AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.5986 OF 1998 Dilip Vamanrao Shilawant, Age adult, Occupation – Service, Presently working as Junior Engineer with Thane Municipal Corporation. ) ) ) ) ... Petitioner Versus The Thane Municipal Corporation, a statutory body under the Bombay Provincial Municipal Corporation Act, through the Municipal Commissioner, having its office at New TMC Building, Panchpakhadi, Naupada, Thane. ) ) ) ) ) ) ... Respondent Mr. K.K. Malpathak for the petitioner. Mr. R.S. Apte for the respondent. CORAM : SMT. RANJANA DESAI & A.P. DESHPANDE, JJ. DATED : 10TH AUGUST, 2006. ORAL JUDGMENT :- (Per Smt. Ranjana Desai, J.) 1. The petitioner joined the service of the respondent as Junior Engineer in the year 1985. The petitioner was posted at Zone-B in the Encroachment Division on 8/11/1995. Thereafter, he was transferred to the Encroachment Division of Public Works Department. Since then, the petitioner is working in the said capacity. AJN 2 2. The respondent - Thane Municipal Corporation decided to initiate departmental proceedings against the petitioner and, in that regard, an order dated 1/7/1996 came to be issued whereby the petitioner was informed that it was decided to initiate departmental proceedings under Rule 8 of the MCSR (Discipline and Appeal) Rule 1979 (for short, “the said Rules”). This order contained the charges. The charges were enumerated as under : CHARGE 1 - “While working as Junior Engineer, you were called upon to submit report in respect of pending cases arising out complaints made by the public at large, State of Maharashtra, Collector and Corporators about unauthorised construction. Even though, you were directed to file criminal cases against the Contractors, landlords and architects carrying out unauthorised construction, before 25.3.1996, no action was taken by you. No information was submitted on 26.3.1996 to the Commissioner as regards unauthorised construction and encroachment”. CHARGE 2 - “On 17.4.1996, demolition of dilapidated building owned by Allabax Sheikh at Thakurpada, Mumbra commenced at 11.00 A.M. under police bandobast and in the presence of Dy. Municipal Commissioner, Ward Officer and Dy. Ward Officer, Mumbra. Everyone was asked to assemble after lunch, yet, at 3.45, it was found that work of demolition of the dilapidated building has not commenced. The Ward Officer and Dy. Ward Officer when asked, informed that you, Shri Shilawant had after lunch, gone to Kausa alongwith the employees of the Encroachment Department and police bandobast to demolish another structure. When you were asked the reason for change of work without permission of the superiors and without completing demolition at Thakurpada, it was stated by you that a builder at Kausa was not paying fine [levy in respect of the illegal construction] and hence, AJN 3 had gone to demolish that structure. Due to indisciplined, insolent behaviour, the Show Cause Notice No.TMC/Dy.C/B/28 dated 18.4.1996 was issued, yet not explanation was given by you.” CHARGE 3 - “Shilawant is signing the Muster in the Ward Office and goes away without doing any office work. From 16.5.1996, he is absent without any prior intimation. Action of Shilawant discloses misuse of authority, disobedience of the directions given by the superiors, demolishing the structure without prior intimation from the superiors, avoiding to initiate criminal proceedings against contractors, landlords and architects in respect of illegal structures, not providing information to the superiors in respect of the complaints received from the public, State of Maharashtra, Collector, etc. in respect of the illegal construction.” 3. By letter dated 19/8/1996, the petitioner denied the charges. The enquiry commenced. The petitioner examined himself in the enquiry. The respondent examined three witnesses viz. Mr. R.M. Patil, the Ward Officer, Mr. B.S. Vaje, Deputy Ward Officer and Mr. V.V. Ingle, Mukadam in the Encroachment Department. After the evidence was recorded, the petitioner as well as the Presenting Officer filed their respective notes of arguments. The Enquiry Officer submitted his report dated 6/8/1997 to the respondent. The Enquiry Officer held that all the charges against the petitioner were proved and the petitioner deserved a strict punishment viz. permanent stoppage of two yearly increments from the salary. This recommendation was accompanied by reasons which prompted the Enquiry Officer to make the said report. AJN 4 4. The Enquiry Officer's report and the show cause notice were served on the petitioner on 1/1/1998. The petitioner, by his reply dated 3/1/1998 refuted all charges made against him. The Deputy Municipal Commissioner did not accept the contentions raised by the petitioner in his reply dated 3/1/1998. He accepted the findings of the Enquiry Officer and he directed permanent stoppage of two yearly increments from the petitioner's salary. 5. The appeal preferred from the said order before the Standing Committee was rejected. The petitioner has, therefore, approached this court by way of this petition. It is prayed in the petition that the order dated 19/5/1998 passed by the Deputy Municipal Commissioner as well as the order dated 27/7/1998 passed by the Deputy Municipal Commissioner be quashed and set aside and it may be declared that the charges made against the petitioner have not been proved. 6. We have heard, at considerable length, Mr. Malpathak, the learned counsel appearing for the petitioner. He contended that the charges made against the petitioners have not been proved. They are not substantiated by the evidence on record. He drew our attention to the first charge and submitted that so far as the first charge is concerned, it could be split into two parts. He submitted that the first part states that the petitioner was called upon to submit a report in respect of the pending cases arising out the complaints made by the public at large. The learned counsel pointed out that, in fact, there were no pending cases and this fact was accepted by the AJN 5 Presenting Officer and, therefore, this part of the charge should be held to be not proved. He then submitted that the petitioner was not empowered to file criminal cases and, therefore, there is no question of his filing any complaints. Therefore, the second part of the first charge is not made out at all. The learned counsel then submitted that so far as the second charge is concerned, the petitioner had obtained permission of Mr. Patil and had gone to Kausa to deal with the encroachers, who had refused to pay the dues of the respondent. He submitted that his visit to Kausa was, in fact, for the purposes of carrying out his duty and to prevent financial loss to the Corporation. Since he had obtained the permission of Mr. Patil, it cannot be said that he is guilty of insubordination. So far as the third charge is concerned, the learned counsel pointed out that during the relevant period, the petitioner was on leave. Besides the petitioner had gone to inspect unauthorised construction and because of that he could not reach the office in time. The learned counsel submitted that there was no column where a person could note that he had attended the office late. There was no provision for late muster. In the circumstances, the petitioner had no option but to sign against letter “A” on the muster. The learned counsel contended that in the circumstances, the third charge cannot be said to be proved at all. Lastly Mr. Malpathak contended that assuming that the charges against the petitioner are held to be proved, the punishment of permanent stoppage of two yearly increments from the petitioner's salary is shockingly disproportionate and deserves to be set aside. AJN 6 7. We have also heard Mr. Apte, the learned counsel appearing for the respondent. Mr. Apte submitted that no interference is necessary with the impugned order considering the conduct of the petitioner. 8. We have given our anxious consideration to the submissions advanced by Mr. Malpathak. We are unable to agree with the submissions of the learned counsel. On perusal of reply of the petitioner, the evidence adduced by the parties and the order of the respondent, it is not possible for us to hold that the charges against the petitioner are not proved. As the evidence on record stands today, it must be concluded that the charges stand established against the petitioner. So far as the first charge is concerned, it is proved that the petitioner was called upon to give a report in respect of the complaints made against unauthorised construction carried out by the builders. Admittedly, no such report was submitted by the petitioner. We do not find any substance in the submission of Mr. Malpathak that the Presenting Officer has also admitted that there were no pending cases and, therefore, the charge must be held to be not proved. The petitioner was called upon to submit a report. He ought to have submitted the report. The fact that he did not submit the report is admitted. The first charge is, therefore, established. So far as the second charge is concerned, there can be no doubt that this charge is proved. Admittedly, the petitioner did not attend the demolition work and went to Kausa without taking any permission. Mr. Patil, whose permission, according to the petitioner, was secured by him has stated that he had not given any permission. In our opinion, therefore, the second charge is AJN 7 completely made out. So far as the third charge is concerned, the petitioner has admitted that he had signed against the letter “A” on the muster roll. The explanation given by the petitioner is not acceptable and was rightly not accepted by the respondents. We, therefore, hold that the charges are rightly held proved against the petitioner. 9. Mr. Malpathak contended that the punishment imposed on the petitioner is harsh and disproportionate. We do not find any merit in this submission. Considering the nature of the allegations and conduct of the petitioner, we feel that the punishment imposed on him is proper and no interference is necessary with it. In the circumstances, we find no substance in the petition. The petition is dismissed. [SMT. RANJANA DESAI, J.] [A.P. DESHPANDE, J.]