1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE Writ Petition No.6512 of 2003 Chandrakant Raghunath Puntambekar. .. Petitioner V/s. Malegaon Municipal Council & ors. .. Respondents Mr.P.M. Pradhan for petitioner. Mr.Suresh M. Sabrad for respondent nos.1 & 2. Mr.P.P.Kakade, AGP for respondent no.3. ----- CORAM : SMT.RANJANA DESAI & SMT.ROSHAN DALVI, JJ. Date of reserving the judgment : 11th February 2008 Date of pronouncing the judgment : 3rd March, 2008 JUDGMENT : (Per Roshan Dalvi, J.) 1.The petitioner has challenged the order of his dismissal which has been upheld in appeal under the order dated 3.4.2002 passed by the Administrator of the Malegaon Municipal Council (MMC). 2.The petitioner served in MMC as Recovery Superintendent in the Tax Recovery Department. His main duty and function was to assess the properties for rateable value and to fix, determine and collect the property taxes therefrom. The petitioner was provided with statements giving the guidelines 2 showing the values of certain properties, upon which he has to fix the ratable value. 3.A complaint was filed against the petitioner in April 1998, essentially contending that his fixation of rateable value was not as per the guidelines but was much lower resulting in loss in revenue. 4.Upon auditing being carried out, the internal Auditor of MMC pointed out in his letter dated 20th May 1998 that the petitioner was responsible for certain erasures in the records maintained by him with regard to several properties under his jurisdiction. 5.The petitioner was suspended on 25.5.1998. An enquiry was instituted by the decision taken on 3.11.1998. The petitioner was informed of the said decision taken under Rule 8 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (the said Rules). 6.On 9.11.1998, the petitioner called upon the Inquiry Officer to furnish certain documents and stated that the Auditor was vindictive against him and denied the allegations to the various charges made against him in the enquiry. 3 7.On 12th November 1998, the respondents called upon the petitioner to specify the documents required by him so that copies could be supplied to him. On 19th November 1998, inspection of all the documents was offered to the petitioner. The petitioner has contended that all the documents were not given to him. It is seen that all the documents were offered for inspection. 8. On 21st November 1998, the petitioner applied for being permitted to engage a lawyer, which application has been rejected since the Presenting Officer also was not allowed to be represented by a lawyer. 9.The enquiry was held as per the provisions contained in Rule 8 of the said Rules. Nine witnesses on behalf of the Council and three witnesses on behalf of the petitioner have been examined, cross-examined and some of them are re- examined. The Inquiry Officer recommended the petitioner's dismissal. The petitioner came to be dismissed on 3rd April 2002. He filed an appeal therefrom in which his dismissal was confirmed and which order is impugned in this petition. 10.It is the petitioner' s contention that principles of natural 4 justice have not been fully followed. It is seen that the petitioner has been issued notice of the enquiry, pursuant to which he has appeared. He has been treated on par by the Presenting Officer as per the said Rules – none has been afforded the services of a lawyer. The petitioner has produced his witnesses and has cross-examined the witnesses of the Council. The petitioner has also been heard by the Inquiry Officer. His say has been considered. The petitioner has replied thrice to the notices issued upon him during the course and after the enquiry. The petitioner has filed his reply to the initial notice, written statement in the enquiry and a reply to the final notice relating to the punishment to be imposed upon the findings returned by the Inquiry Officer. We fail to see how the provisions of natural justice can be said not to have been complied with. 11.It is essentially the petitioner's case that the Auditor Mr.S.K. Mali, who served in the Audit Division of the MMC, was vindictive towards the petitioner and had conducted the preliminary enquiry against the petitioner. It is the petitioner's case that as per the Resolution of the MMC dated 10.4.1981, the officer conducting the preliminary investigation should not be the Presenting Officer in the case as he may be required to be called in the enquiry as a 5 witness. We have gone through the resolution. We do not find any mandate therein which could be applicable to all cases. We must see why only the Auditor was appointed as Presenting Officer. It is contended on behalf of the respondents, and which stands to reason, that he was the only person who could effectively conduct the proceedings in the enquiry so as to bring to light the irregularities committed by the petitioner in fixing of the lesser ratable value so as to lessen the recovery of the Council. The charge against the petitioner is essentially of misappropriation by manipulation. This fact has also been observed in the judgment and order of the Division Bench in an earlier writ petition filed by the petitioner pending the enquiry and pursuant to which, the enquiry was directed to be continued after hearing the petitioner, which exercise has been completed. A reading of that order shows that the petitioner had not pressed this issue in that writ petition. The essential charge against the petitioner is causing a financial loss to MMC. Action under Rule 75 of the Accounts Code is taken. The manipulations of the petitioner in various records were to be shown to the Inquiry Officer and considered. The loss, which could be caused to the Municipal Council, was to be recovered from the petitioner. Consequently, it is the case of the respondents that only the 6 internal Auditor, who served in Audit Division of the Council itself, would be the appropriate person to put forth the case against the petitioner. It has been contended on behalf of the petitioner that he had made grievances about harassment caused by the said Auditor, who was made the Presenting Officer in the enquiry against him. It must be appreciated that the work and function of the petitioner as the Superintendent in the Tax Recovery Department, could be assessed and evaluated by no other than the Auditor. Hence, if the petitioner misconducted himself, it would only be the Auditor who could point out the petitioner' s misconduct or direct him or correct him. That alone would not tantamount to harassment. No specific acts of harassment have been shown by the petitioner. The Auditor alone can conduct the preliminary investigation to come to a prima facie conclusion upon seeing the misappropriation done by the petitioner by manipulation of the entries in the various registers upon considering the guidelines and statements of the Council. The petitioner' s case that the enquiry stands vitiated because the Auditor conducted the preliminary enquiry and was the Presenting Officer, therefore, completely lacks substance. 12.The distinction between the two functionaries can be made 7 in appropriate cases where more than one officer could effectively carry out the investigation and the enquiry. If there is only one officer, who has the particular expertise to evaluate the specific act of misconduct such as misappropriation by manipulation of records, he would be the only appropriate officer to serve the Council in both capacities. Essentially, the enquiry against the petitioner was with regard to re-valuation of the 4th year House Tax for the years 1997-98 to 2000-2001, during which the petitioner has been seen to have made less assessment for various properties by tampering with the assessment register without any concrete reasons and thereby causing financial loss to the MMC. None other than the Auditor could bring such conduct to light. He would, therefore, be the only appropriate officer to conduct the enquiry, whether or not he had conducted the preliminary investigation also. 13.We find that the petitioner has been given right of hearing. We also find that the petitioner was offered inspection of all the documents. We find no substance in the specific grievance that the Presenting Officer was not eligible to be such due to the fact that he had conducted the preliminary investigation. 8 14.Consequently, we find no merit in the petition. The order of dismissal confirming the appeal, which is impugned in this petition, does not require any interference. The writ petition is, therefore, dismissed. Rule stands discharged accordingly. There shall be no order as to costs. (SMT.RANJANA DESAI, J.) (SMT.ROSHAN DALVI, J.)