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CASE NO.: Appeal (civil)  4612 of 2006

PETITIONER: Pandit D. Aher                                                   

RESPONDENT: State of Maharashtra                                             

DATE OF JUDGMENT: 31/10/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T  [Arising out of S.L.P. (Civil) No. 121 of 2006]

S.B. SINHA,  J :

       Leave granted.                  This appeal is directed against a judgment and order dated 22.7.2005  passed by a Division Bench of the High Court of Judicature at Bombay in  Writ Petition No. 4467 of 2005 whereby and whereunder the writ petition  filed by Appellant herein was dismissed.   

       The appellant at all material times was working as Block  Development Officer.  A departmental proceeding was initiated against him  on the purported charge that he had committed serious misconduct, causing  loss to the government to the tune of Rs. 2,85,658/-.  A departmental inquiry  was conducted on the said charges.  The Inquiry Officer in his report held  the appellant to be guilty thereof.  Two show cause notices were issued to  him.  On 21.12.1998, in the show cause notice, imposition of punishment of  recovery of government losses to the tune of Rs. 2,85,658/- and forfeiture of  pension for a period of five years was proposed.  Another notice was  serviced on him on 20.07.2000 proposing imposition of punishment of  forfeiture of the entire pension and gratuity and to recover the amount of the  government losses to the tune of Rs. 2,85,658/- which were not recoverable  as per the earlier notice dated 21.12.1998.   

       By an order dated 17.5.2002, the Disciplinary Authority imposed a  punishment of forfeiture of entire pension and gratuity permanently.    An  appeal was preferred by him before the Appellate Authority which was  dismissed.  The appellant filed an application before the Maharashtra State  Administrative Tribunal at Mumbai being O.A. No. 559 of 2004.  The said  original application was dismissed by the Tribunal.   

       Before the High Court, contentions raised by the appellant were:

(i)     A copy of the preliminary inquiry report had not been furnished to  him as a result whereof he was prejudiced in raising a proper defence  in the departmental proceedings;  (ii)    Disciplinary Authority had not followed the procedures laid down in  the Maharashtra Civil Service (Pension) Rules, 1982 (for short "the  Rules").

       By reason of the impugned judgment, the High Court rejected the said  contentions stating that the preliminary inquiry report having not been relied  upon nor having been referred to in the report of the Inquiry Officer.  It was  found that a copy of the report in fact had been supplied to him and he also  cross-examined the witnesses on the basis thereof.  It was, therefore, held  that the appellant was not prejudiced by reason of non-supply of the

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preliminary inquiry report as alleged or otherwise.   

       In regard to the purported non-compliance of Rule 27 of the Rules, the  High Court opined that show cause notice having been served upon the  appellant and he having shown cause thereto, the question of non- compliance of the principles of natural justice did not arise.  It was further  held that it was not necessary to specifically state in the impugned order that  the appellant had committed grave misconduct or negligence.         Mr. Shivaji M. Jadhav, learned counsel appearing on behalf of the  appellant would, however, submit that the inquiry proceeding was vitiated as  several documents asked for by the appellant had not been supplied.   

       Rule 27 of the Rules reads thus:

"27. Right of Government to withhold or withdraw  pension \026 (1) Government may, by order in  writing, withholding or withdraw a pension or any  part of it, whether permanently or for a specified  period, and also order the recovery from such  pension, the whole or part of any pecuniary loss  caused to Government, if, in any departmental or  judicial proceedings, the pensioner is found guilty  of grave misconduct or negligence during the  period of his service including service rendered  upon re-employment after retirement:

       Provided that the Maharashtra Public  Service Commission shall be consulted before any  final orders are passed in respect of officers  holding posts within their purview:

       Provided further that where a part of pension  is withheld or withdrawn, the amount of remaining  pension shall not be reduced below the minimum  fixed by Government.   

(2)(a)  The departmental proceedings referred to in  sub-rule (1), if instituted while the Government  servant was in service whether before his  retirement or during his re-employment, shall after  the final retirement of the Government servant, be  deemed to be proceedings under this rule and shall  be continued and concluded by the authority by  which they were commenced in the same manner  as if the Government servant had continued in  service. (b)     The departmental proceedings, if not  instituted while the Government servant was in  service, whether before his retirement or during the  re-employment. (i)     shall not be instituted save with the sanction  of the Government; (ii)    shall not be in respect of any event which  took place more than four years before such  institution, and; (iii)   shall be conducted by such authority and at  such place as the Government may direct and in  accordance with the procedure applicable to the  departmental proceedings in which an order of  dismissal from service could be made in relation to  the Government servant during his service\005"           The question as to whether the proceedee has committed grave  misconduct or negligence during his tenure of service is essentially a  question of fact.  The power of the government to pass an order of

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withholding or withdrawing the pension or part thereof in terms of the said  Rule is not in dispute.  It is also not in dispute that a departmental  proceeding was initiated and the appellant was found guilty of commission  of the alleged misconduct therein.  A finding of fact has been arrived at that  a copy of the inquiry report was supplied to him.  A copy of the document  which has not been relied upon, is not required to be supplied to a delinquent  officer.  The documents which are required to be supplied are only those  whereupon reliance has been placed by the Department.   

       Charges levelled against the appellant were:

"(1)    Violated Rule 136 of Zila Parishad and  Panchayat Samiti conduct of Account Code 1968  while implementing the Jewandhara Well Scheme  in Surgana. (ii)    Has violated Government Decision bearing  No. JRY-1090 \026 CR \026 1674 \026 52 dated 16.11.1996  and an excess amount of Rs. 1,75,198.00 has been  distributed and thus has committed misconduct as  contemplated under Rule 3 of Maharashtra Civil  Services (Conduct) Rules, 1979. (iii)   While working as Block Development  Officer in Panchayat Samit, Surgana during the  period from 6th November, 1987 to 16th April,  1991 having spent an amount on housing under  Gharkal Scheme.  The quality of work was inferior  and that the same had become dilapidated and was  inhabitable and thus an amount of Rs. 1,13,587.17  though was spent has gone waste and thus a  misconduct as contemplated under Rule 3(3) of  Maharashtra Civil Services (Conduct) Rules 1979  has been committed."

       Indisputably, the charges are of grave nature.  The appellant has not  only been charged with negligence in his duty, the State is also said to have  suffered losses on account of his action and/ or inaction in implementing the  Jeevandhara Well Scheme.   

       In its counter-affidavit, Respondent herein stated that the preliminary  inquiry had been conducted by one Shri Nagargoje.  As the appellant had  cast aspersions against him, the preliminary inquiry was entrusted to three  different officers, viz., Chief Accounts and Finance Officer, Zila Parishad,  Nashik, Executive Engineer (B&CD), Zila Parishad Nashik and Executive  Engineer (Minor Irrigation), Zila Parishad Nashik.  The appellant had been   indicted by all the said officers.  Preliminary inquiries further were  confidential in nature.  They were meant for arriving at a satisfaction by the  disciplinary authority as to whether a departmental proceeding should be  initiated or not.   

       It is now well-settled that what was necessary for imposition of  punishment was to arrive at a finding of misconduct which is of grave nature  or misconduct involving negligence on the part of delinquent officer.  The  chargesheet issued against the appellant fulfills the aforementioned  conditions.  He was found guilty of commission of alleged acts of  misconduct.  Thus, on the basis of the findings arrived at in the departmental  inquiry that he was guilty of such misconduct, in our opinion, it was not  required to specifically mention therein that the delinquent was guilty of  grave misconduct or negligence.

       The appellant was a Block Development Officer.  He was incharge of  the Scheme which was to be implemented in his Block.  He, being a  Supervisory Head, had a duty to see that the Scheme is implemented in its  letter and spirit.  Two of the charges framed against him as noticed  hereinbefore clearly relate to administrative lapses on his part.  In the  departmental inquiry also, the said charges have been proved.

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       Submission of the appellant to the effect that documents had not been  supplied to him does not appear to have been raised by him before the High  Court.  As no such contention had been raised, we are of the opinion that he  cannot be permitted to be raise it for the first time before us.   

       As noticed hereinbefore, a finding of fact has been arrived at that all  the procedures laid down under Rule 27 of the Rules have been complied  with.  We do not see any reason to interfere therewith.

       For the reasons aforementioned, we do not find any merit in this  appeal which is dismissed accordingly.  No costs.