Bombay High Court
Pravin Ratilal Dudhara vs Municipal Corporation Of Greater ... on 6 September, 1995
Equivalent citations: (1996)IILLJ529BOM
JUDGMENT D.R. Dhanuka, J.
1. The petitioner has been in the employment of the Municipal Corporation of Greater Bombay as a Junior Engineer with effect from 1976.
2. By this petition filed under Article 226 of the Constitution of India, the petitioner has impugned order dated 6th September 1993 passed by the Additional Municipal Commissioner (A) in appeal against order or removal of the petitioner from municipal service whereby the punishment awarded to the petitioner was reduced to the minimum of time scale of the pay as Junior Engineer and Officer order dated 30th September 1993 issued by the Chief Engineer (Roads & S. W. D.) copy whereof is Exhibit "L" to the petition. It is necessary to set out the relevant facts in detail.
3. Some time in the year 1976, the petitioner was appointed as a junior engineer by the Municipal Corporation of Greater Bombay at the officer of Deputy Chief Engineer, Common Services (Project Monitoring) situate at Palton Road, Bombay. The services of the petitioner were transferred to P/North Ward, in the building Department where the petitioner worked during the years 1983 to 1986. Thereafter the services of the petitioner were transferred to some other department.
4. On 21st May 1990, the petitioner was served with a charge sheet in respect of the disciplinary enquiry held against the petitioner copy whereof is Exhibit 'A' to the petition. Shri R. G. Narsule, the enquiry officer, held the departmental enquiry against the petitioner in respect of the charges levelled against the petitioner as set out in the said chargesheet. The enquiry officer recorded evidence of several witnesses including of the petitioner. By writing dated 5th July 1991 (Exhibit E-6) the petitioner was granted full opportunity to inspect all the documentary evidence and cross-examine all the witnesses examined on behalf of the Municipal Corporation of Greater Bombay. By the said report, the petitioner confirmed that all the copies of the proceedings and this minutes of hearing were also furnished to the petitioner and the petitioner had no grievance whatsoever in respect of opportunity granted to the petitioner to put forth his defence. By letter dated 29th July 1991, the petitioner submitted his final statement of defence to the enquiry officer. On 7th January 1992, the enquiry officer submitted his report to the disciplinary authority holding that the charges levelled against the petitioner as set out in the chargesheet dated 7th May 1990 were duly proved. The enquiry officer recommended that the petitioner be removed from Municipal services. A show cause notice was served on the petitioner calling upon the petitioner to show cause as to why the petitioner should not be removed from Municipal service. A copy of the report made by the enquiry officer was forwarded to the petitioner. By letter dated 17th February 1992, the petitioner submitted his explanation in pursuance of show cause notice dated 11th February 1992. On 19th February 1993, the Additional Municipal Commissioner (B) passed his final orders directing removal of the petitioner from Municipal service. By officer order dated 30th March 1993, the Chief Engineer (Roads and S. W. D.) informed the petitioner that the petitioner was removed from the municipal service from the date next to the date of service of the said order on the petitioner.
5. This Court has passed an order to the effect that the said appeal be disposed of within eight weeks from 7th June 1993. In view of the urgency of the matter and paucity of time, the municipal Commissioner passed an order to the effect that the Additional Municipal Commissioner (A) may hear and dispose of the said appeal urgently. The petitioner was duly heard by the appellate authority. The appellate authority passed its order on 26th August 1993. The appellate authority adjourned the hearing of the appeal to 28th August 1993 for further hearing. The appellate authority thereafter passed its final order in the appeal on 6th September 1993 holding that the charges levelled against the petitioner as set out in the chargesheet dated 7th May 1990 were duly proved. The appellate authority however reduced the penalty awarded to the petitioner as set out in the appellate order. By office order dated 30th September 1993, the Chief Engineer (Roads and S. W. D.), communicated the said order of reduction of penalty to the petitioner. The petitioner was reinstated in service. The petitioner was reinstated in Municipal service in terms of the appellate order dated 6th September 1993. By order dated 28th October 1993, this Court admitted the petition must refused to grant interim relief.
6. In the Old Bombay Talkies Compound situated at Malad there was a studio shed bearing shed No. 35 with A. C. Sheet roof. The said shed was not assessed for the purpose of municipal tax. On 24th March 1986, the petitioner submitted a report to Assistant Engineer (B & F) P Ward, North Ward recording therein that the said property was jointly inspected by the petitioner and Shri M. B. Kardille. The said report did not set out particulars in respect of the so-called major defects in the said structure. The petitioner prepared a notice for being issued to one Shri N. D. Jalan invoking Section 354 of the Bombay Municipal Corporation Act calling upon the addressee of the said notice to carry out the following major work.
(a) To repair the slab by guniting at 1st and 2nd floors,
(b) To repairs the Columns and M. S. Beams which were cracked at 1st and 2nd floors.
(c) To repair brick masonary walls wherever necessary at 1st and 2nd floor.
It is the contention of the Municipal Corporation that the said shed did not comprise of first and second floors at all prior to issue of the said notice. It is the case of the respondents that by issue of the said false and misleading notice, the addressee of the said notice was assisted by the petitioner in constructing first and second floors and converting the same into galas in the guise of carrying out repairs in terms of the said notice. It is the case of the respondents that the staff of the Municipal Corporation was in league with the addressee of the said notice.
7. On discovery of the facts relating to the new construction coming up in garb of compliance of the said repair notice purported to have been issued under section 354 of the Bombay Municipal Corporation Act, the authorities of Municipal Corporation issued stop work notice to the addressee of the said notice as contemplated under Section 354(a) of the Bombay Municipal Corporation Act. The said stop work notice dated 11th October 1986 was followed by issue of notice dated 15th October 1986 under section 351 of the Bombay Municipal Corporation Act. The said Shri N. D. Jalan was the trustee of Ramkumar Jalan Public Charitable Trust. The Deputy Municipal Commissioner passed the necessary orders in respect of unauthorised work which has come up in guise of compliance with the above referred notice dated 24th March 1986 on 11th October 1986, which led to filing of Suit No. 7594 of 1986 in the Bombay City Civil Court at Bombay. The owners relied on the above referred Municipal notice dated 24.3.1986. The Municipal Corporation was restrained from taking demolition action in pursuance of the orders passed by the Deputy Municipal Commissioner. A preliminary departmental enquiry was held during the course of which the statements of several municipal employees were recorded including that of the petitioner. The said statements were recorded during the years 1986, 1988 and 1989, as obvious from Exhibit 'C' to the petition.
8. The Municipal Commissioner reached the conclusion that there existed a case for holding of the departmental enquiry against the petitioner in respect of the charge of gross misconduct, negligence and breach of gross misconduct, negligence and breach of duty as set out in the charge sheet dated 7th May 1990. It was the case of the petitioner in defence that Shri M. B. Kardille the then Assistant Engineer, P/North Ward Office, was solely responsible for issue of said defective notice dated 24.3.86. It was the defence of the petitioner that the said notice was duly signed by Shri M. B. Kardille who was a senior officer and the site was also inspected jointly by them and the petitioner.
9. By the said charge sheet dated 7.5.90, it was alleged that the petitioner was guilty of misconduct of breach of duty and negligence in respect of the inspection report dated 24.3.86 and issue of the said notice dated 24.3.86 purporting to invoke section 354 of the Bombay Municipal Corporation Act being notice No. NOP/N/354/61/MWS/86. It was also alleged that the petitioner had lost the original action papers under nos. WOP/MWS/32/III/86 of 21.1.1986 and WOP/MWS/5/III of 15.7.85 pertaining to M/s. Neeta Electricals and Shri Bhagwati Dhadi."The statement of allegations" was duly served on the allegations" was duly served on the petitioner. It was alleged in the said statement of allegations that the said impugned notice set out items of major repairs which would not have been permitted in absence of approval of building proposal section as required under sections 342/347 of the Bombay Municipal Corporation Act. It was alleged that the petitioner had neglected the said provisions as the petitioner was favouring the addressee of the said notice. It was set out in the said statement of allegations that relying on the false repair notice referred to here in above, the owner was allowed by the petitioner to construct a totally new structure as could be seen on inspection of the property now. Copies of all the statements recorded during the course of preliminary enquiry were furnished to the petitioner. The petitioner denied the allegations made against the petitioner in the charge sheet dated 7th May 1990. The petitioner defended the said proceedings. The petitioner submitted his reply to the chargesheet. No presentation officer was appointed by the Municipal Corporation or by the disciplinary authority for presentation of the case on behalf of the department. It was not necessary to do so as the provision of the Act or the Rules did not obligate the Municipal Commissioner or the disciplinary authority to appoint the presenting officer.
10. During the course of regular departmental enquiry witnesses were examined and the documents were produced and scrutinised.
The following witnesses were examined during the course of the enquiry :-
(1) Shri A. B. Kulkarni, Assistant Engineer.
(2) Shri Y. K. Khasnis, Junior Engineer (3) Shri V. D. Ingawala, Sub-Engineer (4) Shri M. B. Kardille who was perhaps an accomplice with the petitioner in respect of wrongful act imputed to the petitioner under the said charge sheet. (the then Assistant Engineer).
11. It emerges from the report of the enquiry officer dated 7th January 1992 based on appreciation of oral and documentary evidence led at the enquiry that both the charges levelled against the petitioner as set out in the said charge sheet were duly proved. The shed No. 35A was not assessed. The shed No. 35A did not comprise of first and 2nd floors prior to the issue of notice dated 24.3.1986. No city survey plan was on record as alleged by the defence. The notice for carrying out of the urgent repairs could not be issued under section 354 of the Bombay Municipal Corporation Act without approval from Building Proposal Section. Sections 347/342 of the Bombay Municipal Corporation Act were ignored either deliberately or negligently. The report of the inspection made by the petitioner was kept defective and it did not set out any details though it was alleged by the petitioner that the site of shed No. 35A was jointly inspected by the petitioner and Mr. Kardille. It appears that Mr. Kardille had not participated in the inspection. Although Mr. Kardille had signed the said notice dated 24.3.86, the petitioner could not escape from his responsibility in the matter as the petitioner had actively participated in the wrongful acts attributed to the petitioner under the said chargesheet. It was not correct that the petitioner was already warned by the Municipal Corporation in respect of loss of the original action papers pertaining to M/s. Neeta Electricals and Shri Bhagwati Dhadi. The case of the petitioner that the petitioner was already warned by the Municipal Commissioner in this behalf by his order dated 21st May 1987 does not appear to be true as the said warning was administered to the petitioner in respect of the default on the part of the petitioner in not keeping the office record up-to-date.
12. I shall now summaries the findings of the appellate authority as set out in the order of the Additional Municipal Commissioner (A) on 26th August 1993 and final order dated 6/7th September 1993. After careful scrutiny of the oral and documentary evidence on record of the enquiry proceedings, the appellate authority observed in the first order dated 26th August 1993 that the conduct of the petitioner in issuing notice dated 24-3-86 to Shri N. D. Jalan was not bonafide and the conduct of the petitioner did not disclose proper application of mind at all. The appellate authority referred to the note dated 24th March 1986 appearing in the office file. By the said order dated 26th August 1993, the appellate authority adjourned the hearing of the appeal for some time so as to give an opportunity to the petitioner to produce the relevant material to show the state of the building at the time when the said notice was issued. The petitioner was a junior engineer. One of the major defences of the petitioner during the course of the departmental enquiry was that the petitioner had merely acted under the supervision and guidance of Shri M. B. Kardille, Assistant Engineer and the petitioner was sought to be made a scape goat for the wrongs committed by Shri M. B. Kardille, if any. Having regard to these contentions and having regard to the statements made by Shri Kardille in his deposition during the course of enquiry and other material records, the appellate authority as required to examine the validity of this defence. It appears from the final appellate order dated 6/7th September 1993 that in the opinion of the appellate authority both the petitioner and Shri Kardille were acting in concert and both of them were assisting the addressee of the notice by permitting unauthorised development contrary to law. The finding of the appellate authority appears to be that in so far as the first charge is concerned, both the petitioner and Shri Kardille must share the blame. As far as the second charge is concerned, the second charge was held proved in the opinion of the disciplinary authority as well as the appellate authority. Shri M. B. Kardille had also a very unsatisfactory record of service with the Municipal Corporation. Shri Kardille was suspended from service at one stage. Shri Kardille was dismissed from the municipal service as a result of the enquiry held in some other case. The Municipal Commissioner as an appellate authority had however permitted Shri Kardille to superannuate from 1st November 1987 by reducing his monthly pension. In this situation, the appellate authority by a detailed reasoned order dated 6/7th September 1993, held that the punishment awarded to the petitioner was harsh in view of the blameworthy conduct of Shri Kardille who was the superior officer.
13. The learned counsel for the petitioner had submitted that the impugned order Exhibit "L" to the petition is liable to be quashed and set aside by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India on various grounds as discussed in the later part of this judgment.
14. The original order of removal of the petitioner from service was passed by the Additional Municipal Corporation (B), A doubt arose in my mind during the course of arguments as to whether the appeal could be heard and disposed of by the Additional Municipal Commissioner (A) as directed by the Municipal Commissioner. It occurred to me that an enquiry should be made from the learned counsel on both sides as to whether it would be in the interest of justice to direct that the appeal be heard by the Municipal Commissioner himself. The learned counsel for the petitioner did not adopt this line of argument. The learned counsel for Municipal Corporation pointed out that the Manual of Department Inquiries published by Municipal Corporation did provide that where the order was passed by a Deputy Municipal Commissioner, appeal could be heard by another Deputy Municipal Commissioner under the authority of the Municipal Commissioner. The learned counsel for the Corporation pointed out that by analogy it could be reasonably submitted that the Additional Municipal Commissioner (A) could be directed by the Municipal Commissioner fact to hear and dispose of the said appeal. I hold that in the situation of this case the above referred appeal could be legitimately heard and disposed of by the Additional Municipal Commissioner (A).
15. The learned counsel for the petitioner submitted that the enquiry officer had combined the role of prosecutor and the judge while holding the enquiry. It was not the grievance of the learned counsel for the petitioner that no presentation officer was appointed to present the case on behalf of the Corporation during the course of the enquiry. The argument of the learned counsel for the petitioner was that the enquiry officer put too many questions to the petitioner during the course of the enquiry and over stepped. The learned counsel for the petitioner submitted that he could not have any objection to the enquiry officer asking clarificatory questions to the witnesses. The learned counsel for the petitioner submitted that the enquiry officer had cross-examined the witnesses examined on behalf of the Corporation. The learned counsel for the petitioner submitted that as a matter of fact the enquiry officer had used the expression "completed the cross-examination" at foot of the evidence of Shri V. D. Ingawale, Sub-Engineer, Corporation witness. The learned counsel for the petitioner relied on the ratio of the judgment of the Supreme Court in the case of Mulchandani Electrical and Radio Industries Ltd. v. The Workmen . In this case, the Supreme Court held that if the enquiry officer had put questions to the witnesses by way of clarification, it could not be said that he had done something that was not fair or proper. In that case witnesses were allowed to be cross-examined on behalf of the union after they had answered the questions asked by the enquiry officer. The learned counsel for the Municipal Corporation invited the attention of the Court to the Division Bench judgment of this Court dated 5th March 1993 in Appeal No. 457 of 1991 arising from Writ Petition No. 3119 of 1988. In this case it was held by the Division Bench of this Court that absence of the presenting officer did not violate the principles of natural justice. It was further held that the facts clearly indicated that the petitioner had not suffered any prejudice. In my opinion, the enquiry officer did not over-step. The enquiry officer merely asked clarificatory questions to the witnesses examined on behalf of the Corporation. Mere erroneous use of the word "cross-examination" at the foot of the proceedings while recording the evidence of one of the witnesses i.e., Shri V. D. Ingawale does not mean that the enquiry officer had in fact cross-examined the Corporation witnesses as such. In any even, the above defect, if any, was rectified by giving of full opportunity to the petitioner to cross-examine all the Corporation witnesses as admitted by the petitioner by his writing dated 5th July 1991 Exhibit E-6 to the petition. By the said writing the petitioner has admitted that the petitioner was given full opportunity to cross-examine the witnesses and the petitioner was also furnished with all the copies of proceedings, minutes and documentary evidence. By the said writing, the petitioner also admitted that the petitioner had full opportunity to put forth his defence. In this view of the matter, the ratio of the judgment of the Supreme Court in the above referred case is clearly applicable. In my opinion, the impugned order cannot be set aside on the above referred ground and as propounded by the learned counsel for the petitioner.
16. The learned counsel for the petitioner submitted that the findings recorded by the two authorities below were perverse. The learned counsel for the petitioner submitted that the findings recorded by the enquiry officer as well as by the appellate authority were liable to be treated as perverse as the same were contrary to documentary evidence consisting of "notice" under Section 354 of the Act under the signature of Shri M. B. Kardille, the then Assistant Engineer, P/North Ward Office. The learned counsel developed this argument by contending that the notice dated 24th March 1986 was in fact signed by Shri M. B. Kardille. The learned counsel for the petitioner submits that the contemporaneous record and the note in the file made by the petitioner showed that Shri M. B. Kardille had also inspected the property before issuance of the said notice. The learned counsel submitted that in this situation the subsequent version of Shri M. B. Kardille in his deposition to the effect that he had not visited the site was meaningless and the said defence could not have been accepted by the authorities below. This was a case where the two officers acted in concert. It is possible that Shri M. B. Kardille told some lies during the course of his testimony. It does not mean that every word of what he said was unbelievable and the testimony of Shri M. B. Kardille was liable to be ignored in toto. There was sufficient circumstantial evidence on record to show that the petitioner and Shri M. B. Kardille both had misbehaved and both were guilty of negligence. The shed in question was not even assessed to municipal tax. The learned counsel for the petitioner relied on the statement made by Shri M. B. Kardille during the course of his evidence to the effect that he had seen original city survey plan showing ground plus two upper floors in respect of shed No. 35A. It is the case of the Municipal Corporation that the shed No. 35A did not comprise of upper floors at all before issue of the said notice. The enquiry officer, the disciplinary authority and the appellate authority gave more than ample opportunity to the petitioner to produce the said city survey plan. No such plan could be produced. No such plan is in the file. This was a case where the municipal employee had colluded with opposite party and had caused considerable embarrassment to the Municipal Corporation. The petitioner should thank himself for being punished very leniently in view of the said Shri Kardille having already reached the age of superannuation and having been let off in another case by mere reduction of pension. I do not find any merit in the submissions made by the learned counsel for the petitioner has submitted that the petitioner is made to loss of about Rs. 2,000/-per month. This cannot be helped. This is the consequence of serious lapses on the part of the petitioner which are duly proved.
17. At this state it would be relevant to refer to the authorities cited by the learned counsel for the Corporation in support of his proposition that the writ Court should not interfere in these matters except in rare cases where the impugned order was shown to be patently illegal or violative of principles of natural justice. The learned counsel for the Corporation relied on the ratio of the judgment of the Supreme Court in the case of Somnath Sahu v. The State of Orissa and others . In this case, it was held that the High Court was not constituted under Article 226 of the Constitution of India as a court of Appeal over the decision of the statutory authority deciding the departmental appeal. The Supreme Court held that when there was some evidence which the appellate authority had accepted and which evidence reasonably supported the conclusion that the officer was guilty of improper conduct, it was not the function of the High Court in a petition for writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The Court held that the High Court may interfere only where the disciplinary authority had acted without or in excess of jurisdiction or where it had committed an error apparent on the basis of the record. It is not necessary to refer to the other authorities cited at the Bar. This is not the case where the impugned orders are shown to be without or in excess of jurisdiction of suffer from an error apparent on the face of the record or is violative of the principles of natural justice. It is not for this court to reappreciate the evidence and arrive at independent findings on the evidence. The mere use of the word 'perverse' during the course of the argument does not mean that the findings recorded by the two authorities below are proved to be perverse.
18. In the result, the petition fails. The petition is dismissed.
19. Having regard to the facts and circumstances of the case, there shall be no order as to costs.