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2021 DIGILAW 21 (BOM)

State of Maharashtra v. Suryakant Tukaram Shinde

2021-01-05

DIPANKAR DATTA, G.S.KULKARNI

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JUDGMENT Dipankar Datta, CJ. - This writ petition, at the instance of the State of Maharashtra, through the Principal Secretary, Urban Development Department and the Director, Department of Town Planning and Valuation, registers challenge to a judgment and order dated January 18, 2017 passed by the Maharashtra Administrative Tribunal, Mumbai (hereafter "the Tribunal", for short). The Tribunal, while allowing Review Application No. 7 of2016 (hereafter "the said application", for short), recalled the judgment and order dated October 24, 2013 in Original Application No. 1235 of 2009 under review; and upon such review, the Tribunal quashed the order dated May 3, 2006 whereby the review applicant/original applicant (hereafter "Shinde", for short) was dismissed from service as well as the appellate order dated May 20, 2009 confirming the order of dismissal. It was declared that Shinde was eligible to be reinstated in service with all consequential benefits and the respondents in the original application (hereafter "the petitioners", for short) were directed to take Shinde back in service within three months from the date of the order. 2. Shinde, at the relevant time, was employed as the Town Planner of Ambernath Municipal Council. A charge-sheet dated August 19, 2002 was drawn up against him by the Director Town Planning, Maharashtra State, Pune. The English version of the two charges leveled against Shinde reads as follows: "Charge No.1: While the applicant was working as a Town Planner in Ambernath Municipal Council, on deputation, has granted the permission of excess FSI for building construction in City Survey No. 4909 to 4913 as well as violated the Development Control Rules which amounts to misconduct as per Rule 3(1) and (2) of MCS (Conduct) Rules, 1979. Charge No.2: That the applicant has violated the Government Notification dated 4.12.1997 and granted permission for building construction without spot inspection and granted excess FSI without verifying the Revenue Records of City Survey office and violated Rule 2.2.1 which amounts to violation of Rule 3(1) and (2) of MCS (Conduct) Rules, 1979." 3. Bare reading of the aforesaid charges would reveal that Shinde was charged with permitting excess FSI for construction on plots bearing City Survey Nos. 4909 to 4913 and 4848 (hereafter "the said plots", for short) in violation of the Development Control Rules, amounting to misconduct within the meaning of the Maharashtra Civil Services (Conduct) Rules, 1979. Bare reading of the aforesaid charges would reveal that Shinde was charged with permitting excess FSI for construction on plots bearing City Survey Nos. 4909 to 4913 and 4848 (hereafter "the said plots", for short) in violation of the Development Control Rules, amounting to misconduct within the meaning of the Maharashtra Civil Services (Conduct) Rules, 1979. According to Shinde's disciplinary authority, FSI "1" was permissible but Shinde had permitted FSI in excess of that. 4. In his reply dated September 23, 2002, Shinde denied and disputed the charges and raised two-fold contentions. First, the said plots were located in "Gaothan" area and maximum permissible FSI for plots located in such area is "2"; therefore, there was no violation of any law. Secondly, FSI permitted by him was "1" and not anything in excess as wrongfully alleged. 5. An inquiry into the charges followed, which culminated in submission of report dated February 24, 2004 by the Inquiry Officer. Shinde was held guilty of the charges. Based on such inquiry report, Shinde was dismissed from service by an order dated May 3, 2006. The order of dismissal was challenged by Shinde before the Tribunal which, by its order dated October 4, 2007, held the original application to be not maintainable because the stature remedy of appeal had not been pursued by him. Shinde then filed a departmental appeal on October 31, 2007 addressed to the Honble Governor, State of Maharashtra. By an order dated October 15, 2008, the Honble Governor empowered the Hon'ble Deputy Chief Minister, Maharashtra State to hear Shinde's appeal after granting opportunity of hearing to him. The Appellate Authority by an order dated May 20, 2009 dismissed the appeal. The appellate order, in which the order of dismissal merged, was then subjected to challenge by Shinde before the Tribunal in Original Application No. 1235 of 2009. By a judgment and order dated October 24, 2013, the Tribunal dismissed the original application. The tribunal, inter alia, recorded the following finding: "17........ As stated in paragraphs 14 and 15 and elsewhere the matter of enquiry has gone through a number of stages before arriving at a decision to institute a DE and in the DE and in the order of the appellate authority sufficient evidence have been adduced to prove the charges against the applicant. As stated in paragraphs 14 and 15 and elsewhere the matter of enquiry has gone through a number of stages before arriving at a decision to institute a DE and in the DE and in the order of the appellate authority sufficient evidence have been adduced to prove the charges against the applicant. It cannot be said that the enquiry or appeal proceedings are vitiated for want of evidence or malafide. Paragraph 13 supra refers to verification of records, when the applicant was present. It cannot be said that there was any non-application of mind. Between appraisal of evidence and total lack of evidence there is a massive difference. The applicant's arguments pertain to appraisal of evidence about which naturally there can be differences of opinion between the delinquent and the disciplinary authority. The enquiry officer and appellate authority, it is seen, has assessed adequate evidence on record before coming to a conclusion. It cannot be said that same are based on conjectures and surmises. The contentions of the applicant in paragraph 4 supra are not acceptable........." 6. The said judgment and order formed the subject matter of challenge in Writ Petition No.521 of 2014 at the instance of Shinde. When the writ petition came up for hearing on February 1, 2016 before a coordinate Bench of this Court, of which one of us was a member (G.S. Kulkarni, J.), counsel appearing for Shinde sought leave to withdraw the same and to approach the Tribunal in its review jurisdiction. The coordinate Bench disposed of the writ petition. Paragraph 3 of the said order dated February 1, 2016 being relevant, is quoted below: "The writ petition is disposed of as withdrawn with liberty. The MAT to consider the same in the background of filing the petition in this Court and its disposal as recorded above." (emphasis supplied) 7. Availing the liberty granted by the order dated February 1, 2016, Shinde presented the said application before the Tribunal. It is this application that has succeeded before the Tribunal by reason of the judgment and order dated January 18, directing the petitioners to reinstate Shinde in service upon quashing of the order of dismissal and the appellate order. 8. Mr. Samant, Additional Government Pleader, appearing in support of the writ petition has placed before us his written notes of arguments, which is taken on record. 8. Mr. Samant, Additional Government Pleader, appearing in support of the writ petition has placed before us his written notes of arguments, which is taken on record. It appears, on perusal of such notes and on consideration of Mr. Samant's oral arguments, that in essence the legality and/or propriety of the impugned judgment and order of the Tribunal is sought to be assailed on two-fold grounds: (i) The Tribunal overstepped its jurisdiction as if it were rehearing the original application, without bearing in mind the limited grounds on which review of a judgment is permissible; and (ii) Notwithstanding any error in jurisdiction committed by the Tribunal, the findings recorded by it in the impugned judgment and order dated January 18, 2017 are not supported by the records; in fact, the Tribunal exercised jurisdiction as if it were sitting in appeal over the decision of the appellate authority dated May 20, 2009. 9. In support of the first ground of challenge, the decision of the Supreme Court in State of West Bengal v. Kamal Sengupta, reported in (2008) 8 SCC 612 , as well as the provisions of Order XLVII Rule 1 of the Code of Civil Procedure, 1908 (hereafter "the CPC", for short) is relied on. To buttress the second ground of challenge, reliance is placed on the decision of the Supreme Court in the case of B.C. Chaturvedi v. Union of India, reported in (1995) 6 SCC 749 . 10. Opposing the writ petition, Mr. Anturkar, learned senior counsel, submits that the Tribunal has very rightly exercised the jurisdiction to review the judgment and order dated October 24, 2013, upon noticing that the same suffers from errors apparent on the face of the record. According to him, the Tribunal proceeded on a misconception of law and fact that Shinde was urging it to reappreciate and reanalyze the evidence on record without realizing that to reach the conclusion that a finding is perverse, in the sense that documents produced in defence were not at all considered, requires perusal of the evidence. According to him, the Tribunal proceeded on a misconception of law and fact that Shinde was urging it to reappreciate and reanalyze the evidence on record without realizing that to reach the conclusion that a finding is perverse, in the sense that documents produced in defence were not at all considered, requires perusal of the evidence. He further invites our attention to that part of the judgment and order under challenge wherein the Tribunal considered and applied the law laid down by the Supreme Court in its decision in Board of Cricket Control in India and Another v. Netaji Cricket Club & Others, reported in (2005) 4 SCC 741 , to the effect that a misconception of law may give rise to a case for review. Our attention was also drawn to paragraph 16 of the impugned judgment to demonstrate how the Tribunal arrived at the finding that there were sufficient reasons to review and recall the judgment and order dated October 24, 2013, which did not at all look into the evidence on record on the mistaken ground that a tribunal constituted under the AT Act is precluded from reappreciating and reanalyzing the evidence led in a departmental inquiry. The contention advanced is that Shinde never urged that the evidence be reappreciate and reanalyzed; the prayer was to examine the evidence for ascertaining whether the findings are perverse. 11. In support of the contention that the impugned judgment and order does not deserve to be touched even on merits, Mr. Anturkar contended that Shinde, by invoking the machinery under the Right to Information Act, 2005 (hereafter "the RTI Act", for short), had procured copies of official records. These records, according to him, constitute 'information' under the RTI Act and support Shinde's plea that the said plots were located within the "Gaothan" area and, therefore, even if Shinde had permitted FSI more than "1", there was no violation of any law; however, despite a point having been raised touching it in the appeal dated October 31, 2007 in defence of the disputed permission granted by Shinde, the Appellate Authority had failed and neglected to consider such point. Having taken us through paragraph 11 of the appeal of Shinde as well as the appellate order dated May 20,2009, Mr. Having taken us through paragraph 11 of the appeal of Shinde as well as the appellate order dated May 20,2009, Mr. Anturkar contends that not a single word has been spared by the Appellate Authority to deal with such point as raised in paragraph 11 and non- consideration thereof amounted to the order of the Appellate Authority being vitiated by perversity. It was also contended that the disciplinary authority of Shinde sought to take action against him under the draft Development Control Rules and since it is an admitted position that the draft rules had not been finalized and brought into operation even as on date the charge-sheet was issued, Shinde could not have been proceeded against for violation of such draft rules. Accordingly, Mr. Anturkar prays for dismissal of the writ petition. 12. Responding to the argument of Mr. Anturkar, Mr. Samant reiterated his contentions as noted above. 13. We record the statement of Mr. Samant, made in the course of his concluding address, that reference to the draft rules in the charge-sheet was by way of a mistake. He, however, hastens to add that even in terms of the rules which were applicable on the relevant date, FSI permissible was "1" for construction to be raised on the said plots and, therefore, nothing turns on the mistaken reference. 14. Having heard Mr. Samant and Mr. Anturkar at some length, we are not inclined to examine the last point raised by Mr. Anturkar, for, law is well-settled that erroneous reference to a statutory provision by a public authority will not vitiate an action/order if the power is otherwise available to be exercised by him. 15. The Tribunal is a creature of the Administrative Tribunals Act, 1985 (hereafter "the AT Act", for short). Sub-section (1) of section 22 of the AT Act ordains that the Tribunal shall not be bound by the procedure laid down in the CPC but shall be guided by the principles of natural justice. Sub-section (3) thereof, however, provides that the Tribunal shall, for the purposes of discharging its functions under the AT Act, have the same powers as are vested in a civil court under the CPC while trying a suit in respect of matters specified in clauses (a) to (i) including, inter alia, 'reviewing its decision'. Sub-section (3) thereof, however, provides that the Tribunal shall, for the purposes of discharging its functions under the AT Act, have the same powers as are vested in a civil court under the CPC while trying a suit in respect of matters specified in clauses (a) to (i) including, inter alia, 'reviewing its decision'. In terms of powers conferred on the State Government by section 36 of the AT Act, the Maharashtra Administrative Tribunal (Procedure) Rules, 1988(hereafter "the Rules", for short) have been framed. While rule 18 thereof provides that "(N)o application for review shall be entertained unless it is filed within thirty days from the date of the order of which the review is sought", rule 25 empowers the Tribunal to "make such orders or give such directions as may be necessary or expedient to give effect to its orders or to prevent abuse of its process or secure the ends of justice." Thus, the power conferred by rule 25 is akin to the inherent powers of a civil court, preserved by section 151 of the CPC. 16. If one has to literally construe rule 18 of the Rules, and there is no reason as to why it should not be so construed having regard to its intendment starting with negative phraseology, an application for review had to be presented before the Tribunal on November 23, 2013. Shinde did not apply for review within such time; instead, he presented Writ Petition No.521 of 2014 on December 6, 2013, which was disposed of as withdrawn on February 1, 2016 with liberty to Shinde to apply for review. The said application was filed on March 18, 2016, i.e., more than thirty days after liberty in that behalf was granted. It does not appear from the judgment and order dated January 18, 2017that the said application was opposed on the ground of the same being barred by time. On the contrary, the said application was contested by asserting that Shinde had not been able to point out any error apparent on the face of the record and that all the issues raised by him therein were raised in the original application, which ultimately stood dismissed. On the contrary, the said application was contested by asserting that Shinde had not been able to point out any error apparent on the face of the record and that all the issues raised by him therein were raised in the original application, which ultimately stood dismissed. It is in such background that the Tribunal proceeded to hear the parties to ascertain whether there were errors apparent on the face of the record and whether a case for review had been set up or not. 17. At first blush, on reading the impugned judgment and order, it would seem that the Tribunal did, in fact, rehear the original application of Shinde on merits instead of applying the principles of review. One might perceive that the error committed by the Tribunal while dismissing the original application by the judgment and order dated October 24, 2013 was such an error, which could have been corrected by an appropriate Court exercising the power of judicial review, and not by the Tribunal in exercise of the power of review under section 22(3) of the AT Act. This is indeed a formidable ground of challenge raised by Mr. Samant based on Kamal Sengupta (supra). However, in such decision, it has been held that "a tribunal can review its order/decision on the discovery of new or important matter or evidence which the applicant could not produce at the time of initial decision despite exercise of due diligence, or the same was not within his knowledge or if it is shown that the order sought to be reviewed suffers from some mistake or error apparent on the face of the record or there exists some other reason, which, in the opinion of the Tribunal, is sufficient for reviewing the earlier order/decision." (emphasis supplied). In Netaji Cricket Club (supra), the Supreme Court held that "sufficient reason" in Order XLVII Rule 1 would depend on the facts and circumstances and also cover 'misconception of fact or law by the court'. Viewed from such angle, we observe that the contention of Mr. In Netaji Cricket Club (supra), the Supreme Court held that "sufficient reason" in Order XLVII Rule 1 would depend on the facts and circumstances and also cover 'misconception of fact or law by the court'. Viewed from such angle, we observe that the contention of Mr. Anturkar has sufficient merit in that the Tribunal, in the first round before it, totally misconstrued its power of judicial review and applied a test different from the one that was required to be applied on facts and in the circumstances, i.e., the test applied to find out whether findings in a report of inquiry and/or the order following it, whether original or appellate, are perverse. We, therefore, are of the view that a case for review was indeed set up by Shinde. 18. That apart, we are also of the view that while applying the dicta of the Supreme Court in a given case, the facts of the case under consideration before the concerned Court assumes relevance. While examining the ground raised by Mr. Samant, one cannot proceed oblivious of the contents of paragraph 3 of the order dated February 1, 2016 passed on Shinde's writ petition, quoted above, which the petitioners never challenged. Normally, a party seeks withdrawal of the proceedings to go back to the original authority for a review of its decision, if permissible in law, or to the alternative forum available under law, when it finds the court of writ to be disinclined to entertain the writ petition. In such cases, the proceedings are disposed of/dismissed as withdrawn with a simple liberty to the petitioner to pursue the remedy that law provides to him, without expressing any opinion on merit or conditioning it by any rider as such. However, the present case is quite different. The coordinate Bench did not stop at granting liberty; it said something more. Some meaning has to be attributed to the portion of the order directing consideration of the application for review. However, the present case is quite different. The coordinate Bench did not stop at granting liberty; it said something more. Some meaning has to be attributed to the portion of the order directing consideration of the application for review. Such order, in our view, constituted a mandate to the Tribunal to consider the said application in the background of filing of the writ petition in this Court and its disposal by grant of liberty, implying thereby that the coordinate Bench wished the Tribunal to go behind its judgment and order dated October 24, 2013, hear the parties on the merits of the rival contentions and to make such order to secure the ends of justice. We are unable to comprehend such order differently, having regard to the said application being completely time-barred and by necessary implication, recourse to condonation of delay too not being available under the AT Act read with the Rules. Had it not been for such mandate, which remained unchallenged at the instance of the petitioners, the Tribunal was left with no other option but to hear the said application on merits. 19. We cannot also rule out the possible circumstance, having regard to Shinde's conduct since he was dismissed from service, of a fresh approach before the writ court against the order of the Tribunal if it were not inclined to exercise its power of review. In such a situation too, the contentions on merits could fall for consideration of the writ court. In a case of the present nature, where a Government servant has lost his service and consequently his livelihood, technicalities ought to stay at a distance. 20. For the reasons as aforesaid, we see no reason to upset the impugned judgment and order dated January 18, 2017 on the first ground of challenge urged by Mr. Samant. 21. Turning to the other ground of challenge to the judgment and order impugned, we cannot but accept Mr. Anturkar's contention that the Appellate Authority turned a blind eye to the point raised by Shinde in paragraph 11 of his appeal dated October 31, 2007. We are inclined to the view that failure and/or neglect of an authority exercising appellate powers to consider a point raised in an appeal provided by law, which we find to be relevant and material for the purpose of a decision on such appeal, would render the ultimate appellate order perverse. We are inclined to the view that failure and/or neglect of an authority exercising appellate powers to consider a point raised in an appeal provided by law, which we find to be relevant and material for the purpose of a decision on such appeal, would render the ultimate appellate order perverse. It is indeed true, as contended by Mr. Samant, that Shinde had invoked the machinery of the RTI Act after his dismissal from service vide order dated May 3, 2006 and, therefore, the order of dismissal cannot be branded illegal for non-consideration of the information that Shinde received, but judicial notice of facts that we propose to take is sufficient to prove such contention unsound and unacceptable. The RTI Act was enforced on October 12, 2005. By that time, the inquiry before the Inquiry Officer had concluded and the report of inquiry dated February 24, 2004 had seen the light of the day. Shinde, therefore, had no occasion to invoke the RTI Act while the inquiry was in progress and to produce documents in defence by taking recourse to the machinery envisaged therein. Also, a show cause notice dated May 25, 2005 preceded enforcement of the RTI Act which called upon Shinde to explain why punishment of dismissal from service as per the provisions of Rule 5(1)(9) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 should not be imposed on him. 22. These aspects are adverted to only for the purpose that before the RTI Act was enforced, the respondents had agreed with the inquiry report and taken a decision to punish Shinde, meaning thereby that the stage of proving innocence was over and what survived was the stage of extending opportunity to Shinde to persuade the disciplinary authority to impose a lesser penalty, other than dismissal. 23. Returning to the point raised by Mr. Samant that the information gathered by Shinde under the RTI Act was not there before the disciplinary authority, we may observe that Shinde could not have possibly been in possession of the documents that could have helped him in his defence of the charges prior to the RTI Act being made enforceable. He did apply for information under the RTI Act prior to preferring an appeal before the Honble Governor and brought on record the documents and urged contentions to persuade the Appellate Authority rule in his favour. 24. He did apply for information under the RTI Act prior to preferring an appeal before the Honble Governor and brought on record the documents and urged contentions to persuade the Appellate Authority rule in his favour. 24. Unfortunately, as noticed above, there was no consideration worth the name of the point raised by Shinde that the said plots were within the "Gaothan" area and the records obtained by him under the RTI Act supported such contention. We are constrained to observe that the Appellate Authority decided the appeal of Shinde in a casual manner by not adverting to the relevant point that Shinde had raised. Even if the point was not worth consideration, the minimum expected of the Appellate Authority was to say so and support the same by giving reasons. This is a serious flaw in the process of decision-making which renders the judgment and order perverse and hence, bad in law. 25. There is one more illegality in the process of decision making of the Appellate Authority. It is revealed from the appellate order that the Appellate Authority observed certain discrepancies and followed it up by returning a finding that reads as follows: "From this it becomes clear that Shri Shinde helped the landlord and the constituted attorney Shri Ashok Patil by acting contrary to the rules and made recommendation to sanction additional FSI beyond the admissible FSI." This finding seems to impute motive. When considered in the light of the charge-sheet issued to Shinde, it would appear to be at variance with the charges. Neither of the two charges refers to any allegation of Shinde helping the landlord and the constituted attorney, with any motive. In such a situation, we are of the considered view that the Appellate Authority exceeded its jurisdiction in returning such a finding and, thus, the process suffers from the vice of illegality. 26. The process of reasoning adopted by us for our reluctance to interfere with the impugned judgment and order does not conflict with the ratio of the decision in B.C. Chaturvedi (supra). We have not re-appreciated or re-analyzed evidence that was led before the Inquiry Officer, since considered by the disciplinary authority. Exception, which we have taken, is with regard to non-consideration of relevant materials by the Appellate Authority and returning of a finding by the Appellate Authority beyond the charges, thereby vitiating the appellate order. 27. We have not re-appreciated or re-analyzed evidence that was led before the Inquiry Officer, since considered by the disciplinary authority. Exception, which we have taken, is with regard to non-consideration of relevant materials by the Appellate Authority and returning of a finding by the Appellate Authority beyond the charges, thereby vitiating the appellate order. 27. We find on perusal of the impugned judgment and order dated January 18, 2017 that the Tribunal looked into the report of the City Survey Officer, Ulahasnagar dated September 14, 2006, which Shinde obtained by invoking the machinery of the RTI Act, and recorded the same to be conclusive evidence that the said plots were within the "Gaothan" area and further that Shinde had "gone by Revenue records" and not by applying his own parameters; hence the charges were not established. The Tribunal also recorded a finding that the claim of the respondents before it that the revenue records would have no relevance in so far as the Development Control Rules are concerned, was unacceptable. We see no reason to take a view different from the one taken by the Tribunal and affirm the same. 28. For all the reasons aforesaid, the impugned judgment and order dated January 18, 2017 passed by the Tribunal is upheld. The writ petition stands dismissed and the Rule stands discharged. The interim application stands disposed of. There shall be no order as to costs. 29. This order will be digitally signed by the Private Secretary/ Personal Assistant of this Court. All concerned will act on production by fax or e-mail of a digitally signed copy of this order.