra State Electricity Board (2007 (1) Bom.C.R. 862), Dhanaykumar Chitriappa Bodale vs. The Managing Director, Maharashtra State Electricity Distribution Company Ltd. (Writ Petition No.1853/2009 decided on 21/11/2009), Ramesh s/o Rangnathrao Sonawane vs. Maharashtra State Electricity Distribution Company Ltd. and others (Writ Petition No. 6513/2011 decided on 23/12/2011) and Vijay s/o Pandurang Jogi vs. The Managing Director, Maharashtra State Electricity Distribution Company Limited (Writ Petition No.8005/2011 decided on 15/3/2012).
Learned Counsel Shri Khapre alternatively submitted that the petitioner should be granted the entire back wages or at least the arrears of the subsistence allowance from the date of his removal in order that the petitioner is able to defend the regular departmental enquiry effectively since it is not known where the enquiry will be held.”
4) Per contra, Shri Mohgaonkar, the learned Counsel for the respondents, supported the impugned order and stated that the criminal appeal a
