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CASE NO.: Appeal (civil)  1251 of 2005

PETITIONER: Director, Town Planning Maharashtra and Anr.

RESPONDENT: Bhalchandra Vasantrao Kulkarni

DATE OF JUDGMENT: 10/07/2006

BENCH: ARIJIT PASAYAT & ALTAMAS KABIR

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

       Challenge in this appeal is to legality of the judgment  rendered by a Division Bench of the Bombay High Court,  Nagpur Bench, dismissing the writ petition filed by the  appellant, thereby upholding the order passed by the  Maharashtra Administrative Tribunal, Nagpur Bench, Nagpur  (hereinafter referred to as the ’Tribunal’).  

The controversy lies in a very narrow compass.

       The respondent was working as a Peon in the  establishment of Director, Town Planning, Akola.  An order of  termination was passed taking note of several acts of mis- conduct by the respondent.  The order of termination was  passed dispensing with inquiry in terms of Article 311(2) of the  Constitution of India, 1950 (in short the ’Constitution’).  In the  order dated 7.5.1986 fifteen charges of misconduct were  referred to.  The Deputy Director of Town Planning, Amravati,  Division Amravati, passed the order indicating therein that the  various acts of the respondent clearly demonstrated his  unsuitability and the reasons as to why it would not be  reasonably practicable to hold an inquiry as is referred to in  clause (2) of Article 311 of the Constitution. Therefore,  dispensing with the inquiry the concerned authority decided to  terminate him from service after giving him one month’s salary  instead of one month’s notice. It was noted that he was in  police custody from 30.4.1986 to 8.5.1986.  All the employees  of the office were terrified due to his horrible acts and  possibility his resorting to tumult and terrify members of the  staff after release from police custody cannot be ruled out and  suspension would not be an effective means to check his  unlawful activities.           Legality of the order was challenged by the respondent by  filing a writ petition before the Bombay High Court, Nagpur  Bench, Nagpur.  After creation of the Tribunal, the writ  petition was transferred to the Tribunal.   

The only ground taken by respondent before the Tribunal  in support of the petition was that the reasons for dispensing  with departmental inquiry were not recorded prior to the  passing of the impugned order dated 7.5.1986 and, in fact, it  had been recorded after the passing of the impugned order.  

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The Tribunal accepted this plea referring to the original file  which was produced and the title of the order.  The Tribunal  observed that initially it was recorded as "Sheet showing  reasons for removal of Shri B. Kulkarni" which was  subsequently corrected as "Sheet showing reasons for removal  of Shri B. Kulkarni, peon".                           

       According to the Tribunal this change appears to have  been made to show that it was recorded prior to passing of the  order, but it was apparent that the same was corrected  subsequently.  Accordingly, the order of termination was set  aside.  The writ petition filed by the appellant before the High  Court was dismissed by the Division Bench holding that the  Tribunal’s view was correct.

       In support of the appeal, learned counsel for the  appellant submitted that a bare reading of the entire order  dated 7.5.1986 clearly shows that the reasons were recorded  prior to the passing of the order.  According to him even  purported change on which great emphasis was laid by the  Tribunal did not in any manner justify a different conclusion.   It was pointed out that the reasons recorded have not been  found inadequate by the Tribunal.  The finding that the  subsequent correction was made is without any basis and  foundation.   

       Learned counsel for the respondent on the other hand  submitted that the English translation as given does not  reflect the correct position and the original order which was in  a Marathi language has been referred to by the Tribunal to  conclude that change was subsequently made to make it  appear as if the reasons were recorded earlier.   

The view expressed by the Tribunal as affirmed by the  High Court is clearly unsustainable for the simple reason that  as is rightly contended by the learned counsel for the  appellant, the alleged change is inconsequential.  A reading of  the entire order makes the position crystal clear that the  reasons were recorded before the order was passed. A few  portions of the order would make the position clear beyond a  shadow of doubt. Two illustrations would suffice.  The English  translation which is undisputed and is accepted to be correct  reads as follow:

"I am fully satisfied about this and as regional  competent officer I decide to terminate him  from service"\005...  "An order to that effect is  being issued."

       Above being the position, the order of the Tribunal as  well as the impugned order of the High Court deserve to be set  aside, and we direct accordingly.

       The appeal is allowed.  No costs.