1 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD APPELLATE SIDE, CIVIL JURISDICTION WRIT PETITION NO.: 3544 OF 20z11 *** Suresh S/o Namdeo Kathar, Age 45 years, Occ. Service, R/o Jai Bhavani Nagar, Aurangabad. ... PETITIONER. Versus 1. The State of Maharashtra. Through it's the Secretary, Home Department, Mantralaya, Mumbai-32. [Copy to be served on Government Pleader, High Court of Judicature, of Bombay Bench at Aurangabad]. 2, The Additional Director General (Adm.) Office of the Director General of Police, Maharashtra State, Mumbai. 3. The Inspector General of Police, Nashik Range, Nashik. 4. The Superintendent of Police, Ahmednagar, District: Ahmednagar. ... RESPONDENTS *** Mr. Pradeep Deshmukh, Advocate h/f Mr. A. M. Awate, Advocate for the Petitioner. Mr. D. R. Korde, A.G.P. for the Respondent/ State Authorities. *** 2 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. CORAM: D. B. BHOSALE AND S. B. DESHMUKH,JJ. DATED:- 20th JUNE, 2011. ORDER [Per Deshmukh, J.]: 1. Heard learned counsel for the parties. 2. The petitioner was appointed as Higher Grade Stenographer on 4th of March, 1993 by the Deputy Inspector General of Police, Nanded Range, Naded. The petitioner claims that his appointment was by way of nomination. At the relevant time, the petitioner was working as Higher Grade Stenographer in the office of Respondent No.4 at Ahmednagar. According to the Respondents, the petitioner has misconducted himself during the employment. Charge sheet was served to the Petitioner for the alleged misconduct. The petitioner was placed under suspension by Respondent No.4 on 30th December, 2005. The suspension order was challenged by the Petitioner by filing Original Application NO.1 of 2006 before the learned Maharashtra Administrative Tribunal, Aurangabad (the Tribunal, for short). This original application was heard and learned Tribunal set aside the order of suspension, issued 3 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. by Respondent No.4. Learned Tribunal passed order allowing original application NO.1 of 2006 on 23rd March, 2006. The petitioner was directed to be reinstated in service. The petitioner claims that accordingly he was reinstated in the service. 3. Thereafter, by order dated 17th of January, 2006 departmental inquiry was initiated against the petitioner. There were two charges levelled against the Petitioner. First charge was that on 24th of December, 2005 Petitioner left his headquarter, Ahmednagar without obtaining permission from his superior officers. Charge No.2 levelled against the petitioner was that on 24th December, 2005 petitioner was travelling from Daulatabad to Aurangabad with his family members in his private Maruti Car No.MH-16-R-1244. Petitioner, that time used dome light on his car with magnate. To the front and back side of the car "POLITE" words having similarity with words as "POLICE" were displayed in red colour. Charge further reads that petitioner was misrepresenting the public and department that he was police 4 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. officer at the relevant time and, therefore, misconduct under Rule 3 (1, 2, 3) of Maharashtra Civil Services (Discipline & Appeal) Rules, 1979 [the Rules of 1979, for short]. In substance, two distinct charges were levelled against the petitioner. The inquiry officer was appointed, inquiry was conducted, the petitioner participated in the departmental inquiry. The Inquiry Officer conducted the inquiry and reached to a conclusion that these charges have been proved against the petitioner. The Inquiry Officer recommended punishment of dismissal. This was major penalty. The Inquiry Officer was not appointing authority of the Petitioner. The Petitioner was appointed by Deputy Inspector General of Police, Nanded. Therefore, inquiry papers were forwarded to Respondent No.2 for decision. 4. The petitioner was heard and order has been passed by Respondent No.2 Additional Director General of Police (Administration). Exhibit-F is the copy of the order , dated 13th December, 2007. In this order Exhibit-F two charges, which were 5 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. made against the petitioner have been referred to. The Respondent No.2 has considered the submissions of the Petitioner, has gone through the inquiry papers and passed this order on 13th December, 2007. By this order Exhibit-F, punishment of bringing down pay of the petitioner to the original basic pay of the pay scale for a period of five years has been imposed. This order of Respondent No.2 dated 13th December, 2007 Exhibit-F has been challenged by the present Petitioner by filing Original Application No.15 of 2010 before the learned Tribunal. Learned Tribunal after hearing the parties dismissed the Original Application filed by the petitioner without any order as to costs. It is this order which is challenged in this writ petition by the present petitioner. 5. We have heard learned counsel for the petitioner. On behalf of the petitioner, serving of charge sheet, participation of petitioner in departmental inquiry, is not disputed. The order impugned is challenged on two-fold grounds. 6 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. Firstly, according to the petitioner, Respondent No.4 Superintendent of Police, Ahmednagar has no power and authority to initiate departmental inquiry against him and impose punishment to him. Second submission advanced on behalf of the petitioner is that for the same misconduct petitioner is being punished twice. 6. On behalf of Respondents, order of learned Tribunal is supported. Status of the petitioner is pointed out. It is contended on behalf of Respondents that the petitioner was working at the relevant time as Higher Grade Stenographer. Initiation of inquiry and imposition of penalty by Respondent No.4 Superintendent of Police, Ahmednagar, according to the learned A.G.P. is legal and proper. Petition is requested to be dismissed being without merit. 7. With the assistance of learned counsel for the parties, we have considered the judgment of learned Tribunal. It was noticed by the learned Tribunal that Deputy Inspector General of Police, Nanded Range, Nanded is the appointing authority of the 7 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. petitioner and petitioner was appointed on 4th of March, 1993. Status of petitioner, on the date of alleged misconduct, is not in dispute amongst the parties. To appreciate the submissions of learned counsel appearing for the parties, and with the assistance of learned counsel, we have considered Rule 6 of the Rules of 1979 which is reproduced herein below. "6. Disciplinary authorities. - (1) .... (2) Without prejudice to the provisions of sub-rule (1), Appointing Authorities may impose any of the penalties specified in Rule 5 upon members of class III and Class IV Servants serving under them, whom they have power to appoint: Provided that the Heads of Offices shall exercise the powers of imposing minor penalties on the Class III and Class IV Government servant under their respective administrative controls:" 8. First proviso to Rule 6 (2) provides that Heads of Offices shall exercise the powers of imposing minor penalties on Class III and Class IV Government Servants under their respective 8 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. administrative controls. Head of office, contemplated under first proviso of Rule 6 (2) can be said to be competent authority for imposing minor penalty on Class III and Class IV Government Servants under their respective administrative control. Indisputably, Petitioner was under the administrative control of Respondent NO.4 Superintendent of Police, Ahmednagar. It is appropriate, at this stage, to consider Rule 2 (a) of Rules of 1979 to know the appointment authority in relation to the Government Servant. Subrule (1) to (iv) of Rule 2 (a) are reproduced herein below: (i) The authority competent to make appointments to the Service of which the Government servant is for the time being a member or to the grade of the Service in which the Government servant is for the time being included, or (ii) The authority competent to make appointments to the post which the Government servant for the time being holds, or (iii) the authority which appointed the Government servant to such service, grade or post, as the case may be, or (iv) where a Governemtn Servant having 9 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. been a permanent member of any other service or having substantively held any other permanent post, has been in continuous employment of the Government, the authority which appointed him to that Service or to any grade in that Service or to that post, whichever authority is the highest authority." 9. If this rule is considered in its proper perspective Disciplinary Authority means the authority competent under these Rules to impose on a Government Servant any of the penalties. We have seen Rule 5 which refers to two types of penalties i.e. major penalties and minor penalties. To find out the meaning of Head of Department or Head of Office useful reference can be made to Bombay Civil Services Rules, 1958 (the Rules of 1958, for short). The Head of the Department is defined under clause 23 of Rule 9 of the Rules of 1958, which reads: "9. (23) Heads of Departments; This term includes the officers mentioned in Appendix-II and any others whom Government may from time to time declare to be Head of the Departments." 10 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. 10. We have also considered the definition of Disciplinary Authority under Rule 2 (c) of Rules of 1979. According to this definition, the authority which is competent under these Rules to impose penalty on Government Servants specified under Rule 5 can be said to be "disciplinary authority". In view of Rule 6 (2) appointing authority is also competent to impose any of the penalties specified in Rule 5 upon the members of Class III and Class IV serving under the authority concerned whom they have power to appoint. 11. Survey and consideration of all these rules i.e Rule Nos. 2 (a), 2 (c) 5, 6 (2) with its first proviso and Rule 7 as well as Rule 10 makes it clear that initiation of departmental inquiry cannot be faulted with or cannot be said to be illegal. With the assistance of learned counsel we have carefully considered the judgment of learned Tribunal. From para 10 onwards it appears that these rules have been considered by the learned Tribunal. We agree with the finding of the learned 11 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. Tribunal. 12. On behalf of petitioner, our attention was invited to section 25 of the Bombay Police Act. This was the argument on behalf of Petitioner before the learned Tribunal also. We have seen the observations of the learned Tribunal in para 20 and 21 of the judgment. In our opinion, there is no substance in the submissions on behalf of the petitioner. The learned Tribunal has justifiably noticed the fact that there was no challenge before the Tribunal for imposition of penalty for charge No.1 proved against the petitioner that he left the headquarters without obtaining permission from the superior officers. We have also noticed that a separate minor penalty for charge No.1 has been imposed by Respondent No.1. We, therefore, are not able to accept the contention of the Petitioner that Petitioner has been punished twice for same misconduct. It is, therefore, clear that all along petitioner was aggrieved only by charge No.2 and punishment imposed for that charge by Respondent No.2. The learned Tribunal has considered the 12 WRIT PETITION NO.: 3544 OF 2011 Suresh S/o Namdeo Kathar Versus State of Maharashtra and others. submissions and in our opinion has justifiably dismissed the original application filed by the petitioner. 13. The nature of scope of judicial review under Article 226 of the Constitution is limited. We are not considering either appeal or revision challenging the order passed by learned Tribunal. Learned Tribunal has justifiably noticed that major penalty was in fact recommended by Inquiry Officer, however, not accepted by Respondent No.2. The order dated 13th of December, 2007 cannot be said to be perverse. Order impugned is well reasoned and based on material brought on record. In our opinion, no case for interference in extraordinary jurisdiction of this Court, is made out. Writ petition, therefore, stands dismissed without any order as to costs. [S. B. DESHMUKH, J.] [D. B. BHOSALE, J.] Dated:20/06/2011. ans/3544