Advocates:
['THOMBRE S S', '', 'SHINDE CHANDRAKANT K', 'MAHAJAN SUREKHA P AND SANDIP RATHOD', '', 'GP', 'MAHAJAN SUREKHA P', 'ADV SUREKHA MAHAJAN', 'MARLAPALLE YUGANT R']

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 4328 OF 2016

Madhukar Anandrao Pahurkar

.. Petitioner

Versus

The State of Maharashtra and others .. Respondents

Mr. Chandrakant K. Shinde, Advocate for the

Petitioner.

Mr. V. S. Badakh, A.G.P. for Respondent No. 1.

Mr. Yugant R. Marlapalle, Advocate for Respondent

Nos. 2 and 3.

CORAM: S. V. GANGAPURWALA &

R. G. AVACHAT, JJ.

DATE:

17

^th DECEMBER, 2018

PER COURT :

1.

Mr. Shinde, learned Advocate for the

petitioner submits that at the relevant time the

petitioner was working as 'Junior Clerk'. The

departmental enquiry was initiated against him, so

also, criminal case was filed on the charge of

accepting gratification. The learned Advocate

submits that upon conclusion of the departmental

enquiry, the enquiry report was submitted by the

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enquiry officer to the discplinary authority,

however the petitioner was not given copy of the

enquiry report. The petitioner was convicted in

the criminal case on 29.07.2003. The learned

Advocate submits that though the departmental

enquiry was concluded and the report was submitted

by the enquiry officer on 26.07.1999, the

disciplinary authority issued show cause notice

dated 11.08.2004 as to why the petitioner should

not be dismissed from service on the basis of the

conviction in the criminal case. No decision was

taken for nine years and only on 29.01.2013 based

on the conviction in the criminal case and the

departmental enquiry the petitioner was terminated

from service. No second show cause notice was

issued pursuant to the disciplinary enquiry.

Principles of natural justice are flouted. The

departmental enquiry cannot be kept pending for

such long time. After issuance of the show cause

notice on 11.08.2004, the decision has been taken

on 29.01.2013 on this count itself the order of

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dismissal deserves to be set aside.

2.

The learned Advocate further submits that

neither the petitioner was served with the copy of

the enquiry report nor any show cause notice was

issued to the petitioner with regard to the

disciplinary enquiry. The conviction imposed upon

the petitioner by the Trial Court has been set

aside by the Appellate Court. The evidence before

the departmental proceedings and the criminal case

is one and the same. The order of dismissal

deserves to be set aside.

3.

Mr. Marlapalle, learned Advocate for

respondent nos. 2 and 3 submits that in the

enquiry the petitioner is held guilty for the

charge of accepting illegal gratification. Such

person cannot be allowed to remain in service.

The learned Advocate submits that as per Rule 9

(4) of the Maharashtra Civil Services (Discipline

and Appeal) Rules, 1979 (hereinafter referred to

'Rules-1979'), it is not necessary to serve the

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copy of the enquiry report while taking decision

to impose major penalty. The learned Advocate

submits that the petitioner has not shown the

prejudice caused to him upon non service of the

enquiry report. The prejudice caused upon non

service of enquiry report is sine qua non to set

aside the enquiry. It will depend upon facts of

each case to determine whether non service of

enquiry report would vitiate the punishment

imposed upon the delinquent. The learned Advocate

relies on the judgment of the Apex Court in a case

of Uttarakhand Transport Corporation Vs. Sukhveer

Singh reported in 2018 (1) SCC 231, so also,

judgment of the Apex Court in a case of Haryana

Financial Corporation and another Vs. Kailash

Chandra Ahuja reported in 2008 (9) SCC 31.

4.

The learned Advocate further submits that for

the firs