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2014 DIGILAW 2235 (BOM)

State of Maharashtra v. Ramrao Yadaorao Nandurkar

2014-11-05

B.P.DHARMADHIKARI, P.R.BORA

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Judgment P.R. Bora, J. 1. Order passed by the Nagpur Bench of Maharashtra Administrative Tribunal in Original Application No. 615 of 1997 on 3rd April 1998 is questioned in the present writ petition. 2. Respondent herein was serving as Process Etcher with petitioner no. 3 i.e. the Government Press at Nagpur. On 23rd July 1997, respondent as usual resumed his duties and also got punched his attendance card at 09.35 am. He thereafter left the premises and returned at 12.10 noon i.e. after about three hours. In the mean -while, his absence from the workplace was noticed by petitioner no. 3. As such, after the respondent returned, he was called in his office by petitioner no. 3 and petitioner no. 3 questioned the respondent about his absence. Respondent though provided some explanation for his absence, while doing so, he indulged in the verbal altercations with petitioner no. 3. According to the petitioners, such conduct of respondent resulted in causing breach of discipline and peace at workplace. Petitioner no. 3, therefore, served a memo dated 26th July 1997 on the respondent calling upon him to explain his unauthorized absence from the workplace on 23rd July 1997 as well as his arrogant behaviour with the Manager of the Press. The respondent was called upon to explain why disciplinary action should not be initiated against him. Respondent submitted his explanation on 28th July 1997. He, though accepted the fact of his absence from the workplace without permission, denied the alleged misbehaviour with the Manager of the Press. The explanation so submitted was not satisfactory according to petitioner and, he, therefore, vide communication dated 4.9.1997 informed the respondent as to why penalty of temporarily withholding one increment should not be imposed against him for his misconduct alleged in the memo dated 26th July 1997. Explanation of the respondent was called on the proposed punishment. Respondent vide his reply dated 10.9.1997 again denied the allegations of misconduct. Additionally, it was submitted by him that since he was involved in Union activities, he was being unnecessarily harassed. He also demanded copy of complaint, if any, received against him alleging that because of his conduct, peace at the workplace was disrupted. Petitioner no. 3 vide its order dated 8.10.1997 imposed on the respondent penalty of temporarily withholding his one increment w.e.f. 1.10.1997 for his misbehaviour. 3. He also demanded copy of complaint, if any, received against him alleging that because of his conduct, peace at the workplace was disrupted. Petitioner no. 3 vide its order dated 8.10.1997 imposed on the respondent penalty of temporarily withholding his one increment w.e.f. 1.10.1997 for his misbehaviour. 3. Aggrieved by the punishment so imposed, respondent filed Original Application No. 615 of 1997 under Section 19 of the Administrative Tribunals Act, 1988 before the Maharashtra Administrative Tribunal. Learned Tribunal after considering the facts and circumstances brought before it and on appreciation of the concerned legal provisions, vide its judgment dated 3.4.1998, set aside order dated 8.10.1997 passed by petitioner no. 3. Present writ petition is filed taking exception to the said judgment passed by the Tribunal. 4. Mr. T.R. Kankale, learned Assistant Government Pleader assailed the impugned order on various grounds. Learned AGP submitted that petitioner no. 3 had imposed a minor punishment on the respondent under rule 10(1)(a) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (for short, the "Discipline and Appeal Rules") and as such, there was no need of conducting any enquiry contemplated under rule 8 of the Discipline and Appeal Rules. Learned AGP further submitted that reference to and reliance upon rules 36 and 37 of the Maharashtra Civil Services (Pay) Rules, 1981 by the Tribunal is absolutely irrelevant. Mr. Kankale submitted that the learned Tribunal has wrongly interpreted the said provisions and has drawn an erroneous conclusion. He prayed for setting aside the impugned judgment and order. 5. None was present for respondent. However, Return filed by respondent is there on record. On perusal of the Return so filed by respondent, it is revealed that the respondent had filed a contempt petition before the Tribunal for non -compliance of its order by the petitioners. It is further revealed that during the pendency of contempt petition before the Tribunal, the petitioner no. 3 released increment of respondent which was withheld vide order passed by petitioner on 8.10.1997. It was also stated before the Tribunal by the present petitioners that arrears of increment were also being released by them and the bill in that regard was already submitted to the Treasury. 6. 3 released increment of respondent which was withheld vide order passed by petitioner on 8.10.1997. It was also stated before the Tribunal by the present petitioners that arrears of increment were also being released by them and the bill in that regard was already submitted to the Treasury. 6. In the above background, it was submitted by learned Assistant Government Pleader that the present writ petition is being pressed only to get corrected the wrong interpretation of Rules 8, 9 and 10 made by the Tribunal. 7. We have perused all the relevant documents and the order passed by the learned Tribunal. Admittedly, vide memo dated 8.10.1997, the penalty which came to be imposed on the respondent is a "minor penalty" as defined in rule 5(1)(iv) of the Discipline and Appeal Rules. Procedure for imposing minor penalties is provided under rule 10 of the Discipline and Appeal Rules. In so far as the controversy involved in the present matter, rules 10(1)(a) and 10(2) are relevant, which read thus : "10. Procedure for imposing minor Penalties. (1) Save as provided in sub-rule (3) of rule 9, no order imposing on a Government servant any of the minor penalties shall be made except after - (a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal. (2) Notwithstanding anything contained in clause (b) of sub-rule (1), if in a case it is proposed, after considering the representation if any, made by the Government servant under clause (a) of that sub -rule, to withhold increments of pay and amount of pension payable to the Governments servant or to withhold increment of pay for a period exceeding three years or to withhold increments of pay with cumulative effect from any period or to impose any of the penalties specified in clauses (v) and clause (vi) of sub -rule (1) of rule 5, an inquiry shall be held in the manner laid down in sub-rule (3) to (27) of rule 8, before making any order of imposing on the Government servant any such penalty. (3) ..............." 8. (3) ..............." 8. As provided in rule 10(1)(a), the respondent was informed in writing of the proposal to take action against him and all the imputations of misbehaviour on which it was proposed to be taken. The respondent was also given reasonable opportunity of making representation against the said proposal. The respondent has also not disputed this fact. In the Original Application filed by respondent before the Tribunal in paragraph 6(a), the respondent has admitted that non-applicant no. 1 (petitioner no. 3 herein) had informed the respondent in writing about the proposal to take action against him. He has further admitted that reasonable opportunity of making representation was also provided to him. Though the respondent has also contended that nothing was informed to him about the imputation of misconduct/misbehaviour on which action was proposed. The contention so raised, is not acceptable in view of the fact that it was specifically informed to the respondent that on 23rd July 1997 when he was called in the office of the Manager of the Press, he indulged in wordy altercations with him and misbehaved with him. Thus, before imposing the questioned penalty upon the respondent, the requirements of imposing such penalty as provided under rule 10(1)(a) were fully complied with. In so far as rule 10(2) is concerned, since in the instant case, there was no proposal at any point of time to impose any major penalty on the respondent or to impose penalty of withholding increment for the period exceeding three years or to withhold the increment with cumulative effect, there was no reason for holding any enquiry as contemplated under rule 8 of the Discipline and Appeal Rules. 9. It is not in dispute that vide order dated 8.10.1997 petitioner no 3 imposed penalty on respondent of temporarily withholding his increment for a period of one year from 1.10.1997. On perusal of the order of penalty, as aforesaid, it is quite evident that the increment was temporarily withheld for a period of one year only. It is also clear that it was not given cumulative effect for any period. It is further quite clear that since the increment was to be temporarily withheld only for a period of one year, the same was accordingly to be released immediately after expiry of the said period. It is also clear that it was not given cumulative effect for any period. It is further quite clear that since the increment was to be temporarily withheld only for a period of one year, the same was accordingly to be released immediately after expiry of the said period. Thus, in no case withholding of such increment was likely to adversely affect the amount of pension payable to the respondent. Considering these aspects, the observations made by the Tribunal in paragraph 10 of the impugned judgment apparently appear incorrect and unsustainable. 10. The impugned judgment reveals that the Tribunal has accepted contention raised by petitioner (respondent herein) that before imposing the questioned penalty, it was necessary to conduct an enquiry as provided by sub-rule (2) of rule 10 of the Discipline and Appeal Rules. It is revealed that during the course of argument, rule 9(3) was also referred to. Relying on submissions so made, the Tribunal recorded its conclusion. However, it is noticed that incorrect and wrong interpretation of rule 9(3) and rule 10(2) by the Tribunal has resulted in passing the impugned order by it. As discussed hereinabove, rule 10(2) was not at all attracted in the instant case. Similarly, rule 9(3) also could not have been attracted. It seems that rule 9(3) has been read in isolation by the Tribunal. Rule 9(3) read as a whole, makes it abundantly clear that during the course of an enquiry initiated for the purpose of imposing major penalty, on submitting report of enquiry in the matter, if the Disciplinary Authority having regard to its findings on all or any of the articles of charge reaches to the conclusion that instead of major penalty any of the minor penalties should be imposed, it shall, notwithstanding contained in anything in rule 10 of the Discipline and Appeal Rules, on the basis of evidence adduced during the enquiry held under rule 8, may determine penalty, if any, to be imposed on the Government servant. However, in such circumstances, it is further provided that in every case where it is necessary, the Disciplinary Authority shall forward the record of enquiry to the Commission (Maharashtra Public Service Commission) for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. However, in such circumstances, it is further provided that in every case where it is necessary, the Disciplinary Authority shall forward the record of enquiry to the Commission (Maharashtra Public Service Commission) for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant. Thus, rule 9(3) cannot be interpreted to mean that even for imposing minor penalty, enquiry needs to be conducted as contemplated under rule 8 of the Discipline and Appeal Rules. We reiterate that as provided under rule 8 of the Discipline and Appeal Rules, only in the case of imposing of major penalty that a full -fledged enquiry needs to be conducted in a manner as provided in sub-rules (3) to (27) of rule 8 of the Rules. However, when there was no proposal for imposing major penalty and since beginning the proposal was to impose a minor penalty by temporarily withholding one increment of respondent w.e.f. 1.10.1997, there was no need of conducting any enquiry. 11. We find that reference to rules 36 and 37 of the MCS (Pay) Rules, 1981 in paragraph 10 of the impugned judgment, is absolutely irrelevant. No such case was even pleaded by respondent in his Original Application. Rule 36 of the Pay Rules provides that in ordering the withholding of increment, the withholding authority shall state (i) the period for which it is withheld, (ii) whether the postponement shall have the effect of postponing future increments and (iii) whether the period for which the increment has been withheld will be exclusive of any interval spent on leave before the period is completed. We have already noted hereinabove that the increment of respondent was temporarily withheld for one year. In such circumstances, requirements of rule 36 are substantially complied with. Rule 37 pertains to sanction to cross efficiency bar. As stated earlier, no such case has been pleaded by respondent before the Tribunal. In the circumstance, observations made by the Tribunal that rule 36(ii) and (iii) have not been complied with by petitioners is erroneous. The further observation made by the Tribunal that in case of respondent, efficiency bar was a hurdle for withholding of any increment, is not supported by any material or any pleading in that regard. 12. In the circumstance, observations made by the Tribunal that rule 36(ii) and (iii) have not been complied with by petitioners is erroneous. The further observation made by the Tribunal that in case of respondent, efficiency bar was a hurdle for withholding of any increment, is not supported by any material or any pleading in that regard. 12. It was also argued before the Tribunal that the increment was already released in favour of the petitioner i.e. respondent herein before passing of the order dated 8.10.1997 imposing penalty on the respondent. According to the employee, the increment, therefore, could not have been ordered to be withheld retrospectively. The Tribunal upheld the contention so raised. The Tribunal has failed in appreciating that even if it is accepted that the increment which was due in the month of October was released on 1.10.1997, it could have been disbursed only in the month of November 1997. In such circumstances, the order passed on 8.10.1997 withholding increment w.e.f. 1.10.1997 cannot be in any way held to be illegal or unexecutable. The finding so recorded by the Tribunal is, therefore, unsustainable. 13. In the result, writ petition is partly allowed. Impugned order passed by the Tribunal is quashed and set aside. Rule made absolute accordingly with no order as to costs.