- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2751 OF 2003 Poornanand Shivajirao Giakwad. ...Petitioner VS. 1.State of Maharashtra & ors. ...Respondents --- Mr.M.S.Topkar, for Petitioner. Mrs.S.S.Bhende, AGP for Respondents. CORAM: D.K.DESHMUKH & CORAM: D.K.DESHMUKH & CORAM: D.K.DESHMUKH & V.M.KANADE, JJ. V.M.KANADE, JJ. V.M.KANADE, JJ. DATED: 20th February,2008. DATED: 20th February,2008. DATED: 20th February,2008. P.C. P.C. P.C.: 1. By this petition, the petitioner challenges the order passed by the Maharashtra Administrative Tribunal in original application no.552 of 2000 on 21.9.2001. By that order the tribunal has dismissed the original application filed by the petitioner. In the original application filed by the petitioner, the petitioner challenged the order imposing punishment of removal from service as also the order of revisional authority and the appellate authority - 2 - confirming the same. The petitioner was appointed as workshop hand in police wireless on 7.10.1978 . He was holding class III post. The department has initiated inquiry against him by order dated 28.11.1991. The only charge levelled against the petitioner was that he was having illicit relations with one Prabhavati Bapusaheb Baigade and he has ill-treated his wife and sent her to her parent’s house. In the chargesheet reliance was placed on the Maharashtra Civil Services (Discipline and appeal) rules and not on the Bombay Police Act and the rules framed thereunder. The departmental inquiry was held and the inquiry officer submitted his report holding that the chargesheet has been proved. The disciplinary authority accepted the finding and imposed punishment of removal from service on the petitioner. The appellate authority and the revisional authority have confirmed the order. The petitioner then approached the Maharashtra Administrative Tribunal. One of the points raised before the Maharashtra Administrative Tribunal was that the Maharashtra Civil Services (discipline & appeal) Rules are not applicable as the petitioner is the member of police force, and it is Section 25 of the Bombay Police Act which applies, and therefore, unless the alleged conduct is in - 3 - relation to the duties of the petitioner, it cannot be treated as misconduct. The Maharashtra Administrative Tribunal as observed above has dismissed the original application. The petitioner is challenging that order in this petition. 2. Heard the learned Counsel appearing for both the sides. The learned Counsel appearing for petitioner referring to the provisions of Section 25 of the Bombay Police Act submits that according to that provision punishment as mentioned in sub-section (1) of section 25 of the Act can be imposed upon an Inspector or any member of the subordinate ranks of the police force who in the opinion of the State Government or such authorised officer, is cruel, perverse, remiss or negligent in, or unfit for, the discharge of his duties. Therefore, the cruel conduct which is alleged must have nexus with his duties and then only punishment can be imposed. According to the learned Counsel, therefore, for the conduct which is alleged, punishment could not have been imposed. The learned Counsel appearing for respondents on the other hand submits that the misconduct alleged against the petitioner can be basis of punishment. She submits that ill-treating wife and having illicit relations with some other - 4 - woman is the conduct unbecoming of public servant and therefore, according to him, the Government was justified in imposing punishment and the Maharashtra Administrative Tribunal was also justified in dismissing the original application filed by the petitioner. 3. Now if in the light of these rival submissions, the record is perused, it is common ground that the petitioner being a member of the police force, it is sub-section (1) of Section 25 of the Bombay Police Act which will not attract. Sub section (1) of Section 25 of the Act reads as under:- "25(1) The State Government or any officer authorised under sub-section (2), in that behalf, may impose upon an Inspector or any member of the subordinate ranks of the Police Force, who in the opinion of the State Government or such authorised officer, is cruel, perverse, remiss or negligent in, or unfit for, the discharge of his duties, any one or more of the following penalties, namely :- - 5 - (a) recovery from pay of the whole or part of any pecuniary loss caused to Government on account of the negligence or breach of orders on the part of such Inspector or any member of the subordinate rank of the Police Force; (b) suspension; (c) reduction in rank, grade or pay, or removal from any office of distinction or withdrawal of any special emoluments; (d) compulsory retirement; (e) removal from service which does not disqualify for future employment in any department other than the Police Department; (f) dismissal which disqualifies for future employment in Government service; Provided that, suspension of a police officer pending an inquiry into his conduct or investigation of a complaint - 6 - against him of any criminal offence shall not be deemed to be a punishment under clause (b)." Perusal of the above quoted provision shows that the punishments which are mentioned in that section can be imposed on an Inspector or any member of the police force holding subordinate rank, if in the opinion of the State Government or in the opinion of the authorised officer that servant is cruel, perverse, remiss, or negligent in, or unfit in the discharge of his official duties. Therefore, the conduct which is to be made basis of the punishment should have nexus with discharging of duties by the concerned member of the police force. Perusal of the order of the Maharashtra Administrative Tribunal shows that attention of the Tribunal was invited to the provisions of Section 25 of the Bombay police Act but it appears from the order that the Tribunal misread the provisions of Section 25 of the Act. In paragraph 7 on page 9 of the order, it is recorded that the conduct of the petitioner was cruel or perverse as contemplated by Section 25 of the Bombay police Act, but the Tribunal ignores that the cruel or perverse conduct has to be in discharge of official duties by the member of a police force. The - 7 - Tribunal has held that the conduct of the petitioner was "unbecoming of a Government servant" and therefore, in view of the provisions of Maharashtra Civil Services (Conduct) Rules and Maharashtra Civil Services (Discipline and Appeal) Rules,1979 the petitioner should have been punished. In our opinion, the provisions of the Maharashtra Civil Services (Conduct) Rules, even if they are held to be applicable, will apply only to the extent of the consistency with the provisions of the Bombay Police Act. When there is clear cut provision in the Bombay Police Act that the conduct on the basis of which punishment can be imposed must have nexus with the duties then any provision in the Maharashtra Civil Services Rules which provides otherwise will not be applicable. Perusal of Rule 3 of the Maharashtra Civil Services (Discipline & Appeal) rules shows that those rules do not apply to the police inspectors or a member of police of subordinate ranks as defined in clause (16) of section 2 of the Bombay Police Act,1951. Thus, the provision of Maharashtra Civil Services (Discipline and appeal) Rules are not applicable and therefore, the Tribunal was not justified in placing reliance on those rules. In our opinion, considering the nature of the conduct alleged against the petitioner and the provision of - 8 - sub-section (1) of Section 25 of the Bombay Police Act, it could not have been held that the petitioner is guilty of any misconduct. The order imposing punishment of removal from service, in our opinion, is therefore, liable to be set aside. 4. In the result therefore, the petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (a). The consequence of setting aside the order of removal of the petitioner from the service, obviously to reinstate him in the service with full backwages. However, we have no material before us to show whether the petitioner is gainfully employed during the period when he was removed from service till he reinstates. Therefore, in our opinion, the following order would meet the ends of justice in so far as the backwages is concerned:- . The petitioner is entitled to full backwages but the Government will hold inquiry to find out whether the petitioner was gainfully employed during the period from the date of removal till he is reinstated. If it finds that the petitioner was gainfully employed, the wages that were earned during that period shall be deducted from the amount of - 9 - backwages payable to the petitioner. . The respondent-State Government shall implement the order of reinstatement of the petitioner as expeditiously as possible in any case within a period of six weeks from today. . So far as the inquiry for backwages is concerned, the petitioner will file his affidavit before the disciplinary authority within a period of two weeks from today. That officer shall thereafter hold inquiry and compute the amount of backwages to which the petitioner is entitled within a period of six weeks from the date of filing of affidavit, and payment of backwages will have to be made within a period of four weeks thereafter. . The petition is disposed of. (D.K.Deshmukh, J.) (V.M. Kanade, J.) - 10 - ---