Full Judgment Text
2009:BHC-AS:8999-DB
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2611 OF 2008
Shri Masuood Alam Khan-Pathan,
Adult,
Occ.:- At present Advocate,
Residing at 36, Phule Nagar,
Yerawada, Pune- 411 006. ... Petitioner
V/s
1. State of Maharashtra,
Through the Secretary,
Medical Education and
Drugs Department,
Mantralaya, Mumbai- 32.
2. The Secretary,
Medical Education and
Drugs Department,
Mantralaya, Mumbai- 32.
3. The Commissioner,
ESIS Bhavan,
th
6 Floor, N.M.Joshi
Marg, Lower Parel,
Mumbai- 400 013. ... Respondents
Mr.S.P.Saxena, Advocate for the Petitioner.
Mr.V.A.Sonpal, AGP for Respondent Nos.1 to 3
CORAM: V. C. DAGA, &
MRS. MRIDULA BHATKAR, JJ.
th
DATE : 7 May, 2009
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JUDGMENT : (Per Mridula Bhatkar, J.)
This Writ Petition is directed against
th
the Order dated dated 27 November 1998 passed by
the Maharashtra Administrative Tribunal, Mumbai.
Factual Matrix :
2. The Petitioner was working as the
Administrative Officer in the office of the
Administrative Medical Officer, E.S.I.S. at
Mumbai. At the time of audit of the Hospital
account, misappropriation of some amount was
revealed and the investigation was carried out.
The Petitioner was prosecuted along with some
other person for misappropriation of the property
and falsification of the account and criminal
cases bearing Nos. 111 of 1984 & 112 of 1984 were
registered against him. On the other hand,
Respondent No. 1 had started departmental
proceedings against the Petitioner.
3. The aforesaid enquiry was conducted by a
Special Officer for Departmental Enquiries,
Nashik and Pune Division, Pune. The said enquiry
was concluded holding the Petitioner guilty and
accordingly a report was submitted by the Special
Enquiry Officer. Pursuant to the said outcome of
the enquiry, the Disciplinary Authority under
provisions of Rule 27 of the Maharashtra Civil
Service (Pension) Rules, 1982 directed that 50%
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of the pension payable to the Petitioner be
withheld and the said punishment was imposed on
the Petitioner. It was further directed that the
period which was spent that is the period of
th st
suspension from 20 December 1983 to 31 July
1988 be treated as “suspension period” for all
the purposes. In order to implement this
decision, the Government of Maharashtra passed
th
the Government Resolution dated 14 March 1991
which was challenged by the Petitioner before the
Maharashtra Administrative Tribunal (MAT).
4. The MAT, after hearing the parties,
confirmed the action of the State Government to
the extent it holds Petitioner guilty of
misconduct leading to loss of funds and,
consequent penalty imposed on him. However, in
view of breach of principles of natural justice,
it quashed and set aside the order treating the
petitioner under suspension during the period of
suspension and remanded the matter to the
competent authority to take its decision afresh
after giving the petitioner an opportunity of
hearing.
5. The petitioner, however, has approached
this Court against the said order of MAT
upholding the penalty including quantum thereof
by filing this petition under Article 226 and 227
of the Constitution of India, with a prayer to
quash and set aside the order passed by the MAT
in Original Application No.1150/1992.
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Submissions :
6. Learned counsel for the Petitioner has
submitted that the findings given in the
departmental proceeding are not correct. The
charges leveled against the Petitioner were not
serious in nature like corruption but were of
mere negligence leading to misconduct, which, in
fact, ought not to have been held as proved. The
grievance was made that the documents which were
asked for by the Petitioner were not furnished to
him. It was also submitted that the disciplinary
authority ought to have considered the fact that
the Petitioner was acquitted in Criminal Case
Nos.111/1984 and 112/1985 and no appeal was
preferred by the State against the decision of
acquittal. It was further submitted that the
disciplinary authority did not follow the
procedure of the enquiry prescribed under Sub-
Rules 18 and 20 of Rule 8 of Maharashtra Civil
Service (Discipline and Appeal) Rules of 1979
[the “MCS (D & A) Rules” for short]. Learned
Counsel for the Petitioner tried to demonstrate
serious prejudice suffered by the Petitioner by
not following sub-Rule 20 of Rule 8 of MCSR (D &
A) Rules. It was further submitted that the
order of the disciplinary authority and
subsequent order of the MAT holding the
Petitioner guilty of misconduct is liable to be
set aside. It was, alternatively, urged that the
penalty withholding 50% of the pension amount and
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the gratuity should be modified and rigour
thereof be reduced looking to disproportionate
punishment inflicted on the Petitioner merely
because he happened to be a retired officer of
the State.
7. While countering the arguments, the
learned AGP, made submissions that the Enquiry
Officer has followed the requisite procedure
under MCSR Rules during a departmental enquiry.
It was argued that the delinquent was given an
opportunity to defend himself properly, and that
there was no question of denial of any
opportunity to the delinquent. It was further
th
submitted that in para 7 of the order dated 25
January 1991 passed by the disciplinary
authority, it is categorically stated that the
opportunity was given to the petitioner to show
cause as to why the penalty based on the enquiry
report be not imposed. According to him, the
principles of natural justice were not violated
since the procedure laid down was followed. He
tried to urge that non-compliance of Sub-Rule 20
of Rule 8 referred to hereinabove will have no
effect on the enquiry, even if it was not
followed by the Enquiry Officer.
The Issue :
8. The issue for consideration is whether in
the facts and circumstances of the case the MAT
was justified in upholding the Departmental
Enquiry and the punishment imposed on the
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delinquent?
Consideration :
9. Petitioner has challenged the order of
the Enquiry Officer which is based on the
evidence tendered before him. Administrative
Medical officer has served articles of charge
along with all annexures on the delinquent
officer. The administration has made allegations
and framed charge of negligence in performance of
the duty thereby causing loss of Rs. 63,097.50/-
to the Aundh Hospital, Pune and also loss of Rs.
59,738.36/- caused due to the theft as the
Petitioner did not follow the rules and procedure
while depositing money and maintaining relevant
registers. There were also charges that without
correction and verification, the statement of
payments was forwarded to the Accounts Branch and
that he had unauthorizedly drawn his pay and
allowances as duty pay when he was on leave from
16-7-1979 to 21-7-1979 which was not sanctioned.
10. We went through the exhaustive report
submitted by the Special Officer for Departmental
Enquiries, Nashik and Pune Division, Pune on the
charges. In the said report, the Enquiry Officer
has concluded in para 38 that except charge No.6
i.e. investigating officer and staff members to
make applications, complaints etc., all the other
charges from Serial Nos. 1 to 5 have been proved
against the Petitioner to the extent discussed in
the enquiry report.
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11. On the point of procedure, infraction of
Sub-Rule 20 was pressed into service, which reads
as under:
"(20) The inquiring authority
may, after the Government servant
closes his case and shall, if the
Government servant has not examined
himself, generally question him on
the circumstances appearing against
him in the evidence for the purpose
of enabling the Government servant to
explain any circumstances appearing
in the evidence against him."
12. The above sub-rule indicates that the
delinquent officer is entitled as of right to
have his attention drawn to any material against
him in evidence that may come before quasi
judicial authority which is likely to prejudice
his case either directly or indirectly. The
whole object of the sub-rule is to afford the
charged officer a fair and proper opportunity of
explaining circumstances which appear against
him. In fairness, each and every material
adverse circumstances should be put simply and
separately so as to enable him to explain the
same.
13. The above procedure of putting questions
to the Petitioner on the incriminating
circumstances was not followed.
14. Having taken note of the undisputed
requirement of sub-rule- 20 which requires the
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Enquiry Officer to draw attention of the
delinquent to the adverse material brought on
record by the employer, but at the same time it
is also clear that the delinquent is not entitled
to have his attention called to any material that
may come before the quasi judicial tribunal
unless the material in question is prejudicial to
his case either directly or indirectly.
15. At this stage, it is also necessary to
consider the effect of omission to comply with
the requirement of the rule of Audi Alteram
Partem which is pregnant in sub-rule 20 supra.
As a general rule, the enquiry vitiates for non-
compliance of the said sub-rule. Where there is
violation of natural justice no resultant or
independent prejudice need be shown, as the
denial of natural justice is, in itself,
sufficient prejudice and it is no answer to say
that even with observance of natural justice the
same conclusion could have been reached. The
citizen is entitled to be under the Rule of law
and not the Rule of Discretion and to remit the
maintenance of constitutional right to a quasi
judicial discretion is to shift the foundations
of freedom from the rock to the sand. But the
effects and consequences of non-compliance may
alter with situational variations and
particularities, illustrating a flexible use of
discretionary remedies to meet novel legal
situations. It is true that the natural justice
should not degenerate into a set of hard and fast
rules. There should be a circumstantial
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flexibility. The Apex Court in the case of
Charan Lal Sahu v. Union of India , AIR 1990 SC
1480 held that non-compliance with the principles
of natural justice should not result in
mechanical invalidation. While appreciating the
breach of the procedural follow up, it is
necessary to see whether any prejudice has been
caused to the charged officer. Keeping the
settled principles of law which the judicial
authority is expected to adopt, we propose to
examine the issue at hand.
16. On the above backdrop, fairness
required that each adverse circumstance
prejudicial to the interest of the petitioner
ought to have been put to him simply and
separately. The requirement of sub-rule 20 has
been completely disregarded by the Enquiry
Officer. The prejudice caused is extensively
demonstrated by the learned counsel before us.
17. Considered from this angle, learned
counsel appearing for the delinquent officer/
petitioner has not only successfully demonstrated
before us that the petitioner was entitled to
have his right to call for the material which was
prejudicial to his case but he went a step ahead
and successfully demonstrated as to how
infraction of sub-rule 20 (supra) has caused
substantial prejudice to the petitioner. In the
light of the view we are inclined to adopt, it is
not necessary to set out the substantial
prejudice suffered by the petitioner due to non-
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compliance of the natural justice flowing from
sub-rule 20 (supra); which has direct effect on
the legality and validity of the departmental
enquiry as such.
18. At one stage we thought of remitting the
matter back to have fresh inquiry from the stage
the illegality has crept in. But having realised
the long span of time ranging for almost more
than 20 years, we though it better to give second
thought in the light of the suggestion given by
the learned counsel appearing for the petitioner,
who has filed on record an undertaking duly
affirmed by the petitioner not to claim any
financial benefits for the past period i.e. For
the period prior to the decision of this
petition. In his submission, whatever relief the
Court feels reasonable should be granted
prospectively so as to avoid future hardship to
the petitioner and any prejudice to the
respondent- State.
19. Having said so, we may also place it on
record that the learned counsel for the
petitioner also demonstrated successfully that
the punishment inflicted is disproportionate to
the misconduct which the petitioner alleged to
have committed. In order to consider this aspect
of the matter, it is necessary to turn to the
provisions of MCS (D & A) Rules which provides
for punishment for minor and major misconducts.
The relevant provisions of the said Rules read as
under:
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5. Penalties.
(1) Without prejudice to the
provisions of any law for the time
being in force, the following
penalties may, for good and
sufficient reasons and as
hereinafter, provided, be imposed on
a Government servant, namely -
Minor Penalties.
(i) ... ... ...
(ii) ... ... ...
(iii) Recovery from his pay of
the whole or part of any
pecuniary loss caused by him to
Government, by negligence or
breach of orders;
(iv) ... ... ...
(v) ... ... ...
Major Penalties.
..... ..... .....
(Emphasis supplied)
20. Rule 27 of the Maharashtra Civil
Services (Pension) Rules, 1982 (“MCS Pension
Rules” for short) gives right to the Government
to withhold or withdraw pension. Sub-rule (1)
thereof reads as under:
(1) Government may, be order in
writing, withhold or withdraw a
pension of any part of it whether
permanently or for a specified
period, and also order the recovery,
from such pension, the whole or part
of any pecuniary loss caused to
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Government, if, in any departmental
or judicial proceedings, the
pensioner is found guilty of grave
misconduct or negligence during the
period of his service including
service rendered upon re-employment
after retirement.
Provided that the
Maharashtra Public Service
Commission shall be consulted before
any final orders are passed in
respect of officers holding posts
within their purview.
Provided further that where
a part of pension is withheld or
withdrawn, the amount of remaining
pension shall not be reduced below
the minimum fixed by Government.
21. If one turns to the nature of punishment
to be inflicted, it is necessary to observe that,
had the petitioner been in employment at the time
of inflicting punishment, the petitioner could
have been at the most liable for minor punishment
enumerated in Rule 5(iii) of MCS (D & A) Rules
(supra) since the major charges which are proved
against the petitioner are that of causing
financial loss to the State by his negligence.
The petitioner has successfully demonstrated
before us the circumstances in which the alleged
act of omission or commission leading to alleged
financial loss to the State due to his negligence
has taken place. Merely because the petitioner
was a retired person, punishment flowing from
rule 27 of the MCS Pension Rules was inflicted on
him which empowers the competent authority to
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withhold or withdraw pension permanently or for
a specified period in whole or in part or to
order recovery of pecuniary loss caused to the
State in whole or in part. In our considered
view, the competent authority ought to have
diluted the punishment while taking decision
considering the fact that it was a case for
inflicting minor penalty had the petitioner been
in employment.
22. The employee's right to pension being
statutory right, the measure of deprivation must
be correlative to or commensurate with the
gravity of the grave misconduct or irregularity
as it offends the right of assistance at the
evening of his life as assured under Article 41
of the Constitution of India. The impugned
order discloses that the competent authority
withheld on permanent basis the payment of 50%
pension. In addition to this, petitioner is
also deprived of his right to gratuity to the
extent of 50%.
23. The learned counsel for the Petitioner
has submitted that the Petitioner has put in more
than 22 years of service in the Department of
Medical Education and Drugs and he has been
superannuated in the year 1990. Almost for a
period of 18 years, he has been deprived of his
right to have pension to the extent of 50%. His
total pensionable pay is Rs.3,010/-. Out of this
amount, after deducting 50% of the amount, his
pensionable pay comes to Rs. 1,505/-. Learned
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counsel for the petitioner submits that for past
18 years, Petitioner has lost monetary benefit of
about Rs. 3,24,000/- + loss of 50% Gratuity. The
submission advanced is that as against the
alleged loss of Rs. 1,22,835.86, the State has
recovered from the Petitioner more than the
alleged loss suffered, as such the punishment is
grossly disproportionate to the alleged
misconduct committed by the Petitioner which
needs to be set aside, may be with prospective
effect in view of the undertaking given by the
Petitioner.
24. During the course of arguments, the
learned counsel of the Petitioner has filed an
undertaking stating that he would not claim any
arrears of pension, retirement benefits and/or
other financial benefits including arrears of 50%
gratuity other than what is already paid to him
by the Respondents for the period upto 1-10-1999
when he was superannuated from the services.
25. The Learned AGP has opposed above
submission and objected to the undertaking. He
also circulated his written submissions. He urged
that the guidelines are set out by the Hon'ble
Supreme Court in the case of
Om Kumar and others
v. Union of India in Special Leave Petition
(Civil) No.21000/1993 while considering the
question of quantum of punishment; wherein it is
ruled that interference by the court is possible
only when "Wednesbury principles of
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reasonableness" are violated in the sense that
the action of the administrative authority is
such that a reasonable authority would not have
reached to the conclusion drawn on the basis of
proved facts and, therefore, interference is
called for and that the penalty should be so
shockingly arbitrary or unreasonable or
disproportionate that the court needs to be
intervened.
26. The Hon'ble Supreme Court in SLP No.
21000 of 1993 ( Om Kumar and others v. Union of
) has observed that the Court while
India
reviewing punishment, if satisfied that
Wednesbury principles are violated, it should,
normally, remit the matter to the administrator
for a fresh decision as to the quantum of
punishment – Only in rare cases where there has
been long delay in the time taken by the
disciplinary proceedings and in the time taken in
the Courts, and in such extreme or rare cases,
the Court can substitute its own view as to the
quantum of punishment.
27. On the above canvass, the question which
needs to be addressed is: whether the case in
hand can be called covered under Wednesbury
principles.
28. In the present case, the financial loss
caused to the Government needs to be considered.
In all, total loss caused to the Government is
Rs. 1,22,836/-. Past 18 years, petitioner has
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been deprived of his pension to the extent of 50%
i.e. @ Rs.1,505/- per month. Till now, the
government has recovered Rs.3,24,000/- from the
pension of the petitioner together with 50% of
gratuity amount as against the alleged loss of
Rs.1,22,836/-. The Government has recovered more
than 3 times of the alleged loss suffered by it.
It is also to be considered that no financial
gain was received by the Petitioner due to his
negligence leading to alleged loss to the
Government.
29. The petitioner is 77 years old.
Considering the nature of the alleged charges
assuming it to be proved and the recovery of the
huge amount in the past 18 years, the rigour of
the penalty needs to be mellowed down. We have
considered the Wednesbury principle and so also
we could lay our hand on the ruling of the
Hon'ble Supreme Court in Bhagat Ram v. State of
Himachal Pradesh reported in AIR 1983 SC 454. In
this case, the Supreme Court held that,
"it is equally true that the penalty
imposed must be commensurate with the
gravity of the misconduct and that
any penalty disproportionate to the
gravity of the misconduct would be
violative of Article 14 of the
Constitution."”
The Apex Court in the case of Coimbatore District
Central Co-operative Bank v. Coimbatore District
Central Co-operative Bank Employees Association
reported in (2007) 4 SCC 669 ruled
and another
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that while determining the question of
reasonableness and fairness on the part of the
statutory authority the question must be
considered having regard to the factual matrix in
each case. It cannot be put in a straitjacket
formula and must be considered keeping in view
the doctrine of flexibility.
30. In the case of
State of M.P. & Others v.
Hazarilal (2008) 3 SCC 273 , the Apex Court held
that the legal parameters of judicial review have
undergone sea change. Wednesbury principle of
unreasonableness has been replaced by doctrine of
proportionality. The observations made in a case
where penalty imposed on a government servant was
found to be disproportionate to the conduct which
led to his conviction the Doctrine of
proportionality was applied by the Court. The
relevance of these principles cannot be ignored
while considering the case in hand.
31. As already stated, at one point of time
we thought of remitting this matter for putting
adverse circumstances to the petitioner under
sub-rule 20 (supra) and to reconsider the
question of punishment. However, on deeper
consideration, we came to the conclusion that it
would be futile exercise considering the factual
matrix available on record which, unequivocally,
suggests that the petitioner has crossed age of
77 years. He retired from service somewhere in
the year 1990. Almost 18 years have passed. The
petitioner has already compensated the State
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Government more than the financial loss suffered
by it. The petitioner has suffered a huge
financial loss, economic and mental agony due to
the charge of the alleged misconduct, which can
hardly be said to be a major misconduct assuming
it to be proved against the petitioner. The long
period of time and the advance age of the
petitioner prevents us from remitting this matter
back and, in the interest of justice, looking to
the peculiar facts and circumstances of the case,
compels us to consider the question of punishment
on the basis of material available on record.
32. For the reasons recorded herinabove, in
our considered view the departmental enquiry
itself is exposed to vice of nullity in view of
infraction of sub-rule 20. Alternatively, even
assuming that the enquiry proceedings are legal
and valid, even then the punishment inflicted is
disproportionate to the alleged misconduct
alleged to have been proved against the
petitioner which is liable to be interfered with.
33. The petitioner since has given an
undertaking not to claim past monetary benefits
and the fact that the loss suffered by the State
already stands recovered from the petitioner, who
has also suffered heavy financial loss on account
of non-payment of 50% amount of gratuity and
pension almost for a period of 18 years, we are
of the considered view that ends of justice would
be met by accepting the undertaking given by the
petitioner and setting aside the punishment and,
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to that extent, the order of the MAT affirming
action of the respondents. It is declared that
the petitioner would not be entitled to claim
arrears of any monetary benefits for the period
prior to the pronouncement of this judgment and
further declare that petitioner shall be entitled
st
to full pension with effect from 1 April, 2009.
34. In the result, petition is partly
allowed. Rule is made absolute in terms of this
order with no order as to costs.
(MRIDULA BHATKAR,J.) (V.C.DAGA,J.)
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2611 OF 2008
Shri Masuood Alam Khan-Pathan,
Adult,
Occ.:- At present Advocate,
Residing at 36, Phule Nagar,
Yerawada, Pune- 411 006. ... Petitioner
V/s
1. State of Maharashtra,
Through the Secretary,
Medical Education and
Drugs Department,
Mantralaya, Mumbai- 32.
2. The Secretary,
Medical Education and
Drugs Department,
Mantralaya, Mumbai- 32.
3. The Commissioner,
ESIS Bhavan,
th
6 Floor, N.M.Joshi
Marg, Lower Parel,
Mumbai- 400 013. ... Respondents
Mr.S.P.Saxena, Advocate for the Petitioner.
Mr.V.A.Sonpal, AGP for Respondent Nos.1 to 3
CORAM: V. C. DAGA, &
MRS. MRIDULA BHATKAR, JJ.
th
DATE : 7 May, 2009
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JUDGMENT : (Per Mridula Bhatkar, J.)
This Writ Petition is directed against
th
the Order dated dated 27 November 1998 passed by
the Maharashtra Administrative Tribunal, Mumbai.
Factual Matrix :
2. The Petitioner was working as the
Administrative Officer in the office of the
Administrative Medical Officer, E.S.I.S. at
Mumbai. At the time of audit of the Hospital
account, misappropriation of some amount was
revealed and the investigation was carried out.
The Petitioner was prosecuted along with some
other person for misappropriation of the property
and falsification of the account and criminal
cases bearing Nos. 111 of 1984 & 112 of 1984 were
registered against him. On the other hand,
Respondent No. 1 had started departmental
proceedings against the Petitioner.
3. The aforesaid enquiry was conducted by a
Special Officer for Departmental Enquiries,
Nashik and Pune Division, Pune. The said enquiry
was concluded holding the Petitioner guilty and
accordingly a report was submitted by the Special
Enquiry Officer. Pursuant to the said outcome of
the enquiry, the Disciplinary Authority under
provisions of Rule 27 of the Maharashtra Civil
Service (Pension) Rules, 1982 directed that 50%
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of the pension payable to the Petitioner be
withheld and the said punishment was imposed on
the Petitioner. It was further directed that the
period which was spent that is the period of
th st
suspension from 20 December 1983 to 31 July
1988 be treated as “suspension period” for all
the purposes. In order to implement this
decision, the Government of Maharashtra passed
th
the Government Resolution dated 14 March 1991
which was challenged by the Petitioner before the
Maharashtra Administrative Tribunal (MAT).
4. The MAT, after hearing the parties,
confirmed the action of the State Government to
the extent it holds Petitioner guilty of
misconduct leading to loss of funds and,
consequent penalty imposed on him. However, in
view of breach of principles of natural justice,
it quashed and set aside the order treating the
petitioner under suspension during the period of
suspension and remanded the matter to the
competent authority to take its decision afresh
after giving the petitioner an opportunity of
hearing.
5. The petitioner, however, has approached
this Court against the said order of MAT
upholding the penalty including quantum thereof
by filing this petition under Article 226 and 227
of the Constitution of India, with a prayer to
quash and set aside the order passed by the MAT
in Original Application No.1150/1992.
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Submissions :
6. Learned counsel for the Petitioner has
submitted that the findings given in the
departmental proceeding are not correct. The
charges leveled against the Petitioner were not
serious in nature like corruption but were of
mere negligence leading to misconduct, which, in
fact, ought not to have been held as proved. The
grievance was made that the documents which were
asked for by the Petitioner were not furnished to
him. It was also submitted that the disciplinary
authority ought to have considered the fact that
the Petitioner was acquitted in Criminal Case
Nos.111/1984 and 112/1985 and no appeal was
preferred by the State against the decision of
acquittal. It was further submitted that the
disciplinary authority did not follow the
procedure of the enquiry prescribed under Sub-
Rules 18 and 20 of Rule 8 of Maharashtra Civil
Service (Discipline and Appeal) Rules of 1979
[the “MCS (D & A) Rules” for short]. Learned
Counsel for the Petitioner tried to demonstrate
serious prejudice suffered by the Petitioner by
not following sub-Rule 20 of Rule 8 of MCSR (D &
A) Rules. It was further submitted that the
order of the disciplinary authority and
subsequent order of the MAT holding the
Petitioner guilty of misconduct is liable to be
set aside. It was, alternatively, urged that the
penalty withholding 50% of the pension amount and
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the gratuity should be modified and rigour
thereof be reduced looking to disproportionate
punishment inflicted on the Petitioner merely
because he happened to be a retired officer of
the State.
7. While countering the arguments, the
learned AGP, made submissions that the Enquiry
Officer has followed the requisite procedure
under MCSR Rules during a departmental enquiry.
It was argued that the delinquent was given an
opportunity to defend himself properly, and that
there was no question of denial of any
opportunity to the delinquent. It was further
th
submitted that in para 7 of the order dated 25
January 1991 passed by the disciplinary
authority, it is categorically stated that the
opportunity was given to the petitioner to show
cause as to why the penalty based on the enquiry
report be not imposed. According to him, the
principles of natural justice were not violated
since the procedure laid down was followed. He
tried to urge that non-compliance of Sub-Rule 20
of Rule 8 referred to hereinabove will have no
effect on the enquiry, even if it was not
followed by the Enquiry Officer.
The Issue :
8. The issue for consideration is whether in
the facts and circumstances of the case the MAT
was justified in upholding the Departmental
Enquiry and the punishment imposed on the
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6
delinquent?
Consideration :
9. Petitioner has challenged the order of
the Enquiry Officer which is based on the
evidence tendered before him. Administrative
Medical officer has served articles of charge
along with all annexures on the delinquent
officer. The administration has made allegations
and framed charge of negligence in performance of
the duty thereby causing loss of Rs. 63,097.50/-
to the Aundh Hospital, Pune and also loss of Rs.
59,738.36/- caused due to the theft as the
Petitioner did not follow the rules and procedure
while depositing money and maintaining relevant
registers. There were also charges that without
correction and verification, the statement of
payments was forwarded to the Accounts Branch and
that he had unauthorizedly drawn his pay and
allowances as duty pay when he was on leave from
16-7-1979 to 21-7-1979 which was not sanctioned.
10. We went through the exhaustive report
submitted by the Special Officer for Departmental
Enquiries, Nashik and Pune Division, Pune on the
charges. In the said report, the Enquiry Officer
has concluded in para 38 that except charge No.6
i.e. investigating officer and staff members to
make applications, complaints etc., all the other
charges from Serial Nos. 1 to 5 have been proved
against the Petitioner to the extent discussed in
the enquiry report.
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11. On the point of procedure, infraction of
Sub-Rule 20 was pressed into service, which reads
as under:
"(20) The inquiring authority
may, after the Government servant
closes his case and shall, if the
Government servant has not examined
himself, generally question him on
the circumstances appearing against
him in the evidence for the purpose
of enabling the Government servant to
explain any circumstances appearing
in the evidence against him."
12. The above sub-rule indicates that the
delinquent officer is entitled as of right to
have his attention drawn to any material against
him in evidence that may come before quasi
judicial authority which is likely to prejudice
his case either directly or indirectly. The
whole object of the sub-rule is to afford the
charged officer a fair and proper opportunity of
explaining circumstances which appear against
him. In fairness, each and every material
adverse circumstances should be put simply and
separately so as to enable him to explain the
same.
13. The above procedure of putting questions
to the Petitioner on the incriminating
circumstances was not followed.
14. Having taken note of the undisputed
requirement of sub-rule- 20 which requires the
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8
Enquiry Officer to draw attention of the
delinquent to the adverse material brought on
record by the employer, but at the same time it
is also clear that the delinquent is not entitled
to have his attention called to any material that
may come before the quasi judicial tribunal
unless the material in question is prejudicial to
his case either directly or indirectly.
15. At this stage, it is also necessary to
consider the effect of omission to comply with
the requirement of the rule of Audi Alteram
Partem which is pregnant in sub-rule 20 supra.
As a general rule, the enquiry vitiates for non-
compliance of the said sub-rule. Where there is
violation of natural justice no resultant or
independent prejudice need be shown, as the
denial of natural justice is, in itself,
sufficient prejudice and it is no answer to say
that even with observance of natural justice the
same conclusion could have been reached. The
citizen is entitled to be under the Rule of law
and not the Rule of Discretion and to remit the
maintenance of constitutional right to a quasi
judicial discretion is to shift the foundations
of freedom from the rock to the sand. But the
effects and consequences of non-compliance may
alter with situational variations and
particularities, illustrating a flexible use of
discretionary remedies to meet novel legal
situations. It is true that the natural justice
should not degenerate into a set of hard and fast
rules. There should be a circumstantial
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9
flexibility. The Apex Court in the case of
Charan Lal Sahu v. Union of India , AIR 1990 SC
1480 held that non-compliance with the principles
of natural justice should not result in
mechanical invalidation. While appreciating the
breach of the procedural follow up, it is
necessary to see whether any prejudice has been
caused to the charged officer. Keeping the
settled principles of law which the judicial
authority is expected to adopt, we propose to
examine the issue at hand.
16. On the above backdrop, fairness
required that each adverse circumstance
prejudicial to the interest of the petitioner
ought to have been put to him simply and
separately. The requirement of sub-rule 20 has
been completely disregarded by the Enquiry
Officer. The prejudice caused is extensively
demonstrated by the learned counsel before us.
17. Considered from this angle, learned
counsel appearing for the delinquent officer/
petitioner has not only successfully demonstrated
before us that the petitioner was entitled to
have his right to call for the material which was
prejudicial to his case but he went a step ahead
and successfully demonstrated as to how
infraction of sub-rule 20 (supra) has caused
substantial prejudice to the petitioner. In the
light of the view we are inclined to adopt, it is
not necessary to set out the substantial
prejudice suffered by the petitioner due to non-
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10
compliance of the natural justice flowing from
sub-rule 20 (supra); which has direct effect on
the legality and validity of the departmental
enquiry as such.
18. At one stage we thought of remitting the
matter back to have fresh inquiry from the stage
the illegality has crept in. But having realised
the long span of time ranging for almost more
than 20 years, we though it better to give second
thought in the light of the suggestion given by
the learned counsel appearing for the petitioner,
who has filed on record an undertaking duly
affirmed by the petitioner not to claim any
financial benefits for the past period i.e. For
the period prior to the decision of this
petition. In his submission, whatever relief the
Court feels reasonable should be granted
prospectively so as to avoid future hardship to
the petitioner and any prejudice to the
respondent- State.
19. Having said so, we may also place it on
record that the learned counsel for the
petitioner also demonstrated successfully that
the punishment inflicted is disproportionate to
the misconduct which the petitioner alleged to
have committed. In order to consider this aspect
of the matter, it is necessary to turn to the
provisions of MCS (D & A) Rules which provides
for punishment for minor and major misconducts.
The relevant provisions of the said Rules read as
under:
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5. Penalties.
(1) Without prejudice to the
provisions of any law for the time
being in force, the following
penalties may, for good and
sufficient reasons and as
hereinafter, provided, be imposed on
a Government servant, namely -
Minor Penalties.
(i) ... ... ...
(ii) ... ... ...
(iii) Recovery from his pay of
the whole or part of any
pecuniary loss caused by him to
Government, by negligence or
breach of orders;
(iv) ... ... ...
(v) ... ... ...
Major Penalties.
..... ..... .....
(Emphasis supplied)
20. Rule 27 of the Maharashtra Civil
Services (Pension) Rules, 1982 (“MCS Pension
Rules” for short) gives right to the Government
to withhold or withdraw pension. Sub-rule (1)
thereof reads as under:
(1) Government may, be order in
writing, withhold or withdraw a
pension of any part of it whether
permanently or for a specified
period, and also order the recovery,
from such pension, the whole or part
of any pecuniary loss caused to
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12
Government, if, in any departmental
or judicial proceedings, the
pensioner is found guilty of grave
misconduct or negligence during the
period of his service including
service rendered upon re-employment
after retirement.
Provided that the
Maharashtra Public Service
Commission shall be consulted before
any final orders are passed in
respect of officers holding posts
within their purview.
Provided further that where
a part of pension is withheld or
withdrawn, the amount of remaining
pension shall not be reduced below
the minimum fixed by Government.
21. If one turns to the nature of punishment
to be inflicted, it is necessary to observe that,
had the petitioner been in employment at the time
of inflicting punishment, the petitioner could
have been at the most liable for minor punishment
enumerated in Rule 5(iii) of MCS (D & A) Rules
(supra) since the major charges which are proved
against the petitioner are that of causing
financial loss to the State by his negligence.
The petitioner has successfully demonstrated
before us the circumstances in which the alleged
act of omission or commission leading to alleged
financial loss to the State due to his negligence
has taken place. Merely because the petitioner
was a retired person, punishment flowing from
rule 27 of the MCS Pension Rules was inflicted on
him which empowers the competent authority to
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13
withhold or withdraw pension permanently or for
a specified period in whole or in part or to
order recovery of pecuniary loss caused to the
State in whole or in part. In our considered
view, the competent authority ought to have
diluted the punishment while taking decision
considering the fact that it was a case for
inflicting minor penalty had the petitioner been
in employment.
22. The employee's right to pension being
statutory right, the measure of deprivation must
be correlative to or commensurate with the
gravity of the grave misconduct or irregularity
as it offends the right of assistance at the
evening of his life as assured under Article 41
of the Constitution of India. The impugned
order discloses that the competent authority
withheld on permanent basis the payment of 50%
pension. In addition to this, petitioner is
also deprived of his right to gratuity to the
extent of 50%.
23. The learned counsel for the Petitioner
has submitted that the Petitioner has put in more
than 22 years of service in the Department of
Medical Education and Drugs and he has been
superannuated in the year 1990. Almost for a
period of 18 years, he has been deprived of his
right to have pension to the extent of 50%. His
total pensionable pay is Rs.3,010/-. Out of this
amount, after deducting 50% of the amount, his
pensionable pay comes to Rs. 1,505/-. Learned
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14
counsel for the petitioner submits that for past
18 years, Petitioner has lost monetary benefit of
about Rs. 3,24,000/- + loss of 50% Gratuity. The
submission advanced is that as against the
alleged loss of Rs. 1,22,835.86, the State has
recovered from the Petitioner more than the
alleged loss suffered, as such the punishment is
grossly disproportionate to the alleged
misconduct committed by the Petitioner which
needs to be set aside, may be with prospective
effect in view of the undertaking given by the
Petitioner.
24. During the course of arguments, the
learned counsel of the Petitioner has filed an
undertaking stating that he would not claim any
arrears of pension, retirement benefits and/or
other financial benefits including arrears of 50%
gratuity other than what is already paid to him
by the Respondents for the period upto 1-10-1999
when he was superannuated from the services.
25. The Learned AGP has opposed above
submission and objected to the undertaking. He
also circulated his written submissions. He urged
that the guidelines are set out by the Hon'ble
Supreme Court in the case of
Om Kumar and others
v. Union of India in Special Leave Petition
(Civil) No.21000/1993 while considering the
question of quantum of punishment; wherein it is
ruled that interference by the court is possible
only when "Wednesbury principles of
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reasonableness" are violated in the sense that
the action of the administrative authority is
such that a reasonable authority would not have
reached to the conclusion drawn on the basis of
proved facts and, therefore, interference is
called for and that the penalty should be so
shockingly arbitrary or unreasonable or
disproportionate that the court needs to be
intervened.
26. The Hon'ble Supreme Court in SLP No.
21000 of 1993 ( Om Kumar and others v. Union of
) has observed that the Court while
India
reviewing punishment, if satisfied that
Wednesbury principles are violated, it should,
normally, remit the matter to the administrator
for a fresh decision as to the quantum of
punishment – Only in rare cases where there has
been long delay in the time taken by the
disciplinary proceedings and in the time taken in
the Courts, and in such extreme or rare cases,
the Court can substitute its own view as to the
quantum of punishment.
27. On the above canvass, the question which
needs to be addressed is: whether the case in
hand can be called covered under Wednesbury
principles.
28. In the present case, the financial loss
caused to the Government needs to be considered.
In all, total loss caused to the Government is
Rs. 1,22,836/-. Past 18 years, petitioner has
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16
been deprived of his pension to the extent of 50%
i.e. @ Rs.1,505/- per month. Till now, the
government has recovered Rs.3,24,000/- from the
pension of the petitioner together with 50% of
gratuity amount as against the alleged loss of
Rs.1,22,836/-. The Government has recovered more
than 3 times of the alleged loss suffered by it.
It is also to be considered that no financial
gain was received by the Petitioner due to his
negligence leading to alleged loss to the
Government.
29. The petitioner is 77 years old.
Considering the nature of the alleged charges
assuming it to be proved and the recovery of the
huge amount in the past 18 years, the rigour of
the penalty needs to be mellowed down. We have
considered the Wednesbury principle and so also
we could lay our hand on the ruling of the
Hon'ble Supreme Court in Bhagat Ram v. State of
Himachal Pradesh reported in AIR 1983 SC 454. In
this case, the Supreme Court held that,
"it is equally true that the penalty
imposed must be commensurate with the
gravity of the misconduct and that
any penalty disproportionate to the
gravity of the misconduct would be
violative of Article 14 of the
Constitution."”
The Apex Court in the case of Coimbatore District
Central Co-operative Bank v. Coimbatore District
Central Co-operative Bank Employees Association
reported in (2007) 4 SCC 669 ruled
and another
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that while determining the question of
reasonableness and fairness on the part of the
statutory authority the question must be
considered having regard to the factual matrix in
each case. It cannot be put in a straitjacket
formula and must be considered keeping in view
the doctrine of flexibility.
30. In the case of
State of M.P. & Others v.
Hazarilal (2008) 3 SCC 273 , the Apex Court held
that the legal parameters of judicial review have
undergone sea change. Wednesbury principle of
unreasonableness has been replaced by doctrine of
proportionality. The observations made in a case
where penalty imposed on a government servant was
found to be disproportionate to the conduct which
led to his conviction the Doctrine of
proportionality was applied by the Court. The
relevance of these principles cannot be ignored
while considering the case in hand.
31. As already stated, at one point of time
we thought of remitting this matter for putting
adverse circumstances to the petitioner under
sub-rule 20 (supra) and to reconsider the
question of punishment. However, on deeper
consideration, we came to the conclusion that it
would be futile exercise considering the factual
matrix available on record which, unequivocally,
suggests that the petitioner has crossed age of
77 years. He retired from service somewhere in
the year 1990. Almost 18 years have passed. The
petitioner has already compensated the State
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Government more than the financial loss suffered
by it. The petitioner has suffered a huge
financial loss, economic and mental agony due to
the charge of the alleged misconduct, which can
hardly be said to be a major misconduct assuming
it to be proved against the petitioner. The long
period of time and the advance age of the
petitioner prevents us from remitting this matter
back and, in the interest of justice, looking to
the peculiar facts and circumstances of the case,
compels us to consider the question of punishment
on the basis of material available on record.
32. For the reasons recorded herinabove, in
our considered view the departmental enquiry
itself is exposed to vice of nullity in view of
infraction of sub-rule 20. Alternatively, even
assuming that the enquiry proceedings are legal
and valid, even then the punishment inflicted is
disproportionate to the alleged misconduct
alleged to have been proved against the
petitioner which is liable to be interfered with.
33. The petitioner since has given an
undertaking not to claim past monetary benefits
and the fact that the loss suffered by the State
already stands recovered from the petitioner, who
has also suffered heavy financial loss on account
of non-payment of 50% amount of gratuity and
pension almost for a period of 18 years, we are
of the considered view that ends of justice would
be met by accepting the undertaking given by the
petitioner and setting aside the punishment and,
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to that extent, the order of the MAT affirming
action of the respondents. It is declared that
the petitioner would not be entitled to claim
arrears of any monetary benefits for the period
prior to the pronouncement of this judgment and
further declare that petitioner shall be entitled
st
to full pension with effect from 1 April, 2009.
34. In the result, petition is partly
allowed. Rule is made absolute in terms of this
order with no order as to costs.
(MRIDULA BHATKAR,J.) (V.C.DAGA,J.)
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