{"id":224594,"date":"2009-11-06T00:00:00","date_gmt":"2009-11-05T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bank-vs-state-of-maharashtra-on-6-november-2009"},"modified":"2016-08-21T20:58:48","modified_gmt":"2016-08-21T15:28:48","slug":"bank-vs-state-of-maharashtra-on-6-november-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bank-vs-state-of-maharashtra-on-6-november-2009","title":{"rendered":"Bank vs State Of Maharashtra on 6 November, 2009"},"content":{"rendered":"
Bombay High Court<\/div>\n
Bank vs State Of Maharashtra on 6 November, 2009<\/div>\n
Bench: B. P. Dharmadhikari, F.M. Reis<\/div>\n
                                     1\n           IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                         NAGPUR BENCH\n\n\n\n\n                                                                    \n               WRIT PETITION NO. 5815  OF  2007\n\n\n\n\n                                            \n     Dnyaneshwar Sopanrao Bhandare,\n\n\n\n\n                                           \n     aged about 55 years, \n     occupation - Service, \n     residing at Plot No. 78, in front of\n     Nagpur District Central Cooperative\n\n\n\n\n                                 \n     Bank, Hudkeshwar Road,\n     Rajapeth, Nagpurig                       ...   PETITIONER\n\n                         Versus\n                   \n     1. State of Maharashtra,\n        through the Secretary,\n        Urban Development Department,\n        Mantralaya, Mumbai 400 032.\n      \n\n\n     2. Nagpur Municipal Corporation,\n   \n\n\n\n        through its Commissioner,\n        Civil Lines, Nagpur.\n\n\n\n\n\n     3. Additional Commissioner,\n        Nagpur Municipal Corporation,\n        Civil Lines, Nagpur.                   ...   RESPONDENTS\n\n\n\n\n\n     Shri A.S. Chandurkar, Advocate for the petitioner.\n     Shri Y.B. Mandpe, AGP for respondent No. 1.\n     Shri C.S. Kaptan, Advocate for respondents No. 2 & 3.\n                         .....\n\n\n\n\n                                            ::: Downloaded on - 09\/06\/2013 15:16:34 :::\n                                           2\n                             CORAM :  B.P. DHARMADHIKARI  & \n                                         F.M. REIS, JJ.\n<\/pre>\n
     DATE OF RESERVING THE JUDGMENT      : OCT.  07, 2009.\n<\/p>\n
     DATE OF PRONOUNCING THE JUDGMENT: NOV. 06, 2009.\n<\/p>\n
     JUDGMENT :  (PER B.P. DHARMADHIKARI, J.)<\/p>\n
                 Writ Petition is to be disposed of finally at the stage of <\/p>\n
     admission itself as per orders dated 12th June 2008.  Accordingly, <\/p>\n
     we   have   heard   Shri   Chandurkar,   learned   counsel   for   the <\/p>\n
     petitioner, Shri Mandpe, learned AGP for respondent No.1 and <\/p>\n
     Shri Kaptan, learned counsel for respondents No.2 & 3 for some <\/p>\n
     time and then they sought leave to place on record written notes <\/p>\n
     of   arguments.     After   the   written   notes   were   exchanged,   the <\/p>\n
     matter was fixed twice for oral hearing and ultimately was closed <\/p>\n
     for judgment as no arguments could be advanced.  As the matter <\/p>\n
     was fixed for final hearing, we formally issue Rule and make it <\/p>\n
     returnable forthwith.\n<\/p>\n
     2.         We have gone through the written notes of arguments <\/p>\n
     filed by the petitioner as also by his employer Respondents No. 2 <\/p>\n
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\n                                             3<\/span>
\n     &   3.     Shri   Mandpe,   AGP   for   respondent   No.1   has   orally <\/p>\n
     supported the appellate order passed by Respondent No.1 – State <\/p>\n
     Government.\n<\/p>\n
     3.         The   challenge   in   writ   petition   is   to   the   order   dated <\/p>\n
     28.10.2005   passed   by   Respondent   No.3   –   Additional <\/p>\n
     Commissioner   of   Nagpur   Municipal   Corporation   imposing <\/p>\n
     punishment of his reduction to lowest stage in pay scale of Rs.\n<\/p>\n
     4000-6000   and   withholding   his   annual   increments   thereafter <\/p>\n
     permanently for five years with cumulative effect.  The period of <\/p>\n
     his   suspension   pending   enquiry   has   been   regularised   as <\/p>\n
     suspension   period   only.     This   order   was   challenged   by   the <\/p>\n
     petitioner in appeal before Respondent No.1 – State Government <\/p>\n
     under   the   provisions   of   Section   387(3)   of   City   of   Nagpur <\/p>\n
     Corporation   Act,   1948   (hereinafter   referred   to   as   Corporation <\/p>\n
     Act).     That   appeal   came   to   be   dismissed   by   the   Principal <\/p>\n
     Secretary,   Urban   Development   on   30th  May   2007   but   the <\/p>\n
     punishment   was   made   subject   to  approval   of  General   Body   of <\/p>\n
     Nagpur Corporation in view of Section 50(1) thereof.  These two <\/p>\n
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\n                                             4<\/span>
\n     orders are assailed in present writ petition.\n<\/p>\n
     4.          The   petitioner   is   a   Junior   Inspector   in   Assessment <\/p>\n
     department   of   Nagpur   Municipal   Corporation.     His   basic <\/p>\n
     contention is that the discontinuation from service  of one Shri <\/p>\n
     Gharde was never informed to him and hence he could not have <\/p>\n
     been   blamed   for   recovery   of   494   assessment   files   from   Shri <\/p>\n
     Gharde.     Shri   Gharde   was   employed   on   daily   wages.     He   has <\/p>\n
     further   contended  that  those  494  files  were  never  received   by <\/p>\n
     him from record room.  He has also relied upon similar enquiry <\/p>\n
     conducted against one Shri A.U. Bahadure, who was exonerated <\/p>\n
     by Respondent No.3 only because criminal offence could not be <\/p>\n
     made out and police submitted discharge report under Section <\/p>\n
     169   of   Criminal   Procedure   Code,   to   Judicial   Magistrate   First <\/p>\n
     Class.     Shri   Gharde   was   one   of   the   accused   in   that   matter.\n<\/p>\n
     Because   Shri   Gharde   could   not   be   prosecuted,   departmental <\/p>\n
     enquiry   against   Shri   Bahadure   was   dropped.     The   petitioner <\/p>\n
     claimed   same   treatment.     He   has   further   contended   that   the <\/p>\n
     punishment imposed upon him is major punishment which could <\/p>\n
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\n                                             5<\/span>
\n     have been inflicted only by General Body and hence initiation of <\/p>\n
     departmental   enquiry   by   Respondent   No.3   –   Additional <\/p>\n
     Municipal Corporation is unsustainable.\n<\/p>\n
     5.          Respondents No. 2 & 3 have justified their action by <\/p>\n
     contending   that   there   was   no   evidence   against   Shri   Bahadure <\/p>\n
     while  in departmental  enquiry  said evidence  has come  against <\/p>\n
     the   petitioner.     It   is   further   stated   that   the   provisions   of <\/p>\n
     Maharashtra Civil Service (Discipline & Appeal) Rules, 1979, (i.e.\n<\/p>\n
     1979 Rules or Discipline & Appeal rules hereinfater), are adopted <\/p>\n
     vide resolution by Nagpur Municipal Corporation and powers of <\/p>\n
     disciplinary authorities thereunder are given to various officers of <\/p>\n
     Nagpur   Corporation.     Deputy   Municipal   Commissioner   was <\/p>\n
     competent to initiate departmental enquiry against the petitioner <\/p>\n
     in view of delegation in his favour by Municipal Commissioner.\n<\/p>\n
     It is, therefore, contended that there is no merit in writ petition <\/p>\n
     and writ petition deserves to be dismissed.\n<\/p>\n
     6.          Shri Chandurkar, learned counsel for the petitioner has <\/p>\n
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\n                                           6<\/span>
\n     invited our attention to relevant provisions of Corporation Act as <\/p>\n
     also  discipline   and appeal   rules  mentioned  above   to urge  that <\/p>\n
     departmental enquiry has been initiated against the petitioner by <\/p>\n
     Respondent No.3 and as said respondent could not have imposed <\/p>\n
     major punishment upon the petitioner, the initiation of enquiry <\/p>\n
     itself is bad.  He points out that even the appellate authority has <\/p>\n
     found that general body of Nagpur Municipal Corporation is the <\/p>\n
     appointing authority and, therefore, it alone was competent to <\/p>\n
     take action against the petitioner.   He states that delegation of <\/p>\n
     powers by the administrator on 28th  June 1984 is, therefore, of <\/p>\n
     no use in present matter.  As Municipal Commissioner is not the <\/p>\n
     disciplinary authority of the petitioner, delegation of his powers <\/p>\n
     to   the   Deputy   Municipal   Commissioner   is   irrelevant.     He   has <\/p>\n
     relied upon the judgment of Division Bench of this Court in the <\/p>\n
     case   of  Prabhakar   vs.   K.D.   Municipal   Corporation,   Kalyan, <\/p>\n
     reported at 2003(4) Mh.L.J. 423.  He has also attempted to show <\/p>\n
     how the petitioner has been victimized though his case and case <\/p>\n
     of Shri Bahadure is identical and no adverse evidence has come <\/p>\n
     against the petitioner.  He states that the Enquiry Officer had in <\/p>\n
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\n                                             7<\/span>
\n     fact exonerated the petitioner of charge No.2.\n<\/p>\n
     7.          Shri Kaptan, learned counsel states that the provisions <\/p>\n
     of Maharashtra Civil Services Rules are adopted by the Municipal <\/p>\n
     Corporation by passing resolution and those provisions need to <\/p>\n
     be read subject to express provisions of Nagpur Corporation Act.\n<\/p>\n
     He   states   that   Section   53(5)   only   prohibits   imposition   of <\/p>\n
     penalties   like   discharge,   dismissal   or   removal   by   any   other <\/p>\n
     authority   except   appointing   authority.     He   invites   attention   to <\/p>\n
     resolution of Corporation dated 28th June 1984 to show how the <\/p>\n
     powers of Municipal Commissioner to impose minor penalties on <\/p>\n
     Class II employees and major penalties on class III employees are <\/p>\n
     delegated   to   the   Deputy   Municipal   Commissioner.     He   invites <\/p>\n
     attention   to   classification   of   penalties   as   contained   in   Section <\/p>\n
     53(2)   read   with   said   resolution   dated   28th  June   1984   for   this <\/p>\n
     purpose.     He   further   states   that   the   Deputy   Municipal <\/p>\n
     Commissioner   is   subordinate   to   the   Additional   Commissioner.\n<\/p>\n
     As   the   Additional   Commissioner   is   superior   authority,   it   can <\/p>\n
     institute   disciplinary   proceedings   and   impose   penalties.     He <\/p>\n
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\n                                            8<\/span>
\n     places reliance upon the judgment of the Hon’ble Apex Court in <\/p>\n
     the   case   of  S.   Sudhakar   vs.   Postmaster   General,<\/a>   reported   at <\/p>\n
     (2006)   4   SCC   348.     In   this   background,   he   states   that   the <\/p>\n
     Division Bench of this Court in its judgment  Prabhakar vs. K.D.\n<\/p>\n
     Municipal Corporation, Kalyan, (supra) has considered Section 56 <\/p>\n
     of Bombay Provincial Municipal Corporations Act, 1949, where <\/p>\n
     the scheme is entirely different.\n<\/p>\n
     8.          Before   proceeding   further   to   examine   the   issue   of <\/p>\n
     perversity of findings or then of victimization of the petitioner, <\/p>\n
     we find it appropriate to consider legal issue about competency <\/p>\n
     of authority to initiate departmental enquiry and to punish the <\/p>\n
     petitioner.     The   contention   of  Corporation   that   it  has  adopted <\/p>\n
     Discipline and Appeal Rules of State of Maharashtra by passing <\/p>\n
     resolution, does not appear to be very correct.  Respondent No.1 <\/p>\n
     has   on   30th  September   1966   published   Bye   Laws   known   as <\/p>\n
     Nagpur Municipal  Corporation  Services Bye  Laws, which  came <\/p>\n
     into force from 1st April 1963.  By clause (2) thereof, the Bombay <\/p>\n
     Civil Services Rules, 1959, with supplementary rules, order and <\/p>\n
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\n                                            9<\/span>
\n     appendices made thereunder as amended from time to time were <\/p>\n
     to regulate the conditions of service of Civil Services of Nagpur <\/p>\n
     Corporation as for as possible.   Its clause (5) stipulated that all <\/p>\n
     references to Government in Bombay Civil Services Rules were to <\/p>\n
     be construed as references to Nagpur Corporation.  All references <\/p>\n
     to Government  servants were  to be  construed  as references  to <\/p>\n
     Nagpur   Corporation   servants,   all   references   to   competent <\/p>\n
     authorities in Bombay Civil Services Rules were to be construed <\/p>\n
     as   references   to   competent   authorities   under   City   of   Nagpur <\/p>\n
     Corporation   Act,   1948,   and   all   references   to   Head   of <\/p>\n
     Departments   were   to  be   construed   as  References   to   Municipal <\/p>\n
     Commissioner.   Thus, these bye laws were destined to regulate <\/p>\n
     departmental enquiry “as far as possible” and all references to <\/p>\n
     Head of Department therein were to be construed as reference to <\/p>\n
     Municipal Commissioner.\n<\/p>\n
     9.          The   resolution   dated   28th  June   1984   needs   to   be <\/p>\n
     looked into in this background.  The said resolution No. 20 at its <\/p>\n
     beginning   states   that   as   per   notification   dated   30th  September <\/p>\n
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\n                                             10<\/span>
\n     1966,   Bombay   Civil   Service   Rules   were   made   applicable   to <\/p>\n
     Corporation   staff.     However,   Bombay   Civil   Service   Rules   have <\/p>\n
     now been replaced by Maharashtra Civil Service (Discipline and <\/p>\n
     Appeal)   Rules,   1979,   i.e.   1979   Rules   or   Discipline   &   Appeal <\/p>\n
     Rules,   which   automatically   become   applicable   to   Corporation <\/p>\n
     employees.     However,   the   resolution   observes   that   by   way   of <\/p>\n
     abundant   precautions,   these   1979   Rules,   have   been   formally <\/p>\n
     adopted.  There is no challenge to this adoption before us.\n<\/p>\n
     10.         Section 53(2) of Corporation Act prohibits 8 types of <\/p>\n
     penalties which for good and sufficient reason can be imposed <\/p>\n
     upon   any   Municipal   employee   or   servant.     Consistent   with <\/p>\n
     classification   of   penalties   into   major   penalties   and   minor <\/p>\n
     penalties   in   1979   Rules,   those   eight   penalties   have   been <\/p>\n
     classified   into   major   and   minor   by   this   resolution.     We   are <\/p>\n
     concerned   with   Section   53(2)   (iii)   which   speaks   of  penalty   of <\/p>\n
     reduction to a lower post of time scale or to a lower stage in a <\/p>\n
     time   scale.   This   has   been   classified   as   major   penalty   by   this <\/p>\n
     resolution.  The resolution further proceeds to amend Rule 6 of <\/p>\n
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\n                                            11<\/span>
\n     1979 Maharashtra Civil Service (Discipline and Appeal) Rules, by <\/p>\n
     stating   that   the   word   Governor   therein   should   be   read   as <\/p>\n
     Corporation.   Then it states that the provision of Rule No. 6 of <\/p>\n
     Discipline and Appeal Rules would be as mentioned therein and <\/p>\n
     thus a new proviso has been read\/ added into said rule 6 instead <\/p>\n
     of its existing proviso.   As per this new proviso which has been <\/p>\n
     read into 1979 Rules to make it applicable to services of Nagpur <\/p>\n
     Corporation as far as possible, the Municipal Commissioner has <\/p>\n
     been   declared   to   be   competent   authority   for   imposing   minor <\/p>\n
     penalties on Class I employee of Corporation.   General body of <\/p>\n
     Corporation   is   the   competent   authority   for   imposing   major <\/p>\n
     penalties on such officers.   Municipal Commissioner is declared <\/p>\n
     competent   authority   to   impose   major   penalties   on   all   Class   II <\/p>\n
     employees.     The   Deputy   Municipal   Commissioner   is   declared <\/p>\n
     competent  to impose  minor penalty on  class  II employees and <\/p>\n
     major penalties on class III employees.  Then the proviso speaks <\/p>\n
     of class IV employees.  We are not concerned with said proviso.\n<\/p>\n
     The holders of the post the minimum of which is Rs.680\/- and <\/p>\n
     above are included in Class – I.  It is not in dispute before us that <\/p>\n
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\n                                            12<\/span>
\n     as per this resolution, the petitioner is in Class – I.   In fact, the <\/p>\n
     appellate   authority   viz.,   State   Government   has   in   its   appellate <\/p>\n
     order dated 30th May 2007 observed that as per Section 50(1) of <\/p>\n
     Corporation   Act,   Corporation   “General   Body”   is   appointing <\/p>\n
     authority   and   hence   penalty   imposed   upon   the   petitioner   is <\/p>\n
     maintained   by   the   appellate   authority   but   subject   to   grant   of <\/p>\n
     approval to that punishment by general body.   This position is <\/p>\n
     not in dispute before us.\n<\/p>\n
     11.         Section   50(1)   (first   proviso)   confers   power   of <\/p>\n
     appointment to the cadre of petitioner only upon a General Body <\/p>\n
     of   Municipal   Corporation.     Section   53   does   not   expressly <\/p>\n
     prescribe any authority as disciplinary authority but then its sub-\n<\/p>\n
     section   (5)   state   that   Municipal   Officer   or   servant   cannot   be <\/p>\n
     discharged, dismissed or removed from service of Corporation by <\/p>\n
     order   of   any   authority   subordinate   to   that   which   makes <\/p>\n
     appointment to his post at the time of order.  Thus, these major <\/p>\n
     penalties can be imposed only by authorities competent to effect <\/p>\n
     appointment   to   that   cadre   on   the   date   of   punishment   orders.\n<\/p>\n
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\n                                            13<\/span><\/p>\n
     Section   46   states   that   the   Municipal   Commissioner   is   the <\/p>\n
     Principal Executive Officer of Corporation and all other officers <\/p>\n
     and servants of Corporation are subordinate to him.  Section 59 <\/p>\n
     speaks of functions of several Municipal authorities and its sub-\n<\/p>\n
     section (3) states that subject to express provision to the contrary <\/p>\n
     in Corporation Act, the entire executive power for the purpose of <\/p>\n
     carrying out provisions of said Act vest in the Commissioner.  He <\/p>\n
     can   perform   all   duties   and   exercises   all   powers   specifically <\/p>\n
     imposed or conferred upon him by Corporation Act.  He can also <\/p>\n
     exercise supervision and control over the acts and proceedings of <\/p>\n
     all Municipal Officers and servants and deal with all questions <\/p>\n
     relating to their services.  Section 59(5) mentions that any of the <\/p>\n
     powers, duties or functions conferred or imposed upon or vested <\/p>\n
     in   the   Commissioner   by   Corporation   Act   can   be   exercised, <\/p>\n
     performed or discharged under the Commissioner’s control and <\/p>\n
     subject   to   his   superintendence   and   to   such   conditions   and <\/p>\n
     limitations   as   he   may   think   fit   to   impose,   by   any   Municipal <\/p>\n
     officer   whom   the   Commissioner   may   generally   or   specially <\/p>\n
     empowered in writing in this behalf.\n<\/p>\n
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\n                                          14<\/span><\/p>\n
     12.        As   already   stated   above,   the   resolution   of <\/p>\n
     Administrator   dated   28th  June   1984   authorizes   the   Municipal <\/p>\n
     Commissioner to impose minor penalties on Class-I employees of <\/p>\n
     Nagpur   Corporation.     The   said   resolution   authorizes   the <\/p>\n
     Municipal Commissioner to impose major penalty on Class – II <\/p>\n
     employees.   As per that resolution, Corporation is the authority <\/p>\n
     for imposing major penalties on Class – I officers.  This resolution <\/p>\n
     has   also   classified   penalties   prescribed   in   Section   53(2)   of <\/p>\n
     Corporation   Act   to   bring   it   in   conformity   with   Rule   5   of <\/p>\n
     Maharashtra   Civil   Service   (Discipline   and   Appeal)   Rules.     The <\/p>\n
     powers conferred upon him by this resolution are then delegated <\/p>\n
     by the Municipal Commissioner on 27th  February 2002 and that <\/p>\n
     delegation   is   to   Respondent   No.3   –   Additional   Commissioner.\n<\/p>\n
     The   Deputy   Municipal   Commissioner   has   been   authorized   by <\/p>\n
     resolution to impose minor penalties on Class II employees.  This <\/p>\n
     resolution dated 28th  June 1984 and 27th  February 2002 cannot <\/p>\n
     be   questioned   by   Nagpur   Corporation   and   has   not   been <\/p>\n
     challenged before us by the petitioner.  The controversy needs to <\/p>\n
     be looked into in this background.\n<\/p>\n
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\n                                             15<\/span><\/p>\n
     13.         The effort of Corporation before us is not to show that <\/p>\n
     the   particular   requirement   of   Maharashtra   Civil   Service <\/p>\n
     (Discipline and Appeal) Rules, is not applicable or relevant here.\n<\/p>\n
     On   the   contrary,   their   effort   is   to   show   its  compliances.     We, <\/p>\n
     therefore,   proceed   to   consider   the   relevant   provisions   of <\/p>\n
     Discipline and Appeal Rules.  It is already highlighted above that <\/p>\n
     the   provisions   of   Maharashtra   Civil   Service   (Discipline   and <\/p>\n
     Appeal) Rules, 1979, regulate the departmental enquiry of the <\/p>\n
     petitioner   “as   far   as   possible”.     Rule   5   thereof   classifies <\/p>\n
     punishment of reduction to a lower time scale of pay as minor <\/p>\n
     penalty.  But then for its service said penalty has been treated as <\/p>\n
     major penalty by Nagpur Corporation.  It is obvious that because <\/p>\n
     of   Rule   6   of   Maharashtra   Civil   Service   Rules   which   prescribes <\/p>\n
     disciplinary   authorities   read   with   above   mentioned   1984 <\/p>\n
     resolution, appointing authority can impose any of the penalties <\/p>\n
     specified   in   Rule   5   upon   members   of   Class-   III   and   class   IV <\/p>\n
     services.  Head of the department has been authorized to impose <\/p>\n
     minor penalties upon servants in class II.   The Governor i.e. in <\/p>\n
     case   of   Nagpur   Corporation,   General   Body   of   Nagpur <\/p>\n
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\n                                             16<\/span>
\n     Corporation can impose any of the penalties specified in Rule 5.\n<\/p>\n
     It is obvious that, therefore, the appointing authority or General <\/p>\n
     Body can impose any of the penalties specified in Rule 5 upon <\/p>\n
     members of class III and IV.   In other words, only general body <\/p>\n
     can   impose   penalty   impugned   before   us   upon   the   petitioner.\n<\/p>\n
     This   requirement   of   Rule   6   of   Maharashtra   Civil   Service <\/p>\n
     (Discipline   and   Appeal)   Rules,   can   be   read   into   and   used   for <\/p>\n
     inquiries   of   Corporation   employees   without   any   violation   of <\/p>\n
     Nagpur   Corporation   Act.     Rule   7   of   Maharashtra   Civil   Service <\/p>\n
     (Discipline   and   Appeal)   Rules,   states   that   General   Body   of <\/p>\n
     Nagpur Corporation or authority empowered by it may institute <\/p>\n
     disciplinary proceeding against any Corporation servant or then <\/p>\n
     it may direct Disciplinary authority to institute such proceedings.\n<\/p>\n
     Sub-rule   (2)   of   Rule   7,   however,   stipulates   that   a   disciplinary <\/p>\n
     authority competent to impose any of the penalties specified in <\/p>\n
     Rule   5   may   institute   disciplinary   proceedings   against   any <\/p>\n
     Corporation servant on whom it is competent to impose any of <\/p>\n
     the penalties specified therein.  Resolution dated 28th June 1984 <\/p>\n
     read with order dated 27th February 2002 shows that Municipal <\/p>\n
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\n                                           17<\/span>
\n     Commissioner   has   been   authorized   to   impose   minor   penalty <\/p>\n
     upon   the   petitioner   and   that   power   has   been   delegated   to <\/p>\n
     Additional Municipal Commissioner i.e. Respondent No.3.  In the <\/p>\n
     scheme of Section 46 read with Section 59 above, it is apparent <\/p>\n
     that   Municipal   Commissioner   is   competent   to   delegate   this <\/p>\n
     power to Additional Municipal Commissioner.   It is to be noted <\/p>\n
     that this power to impose minor punishment is not delegated to <\/p>\n
     Municipal Commissioner by General Body and hence contention <\/p>\n
     that   it   cannot   be   sub-delegated   further   is   misconceived.     The <\/p>\n
     departmental enquiry in present matter has been initiated on 4th <\/p>\n
     December   2002   by   Respondent   No.3   –   Additional   Municipal <\/p>\n
     Commissioner.  It expressly refers to Rule 8 of Maharashtra Civil <\/p>\n
     Service   (Discipline   and   Appeal)   Rules,   1979,   and   above <\/p>\n
     mentioned Resolution dated 28th  June 1984.   Only requirement <\/p>\n
     of Rule 7(2) of Maharashtra Civil Service (Discipline and Appeal) <\/p>\n
     Rules, is the authority must be competent to impose any of the <\/p>\n
     penalties   in   Rule   5.     Because   of   delegation   in   his   favour, <\/p>\n
     Respondent   No.3   is   competent   to   impose   minor   penalties <\/p>\n
     specified in Rule 5 read with Section 53(2) upon the petitioner.\n<\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:16:34 :::<\/span>
\n                                             18<\/span><\/p>\n
     Hence, initiation or institution of departmental enquiry by said <\/p>\n
     officer cannot be said to be unauthorized or illegal.\n<\/p>\n
     14.         Shri Chandurkar, learned counsel has relied upon the <\/p>\n
     judgment   of   the   Division   Bench   of   this   Court   in   the   case   of <\/p>\n
     Prabhakar   vs.   K.D.   Municipal   Corporation,   (supra),   there   the <\/p>\n
     challenge   was   charge   had   been   framed   and   proceedings   had <\/p>\n
     been instituted by Municipal Commissioner who had no power to <\/p>\n
     do   so.   The   delinquent   there   was   Assistant   Municipal <\/p>\n
     Commissioner,   whose   salary   exceeded   Rs.1,000\/-   and   hence <\/p>\n
     power of his appointment was with General Body of Corporation <\/p>\n
     and not with any other officer.  The said delinquent was served <\/p>\n
     with a final notice for imposing a punishment under Section 56 <\/p>\n
     of   Bombay   Provincial   Municipal   Corporations   Act,   1949.     The <\/p>\n
     said   punishment   was   of   dismissal   from   service.     Section   56 <\/p>\n
     permitted a competent authority to impose any of the penalties <\/p>\n
     specified in sub-section (2) thereof.   In this background in para <\/p>\n
     10 of the judgment, the Division Bench of this Court observed <\/p>\n
     that Section 56(2) necessarily did not mean that departmental <\/p>\n
                                                     ::: Downloaded on – 09\/06\/2013 15:16:34 :::<\/span>
\n                                              19<\/span>
\n     proceedings   must   be   initiated   only   by   authority   competent   to <\/p>\n
     impose   punishment   and   if   notice   is   issued   or   charge   sheet   is <\/p>\n
     served by a subordinate authority, the same is illegal or contrary <\/p>\n
     to law or without jurisdiction.   However, then the provisions of <\/p>\n
     Maharashtra   Civil   Service   (Discipline   and   Appeal)   Rules, <\/p>\n
     particularly sub-rule (2) of Rule 7 are looked into and thereafter <\/p>\n
     it is noticed that Rule 8 which prescribe procedure for imposing <\/p>\n
     major   penalties,   vide   its   sub-rule   (2)   contemplated   that <\/p>\n
     whenever disciplinary authority is of the opinion that there are <\/p>\n
     grounds   for   enquiring   into   truth   of   any   imputation   of <\/p>\n
     misconduct, it has itself to enquire  into or appoint an Enquiry <\/p>\n
     Officer   to  enquire   into   truth   thereof.     In   para   12,   it   has   been <\/p>\n
     observed   that   conjoint   reading   of   Rule   7(2)   and   8(2)   left   no <\/p>\n
     room for doubt that it was for the disciplinary authority to take <\/p>\n
     action in accordance with Maharashtra Civil Service (Discipline <\/p>\n
     and   Appeal)   Rules.     Either   disciplinary   authority   itself   may <\/p>\n
     enquire into the matter or may authorize other officer to do it.\n<\/p>\n
     But in absence of such authorisation, no enquiry can be held by <\/p>\n
     any officer or authority, if he is not the disciplinary authority.  In <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:16:34 :::<\/span>
\n                                         20<\/span>
\n     para 13, it is observed that because of Section 56, Corporation <\/p>\n
     was the competent authority to impose any one of the penalties <\/p>\n
     specified   in  Section   56.    Since   departmental   proceedings  were <\/p>\n
     initiated   applying   Maharashtra   Civil   Service   (Discipline   and <\/p>\n
     Appeal) Rules, the procedure laid down in those rules needed to <\/p>\n
     be followed.  In accordance with those rules, either Corporation <\/p>\n
     should have initiated or instituted   the proceedings or it should <\/p>\n
     have authorized other officer or authority to enquire into those <\/p>\n
     allegations.   The Division Bench, therefore,  concluded that the <\/p>\n
     Commissioner   was   not   competent   to   take   any   action   against <\/p>\n
     delinquent   and, therefore, charge sheet itself was quashed and <\/p>\n
     set aside.   The facts show that the Division Bench of this Court <\/p>\n
     was approached  when final show cause  notice  for punishment <\/p>\n
     was issued and punishment was still to be imposed.   The facts <\/p>\n
     also   show   that   Municipal   Commissioner   there   was   not <\/p>\n
     disciplinary authority at all.   Because of these features, we find <\/p>\n
     that this ruling is not helpful to present petitioner.\n<\/p>\n
     15.        Shri   Kaptan,   learned   counsel   has   relied   upon   the <\/p>\n
                                                ::: Downloaded on – 09\/06\/2013 15:16:34 :::<\/span>
\n                                              21<\/span>
\n     judgment of the Hon’ble Apex Court in the case of  A. Sudhakar  <\/p>\n
     vs.   Post   Master   General,<\/a>   (supra).     The   ratio   of   said   ruling   is <\/p>\n
     authority   higher   than   appointing   authority   may   also   act   as <\/p>\n
     disciplinary   authority   for   the   purposes   of   Article   311   of <\/p>\n
     Constitution of India, if delinquent officer is not deprived of his <\/p>\n
     statutory right of appeal.   We have already noticed above that <\/p>\n
     Municipal Commissioner could have imposed minor punishment <\/p>\n
     upon the petitioner and, therefore, Respondent No.2 – Municipal <\/p>\n
     Commissioner is disciplinary authority for present petitioner.  We <\/p>\n
     have   also   held   that   because   of   delegation   in   his   favour, <\/p>\n
     Respondent No.3 has rightly initiated or instituted departmental <\/p>\n
     proceedings.\n<\/p>\n
     16.           However,   the   other   relevant   provisions   of <\/p>\n
     Maharashtra Civil Service (Discipline and Appeal) Rules, in the <\/p>\n
     matter   assume   importance   as   major   punishment   has   been <\/p>\n
     inflicted upon the petitioner.  Under Rule 7(2) of Discipline and <\/p>\n
     Appeal   Rules,   Respondent   No.3   is   competent   to   initiate <\/p>\n
     departmental enquiry and procedure for imposing minor penalty <\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:16:34 :::<\/span>
\n                                              22<\/span>
\n     is prescribed in Rule 10 thereof.  Rule 10(1)(b) also contemplate <\/p>\n
     holding   of   an   enquiry   in   the   manner   laid   down   in   Rule   8   if <\/p>\n
     disciplinary authority finds it necessary.   In present matter, it is <\/p>\n
     not   in   dispute   that   such   an   enquiry   under   Rule   8   has   been <\/p>\n
     conducted against the petitioner.   Rule 8(23)(a) stipulates that <\/p>\n
     where a disciplinary authority, competent to impose any of the <\/p>\n
     minor   penalties,   has   instituted   departmental   enquiry   and <\/p>\n
     because of material which has come on record in enquiry, is of <\/p>\n
     opinion   that   any   of   the   major   penalty   should   be   imposed   on <\/p>\n
     Corporation   servant,   that   authority   has   to   forward   records   of <\/p>\n
     enquiry to such disciplinary authority as is competent to impose <\/p>\n
     such major penalty.  Thus, though under Rule 7(2), disciplinary <\/p>\n
     authority   competent   to   impose   minor   punishment   upon   the <\/p>\n
     petitioner has initiated departmental enquiry,  that enquiry can <\/p>\n
     be used for imposing major penalty if such disciplinary authority <\/p>\n
     is   of   that   opinion.     Rules,   therefore,   take   care   of   situation   in <\/p>\n
     which   disciplinary   proceedings   can   be   instituted   even   by   a <\/p>\n
     disciplinary   authority   of   lower   grade   but   then   when   major <\/p>\n
     penalty is found necessary, such disciplinary authority of lower <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:16:34 :::<\/span>
\n                                           23<\/span>
\n     grade has to forward records to superior disciplinary authority <\/p>\n
     i.e.   one   which   is   competent   to   impose   major   penalty.     This <\/p>\n
     obviously could not have been done.   The procedure prescribed <\/p>\n
     in Discipline and Appeal Rules is to be followed as far as possible <\/p>\n
     and hence Respondent No.3 ought to have forwarded the records <\/p>\n
     along with his opinion to Respondent No.2 – Nagpur Corporation <\/p>\n
     for further appropriate action.  It is to be noted that this course <\/p>\n
     of action was not required to be considered by Division Bench of <\/p>\n
     this     Court   in   its   judgment  Prabhakar   vs.   K.D.   Municipal  <\/p>\n
     Corporation, (supra), as the Municipal Commissioner there was <\/p>\n
     not   shown   to   be   competent   disciplinary   authority   under   Rule <\/p>\n
     7(2).     Hence,   merely   because   departmental   proceedings   are <\/p>\n
     initiated   by   authority   competent   to   impose   minor   penalty, <\/p>\n
     enquiry cannot be said to be vitiated.\n<\/p>\n
     17.         Rule   8(23)   (b)   states   that   after   the   records   are <\/p>\n
     received   by   superior   disciplinary   authority   like   Corporation <\/p>\n
     (General  Body)  here,   it can  take   further evidence  if  it  finds  it <\/p>\n
     necessary and may impose on Corporation servant such penalty <\/p>\n
                                                   ::: Downloaded on – 09\/06\/2013 15:16:35 :::<\/span>
\n                                               24<\/span>
\n     as it may deem fit in accordance with these rules.  It is, therefore, <\/p>\n
     obvious   that   the   application   of   mind   to   the   report   of   Enquiry <\/p>\n
     Officer  and further  action   upon  it  in the  manner  stipulated  in <\/p>\n
     Rule 9 is to be undertaken by Corporation in present matter and <\/p>\n
     not   by   Respondent   No.3.     The   disciplinary   authority   i.e. <\/p>\n
     Respondent No.3 has not conducted departmental enquiry and <\/p>\n
     after   receipt   of   enquiry   report,   it   issued   a   final   notice   to   the <\/p>\n
     petitioner on 26th  March 2005.   In this final notice, Respondent <\/p>\n
     No.3 has stated that he is not agreeing with findings of Enquiry <\/p>\n
     Officer on Charge No.2.   He has given his reasons therefor.   In <\/p>\n
     view   of   the   scheme   of   Rule   8(23)(a)   and   (b),   it   is   clear   that <\/p>\n
     when major penalty is found just in the matter of the petitioner, <\/p>\n
     such   course   of   action   could   not   have   been   followed   by <\/p>\n
     Respondent No.3.  He should have taken recourse to Rule 8(23)<\/p>\n
     (a)   and   forwarded   the   records   of   departmental   enquiry   to <\/p>\n
     competent   disciplinary   authority   i.e.   Corporation.     The <\/p>\n
     Corporation thereafter could have proceeded further under Rule <\/p>\n
     8(23)(b) or in such other way as it found just in terms of Rule 8 <\/p>\n
     and   Rule   9.     When   enquiry   is   not   conducted   by   disciplinary <\/p>\n
                                                        ::: Downloaded on – 09\/06\/2013 15:16:35 :::<\/span>
\n                                              25<\/span>
\n     authority   and   report   of   enquiry   officer   is   to   be   used   by   such <\/p>\n
     disciplinary authority, giving of an opportunity of hearing to the <\/p>\n
     delinquent   employee   about   the   correctness   or   otherwise   of <\/p>\n
     findings   recorded   by   Enquiry   Officer   is   held   to   be   essential <\/p>\n
     ingredient   of   principles   of  natural   justice   by  the   Hon’ble   Apex <\/p>\n
     Court   in   the   case   of  Union   of   India   vs.   Mohd.   Ramzan   Khan,<\/a> <\/p>\n
     reported at AIR 1991 SC 471.  It is, therefore, obvious that in the <\/p>\n
     face of this law of land and express provision in Rule 8(23)(a) <\/p>\n
     and (b) of Discipline & Appeal Rules, Respondent No.3 ought to <\/p>\n
     have   forwarded   the   entire   records   to   Corporation   for <\/p>\n
     consideration of enquiry report and also for finding out further <\/p>\n
     steps required to be taken in accordance with law in the matter.\n<\/p>\n
     Once Respondent No.3 found that a major penalty needed to be <\/p>\n
     inflicted upon the petitioner, he ceased to have any jurisdiction <\/p>\n
     in the matter and he could not have proceeded to impose any <\/p>\n
     punishment   upon   the   petitioner.     Respondent   No.1   –   State <\/p>\n
     Government   has   noticed   that   Corporation   is   the   competent <\/p>\n
     authority   in   the   matter   but   has   only   made   the   punishment <\/p>\n
     imposed     by     Respondent     No.3,     subject     to       approval       of <\/p>\n
                                                      ::: Downloaded on – 09\/06\/2013 15:16:35 :::<\/span>
\n                                            26<\/span>
\n     Nagpur Corporation.\n<\/p>\n
     18.         In view of these findings, it is apparent that the order <\/p>\n
     of punishment  dated 28th  October  2005 passed by Respondent <\/p>\n
     No.3 and order dated 30th May 2007 passed by Respondent No.1 <\/p>\n
     in appeal are unsustainable.  The same are accordingly quashed <\/p>\n
     and set aside.  However, the proceedings need to be restored at <\/p>\n
     the stage of issuance of final show cause notice dated 23rd June <\/p>\n
     2005 by Respondent No.3.  The said notice dated 23rd June 2005 <\/p>\n
     is also quashed and set aside.   Respondent No.3 is directed to <\/p>\n
     forward the records of departmental enquiry as per rule 8(23)(a) <\/p>\n
     to   the   competent   disciplinary   authority   i.e.   Corporation   for <\/p>\n
     further   action   in   accordance   with   Rule   8(23)(b).     In   view   of <\/p>\n
     these conclusion, it is apparent that correctness or otherwise of <\/p>\n
     findings reached by the Enquiry Officer can be agitated before <\/p>\n
     Corporation   by   present   petitioner.     Similarly,   the   question   of <\/p>\n
     victimization can also be raised by him before that authority. It <\/p>\n
     is, therefore, not necessary for us to record any finding in that <\/p>\n
     respect in present matter at this stage.\n<\/p>\n
                                                    ::: Downloaded on – 09\/06\/2013 15:16:35 :::<\/span>
\n                                              27<\/span><\/p>\n
     19.          With the result, the final Show cause notice dated 23rd <\/p>\n
     Jun 2005, the order of punishment dated 28th October 2005 and <\/p>\n
     appellate   order   dated   30th  May   2007   impugned   in   this   writ <\/p>\n
     petition   are   quashed   and   set   aside.     Writ   Petition   is   partly <\/p>\n
     allowed and departmental proceedings against the petitioner are <\/p>\n
     restored   to   the   file   of   Respondent   No.3   for   further   action   in <\/p>\n
     accordance  with the provisions of Section  8(23)(a) and (b) of <\/p>\n
     Maharashtra Civil Service (Discipline and Appeal) Rules, 1979.\n<\/p>\n
     Considering the nature of controversy, said inquiry be completed <\/p>\n
     as   early   as   possible   and   in   any   case   by   31st  May   2010.     Rule <\/p>\n
     accordingly.     However,   in   the   facts   and   circumstances   of   the <\/p>\n
     case, there shall be no order as to costs.\n<\/p>\n
                  JUDGE                                         JUDGE   \n\n\n\n\n\n                                                                                         \n\n                                            *******\n\n     *GS.\n\n\n\n\n                                                       ::: Downloaded on - 09\/06\/2013 15:16:35 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Bank vs State Of Maharashtra on 6 November, 2009 Bench: B. P. Dharmadhikari, F.M. Reis 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH WRIT PETITION NO. 5815 OF 2007 Dnyaneshwar Sopanrao Bhandare, aged about 55 years, occupation – Service, residing at Plot No. 78, in front of Nagpur District […]<\/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-224594","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nBank vs State Of Maharashtra on 6 November, 2009 - Free Judgements of Supreme Court & 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\/bank-vs-state-of-maharashtra-on-6-november-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bank vs State Of Maharashtra on 6 November, 2009 - 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