1 lgc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 6525 OF 2002 Shri Premchand Balaram Pardeshi : Petitioner versus The State of Maharashtra and ors. : Respondents. Mr. N V Bandiwadekar for the Petitioner. Mr. V S Gokhale, AGP for the Respondents/State. CORAM : P B MAJMUDAR & R M SAVANT, JJ. DATE : 14th June 2010 ORAL JUDGMENT : [PER R.M.SAVANT, J] 1 This Petition filed under Article 226 of the Constitution of India takes exception to the Judgment and Order dated 23rd February 2001 passed by the Maharashtra Administrative Tribunal in Original Application No.467 of 2000 by which judgment and order, the said original application and the Misc. Application No.272 of 2000 for condonation of delay came to be rejected. 2 The factual matrix involved in the above Petition can be stated thus :- 2 The Petitioner was appointed as Guard – Class III some time in April 1980. The Respondent No.2 herein, who was the Inspector General of Prison of Yerawada Central Prison, placed the Petitioner under suspension by an order dated 25.11.1992 in view of Crime No.296/1992 registered against the Petitioner and three others for the offences punishable under Sections 302, 116, 120(B) and 201 of the Indian Penal Code and Sections 3, 7, 25 and 26 of the Arms Act and Sections 4 and 6 of the T.A.D.A. Act. The Respondent No.2, by virtue of the powers conferred under Article 311(2) (b) of the Constitution of India, issued an order dismissing the Petitioner. In the said order it has been recorded that it was not practicable to hold Departmental Enquiry against the Petitioner and, therefore, the authority was satisfied that the said enquiry had to be dispensed with and the authority accordingly passed the dismissal order. 3 In so far as the criminal case is concerned, the matter went to trial and the Petitioner came to be discharged from the said criminal case by the learned IInd Additional Sessions Judge, Pune. It appears that other three accused also came to be discharged along with the Petitioner. Thereafter on 3rd January 2000, in view of the discharge from the said Criminal Case, the Petitioner made a representation to the Respondent No.2 for reinstatement in service. Since the said request was not acceded 3 to by the Respondents, the Petitioner filed an Application being Original Application No.467 of 2000 before the Maharashtra Administrative Tribunal, Mumbai for quashing and setting aside the order of dismissal dated 6/2/1993. Since there was a delay in filing the said Original Application, the Petitioner filed Misc. Application No.272 of 2000 for condonation of delay. In so far as the case of the Petitioner before the Tribunal was concerned, the Petitioner for seeking the said relief of quashing and setting aside the dismissal order dated 6/2/1993, the Petitioner relied upon the order passed by the Tribunal in the Original Application filed by his co-accused S D Kadam and Garewal. It was the case of the Petitioner that the Tribunal had quashed and set aside the dismissal order passed against the said delinquents after they were acquitted in the criminal case. The Application for condonation of delay as well as the Original Application filed by the Petitioner were opposed by the Respondents by filing their affidavit in reply. The Tribunal by the impugned judgment and order dated 23rd February 2001 dismissed the said Original Application as barred by limitation and, however, though the Original Application was dismissed on the point of limitation, the Tribunal embarked upon an exercise of adjudication of the claim of the Petitioner on merits and also rejected the said claim of the Petitioner. As indicated above, it is the said order dated 23rd February 2001 which is the 4 subject matter of the above Petition. 4 In so far as the condonation of delay aspect is concerned, the Tribunal found the reasons mentioned by the Petitioner for condonation of delay as not acceptable. The Tribunal was of the view that the Petitioner was released on bail on 7th September 1993 and as such from 23rd September 1993, the Petitioner was out of jail. The Tribunal was therefore of the view that since the Petitioner was on bail from 7th September 1993, there was no justification for filing the said Original Application in the year 2000 i.e. after period of seven years. The Tribunal, therefore, rejected the Misc. Application for condonation of delay and resultantly held that the said Original Application is barred by limitation. 5 In so far as the aspect of dispensing with the enquiry is concerned, the Tribunal was of the view that the reasons for dispensing with the enquiry have been recorded in writing and the said reasons satisfied the test laid down in Article 311(2)(b) of the Constitution of India. The gravamen of the allegations against the Petitioner in the said Criminal Case was that he was colluding with one Jinda and Sukha who were the dreaded terrorists and who were pressing for delivery of a 5 revolver and Rs.5000/- through the Petitioner from one Uday Pawar who had received the same from Amritsar by parcel. The said Uday Pawar was a servant of the Petitioner in the laundry shop owned by him at Kasba Peth, Pune. Since the said terrorists Jinda and Sukha were hanged on 9th October, 1992, the authority had reached to a subjective satisfaction that it was not possible to hold departmental enquiry against the Petitioner. The Disciplinary Authority has mentioned in the order that it was impossible to hold an enquiry in the light of the said facts. The Disciplinary Authority had reached the said conclusion on the basis of the facts which were before it. As the material witnesses Jinda and Sukha had been hanged, the Tribunal found that the reasons for dispensing with the enquiry as given in the order of dismissal are germane to the issue. The Tribunal was therefore of the view that the order passed way back in the year 1993, which was even before the criminal prosecution was initiated, did not suffer from any infirmity. The Tribunal, therefore, on merits did not deem it fit to interfere with the dismissal order dated 6th February 1993. 6 We have heard the learned counsel for the parties. It is sought to be contended on behalf of the Petitioner that since the Petitioner was incarcerated after registration of the offences and since the Petitioner was 6 in jail he could not challenge the dismissal order dated 6th February 1993, and therefore, after the Petitioner was acquitted in the said criminal case that the Petitioner filed the said Original Application impugning the dismissal order. The learned counsel for the Petitioner therefore submitted that the case for condonation of delay has been made out as the Petitioner has shown sufficient cause. In so far the challenge to the dismissal order on merits is concerned, the learned counsel submitted that the case of the Respondents is that it was not reasonably practicable to hold departmental enquiry but not it was impossible to hold the enquiry. The learned counsel therefore submitted that there were other witnesses who could have been examined in respect of the charges levelled against the Petitioner. 7 The learned AGP on the other hand as regards both the aspect of the order submitted that on the facts as disclosed above the Petitioner has not shown any sufficient cause to condone the delay. He further submitted that the Disciplinary Authority had reached a subjective satisfaction on the basis of the material that was produced before it that it was not reasonably practicable to hold enquiry and this Court under 7 Article 226 of the Constitution of India would not interdict with the said order. 8 Taking the first submission as regards condonation of delay it is undisputed that the Petitioner was on bail from 7th September 1993 and therefore the Tribunal was right in holding that nothing prevented the Petitioner to file proceedings challenging the said order of dismissal. The reasons given by the Petitioner that he was incarcerated and therefore he could not file the proceedings before the year 2000 therefore cannot be accepted. In that case, the Petitioner, in our view, has failed to show any sufficient cause for condonation of a huge delay of seven years in filing the said Original Application. Therefore we cannot find any fault with the order of the Tribunal or approach of the Tribunal in dealing with the said issue of condonation of delay and therefore on the said aspect the order of Tribunal does not call for any interference at our hands in our extra ordinary jurisdiction under Article 226 of the Constitution of India. 9 Since the Tribunal has also considered the matter on merits, we have also examined the matter from that angle. As postulated in Article 311(2)(b) of the Constitution of India if the Disciplinary Authority 8 is satisfied on the basis of the material which is on record to dispense with the enquiry for the reasons to be recorded in writing, then an order could be passed dispensing with the services of an employee by having recourse to the said provision. The question is whether in the facts and circumstances of the present case, invoking of Section 311(2)(b) was justified. It would be significant to note that the gravamen of the allegations against the Petitioner was his collusion with one Jinda and Sukha who were dreaded terrorists and at the relevant time incarcerated in the Yerowada Jail as they were the main accused in a criminal case. It was alleged against the Petitioner that on account of his relations with the said terrorists Jinda and Sukha and with a view to help them he had given the name of his servant Uday Pawar and the address of his laundry at Kasba Peth Pune where the parcel sent for the said terrorists could be received. It was also alleged that a revolver and sum of Rs.5000/- which the said Jinda and Sukha were expecting to be delivered to them by the said Uday Pawar was not so delivered and therefore they were pressing for that delivery through the Petitioner. The said Jinda and Sukha at the relevant time were the dreaded terrorists and therefore since they had a prime role to play in the enquiry against the Petitioner, the Disciplinary Authority had recorded its subjective satisfaction that it was not reasonably practicable to hold an enquiry against the Petitioner and since 9 by that time Jinda and Sukha were hanged pursuant to their conviction. The submission of the learned counsel for the Petitioner that the authority had only held that it was not reasonably practicable to hold enquiry but not impossible to hold enquiry and therefore the punishment invoking Article 311(2)(b) of the Constitution of India cannot be sustained on that count. In our view the said submission cannot be countenanced for two fold reasons. Firstly as postulated in Article 311(2) (b) of the Constitution of India the Disciplinary Authority had reached the said conclusion on the basis of the material before it, we are satisfied that the said satisfaction has been reached by the authority on the basis of the facts which were germane at the relevant time. The finding of the authority that it was not reasonably practicable to hold an enquiry in our view also takes within it sweep the impossibility of holding the enquiry when two dreaded terrorists were involved, who were subsequently hanged. It, therefore, cannot be said that the satisfaction of the authority was reached on the basis of the material which was irrelevant or by not taking into consideration material which was relevant. We therefore do not find any infirmity in the said order dated 6th February 1993 on that count. Therefore on both the counts i.e. on the ground of limitation as well as on merits the impugned order of the Tribunal does not call for interference. We are therefore of the view that this is not a case where we 10 should exercise our writ jurisdiction under Article 226 of the Constitution of India. The above Petition is accordingly dismissed. Rule discharged with no order as to costs. [R.M.SAVANT, J] [P.B.MAJMUDAR, J]