1 W.P. 3071/1994 - ( J ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.3071 OF 1994 Bapurao S/o Shamrao Udas Age : 35 Yrs., Occ. Service, R/o : At present Village Dhoki, Tq. & Dist. Osmanabad. .. PETITIONER VERSUS 1. The State of Maharashtra Through Govt. Pleader, High Court of Bombay, Bench at Aurangabad. 2. The Managing Director Maharashtra State Seeds Corporation Ltd., Akola. 3. The Regional Manager Maharashtra State Seeds Corporation Ltd., Regional Office at Parbhani. ... RESPONDENTS Mr. N.P.Patil, Advocate for petitioner. Mr. K.G.Patil, Assistant Govt. Pleader for State. Mr. S.S.Choudhari, Advocate for respondent no. 2. 2 W.P. 3071/1994 - ( J ) CORAM : B.R.GAVAI & S.V.GANGAPURWALA, JJ. DATE : 28/06/2010 JUDGMENT : [ PER - S.V. GANGAPURWALA, J. ] 1. The petitioner herein takes exception to the order dated 6/8/1994 issued by respondent no. 2 dismissing the petitioner from service. 2. The petitioner is an employee of respondent no. 2. The petitioner at the relevant time was working as in-charge Godown Keeper of Seed Processing Plant at Dhoki. The petitioner was on leave from 26/12/1990 to 1/1/1991. The petitioner resumed his duties on 1/1/1991 at 2.00 p.m. According to the petitioner, after he resumed his duties on 1/1/1991 at 2.00 p.m., the Plant Officer brought to his notice that 10.38 Quintals Sunflower of Modern Seed was found less in the godown. Pursuant thereto, the petitioner verified the stock in the store and also found that 11.5 Quintals of BDN-2 Toor Seed is also missing. The petitioner brought this fact to the notice of Plant Engineer vide letter dated 7/1/1991. On 1/1/1991, police complaint was lodged in Dhoki police station about the theft. 3. The petitioner was tried by the Chief Judicial Magistrate, 3 W.P. 3071/1994 - ( J ) Osmanabad for the offence of theft and criminal breach of trust. The Magistrate acquitted the petitioner by his Judgment dated 6/12/199. 4. Respondent no. 2 directed departmental enquiry against the petitioner on charges of the alleged theft and misconduct in refusing to accept the office order dated 5/4/1991. 5. The Enquiry Officer submitted his report to respondent no. 2. Respondent no. 2 issued show cause notice to the petitioner. The petitioner submitted his reply. Respondent no. 2 thereafter dismissed the petitioner from service. 6. Mr. Patil, the learned counsel for the petitioner submitted that - (i) The Enquiry Officer had specifically come to the conclusion that the charge no. 1 i.e. of theft could not be proved, still as Mr. Udas i.e. the petitioner has given written undertaking for moral acceptance of the responsibility of theft under pressure, he has been held guilty. In said undertaking, the petitioner has nowhere admitted his alleged guilt. (ii) The charge no. 2 of misconduct is also not proved. More 4 W.P. 3071/1994 - ( J ) over, even if it is assumed that same is proved, then still the punishment imposed is too disproportionate. The said charge is of trifle nature. (iii) The petitioner is acquitted by the criminal Court and the Enquiry Officer also has held that the involvement of the petitioner in the alleged theft can not be proved. As such, the petitioner could not have been removed from the service. More over, he contended that the said undertaking that has been relied upon can not be useful to fasten the criminal liability. The undertaking also specifically says that the petitioner is accepting the administrative responsibility and it was only regarding the payment of the amount. According to him, the petitioner has no bargaining power and as such had given the said undertaking in duress. He had never admitted commission of an act of theft. He has further submitted that the punishment imposed is disproportionate to the act alleged. 7. Mr. Choudhari, the learned counsel for the respondent submitted that the petitioner had given an undertaking, he had accepted the commission of the said act. The commission of the act of theft is a serious offence and the petitioner has been rightly dealt with after following due procedure of law. According to him, the order impugned is perfectly legal and valid and does not suffer from 5 W.P. 3071/1994 - ( J ) any illegality. 8. Before adverting to the arguments of the respective counsels, it would be appropriate to reproduce the undertaking given by the petitioner and the charges against the petitioner. ON STAMP PAPER OF Rs. 10/- UNDERTAKING TAKEN BY : 1. Sanjay P. Shirsikar District Manager, Maharashtra State Seed Corpn. Ltd., Latur, Age : 32 Years. 2. Laxman Govind Hande Incharge Officer, Seeds Processing Plant, Dhoki, Age : 28 Years. GIVEN BY : Shri. Bapurao Shamrao Udas, Age : 32 Years, Occ. Jr. Clerk, Incharge Godown Keeper,Seeds Processing Plant, Dhoki. I, Bapurao Shamrao Udas, Age : 32 Years, Occ. Jr. Clerk and Incharge Godown Keeper, 6 W.P. 3071/1994 - ( J ) Seeds Processing Plant, Dhoki do hereby state on oath that I am working as a Jr. Clerk at Seeds Processing Plant, Dhoki in pursuance of the office order dated 13/8/1989 bearing No. 780/MSSC/SPP/Dhoki/ incharge/Processing/89 and also in pursuance of the order dated 7/5/1989 bearing No. 280/MSSC/SPP/Dhoki/Incharge/Processing/90. In pursuance of these orders, my duties are to accept the seed plants, which are received at the Centre for processing and to store these seeds in Godown and to keep record and to take entries of the seed and to deliver these seeds as per the directions given by the higher officer and to keep record of incoming and outgoing seeds in Godown. As per the letter dated 9/1/1991, given by me to you I further state on oath that on 1/1/91, in the godown no. 7 of Seeds Processing Plant, Dhoki it is found that a quantity of 10.38 Qntls. Of Sunflower seed less and on 7/1/91, a quantity of 10.80 Quintle of Tur seed was found less. The responsibility of missing seeds is one me and therefore, I am accepting the said administrative responsibility. As per your letter dated 9/1/1991, now I am ready to pay and deposit Rs. 27,575.04 Ps. (Rupees Twenty Seven Thousand Five Hundred Seventy Five and Paise Four only ) before the Maharashtra State Seeds Corporation Ltd., Latur and there is no grievance about the same. This undertaking given by me as per my free will and same can be used for legal purpose. 7 W.P. 3071/1994 - ( J ) Dated : 10/1/1991 sd/- ( Bapurao Shamrao Udas) Store Keeper/ Incharge Godown Keeper, Seeds Processing Plant, Dhoki. Before : Manikrao Madhav Dombe Bapurao Shamrao Udas sd/- Tahsildar, Osmanabad. The charges framed against the petitioner are reproduced below : 1) It has been brought to the notice of Management that about 10.38 Qtls. Sunflower Morden seed 10.80 Qtls. Certified Tur BDN-11 Seed amounting to Rs. 27,575.04 were found stolen on 1/1/1991, which was kept under his control as Godown Incharge in the godown at Seed Processing Plant, Dhoki. In the preliminary enquiry conducted into the matter by Shri. N.N.Babhulkar, Ex-Quality Control Manager, he accepted responsibility for loss of seed as mentioned above in writing and agreed to 8 W.P. 3071/1994 - ( J ) deposit the amount to the extent of loss of Rs. 27,575.04 on stamp paper on dated 10/1/1991. The Management, therefore, holds him responsible for the theft of 10.38 Qtls. Sunflower Morden unprocessed seed and 10.80 Qtls. Certified Tur BDN-II seed occured from MISSC seed proceeding plant godown, Dhoki. 2) Shri. B.S. Udas, Jr. Clerk has refused to accept this office order dated 5/4/1991 which also amounts to misconduct ” . 9. It is undisputed that the petitioner was on leave from 26/12/1990 and he joined the duties on 1/1/1991 in the afternoon and on the same day only it was brought to his notice that 10.38 Quintals Sunflower seed was found less in the godown. In the departmental enquiry which was conducted, the evidence of one Mr. Patil working as J.P.A. at Dhoki was recorded, who categorically stated that the present petitioner is not at all concerned with the theft case directly or indirectly. The other witnesses i.e. Mr. Hande and Mr. Shirsikar are also not eye witnesses to the theft. Mr. Hande has stated that as the petitioner has given an undertaking, the petitioner has accepted the guilt. Mr. Shirsikar also stated that the working of petitioner was found satisfactory. According to him, the petitioner may be involved in the case of theft along with other daily 9 W.P. 3071/1994 - ( J ) wages workers as reported by Mr. Hande. 10. After scrutinizing the evidence, the Enquiry Officer also came to the conclusion that the charge of theft can not be proved against Mr. Udas, but only on the basis of undertaking he comes to the conclusion that the petitioner has accepted the responsibility of theft. As far as charge no. 2 is concerned, the same is of triffle nature i.e. of refusing to accept the office order dated 5/4/1991. 11. On perusal of the undertaking, it is clear that the petitioner has nowhere admitted his guilt. As a conscientious person, the petitioner has accepted the moral administrative responsibility and had agreed to make good the loss that may have occured. He has nowhere accepted that he has committed the theft. The said undertaking will have to be read as a whole. The same was given at the behest of the employer, which can very well be seen from the narration of the names of parties. It states that it is given by the petitioner and taken by the respondents. An employee who is under the threat of loosing his service, shall not have any bargaining power and will always be at the dictate of the authorities. More over, even if the undertaking is read as it is, still it nowhere says that the petitioner has accepted the guilt of theft. Even the Enquiry Officer has come to the conclusion that charge of theft can not be proved against the 10 W.P. 3071/1994 - ( J ) petitioner. In such circumstances, it was erroneous on the part of respondent no. 2 to come to the conclusion that the petitioner is a dishonest person. As far as second charge is concerned, the same is of triffle nature and punishment of dismissal from service is too disproportionate. 12. It is a settled proposition of law that the Wednesbury principle of unreasonableness has been substituted by the doctrine of proportionality. The punishment has to be commensurate and proportionate to the charge levelled. The charge of theft is not proved and simply on the basis of the charge of not accepting the office order, dismissal of service is too disproportionate, so also, is not reasonable. 13. In light of the above, we set aside the order of dismissal. 14. Though, we are setting aside the order of dismissal, payment of back wages can not be ordered as a matter of course. The law requires that the person seeking back wages should plead and prove that he was not gainfully employed during the said period. In the present case, there is no pleading nor any evidence on record to show that the petitioner was not gainfully employed at the relevant time. As there is no whisper about this factum, we are not inclined 11 W.P. 3071/1994 - ( J ) to grant the back wages. As such, we pass the following order. (i) Rule is made absolute in terms of prayer clause ‘ B ’. (ii) The petitioner is directed to be reinstated immediately with continuity in service for all the purposes, including retiral benefits, if any. However, for the reasons stated in the body of the Judgment, the claim of the petitioner for back wages is rejected. (iii) However, there shall be no order as to costs. [ S.V. GANGAPURWALA ] [ B.R.GAVAI ] JUDGE JUDGE knp/WP 3071.1994