AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.6000 OF 2007 Mr. V.D. Haldavnekar, adult, Indian Inhabitant, Occupation : Retired from service, residing at A/5, Shivranjani Co-operative Housing Society Limited, 7/A, N.S. Mankikar Marg, Sion, Mumbai – 400 022. ) ) ) ) ) ) ... Petitioner Versus 1. Municipal Corporation of Greater Bombay, Mahapalika Marg, Mumbai – 400 001. ) ) ) 2. The Commissioner, Municipal Corporation of Greater Bombay, Mahapalika Marg, Mumbai – 400 001. ) ) ) ) ... Respondents Ms. Uma Wagle for the petitioner. Mr. S.S. Pakale with Mr. R.A. Malandkar for the respondent. CORAM : SMT. RANJANA DESAI & A.A. SAYED, JJ. DATE ON WHICH THE JUDGMENT IS RESERVED : 24TH SEPTEMBER, 2009. DATE ON WHICH THE JUDGMEMT IS PRONOUNCED : 8TH OCTOBER, 2009. AJN 2 JUDGMENT.:- (Per Smt. Ranjana Desai, J.) 1. Rule. The respondents waive service. By consent of the parties, taken up for hearing forthwith. 2. The petitioner retired as an Assistant Engineer of respondent 1 i.e. the Municipal Corporation of Greater Bombay on 1/10/1999 on superannuation. A report was submitted by the then Executive Engineer Mr. More to the General Manager (A), Deonar Slaughterhouse stating that while the petitioner was working as the Deputy Engineer (Stores), Intent dated 28/10/1997 was placed before him for taking supply of furnace oil. On 14/3/1997 in the mid- night at about 1.00 hours, contractor M/s. Star Roadlines supplied furnace oil of M/s. Hindustan Petroleum Corporation. The contractor certified that 10,000 liters of furnace oil was supplied. However, in fact, 8,000 liters of furnace oil was found to have been supplied. The report further stated that as a result, the Municipal Corporation suffered financial loss. Preliminary inquiry was carried out AJN 3 which prima facie disclosed that the petitioner was guilty of serious misconduct. In view of this report, the Deputy Commissioner (Special Engineering) by his order dated 3/10/1998 initiated a comprehensive inquiry. 3. Accordingly, charge-sheet dated 22/6/1999 was served on the petitioner. The petitioner submitted a reply on 19/7/1999. After considering the petitioner's reply, his final statement dated 17/5/2005, inquiry report and the subsequent reply given by the petitioner dated 25/7/2005, the charges levelled against the petitioner were held to be proved and thereby the Deputy Commissioner (Special Engineering) by his order dated 8/8/2005 directed that an amount of Rs.14,944.02 being the loss suffered by the Municipal Corporation be recovered from the petitioner. The General Manager (A), Deonar Slaughterhouse issued punishment order dated 18/8/2005 stating that an amount of Rs.14,944.02 be recovered from the amount due and payable to the petitioner on his retirement. AJN 4 4. The petitioner challenged the said order. The appeal was dismissed by the Municipal Commissioner by his order dated 22/6/2007. The petitioner has challenged in this petition, order dated 18/8/2005 issued by the General Manager (A) Deonar Slaughterhouse and order dated 22/6/2007 passed by the Municipal Commissioner of Greater Mumbai. 5. We have heard Ms. Wagle, learned counsel appearing for the petitioner at some length. Ms. Wagle submitted that the respondents erred in holding the petitioner guilty. She submitted that taking supply of furnace oil was the duty of store clerk or store assistant. It is only on the request of the seniors that on the particular date, the petitioner took the supply of furnace oil as per the procedure adopted by the petitioner's office. The respondents failed to appreciate that it was for the first time in his entire tenure that the petitioner was receiving furnace oil and, that too, at the request of his senior. The respondents failed to appreciate that there were two AJN 5 tanks for storing the furnace oil and the consolidated capacity of the same was about 15,000 liters. The two tanks were interconnected and, therefore, it is wrong to observe that the petitioner could not have taken delivery of 10,000 liters of furnace oil because the capacity of the tank was 9,700 liters. Learned counsel submitted that the respondents ignored the fact that inventory of the second tank was not taken and that the Executive Engineer had given evidence that the boiler attendants are not qualified enough to take proper measurements of oil levels in the tank. 6. Ms. Wagle further submitted that admittedly, it is the boiler attendant who had removed furnace oil without knowledge of the store clerk and subsequently he had given requisition after it was pointed out by the petitioner to the concerned section. In that connection, learned counsel drew our attention to letter dated 15/3/1997 which is annexed to the petition at Ex-B. Learned counsel submitted that in the circumstances, the impugned orders AJN 6 should be set aside. 7. We have also heard Mr. Pakale, learned counsel appearing for the respondents. Mr. Pakale submitted that the departmental inquiry was conducted after following the due procedure. The petitioner was given adequate opportunity of hearing. The impugned orders are passed after thorough consideration of facts, the relevant documents and after taking into consideration the case of the petitioner. He submitted that the concurrent view of the authorities below does not merit any interference by this court. He submitted that the punishment imposed on the petitioner is commensurate with the nature of the allegations levelled against him. He submitted that by no stretch of imagination, it can be said that the punishment imposed upon the petitioner is disproportionate to the charge levelled against him and, hence, in writ jurisdiction, this court should not interfere with it. In this connection, he relied on the judgment of the Supreme Court in State of Gujarat v. Anand Acharya @ AJN 7 Bharat Kumar Sadhu, (2007) 9 SCC 310. He submitted that the petition, in the circumstances, deserves to be dismissed. 8. There is no dispute about the fact that at the material time, the petitioner was working as Sub-Engineer (Stores). He was in charge of all the store activities. It is, therefore, not open for him to contend that he was entrusted with the job of taking supply of furnace oil for the first time and that the store clerk or the store assistant was responsible for the same. It is inconceivable that the petitioner would not know the technical aspects of taking delivery of furnace oil. Besides, since he was holding the responsible post of Sub-Engineer (Stores), he was expected to supervise the operation of supply of furnace oil. The capacity of the tank in which the petitioner had taken delivery of furnace oil was 9,700 liters. According to respondent 2, the record shows that the second tank provided for taking supply of furnace oil was empty. There is no reason to disbelieve this AJN 8 observation. Therefore, in the nature of things, the petitioner could not have taken delivery of 10,000 liters of furnace oil. The petitioner's case that the store attendant did not check the levels, has been dealt with properly by respondent 2 in his order dated 22/6/2007. It is observed that the record makes it evident that the boiler attendant had taken levels of the storage tank before starting boiler on the very same day and, there is no material on record to show that any other person or section had consumed the furnace oil during the time from the receipt of furnace oil and measuring of levels by boiler attendant. The boiler attendant had started using furnace oil as per daily procedure. This establishes that the petitioner, in fact, did not receive 10000 liters of furnace oil. 9. We are satisfied that the departmental inquiry was conducted after following the correct procedure. Sufficient opportunity was given to the petitioner to meet the charge. Upon consideration of the entire material which included the final statement of defence submitted AJN 9 by the petitioner, findings of facts are recorded against the petitioner. It is concurrently held that the petitioner is guilty of serious misconduct and that because of him, the Municipal Corporation has suffered financial loss. No perversity is attached to the said findings warranting interference from us in our writ jurisdiction. 10. It is well settled that the court sitting in judicial review against the quantum of punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty. It is only if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, that the court would appropriately mould the relief either by directing the disciplinary / appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in a rare case and impose appropriate punishment with cogent reasons in support thereof [see Anand Acharya's case (supra)]. The punishment imposed on the petitioner viz. recovery of an AJN 10 amount of Rs.14,944.02 from the amount due to him on his retirement cannot be called shockingly disproportionate to the charges levelled against him. In the aforestated circumstances, in our opinion, no case is made out for interference. The petition is dismissed. [SMT. RANJANA DESAI, J.] [A.A. SAYED, J.]