1 W.P. 604/1994 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 604 OF 1994 1. Dattatraya S/o Dada Nagude Age : 24, Occ. : Agril. R/o : Koregaon, Tq. Shrirampur, Dist. Ahmednagar. 2. Sanjay S/o Dada Nagude Age : 22, Occ. : Agril. R/o : Koregaon, Tq. Shrirampur, Dist. Ahmednagar. 3. Anil S/o Dada Nagude Age : 20, Occ. : Agril. R/o : Koregaon, Tq. Shrirampur, Dist. Ahmednagar. .... PETITIONERS VERSUS 1. The State of Maharashtra Through its Secretary Rural Development Department, Mantralaya, Bombay – 32. 2. The Zilla Parishad Through its Chief Executive Officer, Ahmednagar. 3. The Chief Executive Officer Ahmednagar. ..... RESPONDENTS 2 W.P. 604/1994 - ( J ) -------------------------------------------------------------------------------------------------------- Mr. S.B.Talekar , Advocate for the petitioners. Mr. K.B.Choudhari , Additional Govt. Pleader for State. Mr. S.T.Shelke, Advocate for respondent no. 2. -------------------------------------------------------------------------------------------------------- CORAM : B.R. GAVAI AND S.V. GANGAPURWALA, JJ. DATE : 28/07/2010 ORAL JUDGMENT : [ PER - B.R. GAVAI, J. ] 1. By way of present petition, the petitioners challenge the order dated 18/1/1993, thereby compulsorily retiring the father of the petitioners from service. 2. The father of the petitioners namely Dada S/o Laxman Nagude was appointed as Assistant Teacher in the Zilla Parishad school on 1/6/1982. 3. The Charge sheet came to be issued to the petitioners’ father in the year 1992 on following 3 charges - (i) The defamation to the reputation of the department and teaching profession as the news item was published regarding mis-behaviour of the delinquent in drunken condition. 3 W.P. 604/1994 - ( J ) (ii) Unsatisfactory performance. (iii) Breach of discipline by attending duty in drunken condition. 4. In the enquiry conducted by the Enquiry Officer it was observed that the delinquent had admitted charge No. 2 and, therefore, the enquiry proceeded only in so far as charges 1 and 3 are concerned. Both the charges are inter-linked. The Enquiry Officer finding that in the Medical report Alcohol was not found, exonerated the delinquent of the charges. The Disciplinary authority dis-agreed with the finding of the Enquiry Officer and issued show cause notice dated 13/10/1992 calling upon the delinquent to show cause as to why he should not be compulsorily retired. The delinquent replied to the said show cause notice. By the impugned order, the explanation of the petitioner was not accepted. Hence the present petition. 5. Mr. Talekar, the learned counsel for the petitioners submits that the delinquent was acquitted of the criminal charge for the offence punishable U/s 85 of the Bombay Prohibition Act. He further submits that when the Disciplinary authority differs with the finding of the Enquiry Officer, it has to give sound and elaborate reasons as to why he dis-agrees with the finding of the Enquiry Officer. It is submitted that this has not been done in the present case. 4 W.P. 604/1994 - ( J ) 6. Mr. Talekar further submits that the Disciplinary authority has failed to take into consideration that the delinquent has not admitted the second charge. The learned counsel relies on the Judgment of the Apex Court in the case of M. Paul Anthony V/s Bharat Gold Mines Limited reported in 1999 (3) SCC – 679. 7. Mr. S.T. Shelke, the learned counsel for respondent no. 2 on the contrary submits that this Court while exercising jurisdiction U/s 226 of the Constitution of India can not sit as an appellate authority on the finding. He submits that the Disciplinary authority on the basis of the material placed before it, has rightly imposed penalty of compulsory retirement, which warrants no interference. 8. From the material on record, it can be seen that the Enquiry Officer has found that the charges are not proved. Not only that, Medical Certificate also establishes that no Alcohol was found in the petitioner’s blood. The learned counsel submits that the Criminal Court after conducting the trial also found that the prosecution has failed to prove the charges against the petitioners. 9. When the Disciplinary authority differed with the report of the Enquiry Officer, it ought to have give sound and elaborate reason as to why 5 W.P. 604/1994 - ( J ) it is not accepting with the findings of the Enquiry Officer. However, it appears that the Disciplinary authority in the present case has passed its finding on conjunctures and surmises. 10. The perusal of the entire order passed by the Disciplinary authority would reveal that the order passed was passed only on inferences. At one place, the Disciplinary authority observes that the news had appeared in the newspaper regarding the mis-behaviour of the petitioner and it is not possible that such news is false. We find that the entire approach of the Disciplinary authority was contrary to the legal position. The reliance placed by the learned counsel for the petitioner on the Judgment of the Apex Court in the case of M. Paul Anthony referred supra is well placed. In the present case also, the charges against the petitioners’ father were almost the same charges as in that case. The petitioners’ father has been acquitted in the criminal proceedings. For the said charges, the penalty of compulsory retirement could not be sustainable. 11. Assuming for a moment, the contention of Mr. Shelke that the petitioner had admitted the charge of unsatisfactory work is concerned, we find that the penalty of compulsory retirement for such a charge would not be permissible. The Apex Court in the recent Judgment has held that the punishment imposed has to be proportionate to the charges proved. We 6 W.P. 604/1994 - ( J ) find that the punishment of compulsory retirement for the charge of unsatisfactory performance would be thoroughly dis-proportionate. 12. The delinquent has died prior to filing of the petition by his legal representatives. In that view of the matter, though we are inclined to allow the petition, an order of reinstatement can not be granted. The petitioners at the most would be entitled to the salary of the delinquent till the date of his death. The petitioners’ father had also not completed the qualifying service for availing of pension. As such, prayer in respect of pension also can not be granted. 13. Rule is, therefore, made absolute in terms of prayer clause ‘ A ’ . The respondent – Zilla Parishad is directed to pay the salary to the petitioners treating the delinquent to be in service till the date of his death. [ S.V. GANGAPURWALA ] [ B.R. GAVAI ] JUDGE JUDGE knp/WP 604.94