-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.1765 OF 2004 NO.1765 OF 2004 NO.1765 OF 2004 Narhar Dinkar Khomne ...Petitioner v/s State of Maharashtra and ors. ...Respondents Mr S.P. Saxena for Petitioner. Mr A.H. Palekar, AGP for Respondent No.1. CORAM : D.K. DESHMUKH AND V.M. KANADE JJ. DATE : 18TH MARCH 2008. -2- P.C. :- 1. By this petition, the petitioner challenges the order dated 10th April 2002 passed by the respondent No.2 imposing the punishment of compulsory retirement and also the order passed by the Appellate Authority dated 7th October 2003 confirming that order. The petitioner was in service of the respondent No.2 - Board as a Junior Clerk. A charge-sheet was served on the petitioner in the year 1990 in relation to an incident which had taken place in 1985. There were two charges levelled against the petitioner. Both the charges related to the examination of Physics paper of Higher Secondary Examination held by the Board in March 1985. It was alleged that the petitioner was negligent during the examination, there was unauthorised interpolation of marks in some answer papers. According to the petitioner, though the charge-sheet was served in the year 1990, the first sitting of enquiry was held on 1st November 2001 and before the Enquiry Officer, not a single witness was examined by the Enquiry Officer. The Enquiry Officer heard the Presenting Officer and the petitioner and submitted his report, holding the petitioner guilty of both the charges. A copy of report of the Enquiry Officer was supplied to the petitioner -3- and the petitioner submitted his say in relation to the said report. The petitioner pointed out that not a single witness has been examined in support of the charges. Even the original documents on which the charge-sheet is based were not before the Enquiry Officer, only zerox copies of those documents were before the Enquiry Officer. The petitioner was not supplied copies of the documents on which reliance was placed in the charge-sheet. Therefore, according to the petitioner, the charges cannot be said to have been proved. The explanation submitted by the petitioner was not accepted. The Disciplinary Authority accepted the finding of the Enquiry Officer and imposed the punishment of compulsory retirement. The order retiring the petitioner compulsorily was made in April 2002 when the petitioner was to retire in February 2003 on reaching the age of superannuation. An appeal filed against the order was also unsuccessful and therefore, the petitioner has approached this Court. 2. The learned counsel appearing for petitioner submits that the enquiry has been held in breach of principles of natural justice. Alongwith the charge-sheet, a list of four documents was given on which the Enquiry Officer was to rely viz. (1) report of the preliminary enquiry; (2) answer-sheets wherein interpolation of marks was alleged; (3) mark-sheets and -4- (4) statements recorded by the Enquiry Officer. The petitioner, in his explanation to the charges, pointed out that he had by letter dated 12th January 1990 sought copies of these documents but they were not supplied. The petitioner in his explanation to the enquiry report stated that before the Enquiry Officer even the original papers were not available. The Petitioner also made a grievance that copies of any of the documents on which the Enquiry Officer has relied on have not been supplied to the petitioner. In the absence of any documents, in the absence of any oral evidence being recorded, it cannot be said that any of the charges have been proved against the petitioner. He also submits that the incident is of the year 1985, charge-sheet was served in the year 1990 but the enquiry was held ten years thereafter i.e. in the year 2001 and thereafter in April 2002 the order imposing punishment of compulsory retirement was passed when the petitioner was actually to retire in February 2003 on reaching the age of superannuation, i.e. less than one year from the date on which the order imposing punishment of compulsory retirement was made. According to the petitioner, therefore, the charges cannot be said to have been proved. The contesting respondent No.2 has been served, none appears for respondent No.2. There is no affidavit in reply filed. -5- 3. We have perused the record in the light of the submissions made by the learned counsel appearing for petitioner. It is clear from the record that in the charge-sheet, it was stated that the prosecution is relying on four documents. The petitioner has stated in the petition that he had addressed a letter dated 22nd January 1990 asking for copies of those documents. The documents were never supplied to the petitioner. This statement made in the petitioner has not been denied by the respondent No.2. We find from the record that the same grievance was made by the petitioner in his explanation submitted after the enquiry report was supplied to the petitioners and also in his appeal. therefore, it is apparent that the enquiry was held against the petitioner without supplying him copies of the documents which are mentioned in the charge-sheet itself. What is further to be seen is that though the charge-sheet states that the department proposes to examine as many as 13 witnesses, not a single witness was examined during the departmental enquiry. Perusal of the report of the Enquiry Officer shows that all that the Enquiry Officer did was he perused the zerox copies of the documents, including mark-sheets and answer-sheets and heard the arguments of the petitioner and the Presenting Officer and submitted his report. The allegation against the petitioner was that he has unauthorisedly in conspiracy with head of the branch -6- erased illegally marks in the mark-sheets of some of the candidates who appears for Higher Secondary Examination. The allegation was serious and in our opinion, in the absence of any oral evidence, it was impossible to prove the charge. We thus find that thee is no evidence on record to record the finding that the charges levelled against the petitioner have ben proved. In any case, the enquiry held against the petitioner was clearly in breach of principles of natural justice as copies of the documents which are relied on in the charge-sheet were not supplied to the petitioner. The allegations made to that effect have gone unchallenged and therefore, they are deemed to be admitted. We also find that the department did not consider that the incident on which the charges were made is of the year 1985 and the enquiry was held against the petitioner almost 16 years after the incident. The petitioner was also under suspension for a period of five years. The department also did not take into consideration that the petitioner was to retire from service within a period of less than one year from the date on which the order imposing punishment was made. In our opinion, therefore, taking overall view of the matter, it cannot be said that the punishment imposed is just and has been imposed in accordance with law. In the result therefore, the petition succeeds and is allowed. Rule is made absolute in terms of prayer clause (a). No order as to costs. -7- . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( V.M. KANADE J.)