1 lpa278-11.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD LETTERS PATENT APPEAL NO.278/2011 IN WRIT PETITION NO.2366/2011 Yashwant Banduji Khambat .. Appellant Versus The State of Maharashtra and others ... Respondents .... Mr.D.R.Irale Patil,Adv.for appellant. Mr.S.K.Kadam,AGP for respondent State Mr.U.B.Bondar,Adv.for respondent no.2. ... CORAM : NARESH H.PATIL AND T.V.NALAWADE, JJ. DATE : 12th DECEMBER 2011 ORAL ORDER : [PER NALAWADE,J.] 1] The appeal is filed to challenge the order passed by learned Single judge of this Court dated 8/9/11 by which the Writ Petition 2 lpa278-11.odt filed by appellant is dismissed. Both sides are heard. The record of Writ Petition no.2366/11 was called and this Court has perused the record. 2] Writ petition was filed by appellant against his employer in connection with Departmental enquiry held against the appellant. The appellant had prayed for a direction to treat the suspension period from 10/12/1999 to 28/5/2001 as the period of leave admissible and as the period of duty for the purpose of counting pensionable service. The appellant was working as Junior Engineer under Panchayat Samiti, Kannad during the period from 22/6/90 to 18/8/97 and during that period, in a trap case, he was arrested by Anti Corruption Bureau. A criminal case was filed against him. 3] It is the case of the appellant that he was suspended due to the trap and his arrest but he was acquitted in the said case. It is contended that the suspension was also revoked on 21/5/2000 but Departmental enquiry was started against him. He has contended 3 lpa278-11.odt that during pendency of the D.E., he retired due to superannuation on 31/5/2004 and the penalty order came to be passed on 20/2/2007. It is his case that he challenged the penalty order by filing appropriate proceedings to the appellate authority but he could not succeed there. He then had filed aforesaid Writ petition. It is his contention that the principles of natural justice were not followed while imposing the penalty and it was not informed to him that the suspension period would be treated as the period not on duty. It is also his contention that the punishment of stopping his one increment for last 3 years of service is also disproportionate to the alleged misconduct. Though both the penalties were challenged in Writ petition, submissions were made only in respect of 'treatment' given to the suspension period by the appointing authority. 4] The record shows that as many as eight charges were levelled against the appellant in the departmental enquiry. There were three charges of misappropriation of public money. There was charge of creation of false record and this false record was 4 lpa278-11.odt created for the misappropriation of public money. There was also the charge in respect of trap case but in respect of that charge the appellant is exonerated. The relevant witnesses were examined and the record was produced before the enquiry officer. The inquiry officer has considered the modus operandi in respect of misappropriation and he has also considered the record of taking measurements of the work etc. Even when the work of a phase was not completed and the previous funds were not exhausted additional amount was given by appellant and even when the work was not done, it was shown that the work was done. There was misappropriation committed in respect of the material which was shown to be used for the work. The defence taken by the appellant is considered and the enquiry officer has observed that the defenses are not probable. He tried to blame his superior officers at the time of defending the charges. On the basis of the record, the enquiry officer has held the appellant guilty of seven charges. This record is considered by disciplinary authority and also the appellate authority. Thus before the enquiry officer, charge of misappropriation of money and case of creation of false 5 lpa278-11.odt record for misappropriation is proved. It is the probable view and learned Single Judge of this Court has also observed that in view of this record, the petitioner-appellant could have been dismissed from service but he is lucky that penalty of only stopping increments is imposed on him. 5] It was submitted for appellant that in the show cause notice issued for imposing penalty, it was not informed to him that the suspension period can be treated as the period for which the delinquent was not on duty. Before discussing this submission, we need to observe here that in view of the nature of charges proved against him, the delinquent must feel himself to be fortunate that the penalty of termination is not imposed and he is getting pension on the basis of the service which is counted for the purpose of calculation of pension. 6] The attention of this Court was drawn on aforesaid point by advocate for appellant to Maharashtra Zilla Parishad District Services [Discipline and Appeal] Rules 1964. This Court has 6 lpa278-11.odt carefully gone through Rule 4 [1] to [3] & [8] which provide for various penalties. The power of the appointing authority for treating suspension period in a particular way is not included in the penalty. The general rules made by the Sate Government with regard to joining time etc. [Rules of 1981] show that under Rule 72, power is vested with the appointing authority to pass order in respect of suspension period after conclusion of the D.E. The general rule shows that if the delinquent is held guilty, it is open to the appointing authority to decide as to whether suspension period can be treated as period of duty. Thus, the power of the appointing authority under this rule is given in the Rules of 1981. It can be said that there was no need for the authority to mention this point in the show cause notice given for imposing penalty. In any case, the delinquent like the appellant has no vested right to claim that such period needs to be treated as the period for which he was on duty. Thus on merits, there is no case to the appellant. 7] For the appellant three reported cases were cited [1] 1997 [11] S.C.C. 467 in the case of Indian Oil Corporation Ltd. V/s J. 7 lpa278-11.odt Krishnamurthy, [2] 2009 [4] All M.R. 208 in the case of Shri Masood Alam Khan-Pathan Vs/ State of Maharashtra and others and [3] 2004 [3] M.L.J. 151 in the case of Diwakar Pundlikrao Satpute V/s Zilla Parishad, Wardha. In all these cases, the Apex Court has observed that the penalty must commensurate with the gravity of the misconduct and the principles of natural justice need to be followed before imposing penalty. The observations show that it is necessary to intimate as to what kind of penalty can be imposed, if the disciplinary authority comes to the conclusion that the charges levelled against the delinquent in D.E. are proved. There cannot be any dispute about this proposition. In view of the discussion made above, the above cited cases are of no help to the appellant. 8] For respondent, one case reported in 2007 (1) B.C.R. 89 S.C. in the case of Pandit D. Aher V/s State of Maharashtra was cited. In this case, the power of appointing authority to forfeit entire pension or gratuity under Maharashtra Civil Service [Pension] Rules 1982 Rule 27 is discussed. In view of the 8 lpa278-11.odt discussion already made, this case has also no relevance to the facts of the present case. In any way, as no case is made out for interference, the Appeal stands dismissed. 9] In view of dismissal of Appeal, Civil Application No.11772/11 stands disposed of. (T.V.NALAWADE, J.) (NARESH H. PATIL,J.) umg/lpa278-11