1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6768 OF 2007 /UNREPORTED/ Date of decision: 1/9/2010 For approval and signature HON'BLE MR. JUSTICE S.B.DESHMUKH HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ 2. To be referred to the Reporter or not ? No 3. Whether Their Lordships wish to see No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the No. Civil Judges ? 6. Whether the case involves an important No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/6768-07wp 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6768 OF 2007 Narayan Haribhau Putale, Age 71 yrs., Occ:Nil - Pensioner, R/o. Tulja Bhavani Nagar, Taroda Road, Nanded. ...PETITIONER VERSUS 1. The State of Maharashtra, Through P.O. M.A.T. Aurangabad Bench. 2. Secretary, Rural Development Department, Mantralaya, Mumbai 400 032 3. The Divisional Commissioner, Aurangabad Division, Aurangabad. ...RESPONDENTS ... Mr. A.S.Deshpande, Adv., for the petitioner. Mr. V.B.Ghatge, A.G.P., for respondent State. ... CORAM: S.B.DESHMUKH AND K.U. CHANDIWAL, JJ. DATE : 1/9/2010 *** 3 ORAL JUDGMENT: ( Per S.B.Deshmukh, J.) 1. We heard learned Counsel Mr.A.S.Deshpande for the petitioner and learned Assistant Government Pleader Mr.V.B.Ghatge for respondent nos. 1 to 4. Rule, made returnable forthwith. Heard finally by consent of the parties. 2. The petitioner, indisputably, was promoted as Block Development Officer. He has attained superannuation on 31st Jan.,1994, as claimed by the petitioner, which is not seriously disputed on behalf of respondents. Petitioner has contended in the petition that before his retirement, Departmental Enquiry was launched against the petitioner, alleging certain delinquencies. In all 14 charges were leveled against the petitioner. The Enquiry Officer was appointed. Enquiry has been conducted. Ultimately, respondents found that, out of 14, 4 charges have been proved and one charge is partly proved. According to the petitioner, these charges are mere lapses and or procedural irregularities which occurred while adopting certain measures by the petitioner, on instructions of his superiors, to deal with the drought situation and extreme drinking water scarcity during the year 1991-1992. The punishment imposed upon the petitioner is of 4 deduction of Rs.100/- per month i.e. recovery of Rs.100/- per month from his pension for a period of five years. Such order was passed on 10th Feb.,2004. The petitioner assailed the said order dated 10th Feb.,2004 before the Administrative Tribunal. The Tribunal dismissed the original application, holding that it cannot sit over the order as if it is deciding the appeal. Limitations of judicial review did not permit the Tribunal to accept the contention of the petitioner and turn down the decision of the State Government. This order of the Tribunal is assailed by the present petitioner in this writ petition. Prayer clause 16(b) seeks quashment of the order dated 10th Feb.,2004 ( Annexure A) of the Joint Secretary, State of Maharashtra. Petitioner also seeks quashment of the judgment and order of the Administrative Tribunal ( Exh.K) dated Jan.,24th, 2006, in Original Application No.761/2004. 3. Writ Petition was filed by the petitioner on Sept.,26th, 2007. Notice was issued by this Court on Feb.,20th, 2008. Indisputably, petitioner had attained superannuation on the particular date. With the assistance of the Counsel present before the Court, we have seen the order passed by the Joint Secretary, State Government (Annexure A). Around 14 charges/indictments were made against 5 the present petitioner. According to the respondents, out of these 14 charges, charge nos. 1, 3, 5 and 9 have been proved on the basis of the evidence brought on record. Charge no.1, which was leveled against the present petitioner, was in respect of making payment of more amount than the permissible amount or more than the limits imposed upon the present petitioner. According to respondents, such payment of lakhs of rupees is made illegally by the present petitioner. While issuing such cheques or making payment, petitioner did not ascertain as to whether funds under the specific head are available. Charge no.3 was in respect of incurring more money for taking out debris from the common wells beyond the permissible limit and without prior permission of the superiors. Charge No.5 pertains to payment of huge amount, without requirement, without administrative and technical sanction. Apart from this, charge no. 9, which is alleged to have been proved, is in respect of payment of money to Gram Sevaks i.e. Village Development Officers by cheques, without making them crossed or account payee cheques. It was apprehended by the respondents that such misconduct of the present petitioner had made available scope for misappropriation of the funds. These charges have been held to be proved by the respondents. Charge nos.2, 4, 7, 8, 10, 11, 12, 13 and 14 made against the 6 present petitioner are not established. In other words, petitioner has been exonerated from these charges. Since petitioner is not aggrieved, we are not reproducing all these charges. Suffice to say, only one charge i.e. charge no.6 which, according to respondents, has been partially proved. Said charge No.6 is in respect of payment of advance money, without seeking prior sanction, second or third time, without adjustment. It is not in dispute that chargesheet was served to the present petitioner. Chief Executive Officer, Zilla Parishad, Parbhani, was appointed by order dt.18th August, 1998, as Enquiry Officer. Enquiry was conducted and, as we have noticed in the foregoing paragraphs, findings have been recorded. In view of the report of the Enquiry Officer, punishment is imposed for recovery of Rs.100/- per month from the pension of the present petitioner for a period of five years. 4. Mr.A.S.Deshpande, learned Counsel for the petitioner, submitted that during the relevant period the villagers in the area in which petitioner was functioning as Block Development Officer were facing acute potable water scarcity. Situation was extremely grave. The procedure, which was required to be undergone for making available drinking water, could not be gone into, considering the graveness of the 7 situation and the time required for following such procedure. He makes a statement on instructions that superiors were taken in confidence and instructions were obtained for incurring or spending the funds of the establishment. He fairly conceded that nothing is on record especially, in writing, permitting the petitioner, as he spent the money, which delineates from these charges held to have been proved against him. According to him, it is difficult to bring such material on record. The situation in which the petitioner was functioning is equated by Counsel Mr.Deshpande, learned Counsel, to that of a soldier facing enemy on the battle field. He also submitted that this aspect is not considered properly by the respondents or the learned Tribunal. Mr.Deshpande, learned Counsel, for petitioner took us through the judgment of the learned Tribunal and paragraph nos. 8 and 9 are pointed out to us. 5. Learned Assistant Government Pleader points out material brought on record since the Original Application was filed by the present petitioner before the learned Tribunal. Affidavit in reply was also filed. Learned Tribunal heard the Counsel and partly allowed the present application. An amount of Rs. 49,995/- was directed to be paid to the petitioner towards gratuity at the then admissible rate of GPF 8 w.e.f. 1.2.1996 till the actual payment. The respondents were also directed to make the payment of commutation value of the pension as per the Rules to the applicant and such payment on whatever date it is made shall become absolute and effective w.e.f. 1.2.1996 for the purposes of restoration. Importantly, order dt.10th Feb., 2004 (Exh.A) passed by the Joint Secretary, State Government, was maintained by the Tribunal. From paragraph no.8, it appears that the submission, which has been made before us pertaining to gravity of the situation for making available potable water, was also made before the Tribunal. The Tribunal observed that it would be most unjust and improper for the Government employee like the applicant to ignore altogether the directions issued by way of guidelines by the superior. The Tribunal also opined, when a particular limit was laid down to the applicant, no sooner same limit was either exhausted or was about to exhaust, he was under obligation at least to make the black and white and bring this fact to the notice of his superiors, much less to make a proposal to accord necessary sanction. According to the Tribunal, the petitioner was under obligation to see that account payee cheques were issued when the Rules required him to do so. The Tribunal observed that all the cheques must have been issued under the signature of the applicant and, while signing it, he could 9 have applied such check. Issuing the non crossed cheques would have attributes, to suspect integrity of the officer and so, the officer was expected to be careful in such matters. It is also observed in paragraph No.9 that petitioner - applicant was under obligation to take the decisions as the one, which are taken by the soldier of the Army in the field, however, there was sufficient breathing time to the applicant to follow the procedural Rules simultaneously so as to avoid complications in his service career. 6. Public Exchequer or public money is being handled by the bureaucrats working from the village level upto the State and in some cases, national level. Procedural Rules have been deliberately laid down either by the State or the Central Government. Objective is to protect the public money from being misappropriated, wasted, causing great loss to the tax payer. More important is the object to benefit the countrymen and public at large and the society as a whole. For carrying out these two objectives, bureaucrats are bound to be employed, however, there is obligation to see the compliance of the Rules. End result is the benefit of the public at large. The Competent authorities/Tribunals and the Courts are for protection of the public servants who are in the process of functioning at 10 different levels and they are also under obligation to take care of the misappropriation of the public funds and to see whether the real benefit goes down to the lowest citizen. 7. Submission of Mr.Deshpande, learned Counsel, equating the Block Development Officer to that of a Soldier in the battle field, we are rejecting it for obvious reason. The Block Development Officer is a person heading the Block and, ordinarily, in the State of Maharashtra, is expected to stay at Taluka Headquarters and is the nodal agency of the State policy functioning under the control of the Zilla Parishad, headed by an I.A.S. officer. The Block Development Officer is also under obligation to follow the directives issued by the State Government through District Collector, representative of the State Government, functioning at district level. In the case at hand, we are aware that power under Article 226 of the Constitution of India is being invoked. Limits of the judicial review have been considered by the learned Tribunal at page No.76. In our opinion, there is no substance in the writ petition, to interfere, resorting to power - 11 under Article 226. Writ Petition stands dismissed. Rule discharged. No order as to costs. (K.U.CHANDIWAL) (S.B.DESHMUKH) JUDGE JUDGE ... agp/6768-07wp