Dismissed

State of Maha v. Hiraman Damu Jadhav

Bombay HC10 Jul 2013WP/2107/2003

Case brief

AI extract

What is this about?

The High Court dismissed the petition filed by the State challenging the Maharashtra Administrative Tribunal's order quashing the delinquent's dismissal. The Court held that the Inquiry Officer failed to prove charges of misappropriation despite admissions, as the sole witness could not quantify the loss, leading to the discharge of the rule.

What did the court decide?

Rule is discharged. The petition by the State is dismissed. Three months time for computation of arrears to the respondent shall run from the date of receipt of this writ of order.

State of Maha Vs Hiraman Damu Jadhav — Pension and Retirement Benefits | Bombay HC (2013)

¶1

(1)

¶2

IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD.

¶3

Writ Petition No. 2107 of 2003

¶4

1. The State of Maharashtra, Through the Secretary, Revenue & Forest Department, Mantralaya, Mumbai-32.

¶5

2.The Collector, Osmanabad... Petitioners

¶6

(Original

¶7

3. The Divisional Commissioner, respondents) Aurangabad.

¶8

versus

¶9

Hiraman Damu Jadhav,
Age : 36 years,
Occupation : Nil,.. Respondent
R/o. Kawaldar, Post Bawi, (Original
Taluka & District : Osmanabad. applicant)

¶10

...........

¶11

Mr. K.G. Patil, Assistant Government Pleader,
for the petitioners.

¶12

Mrs. M.A. Kulkarni, Advocate, for the
respondent.

¶13

...........

¶14

CORAM : A.H.JOSHI &
 SUNIL P. DESHMUKH, JJ.

¶15

 DATE : 10TH JULY, 2013

¶16

(2)

¶17

ORAL JUDGMENT [Per A.H. Joshi, J.]:

¶18

1.Heard both sides. Perused the record in the
form of annexures.

¶19

2.At the time of admission hearing of Writ
Petition, this Court had granted ad interim stay of
impugned judgment. However, later on, by order dated
9th July 2004, the stay order, in so far as it
related to reinstatement, was vacated. The
respondent has been reinstated and now limited
question to be considered, after a period of 12
years, is of back wages, though entire petition is
heard on merits.

¶20

3.The respondent, Hiraman Damu Jadhav, was
served with charge sheet dated 15-1-1990. The charge
sheet contained in all 9 charges. Brief description
of charges is summarised in paragraph 7 of the
judgment of the Tribunal, which reads as follows :

¶21

"7.Out of nine charges, five charges
related to misappropriation of wheat
by the Applicant, one charge related
to misappropriation of Rice, one
charge related to misappropriation of
Jawar, one charge related to
misappropriation of Palm Oil and one
general charge levelled against the
Applicant was that he has failed to
maintain the registers and handled
them improperly. In fact, the

¶22

(3)

¶23

details of the said charge show that
it again related to non-maintaining
of the registers and therefore
committingmisappropriationof
wheat."
(Quoted from page 180 of the
petition)

¶24

4.Admittedly, when the departmental inquiry
was completed, the Inquiry Officer found the
delinquent guilty of all the charges. The findings
of the Inquiry Officer were upheld by the
disciplinary authority i.e. Collector and the order
of dismissal was passed.

¶25

5.The appeal preferred by the delinquent
before the Divisional Commissioner was dismissed
without hearing, and without entering in merits,
since it was not preferred through proper channel,
rather was filed through Advocate.

¶26

6.The delinquent carried Original Application
No. 383/1991 before Maharashtra Administrative
Tribunal, Bombay, Bench at Aurangabad, and challenged
both the orders i.e. of Divisional Commissioner,
dismissing the appeal, and order of punishment passed
by the Collector.

¶27

7.The Original Application was heard and was
allowed by the Tribunal, and hence present petition
is filed by the State.

¶28

(4)

¶29

8.As noted above, the charges pertain to
misappropriation of goods which are part and parcel
of the public distribution system.

¶30

9.Admittedly, the applicant was prosecuted
through two different criminal cases and in both
cases i.e. Regular Criminal Case No. 520/1995 and
Special Case No. 99/1993, the delinquent has been
acquitted.

¶31

10.Apart that in the criminal case the
delinquent was acquitted, the question before the
Tribunal was as to whether on the basis of evidence
as was available before the Inquiry Officer, the
charges were proved.

¶32

11.The facts constituting misconduct were
admitted by the delinquent. In that background, it
was necessary for the Department or the Presenting
Officer conducting the proceedings before the Inquiry
Officer, to tender evidence on each and every charges
constituting factual foundation of the misconduct
alleged against the delinquent, in order to prove the
factum constituting misconduct i.e. the charges.

¶33

12.It is an admitted position, that Mr. Isak
Mujawar, the Auditor, was one amongst the witnesses
examined in the criminal case, and was the solitary

¶34

(5)

¶35

witness examined and relied on in the departmental
inquiry.

¶36

13.In the aforesaid situation, as regards the
negligence and/or failure in proving the charges
before the Inquiry Officer in the departmental
inquiry, the order of the Tribunal is challenged in
this Court by putting finger on the grounds raised in
the petition. The grounds of challenge focused
during submissions, read as follows :

¶37

"IV.It ought to have seen by the
learned Tribunal that, the evidence,
which is to be scrutinized in the
domestic inquiry / departmental
inquiry, is on the basis of the
preponderance of the probabilities
whereas in the criminal cases, the
charge is to be proved beyond
reasonable doubt. The factors to be
considered in a criminal case are
different whereas factors to be
considered in departmental inquiry
are on different footings. The
criteria to decide the criminal case
will not be as equal for deciding
departmental inquiry.

¶38

V.It ought to have been seen by the
learned Tribunal, that it is settled
principle that the Tribunal shall not
interfere in the findings of the fact
arrived in the departmental inquiry
unless it is shown that there are
certain mala fide against the
delinquent. In the case at hand,
there was no mala fide alleged
against the petitioner and therefore,

¶39

(6)

¶40

the findings of the fact by the
Inquiry Officer in the departmental
inquiry ought not to have interfered
by the learned Tribunal. "
(Quoted from pages 8 and 9 of the
paper-book)

¶41

14.In order to appreciate the grounds raised by
the State, it is necessary to see whether the State
has proved the misconduct.

¶42

15.The evidence of the Auditor Mr. Isak Mujawar
when seen from any angle, all that is proved is
failure to maintain the record and his conclusions
based on record whatsoever available. The question,
as to whether any misappropriation is done, could be
inferred from the record, but its extent cannot be
proved from the evidence of Mr. Isak Mujawar.

¶43

16.It is seen on perusal of inquiry report,
that major accusation against the applicant i.e.
seven out of nine charges relate to failure of the
delinquent to follow the procedure as regards
reporting the shortage in the stock of essential
commodities or as regards volume of spoiled material
and getting sanction towards the shortage in volume
from the superiors and as regards failure in securing
order for disposal of spoiled volume of the
commodity.

¶44

(7)

¶45

17.It has to be inferred that this failure is
according to the disciplinary authority an act of
misappropriation. The evidence as to actual volume
of misappropriation of commodity is not led. It has
to be noted that an inference cannot operate as a
substitute for proof of facts.

¶46

18.As noted earlier, the oral evidence of Mr.
Isak Mujawar, the Auditor, would not ipso facto
constitute the proof of the misconduct.

¶47

19.In so far as the aspect of admission or
alternate plea of lenience in punishment raised by
the delinquent is concerned, it is urged that it was
in the nature of admission of failure to maintain
record, and when seen in isolation. The charge, in
relation to which lenience is prayed, is not of such
grave nature where the severe punishment of removal
from service could be justified.

¶48

20.The State has to make out a case for grant
of indulgence in which, it has failed before the
Tribunal as well as before this Court. The State has
conducted the proceedings before the Inquiry Officer
in an extremely negligent and rather in a very casual
manner. In the result, the petition by the State
fails.

¶49

(8)

¶50

21.In the result, the petition is dismissed.
Rule is discharged.

¶51

22.It shall suffice to observe that three
months time fixed by the Tribunal for computation of
arrears payable to the respondent shall run from the
date of receipt of writ of this order.

¶52

23.In the circumstances of the case, there
shall be no order as to costs.

¶53

( SUNIL P. DESHMUKH ) ( A.H. JOSHI )
 JUDGE JUDGE

¶54

.........

¶55

 bgp/wp2107

State of Maha v. Hiraman Damu Jadhav

Case brief

What is this about?

What did the court decide?

State of Maha v. Hiraman Damu Jadhav

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Vivek Hiraman Kale Vs Ahilya Devi Shikshan Prasaral Mandal Thr Secretary and Ors.

Sanjay Kerba Telalwar Vs the State of Maharashtra and Others

The State of Maharashtra and Anr. Vs Swaheb Govindrao Ubale and Ors.

Suhas Raybhan Abhang and Others Vs the State of Maharashtra and Another

The State of Maharashtra and Another Vs Gulam Mujahed Gulam Samad

Pramod Harishchandra Netkar Vs the State of Maharashtra and Another