pvr １ WP65-07 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.65 OF 2007 Fatehsinghrao S.Bhosale. ...Petitioner vs. 1.State of Maharashtra & Anr. ...Respondents --- Mr.V.S.Gokhale, for petitioner. Mr.R.S.Datar, for Respondent no.2. --- CORAM: D.K.DESHMUKH & ANOOP V. MOHTA, JJ. DATED: 20th October,2011. P.C.:- 1. Heard. The facts which are relevant and material for deciding this petition are that the petitioner was in the service as Judicial Officer. He joined the service with effect from 13.12.1982 as Civil Judge Jr.Division and pvr ２ WP65-07 Judicial Magistrate First Class. The date 1.12.1988 was the due date for crossing the efficiency bar. However, by that date no order was made in relation to the crossing of efficiency bar. On 6.3.1990 the High Court directed holding of departmental inquiry against the petitioner. During the pendency of the inquiry, an application of the petitioner for permitting him to cross the efficiency bar was not granted on 28.5.1992. An inquiry report by the Inquiry officer was submitted in Inquiry S.I.D.WM/135/1992 holding him not guilty of the charges levelled against him. Another inquiry was started against the petitioner in SID file No.VM/130/1993 and VM/55/1994 on 29.12.1996 and he was placed under suspension. When the report of earlier departmental inquiry holding the petitioner not guilty of charges levelled against him was placed before the Disciplinary committee, the Disciplinary Committee by order dated 30.6.1997 decided to disagree with the findings pvr ３ WP65-07 recorded by the Inquiry Officer, and therefore, a notice was issued to the petitioner calling upon him to show cause as to why the disciplinary committee should not disagree with the findings recorded by the Inquiry Officer and why on recording the finding of guilt one of the major penalty should not be imposed on him. While these proceedings were pending, the petitioner attained the age of 58 years on 31.10.1997 and retired from the Government service. On 18.3.1998, the Disciplinary Committee considered the matter and passed the following resolution:- Discussed. Having considered the fact that the delinquent Judicial Officer is bedridden and has suffered paralysis attack and having further considered the fact that the Judicial Officer has now retired, it was decided to drop further proceedings in both the files. However, the period of suspension shall still be treated as pvr ４ WP65-07 suspension period. Inform District Judge, Latur to take note of the fact that Judicial Officer was under suspension from 29/12/1996 to 31/10/1997 and that period of suspension is to be treated as suspension period and accordingly take steps regarding pension. Thus, all the proceedings against the petitioner were dropped. However, the period of suspension till the date of retirement of the petitioner was directed to be treated as suspension period. As a consequence of this order, the period from 29.12.1996 to 31.10.1997 was treated as suspension period. The pension of the petitioner was worked out on that basis. By order dated 9.10.2002, the petitioner s request for crossing efficiency bar from 1.12.1988 or any point of time thereafter was not granted. The learned Counsel appearing for petitioner urged two contentions before us, the first contention is pvr ５ WP65-07 that the order not permitting the petitioner to cross the efficiency bar, is illegal because there is no reason for not permitting the petitioner to cross the efficiency bar, because it is submitted that in the departmental inquiry held against the petitioner, he has been found not guilty. It is further submitted that the resolution of the Disciplinary Committee treating the period of suspension as suspension is invalid and contrary to the principles of natural justice as also to the provisions of Rule 72 of the Maharashtra Civil Services (Joining time, Foreign service and payment during suspension, Dismissal and Removal) Rules,1981. It is submitted that the order treating the period of suspension as suspension results in the Government Servant suffering civil consequence, therefore, that order can be made firstly only after issuing show cause notice to the employee concerned, and secondly, that a good reason mainly some misconduct which is attributable to the pvr ６ WP65-07 Government servant concerned. 2. We have heard the learned Counsel appearing for respondents. He justified both the actions of the respondents. So far as crossing of efficiency bar is concerned, the learned Counsel submits that the decision not to permit the petitioner to cross the efficiency bar, was taken in the year 1992. In the petition filed in the year 2000, validity of that decision cannot be examined. It is submitted that in any case considering the record of service of the petitioner, the High Court was justified in not permitting him to cross the efficiency bar. So far as the second submission is concerned, it was submitted by the learned Counsel appearing for the respondents that considering the record of service of the petitioner and the charges in the departmental inquiry, the order treating the period of suspension as suspension has been rightly passed. He, however, submitted that it is pvr ７ WP65-07 true that a show cause notice should have been issued before making that order. 3. Now in the light of these rival submission, if the record of the case is perused, it is clear that the petitioner was due to cross the efficiency bar on 1.12.1988. By order dated 28.5.1992, the petitioner was informed that his request to allow to cross efficiency bar was not granted. That decision, obviously, was based on the record of the service of the petitioner. If the petitioner felt aggrieved by that order, it was for him to challenge that order immediately. The petitioner did not challenge that order. In our opinion, now the petitioner cannot be permitted to challenge that order in the petition filed in the year 2000. The contention of the petitioner in relation to the order not permitting him to cross efficiency bar cannot be accepted. It is, therefore, rejected. pvr ８ WP65-07 4. It is clear from the record that the departmental inquiry was initiated against the petitioner. The Inquiry Officer found the petitioner not guilty. The Disciplinary Authority decided to disagree with that finding, but the Disciplinary Authority could not have recorded final finding or could not have held the petitioner guilty of charges without granting him an opportunity of being heard after issuing show cause notice. Accordingly, show cause notice was issued by the Disciplinary Authority, however, final decision on that show cause notice was not taken and no finding, that the petitioner is guilty of any of the charges levelled against him, was recorded. In our opinion, therefore, the order which visits the petitioner with civil consequences could not have been made without there being any misconduct proved against the petitioner. It is also nobody s case that any charge was held to be proved against the petitioner. In any case, in the face of the pvr ９ WP65-07 findings of the Inquiry Officer that the petitioner is not guilty of the charges levelled against him, the order deciding to treat the period of suspension as suspension could not have been made in violation of principles of natural justice. The petitioner as a matter of right is entitled to show cause notice. Perusal of sub- clause 5 Rule 72 of the Maharashtra Civil Services (Joining Time, Foreign Service and Payments during Suspension, Dismissal and Removal) Rules,1981, shows that even for deciding the quantum of payment to be made during the suspension period, a show cause notice is required to be issued. In the present case, the petitioner has been denied full payment for the entire suspension period and that too without issuing show cause notice. Therefore, the order treating the period of suspension as suspension, in our opinion, is invalid and that order has to be set aside. So far as the request made on behalf of the learned Counsel appearing for pvr １０ WP65-07 respondents that the respondents should be permitted to issue show cause notice to the petitioner now is concerned, in our opinion, considering the passage of time and the condition of the petitioner such a liberty cannot be given, because it will not serve any useful purpose. The petitioner stood retired from the service in the year 1997. We have been informed that presently he is bedridden. The petitioner has been found by the Inquiry officer not guilty of any misconduct. The Disciplinary Authority proposed to disagree with that finding but did not ultimately disagree with the finding. The suspension period is less than one year. In these circumstances, in our opinion, it will not be in the interest of justice to grant liberty to the respondents to issue show cause notice at this stage. 5. In the result, therefore, the petition succeeds and is allowed. The respondent no.2 is pvr １１ WP65-07 directed to treat the period from 29.12.1996 to 31.10.1997 as duty and make payment to the petitioner accordingly within a period of twelve weeks from today. The respondent no.2 is also directed to re-work the amount of pension payable to the petitioner on the basis that the period from 29.12.1996 to 31.10.1997 is to be treated as duty. Rule is made absolutely. No order as to costs. (D.K.DESHMUKH, J.) (ANOOP V.MOHTA, J.)