Not every act of a government servant can be brought within the ambit of misconduct. Turning hostile, by itself, is not an offence and cannot be punished in a disciplinary enquiry.

JUDGMENT :

Sandeep V. Marne, J.

Rule. Rule made returnable forthwith. With the consent of parties taken up for final hearing.

2. By the present petition, the petitioner assails judgment and order dated 16.08.2017 passed by the Maharashtra Administrative Tribunal, Bench at Aurangabad (for short “Tribunal”) in Original Application No. 482 of 2015. Before the Tribunal, the petitioner had challenged (i) order passed by the Disciplinary Authority dated 15.12.2008 imposing the penalty of reduction to the minimum pay scale (ii) order dated 23.09.2010 passed by the Appellate Authority modifying the penalty to that of reduction to the minimum of the pay scale permanently and (iii) order dated 03.03.2015 rejecting the revision petition. By the judgment and order impugned in the present petition, the Tribunal has proceeded to dismiss the original application.

3. We must note at the outset that the Tribunal has erroneously observed in para No. 2 of the judgment that the petitioner was challenging the order of dismissal from service. By order dated 15.12.2008, the disciplinary authority had imposed penalty of reduction to the minimum of the pay scale without specifying any period. The appellate authority while rejecting the appeal by order dated 23.09.2010 directed that the reduction to the minimum of the pay scale would be on permanent basis. This is the ultimate penalty which was the subject matter of challenge before the Tribunal.

4. While working as a Peon (Watchman), disciplinary proceedings were initiated against the petitioner vide memorandum of charge sheet dated 02.02.2005 on the charge that he had turned hostile during the trial in Sessions Case No. 10 of 2004 against another peon Shri Sayed Alim S/o Sayyed Mohiuddin, which led to his acquittal. Based on findings recorded by the Sessions Judge while acquitting the accused, the petitioner was charged with the misconduct of turning hostile and aforesaid penalty came to be imposed on him after being found guilty in the disciplinary enquiry. The Tribunal has dismissed the original application of the petitioner holding him responsible for acquittal of the accused. It is held by the Tribunal that the petitioner had never claimed that his earlier statement before the Special Judicial Magistrate Nanded was given under coercion and that therefore, he was not justified in turning hostile.

5. Appearing for the petitioner Mr. Kurundkar, the learned counsel would submit that initiation of disciplinary proceedings against the petitioner was flawed as mere giving of testimony before the Sessions Judge cannot amount to misconduct. He would submit that the findings recorded by the Sessions Judge would indicate that the statement of the petitioner recorded by the Special Judicial Magistrate Nanded was not in accordance with the procedure prescribed by law. He would further submit that his testimony alone has not resulted in acquittal of the accused. He therefore prays for setting aside the order of the Tribunal.

6. Per contra, Mr. Lokhande, learned Assistant Government Pleader appearing for the State Government supports the order passed by the Tribunal. He would submit that the petitioner had witnessed the act of the accused pushing the victim from terrace. His statement was recorded by the Special Judicial Magistrate U/Sec. 164 of the Code of Criminal Procedure (for short “Cr.P.C.”) and, therefore, his act in resiling from the statement and turning hostile clearly amounts to misconduct. He would submit that the testimony of the petitioner has resulted in acquittal of the accused. He therefore prays for dismissal of the petition.

7. Having heard the learned counsel for the parties, we first examine Petitioner’s contention that the act of turning hostile does not amount to misconduct. Perjury is an offfence punishable under Section 191 of the Indian Penal Code (for short “I. P. Code”). If the petitioner had committed offence of perjury, the Sessions Judge ought to have issued notice to him and tried him fo