1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO.2516 OF 2000 Shailesh Devidas Dhatrak .. Petitioner V/s The Municipal Commissioner of Brihan Mumbai & Ors... Respondents Mr.A.G.Kothari for the Petitioner. Mr.S.K.Talsania, Senior Advocate with Ms.Kavita Anchan i/by M/s.M.V.Kini & Co.for the Respondents. CORAM : D.K.DESHMUKH & R.G.KETKAR, JJ. DATE : 17TH SEPTEMBER, 2009. P.C.: 1. By this petition under Article 226 of the Constitution of India, the petitioner challenges the order of demotion dated December 9, 1999 being Exhibit “A” to the petition whereby the petitioner was demoted from the post of Assistant Engineer in Grade A5 to the substantive post of Deputy Engineer in Grade GG6 effective from the date of dismissal and treating the intervening period between the date of dismissal and actual date of resumption of duties as suspension to the extent of 90 days and thereafter as leave with or without pay as the case may be. The petitioner also challenges the order dated August 18, 1999 at Exhibit “G” passed by the Traffic Manager (Central) whereby the petitioner was dismissed from services of Respondent No. 2 2 from the closure of work on August 18, 1999. The petitioner also challenges the order of the first appellate authority dated September 17, 1999 at Exhibit “H” and the communication dated April 6, 1999 at Exhibit “I” pertaining to the passing of adverse remarks. The petition arises in the following circumstances:- 2. The petitioner made representation on November 23, 1998 to the General Manager, BEST undertaking, against the promotion of Mr.N.S.Desai as Superintendent (Civil), as also non promotion of the petitioner. In the last paragraph of the said representation the petitioner requested the administration to take decision at the earliest (before December 1998) because through his colleagues the threats were received that the adverse remarks can be entered in the Confidential Report of the officer concerned for the previous year also giving an example of the officer from the Supply Branch. It seems that the department called explanation from one Shri.Nagare, A.E. Accordingly, Mr.Nagare submitted his explanation on December 2, 1998 setting out therein that he did not pass threats to the petitioner about the entering adverse remarks. However while discussing with his colleague about joint representation about the promotion of Mr.Desai as superintendent (civil) he had brought to their notice information known to him that the adverse remarks can be entered in confidential report for previous year. The Deputy Chief Engineer (Civil) called explanation from the petitioner on December 7, 1998. 3 The petitioner submitted explanation on December 10, 1998 wherein he again pointed out that the information that adverse remarks can be entered in the Confidential Report of the officer for the previous year also (which amounts to him as threat at the juncture) was given by Mr.Nagare in one of the group meeting held to discuss subject matter where other members were also present. He submitted that after going through his representation, the AGM (C) called on Mr.Nagare A.E.(SB) and enquired about the information, when senior officers of civil engineering branch were present. At that time AGM (C) commented on the representation that while representing the case one may write anything but it shall be truth. 3. The petitioner was issued chargesheet on February 11, 1999 under the Service Regulation 10.2 for committing following acts of misconduct; “Willfully and knowingly making false or malicious statements against any member of the Undertaking which is inconsistent with the fulfillment of the express or implied conditions of service and has the material bearing on the smooth and efficient working of the department.” 4. After service of the chargesheet, enquiry was conducted against the petitioner by Traffic Manager (Central). During the course of enquiry as many as six officers were examined including Mr.Nagare. In so far 4 as statement of Mr.Nagare is concerned, he stuck to what he has stated on December 2, 1998 and stated that he had nothing to add. After conclusion of the enquiry the enquiry officer found the petitioner guilty of the charge levelled against him, and by order dated August 18, 1999 he was dismissed from the services of the Undertaking. 5. Being aggrieved by the said decision, the petitioner preferred the appeal before the Chief Traffic Manager (Sr.), Appellate Officer, who by an order dated September 17, 1999 dismissed the appeal. Against that decision the petitioner preferred second appeal. By order dated December 9, 1999 the order of dismissal was substituted by punishment of demotion from the post of Assistant Engineer in Grade A5 to the substantive post of Deputy Engineer in Grade GG6 effective from the date of dismissal. Apart from challenging this order, the petitioner also challenged the communication dated April 6, 1999 at Exh.”I” pertaining to passing of adverse remarks. 6. In support of this petition, we have heard Mr.A.G.Kothari, learned counsel for the petitioner and Mr.S.K.Talsania, learned Senior counsel for the Respondents. Mr.Kothari, learned counsel for the petitioner has submitted that the petitioner in order to ventilate his grievance against the promotion given to Mr.Desai as superintendent (civil) made representation on November 23, 1998. In that representation he had disclosed information he received from Mr.Nagare that the 5 adverse remarks can be entered in the confidential report for previous year if any representation is made. He submitted that he had not given any threats and merely conveyed information which he received from Mr.Nagare. He submitted that Mr.Nagare did not dispute the fact that during the course of discussion with colleague about the joint representation against the promotion of Mr.Desai as superintendent (civil), he had brought to their notice information known to him that the adverse remarks can be entered in the confidential report for previous year. He therefore submitted that the department was wholly unjustified in issuing the chargesheet under the Service Regulation 10.2 and holding enquiry against him. 7. Mr.Kothari invited our attention to the oral evidence of Mr.Nagare which was recorded during the course of enquiry. He pointed out that Mr.Nagare at the relevant time was working under CEC and it is quite possible that he was in a position to gather information about entering adverse remarks in the confidential report even for the previous year. 8. We have been taken through the oral evidence of Mr.Nagare. He was posed following question; Question: You have told that the information known to you was brought to the notice of your colleague. Can you tell me where from you got this information? 6 This was replied by Mr.Nagare as under: Answer: In the Undertaking satisfactory remarks are not communicated to the officers, hence I infer that it is possible that the adverse remarks can be entered in the confidential report for the previous year. 9. During the course of evidence Mr.Nagare did not disown the statement made by him on December 2, 1998. On the other hand he maintained that statement throughout. If at all anybody is guilty of threats, it could have been Mr.Nagare who divulged this information to his colleague. The petitioner merely passed on this information to his superiour in his representation dated November 23, 1998. We fail to understand how this can be considered as commission of mis- conduct by the petitioner. 10.Nonetheless the authority proceeded to conduct the enquiry and in a lengthy enquiry report, the petitioner was found guilty of the charge levelled against him and was dismissed from service by order dated August 18, 1999. The first Appellate Authority dismissed the appeal by order dated September 17, 1999 by holding that the mis-conduct proved against the petitioner was of very serious nature. The petitioner challenged these orders by way of second appeal which, as 7 set out earlier was partly decided in favour of the petitioner by substitution of order of dismissal to that of demotion. 11.Mr.Talsania, learned senior counsel for the Respondents, on the other hand submitted that the charge levelled against the petitioner has duly been proved by examining the officers. He submitted that while exercising the jurisdiction under Article 226 of the Constitution of India, this court cannot go into the issue of sufficiency or otherwise of the evidence. If there is some legal evidence or material on record implicating the delinquent officer with the mis-conduct, this court will decline to exercise its extra-ordinary jurisdiction under Article 226 of the Constitution of India. He submitted that while exercising jurisdiction under Article 226 of the Constitution of India, this Court is not sitting as an Appellate Authority, but a judicial review is permissible only to the extent of finding out whether the decision was arrived at by following a due process of law. 12.We are not impressed by any of the submissions advanced on behalf of the Respondents. Basically we are unable to accept that the petitioner committed any mis-conduct at all, as alleged by the Respondents. The petitioner merely conveyed the information received from his colleague Mr.Nagare when he made a representation on November 23, 1998. The Respondents however considered this as a threat given by the petitioner. Mr.Nagare however maintained that 8 he passed on the information known to him. At the relevant time Mr.Nagare was working under the CEC, and therefore, the proximity of Mr.Nagare while working under CEC for gathering such information cannot be ruled out. Under these circumstances, it is not possible to hold that the petitioner has committed mis-conduct that is alleged against him. Despite this position, the authority came to the conclusion that the mis-conduct committed by the petitioner was of very serious nature and the extreme penalty of dismissal from service was inflicted upon him. The Appellate Authority in the second appeal, however substituted the penalty of dismissal from service to that of demotion. 13.Having regard to the facts and circumstances of the case we are of the opinion that even the order of substitution of penalty deserves to be quashed and set aside, inasmuch as in our considered opinion, no mis- conduct was committed by the petitioner. In view of the above, petition succeeds and the same is required to be allowed. Petition is accordingly allowed. Rule is made absolute in terms of prayer clauses (A) and (B), however with no order as to costs. (D.K.DESHMUKH, J.) (R.G.KETKAR, J.)