{"id":175006,"date":"2003-02-26T00:00:00","date_gmt":"2003-02-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/maval-taluka-general-kamgar-vs-kirkee-cantonment-board-the-on-26-february-2003"},"modified":"2018-07-21T06:56:39","modified_gmt":"2018-07-21T01:26:39","slug":"maval-taluka-general-kamgar-vs-kirkee-cantonment-board-the-on-26-february-2003","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/maval-taluka-general-kamgar-vs-kirkee-cantonment-board-the-on-26-february-2003","title":{"rendered":"Maval Taluka General Kamgar &#8230; vs Kirkee Cantonment Board, The &#8230; on 26 February, 2003"},"content":{"rendered":"<div class=\"docsource_main\">Bombay High Court<\/div>\n<div class=\"doc_title\">Maval Taluka General Kamgar &#8230; vs Kirkee Cantonment Board, The &#8230; on 26 February, 2003<\/div>\n<div class=\"doc_citations\">Equivalent citations: 2003 (5) BomCR 214<\/div>\n<div class=\"doc_author\">Author: C Thakker<\/div>\n<div class=\"doc_bench\">Bench: C Thakker, D Chandrachud<\/div>\n<\/p>\n<pre><\/pre>\n<p>JUDGMENT<\/p>\n<p> C.K. Thakker, C.J. <\/p>\n<p>1. Rule. Mr. Palkhiwala, learned Advocate, appears and waives service of<br \/>\nnotice of rule on behalf of respondent Nos. 1 and 3. Mr. V.P. Sawant, learned<br \/>\nadvocate, appears and waives service of notice of rule on behalf of respondent<br \/>\nNo. 4. In the facts and circumstances, the matter is taken up for final hearing.\n<\/p>\n<p>2. This petition is filed by the petitioners as pro bono publico for an<br \/>\nappropriate writ, direction or order quashing and setting aside Resolution No. 6<br \/>\ndated December 10, 2001, passed by Kirkee Cantonment Board, revoking an<br \/>\norder of suspension and reinstating respondent No. 4 in service.\n<\/p>\n<p>3. It is the case of the petitioners that petitioner No. 1 is a registered union of<br \/>\nMaval Taluka General Kamgar Sanghtna. It is asserted that one of the objects of<br \/>\npetitioner No. 1 is to ensure that dishonest employees are not given any benefit.<br \/>\nPetitioner No. 2 is resident of Kirkee. Respondent No. 3 is an employee of<br \/>\nrespondent No. 1-Board. He is Health Superintendent\/Garden Superintendent. It is<br \/>\nalleged that respondent No. 4 was caught red handed by the Anti Corruption<br \/>\nBureau Department of Pune in connection with a complaint lodged by petitioner<br \/>\nNo. 2 alleging therein that for installation of illegal steel cabin near a bus stop to<br \/>\nrun a business of repairing scooter and motor-cycle etc., respondent No. 4 had<br \/>\ndemanded and accepted an amount of Rs. 10,000\/- from petitioner No. 2 as illegal<br \/>\ngratification. Police Inspector, Anti Corruption, Pune, wrote a letter to the<br \/>\nPresident of Cantonment Board, Kirkee, on January 25, 2001, stating that<br \/>\nrespondent No. 4 was arrested by police for accepting an amount of Rs. 10,000\/-<br \/>\nillegally by promising petitioner No. 2 and allowing him to keep a cabin near bus stop.\n<\/p>\n<p>4. On January 30, 2001, the respondent-Board unanimously resolved to place<br \/>\nrespondent No. 4 under suspension with immediate effect till finalisation of the<br \/>\ncase\/further orders by the Cantonment Board. The said order is annexed to the<br \/>\npetition at Annexure A-1. He was to be paid subsistence allowance as admissible<br \/>\nunder the Rule during the period of suspension.\n<\/p>\n<p>5. It appears that respondent No. 4 made an application to the Board<br \/>\nrequesting his reinstatement in service. Legal opinion was sought and the<br \/>\napplication along with legal opinion was placed before the Board. The prayer of<br \/>\nrespondent No. 4 was rejected as the inquiry against him was not over. It was,<br \/>\nhowever, resolved that if the inquiry proceedings against respondent No. 4 would<br \/>\nnot conclude within six months, the prayer of respondent No. 4 for reinstatement<br \/>\nwould be considered.\n<\/p>\n<p>6. On December 10, 2001, Resolution No. 6 came to be passed by the<br \/>\nrespondent-Board and it was decided to reinstate respondent No. 4 on the post of<br \/>\nHealth Superintendent\/Garden Superintendent with immediate effect on terms<br \/>\nand conditions mentioned therein. The said order is challenged in the present petition.\n<\/p>\n<p>7. Notices were issued, pursuant to which the respondents appeared.<br \/>\nAffidavits and counter affidavits have been filed. We have the learned<br \/>\ncounsel for the parties.\n<\/p>\n<p>8. Mr. Anturkar, learned counsel for the petitioners, contended that the<br \/>\nimpugned Resolution passed by respondent-Board is illegal, unlawful and<br \/>\nimproper. The Board had acted arbitrarily and unreasonably in passing a<br \/>\nResolution and in reinstating respondent No. 4, though he was caught red hand.<br \/>\nIt was also submitted that once respondent No. 4 was arrested, criminal<br \/>\nproceedings were initiated and are pending, no reinstatement should have been<br \/>\nordered. It was urged that in light of serious allegations levelled against<br \/>\nrespondent No. 4, power of reinstatement could not have been exercised by the<br \/>\nBoard. Moreover, the action has been taken within six months, though a<br \/>\ndecision had been taken earlier that if the proceedings would not be completed<br \/>\nwithin six months, prayer of respondent No. 4 for reinstatement would be<br \/>\nconsidered thereafter. Thus, there was colourable exercise of power on the part of<br \/>\nrespondent Board. The counsel submitted that even while resolving to reinstate<br \/>\nrespondent No. 4, certain conditions were imposed which go to show that there<br \/>\nwas prima facie case of a serious offence alleged to have been committed by<br \/>\nrespondent No. 4 which did not call for such action. Mr. Anturkar also submitted<br \/>\nthat mala fide exercise of power is apparent, if one reads affidavit in reply,<br \/>\nwhich clearly reveals that by going out way, respondent-Board had supported<br \/>\nrespondent No. 4, in passing the impugned resolution. On all these grounds, the<br \/>\nresolution deserves to be quashed and set aside by this Court.\n<\/p>\n<p>9. Respondent-Board and its Officers, on the other hand, supported the action<br \/>\ntaken by the Board. An affidavit in reply is filed on behalf of respondent Nos. 1<br \/>\nto 3 wherein it was stated that the petition was not filed as a Public Interest<br \/>\nLitigation but is an individual grievance. Petitioner No. 2 has disputes with<br \/>\nrespondent No. 4. So far as petitioner No. 1 is concerned, the Union is in Maval<br \/>\narea which does not come within the limits of Kirkee Cantonment Board. It was<br \/>\nthen stated that a complaint was filed by Anti Corruption Department against<br \/>\nrespondent No. 4 for illegal acceptance of Rs. 10,000\/- from petitioner No. 2<br \/>\nCantonment Board has given necessary sanction to the Department to file a<br \/>\ncriminal case against respondent No. 4. It was not true that respondent No. 4 was<br \/>\ncaught red handed as alleged. From the charge-sheet filed by the Anti Corruption<br \/>\nDepartment against respondent No. 4, it was clear that Rs. 10,000\/- were found in<br \/>\nthe file which was placed in a rack near the table occupied by respondent No. 4.<br \/>\nIt was further stated by the deponent that the Cantonment Board independently<br \/>\nexamined the facts and circumstances of the case and formed an opinion that the<br \/>\nallegation made by petitioner No. 2 did not seem to be probable. Further,<br \/>\nallotment of cabin was not within the power of respondent No. 4. Such allotment<br \/>\ncan only be made by the first respondent.\n<\/p>\n<p>10. The Cantonment Board permitted Anti Corruption, Bureau to initiate<br \/>\nprosecution against respondent No. 4 and the matter is sub-judice and &#8220;no parallel<br \/>\ndisciplinary case can be initiated against the same person on the same charges&#8221;. It<br \/>\nwas also stated that unless the case is finalized in the court of law, the Board is<br \/>\nnot in a position to take any decision in the matter. The Board will take necessary<br \/>\naction on receipt of the verdict of the Court.\n<\/p>\n<p>11. According to the Board, the decision has been taken in the interest of<br \/>\nadministration as in absence of supervisory head of Sanitary Section, the work of<br \/>\nsanitation\/health in Cantonment area was getting adversely affected. While<br \/>\nreinstating respondent No. 4, the Board has taken due care and precautionary<br \/>\nmeasures as is evident from the Resolution passed by the Board. The fourth<br \/>\nrespondent will not be given any duty in connection with removal of<br \/>\nencroachment. The deponent had asserted that placing an employee under<br \/>\nsuspension or his reinstatement in service is an administrative decision, which is<br \/>\nwithin the power of the Cantonment Board. Since the prosecution is filed by Anti<br \/>\nCorruption Bureau and the matter is sub judice and it may take considerable time<br \/>\nfor its finalisation, the Board cannot afford to keep the post vacant for indefinite<br \/>\nperiod.\n<\/p>\n<p>12. It was then stated:\n<\/p>\n<p>  &#8220;However the charge against the Respondent No. 4 being a serious<br \/>\nmatter makes it necessary for the Board to avoid recurrence of any<br \/>\nsuch complaint in future. Hence the Board has decided to keep the<br \/>\nsaid Respondent No. 4 under observation.&#8221;\n<\/p>\n<p>13. Respondent No. 4 has also filed an affidavit controverting the allegations<br \/>\nlevelled against him by the petitioners. According to him, the petition is not filed<br \/>\nas a public interest litigation but it is for settlement of private accounts. Petitioner<br \/>\nNo. 2 has a serious grudge against respondent No. 4 individually. Petitioner No. 1<br \/>\nhas grievance against respondent o. 4, as respondent No. 4 is the President of<br \/>\nrival trade union. It was then stated that the allegations that petitioner No. 2<br \/>\nrequested for a cabin in Kirkee Bazar area and had paid an amount of Rs. 10,000\/-<br \/>\nto respondent No. 4 by way of illegal gratification for obtaining permission for<br \/>\nsuch cabin are totally false and baseless. it is denied that the fourth respondent<br \/>\nwas caught red handed while accepting money. A false complaint was filed only<br \/>\nfor casting a slur on career and reputation of respondent No. 4 and to adversely<br \/>\naffect his promotional chances. The charge-sheet had already been filed in<br \/>\ncriminal proceedings against respondent No. 4 in July, 2001. There is no case<br \/>\nagainst him. Considering the circumstances in their entirety and prayer of<br \/>\nrespondent No. 4 to reinstate him in service, a decision has been taken by<br \/>\nRespondent Board to reinstate him in service. Such an action cannot be said to be<br \/>\nillegal, contrary to law to unlawful.\n<\/p>\n<p>14. It was also stated by respondent No. 4 that at the relevant time, he was in<br \/>\ncharge of Sanitation as a Health Superintendent and had no authority to deal with<br \/>\nencroachment cases as they were not within his powers. It is, therefore,<br \/>\nunbelievable that respondent No. 4 could have demanded any sum and petitioner<br \/>\nNo. 2 would have paid such amount. The petition, therefore, deserves to be<br \/>\ndismissed.\n<\/p>\n<p>15. By filing affidavits in rejoinder, the petitioner reiterated what was stated in<br \/>\nthe petition and denied the facts stated and averments made by respondent No. 1-Board<br \/>\nas well as by respondent No. 4.\n<\/p>\n<p>16. In so far as the locus standi of the petitioners is concerned, in the light of<br \/>\nall the facts before us, in our opinion, it cannot be said that the petitioners could<br \/>\nnot have approached this Court by invoking jurisdiction under Article 226 of the<br \/>\nConstitution. The first respondent Board is &#8220;State&#8221; within the meaning of Article<br \/>\n12 of the Constitution. It is, therefore, bound to act in accordance with law and if<br \/>\nan action of such authority is challenged as unlawful, illegal or not in conformity<br \/>\nwith well settled principles of law, a grievance can be made. It is, therefore, not<br \/>\nproper to dismiss the petition on the ground that the petitioners have no locus<br \/>\nstandi.\n<\/p>\n<p>17. The allegations of the petitioners that respondent No. 4 was caught red<br \/>\nhanded the same been controverted by the respondents. Looking to the record<br \/>\nwhich has been produced by the parties, it appears that the amount of Rs. 10,000\/-<br \/>\nwas found in the file which was placed in a rack near table occupied by<br \/>\nrespondent No. 4. Thus, it cannot be said that respondent No. 4 was caught red-handed<br \/>\nas alleged. That, however, does not mean that the allegation levelled<br \/>\nagainst respondent No. 4, by the petitioners is false or no such demand was put<br \/>\nforward by respondent No. 4 and no payment was made by petitioner No. 2 to him.<br \/>\nSince the matter is pending before competent criminal court, we refrain from<br \/>\nmaking any observation one way or the other on that aspect in the present<br \/>\nproceedings.\n<\/p>\n<p>18. The question before us is whether the order of suspension which had<br \/>\nbeen passed against respondent No. 4 could or could not have been revoked and<br \/>\nthe action of respondent-Board in reinstating respondent No. 4 is legal and is in<br \/>\naccordance with law?\n<\/p>\n<p>19. In this connection, it may be stated that the ground which weighed with<br \/>\nthe respondent-Board as mentioned in the Resolution dated December 10, 2001<br \/>\nwas that in absence of Health Superintendent, the sanitation work in the<br \/>\nCantonment area had been adversely affected as there was lack of overall<br \/>\nsupervision over Sanitary Inspectors and distribution of duties among them. No<br \/>\nother ground has been specified in the Resolution. At the same time, however,<br \/>\ncertain conditions were imposed on respondent No. 4, even while reinstating him<br \/>\nin service.\n<\/p>\n<p>20. In the affidavit in reply, however, the Board had stated many things<br \/>\njustifying the action of instatement of respondent No. 4. The Board also took<br \/>\nupon itself even before the disposal of criminal trial by expressing opinion on<br \/>\nmerits of the case. It was stated that the Board had independently studied the facts<br \/>\nand circumstances of the case and upon reviewing the same, it was of the opinion<br \/>\nthat the &#8220;allegations made by petitioner No. 2 were not probable&#8221;. It may be stated<br \/>\nthat that was not the ground mentioned in the Resolution. It is further stated that<br \/>\ncriminal proceedings have been initiated against respondent No. 4 and the matter<br \/>\nis sub judice and &#8220;no parallel disciplinary case can be initiated against the same<br \/>\nperson on the same charges&#8221;. The learned counsel for the petitioners contended<br \/>\nthat this is not the well settled position of law. Even if the contention of the<br \/>\npetitioners is not upheld that the said observation has been made by the<br \/>\nCantonment Board in the affidavit in reply with a view to favour respondent<br \/>\nNo. 4, it can be said that apprehension of the petitioners cannot be said to be ill-founded,<br \/>\nparticularly when the Board has gone to the extent of saying that unless<br \/>\nthe case is finalized in a court of law, &#8220;the Board is not in a position to take any<br \/>\ndecision in the matter&#8221;. From the affidavit in reply of the Board, it is clear that<br \/>\nthe Board itself is of the opinion that charges leveled against respondent No. 4<br \/>\nwere very serious, and hence certain conditions were imposed on him.\n<\/p>\n<p>21. The learned counsel for the petitioners is also right in submitting that<br \/>\nprima facie case has been made out against respondent No. 4. The Anti<br \/>\nCorruption. Bureau had asked the Board to grant sanction to prosecute respondent<br \/>\nNo. 4 which was granted. Criminal proceedings have been initiated and even<br \/>\ncharge-sheet is submitted. It, therefore, cannot be said that the petitioners were<br \/>\nnot right in urging that prima facie case had been made out against respondent No. 4.\n<\/p>\n<p>22. We are also not impressed by the argument of respondents that fourth<br \/>\nrespondent was not in charge of demolition of encroachment and had no power<br \/>\nto oblige respondent No. 4, and, hence, the allegations were baseless. That also, in<br \/>\nour opinion, can be considered by competent criminal court.\n<\/p>\n<p>23. The learned counsel for the first respondent Board drew our attention to a<br \/>\nlegal opinion sought by the Board from the Legal Advisor of the Cantonment<br \/>\nBoard. According to that opinion, under the relevant Rules, the power to suspend<br \/>\nan official was discretionary and not mandatory which was clear from the<br \/>\nexpression &#8220;may&#8221; used in Rule 10 of Central Civil Service (Classification<br \/>\nControl and Appeal) Rules, 1965.\n<\/p>\n<p>24. We may only state that as per settled law, in serious cases, which may<br \/>\nresult in major punishment if the conditions laid down in the Rules are present,<br \/>\nsuch power &#8220;must&#8221; be exercised. Keeping in mind the allegations leveled against<br \/>\nrespondent No. 4 that he had demanded and accepted an amount of Rs. 10,000\/- by<br \/>\nway of illegal gratification from petitioner No. 2, it appears to us that the<br \/>\nallegations are very serious and if proved, in all probability they would result in<br \/>\nimposition of one of the major penalties. In the circumstances, in our considered<br \/>\nopinion, the power of suspension had to be exercised.\n<\/p>\n<p>25. From the resolution, it is clear that the only thing weighed with the Board<br \/>\nin passing the Resolution and in reinstating respondent NO. 4 was that it would be<br \/>\nin the interest of administration and to ensure that the administration is not<br \/>\nadversely affected in absence of Health Superintendent. In our opinion, no<br \/>\nreinstatement could have been ordered ignoring the allegations and pendency of<br \/>\nproceedings in competent court. The said action, therefore, deserves to be<br \/>\nquashed and set aside.\n<\/p>\n<p>26. For the foregoing reasons, the petition deserves to be allowed and is<br \/>\naccordingly allowed. The Resolution No. C.B.R. No. 6 dated December 10, 2001<br \/>\npassed by the first respondent-Board is hereby quashed and set aside. It is<br \/>\nhowever, clarified that it is open to the first respondent-Board to take appropriate<br \/>\ndecision in accordance with law, keeping in mind relevant Circulars and<br \/>\nResolutions applicable to the first respondent-Board and our order will not come<br \/>\nin the way of the Board in reconsidering the matter in accordance with law.\n<\/p>\n<p>27. We may also clarify that all observations made us hereinabove have<br \/>\nbeen made only for the purpose of deciding the present petition and we may not<br \/>\nbe understood to have expressed any opinion one way or the other on merits of<br \/>\nthe matter and as and when the matter will come up for consideration, either in<br \/>\ncriminal court or before the Board in future, the same will be decided on its own<br \/>\nmerits, without being inhibited by the aforesaid observations. Rule is accordingly<br \/>\nmade absolute. In the facts and circumstances, however, there shall be no order as<br \/>\nto costs.\n<\/p>\n<p>Certified copy expedited.<\/p>\n","protected":false},"excerpt":{"rendered":"<p>Bombay High Court Maval Taluka General Kamgar &#8230; vs Kirkee Cantonment Board, The &#8230; on 26 February, 2003 Equivalent citations: 2003 (5) BomCR 214 Author: C Thakker Bench: C Thakker, D Chandrachud JUDGMENT C.K. Thakker, C.J. 1. Rule. Mr. Palkhiwala, learned Advocate, appears and waives service of notice of rule on behalf of respondent Nos. [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-175006","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"<!-- This site is optimized with the Yoast SEO plugin v27.3 - https:\/\/yoast.com\/product\/yoast-seo-wordpress\/ -->\n<title>Maval Taluka General Kamgar ... vs Kirkee Cantonment Board, The ... on 26 February, 2003 - Free Judgements of Supreme Court &amp; High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/maval-taluka-general-kamgar-vs-kirkee-cantonment-board-the-on-26-february-2003\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Maval Taluka General Kamgar ... vs Kirkee Cantonment Board, The ... on 26 February, 2003 - Free Judgements of Supreme Court &amp; 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