1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1437 OF 2009 Vilas Keshav Phadke ) residing at 56, 5th floor, Kenilworth, ) Peddar Road, Mumbai 400 026. ).. Petitioner versus 1. The Municipal Corporation of ) Greater Mumbai, a statutory ) Corporation operating under the ) provisions of the Mumbai Municipal ) Corporation Act,1888 and having ) its head office at Chhatrapati Shivaji ) Maharaj Marg, Opposite C.S.T., ) 2. The BEST Committee, ) having its office at BEST Bhavan, ) BEST Marg,Colaba, Mumbai 400 001) 3. Mr. Uttam Khobragade, ) The General Manager, BEST ) Undertaking, having his office at ) BEST Bhavan, BEST Marg, ) Colaba, Mumbai 400 001. ) 4. Mr. S.A. Puanik, Enquiry Officer, ) having his office at BEST Bhavan, ) BEST Marg, Colaba, Mumbai-400001) 5. Mr. V.V.Vishwasrao, ) The Chief Personnel Officer of BEST,) having his office at BEST Bhavan, ) BEST Marg, Colaba, Mumbai 400001) 2 6. Mr. M.H.Kazi, ) Enquiry Officer, having his ) office at Traffic Department, ) Wadala Depot, Mumbai. ) 7. Mr. A.G. Patil, Chief Engineer, ) Regulatory Cell, the First Appellate ) Authority, having his office at ) BEST multi-storied building, ) Accommodation Road, Colaba, ) Mumbai 400 001. )..Respondents Mr. Rafiq Dada, Senior Counsel, with Mr. S.M.Dharap with Mr. N.G.Helekar, Advocates, for the petitioner. Mr. E.P.Bharucha, Senior Counsel for respondent No.3. Mr. Sudhir Talsania, Senior Counsel a/w. Mr. P.M.Palshikar, & Ms. Pooja Thorat, Advocates, for respondent Nos. 5 & 6. Mrs.S.S.Mudale, Advocate for B.M.C. CORAM: F.I.REBELLO AND J.H.BHATIA, JJ. DATE : 3rd February, 2010. JUDGMENT (PER J.H.BHATIA,J.) 1. Rule. Rule made returnable forthwith. With consent, the petition is taken up for final hearing immediately. 3 2. The petitioner has challenged the order first demoting him from the post of Chief Accounts Officer Grade A-1 to Grade A-3 and then dismissal from service by order dated 4.12.2008. According to the petitioner, he initially joined the service with BEST as Deputy Chief Accounts Officer in Grade A-3 by selection through MPSC. From time to time he was promoted. With effect from 4.1.1993, he was promoted to the post of Chief Internal Auditor in Grade A-1 and then on 30.6.1998, he was conferred Personal Grade A-1 (Senior), which is equivalent to the post of Assistant General Manage. According to the petitioner, the problems arose for him only after respondent No.3 joined as the General Manager of BEST in July, 2006. On 19.12.2006, at the instance of respondent No. 3, the then AGM (P) issued an order demoting the petitioner to the post of Chief Internal Auditor in Grade A-1. This was challenged by the petitioner by filing Writ Petition No.83/2007 wherein ad-interim stay was granted. On 28.12.2006, three more show cause notices were issued. The fourth show cause notice dated 15.1.2007 was served on the petitioner on 17.1.2007. The fifth show cause notice dated 23.1.2007 was served on him on 24.1.2007. On 13.3.2007, the order of suspension pending enquiry was issued and respondent no.4, who is directly subordinate to respondent no.3, was appointed as the Enquiry Officer. The respondent no.3 also lodged two reports with the Economic Offence Wing of Mumbai Police against the petitioner in February 2007 wherein the Economic 4 Offences Wing informed the respondent No.3 that no misappropriation of money or cheating had taken place. He was not served with departmental Enquiry Report (DER). That report was not supplied to him inspite of an application under the Right to Information Act. His appeal against that order was also rejected. By order dated 22.10.2008 issued by respondent No.5, he was demoted to the post in Grade A-3. The appeal against that order was rejected. Thereafter, on 4.12.2008, he was dismissed from service by order passed by respondent No.6. According to the petitioner, neither the Enquiry reports were made available to him nor he was given an opportunity of proper hearing. He has made serious allegations against the respondent No.3 about bias, prejudice and arrogance. 3. Respondent No.3 filed his affidavit in reply dated 28.1.2010 wherein he has almost conceded that enquiry was not properly held. In para 13, he submitted that the copy of the Departmental Enquiry was not given to the petitioner before the punishment of demotion was awarded. Having conceded that, the respondent No.3 stated that the Departmental Enquiry Report dated 3.7.2008 and dismissal order dated 4.12.2008 will be withdrawn and as a result, the punishment of demotion and dismissal would not longer survive. He proposed de novo enquiry against the petitioner by a retired High Court Judge to be appointed by the BEST. He submitted that the petitioner will not report for duty 5 and will not be given any work during pendency of the enquiry, however, he will be paid his salary as per A-1 grade. According to him, the issue regarding back wages would be decided on the basis of findings in the enquiry. 4. After hearing the learned Counsel for parties and taking into consideration the allegations made by the petitioner, the affidavit of respondent No.3 and the fact that out of six charges levelled against the petitioner, first two charges relate to certain transactions which had taken place in the years 1992 and 1994 pertaining Chetana Bank and Dr. Ambedkar Udyan Premises. Period of 18 years has lapsed after the Chetana Bank transaction and period of 16 years has lapsed after Dr. Ambedkar Udyan Premises issue. It is material to note that after the Chetana Bank issue, he was promoted in January 1993 to the post of Chief Internal Auditor and then was transferred to the post of Chief Accounts Officer in Grade A-1. In 1998, he was also conferred Grade A-1 (Senior) which is equivalent to the post of Assistant General Manager. When he was granted promotions and conferred Senior Scale, inspite of transactions which had taken place long back, in our considered opinion, it will not be in the interest of justice to hold any enquiry against him on the basis of those two charges. While taking this view, we are supported by The State of M.P. v. Bani Singh and another AIR 1990 SC 1308 wherein disciplinary proceedings initiated against the officer 6 after more than 12 years without any satisfactory explanation for inordinate delay, was quashed. Similar view was taken by the Supreme Court in P.V.Mahadevan v. M.D., Tamil Nadu Housing Board AIR 2006 SC 207. In the present case also, we find that there is no justification or satisfactory explanation for inordinate delay of 16 to 18 years for holding enquiry against the petitioner on the basis of those two charges. However, the remaining four charges viz. UPCSMFL Bonds issue in 1998, Seven Bungalows issue of 2003, another transaction pertaining Oshiwara Depot of 2006 and one pertaining MERC issue need to be looked into and if the BEST Authority wants to hold departmental enquiry against the petitioner, it may be allowed. Taking into consideration the above facts and circumstances, in our considered opinion, the following order will meet the end of justice:- (i) The Departmental Enquiry Report dated 3.7.2008, the order of demotion a well as the dismissal order dated 4.12.2008 are hereby quashed and shall be withdrawn by the respondent No.3. As a result, the petitioner shall be reinstated to the post of Chief Accounts Officer in Grade A-1 (Senior) with full back wages. He shall be paid the pay and allowances as per his entitlement on the basis of his post, however, he shall stay away from the work during pendency of the Enquiry against 7 him. (ii) The charges against him in respect of Chetana Bank and Dr. Ambedkar Udyan Premises issue stand quashed. However, the BEST shall be at liberty to hold departmental enquiry against the petitioner in respect of the remaining four charges pertaining (1) UPCSMFL Bonds issue, (2) Seven Bunaglows issue, (3) Oshiwara Depot issue and (4) MERC issue. The Enquiry shall be held by a retired High Court Judge, who shall be appointed as Enquiry Officer by the BEST within 15 days from this day and the enquiry shall be completed within four months from that date. (iii) There shall be no order as to costs. The petition stands disposed of accordingly. (J.H.BHATIA,J.) (F.I.REBELLO,J.)