(B.P. Dharmadhikari, J.)

By this petition filed under Article 226 of the Constitution of India, the petitioner is challenging the order dated 30.12.1991 passed by the Chief Executive Officer, Zilla Parishad, Nagpur holding that the petitioner – Champalal could not have been retained in service, in public interest. Though this order mentions provision of Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (hereinafter referred to as “the 1979 Rules” for short) or Rule 13(1) thereof, it is not in dispute that same reference needs to be construed as reference to Maharashtra Zilla Parishad District Services (Discipline and Appeal) Rules, 1964 (hereinafter referred to as “the 1964 Rules” for short). Petitioner, thereafter had preferred an appeal under Rule 13 of 1964 Rules before the Additional Commissioner, Nagpur Division, Nagpur and that Authority has maintained said order.

2. During the pendency of this challenge, the petitioner expired on 03.01.2008 and his legal heirs are prosecuting this challenge further.

3. The deceased Champalal was a driver in the employment of respondent no.2 Zilla Parishad. He was due to retire in March, 1994, but, he has been removed from service on 30.12.1991 because of an accident which took place on 12.04.1991. It is not in dispute that at the time of accident he was driving a private Tractor and was using it for some personal work. He was not performing the duty under respondent no.2. In the said accident, a person was killed and Crime No.37/1991 under Section 304A of the Indian Penal Code was registered against Champalal. Before the Court of Judicial Magistrate, First Class, Ramtek, Champalal accepted his guilt and was convicted u/s 304A with imprisonment till rising of the Court with fine of Rs. 1000/-and in default, to undergo 30 days simple imprisonment. Impugned order dated 30.12.1991 passed by the Chief Executive Officer notes this punishment, and mentions that because of conduct which led to his conviction, Champalal was removed from service. The Appellate Authority has maintained this application of mind & action.

4. Shri Gode, learned Counsel appearing on behalf of the legal heirs has after narrating the facts urged that the “conduct” looked into had no bearing on the performance of his duties by the deceased Champalal. The conduct, therefore, could not have been construed as misconduct and hence, respondent no.2 could not have inflicted any punishment therefor by holding any departmental inquiry. He submits that the provisions of Rule 9 of the Discipline and Appeal Rules, which contemplate special procedure in certain cases is, therefore, not available in present facts. According to him only when for a conduct, which leads to conviction on criminal charge, when the departmental action under Rules, 6, 7 and 8 is possible, then only recourse to Rule 9(i) is permitted, and not otherwise. He has further submitted that the disciplinary authority in that eventuality is under an obligation & has to consider the circumstances of the case and pass appropriate orders thereafter, as it deems fit. According to the learned Counsel, this obligation as cast, is preceded by words “may” and this word along with obligation to consider the circumstances, requires the respondent no.2 to apply mind to all relevant facts before taking any decision or before inflicting any punishment. His submission is, it is not conviction which attracts Rule 9, but, it is conduct which leads to that conviction, which is relevant. He is taking support from the judgment of Hon'ble Apex Court reported at 1976 (1) LLJ 68 Divisional Personnel Officer, Southern Railway and another .vrs. T.R. Chellappan. In order to point out relevance of conduct in the scheme of Rule 9, he has also relied upon the judgment of Full Bench of Allahabad High court reported at 1967 (2) LLJ 16 Kunwar Bahadur .vrs. Union of India. Judgment of Full Bench of Punjab and Haryana High Court reported at AIR 1973 P&H 1 Om Prakash .vrs. The