Ramesh Kashinath Pawar vs Nashik Municipal Corporation

,

S.M. Modak, J",

The Petitioner who retires from service on 31st January 2016 from the service of Nashik Municipal Corporation as Superintendent Engineer was,

imposed with a penalty of permanent deduction of 10 % amount from the pension has filed this writ petition. This order is passed by the Commissioner,

Nashik Municipal Corporation on 6th August 2018. The correctness of the said order is challenged on various grounds including the departmental,

inquiry being initiated after the expiry of statutory period of four months and also on the ground that the General Body of the Corporation is proper,

disciplinary authority and not Municipal Commissioner. There are also other grounds taken in this writ petition.,

So the main issue involved in this petition is whether the Nashik Municipal Corporation has initiated the departmental inquiry within the mandatory,

period of four months as contemplated under the Maharashtra Civil Services (Pension) Rules, 1982. So also it is required to be seen whether the order",

is passed by the proper disciplinary authority.,

Apart from the merits of the matter, the prayer is opposed on behalf of the Nashik Municipal Corporation on the ground of maintainability of this",

writ petition. So this Court within limited purview of the powers under Article 226 of the Constitution of India is expected to look into these issues. On,

this background we have heard learned Advocate Shri Kiran S. Bapat for the Petitioner and the learned Advocate Shri Sandip Marne, for the Nashik",

Municipal Corporation. With their assistance we have perused the record and the judgments cited.,

In the year 2006 Nashik Municipal Corporation has undertaken the project of Solid Waste Management under Jawaharlal Nehru National Urban,

Renewal Mission (J.N.N.U.R.M.) launched by Government of India. The Corporation has appointed Eco Save Systems (P) Limited, a consultant in",

December 2006 for preparing Detailed Project Report (D.P.R.).,

Then the project was implemented and it was completed in January 2010. The Commissioner, Municipal Corporation has also issued Physical",

Completion Certificate (page 18). Even he has issued Utilization Certificate in the prescribed format (page 19), which certifies about spending of",

Rs.59.91 lakhs on that project.,

Though the reason for review of the project is not informed to the Court, there is a report given by Shrikhande Consultants Private Limited dated",

11th June 2010 (page 277 of the compilation filed by the Petitioner on 30 th November 2021). He has certified that the project solid waste,

management is in order. Our attention is also invited to a photocopy from the compilation titled as Executive Summary prepared by Shrikhande,

Consultants Private Limited (page 266). They have certified quality of the work as satisfactory and overall performance is satisfactory.,

Amongst 28 different charges faced by the Petitioner in the departmental inquiry one charge pertains to not making provision for electrification in,

the Detailed Project Report. Our attention is invited to a photocopy at page 22 of the Petition. It mentions about provision of Rs.152 lakhs for,

‘Electricals, Power connection, DG Set’. In that view, the Petitioner has denied the allegation of not making provision for electricals, power",

connection.,

Nothing happened till 15th December 2015. Committee consisting of Deputy Municipal Commissioner (Administration), Chief Accountant and",

Medical Health Officer was constituted to inquire into the allegations of mismanagement and misappropriation made in respect of that project. The,

Petitioner was instructed not to deal with the work as Executive Engineer (Mechanical). After that Committee submitted the report on 28th January,

2016 thereby putting a blame on the Petitioner and his explanation was called one day earlier to his retirement. He retired on 31st January 2016 and,

the explanation was called (page 20) by a letter dated 30th January 2016.,

The Petitioner gave explanation as per his letter dated 8th April 2016 (page 21). It does not find favour with the Commissioner and accordingly,

departmental inquiry was ordered. One Shri Bajirao Ganpat Mali, Deputy Engineer and one Shri Kishor Hirji Borde, Additional Commissioner-2, were",

appointed as Inquiry Officer and Presenting Officer respectively as per the Order dated 5th October 2016 (page 25). The Petitioner was supplied with,

Memo of Charges and supporting documents. Thereafter Dr.Madhukar Giri was appointed as Inquiry Officer and he finally conducted inquiry. He,

came to the conclusion that none of the charges were proved. Dr.Giri submitted his report on 23rd January 2018.,

The Municipal Commissioner did not agree with the conclusion drawn by the Inquiry Officer and accordingly he placed the subject before the,

General Body of the Corporation. The proposal dated 13th April 2018 is at page 54. The General Body passed a Resolution on 19th July 2018 (page,

56). The General Body has approved the action of freezing 10% amount from the pension belonging to the Petitioner. The Order is at page 59 and the,

calculation is at page 60.,

There is a initial objection on behalf of the Respondent about maintainability of this Petition for the reason that the Petitioner has already filed,

earlier Writ Petition No. 14367 of 2016. According to the learned counsel for the Petitioner the said Petition was filed when the Departmental inquiry,

was pending. In the present Petition following are the reliefs claimed :-,

(a) Issuing direction to the Respondent to withdraw the Charge-sheet dated 15th June 2016 and Order dated 6th August 2018 (Order thereby freezing,

10% pension amount).,

(b) A declaration that the Charge-sheet and the Order freezing pension is illegal.,

(c) Ancillary reliefs.,

In view of the fact that, this Petition is filed after the Order freezing pension was passed, present Petition is certainly maintainable. Even though",

one of the reliefs in both the Petitions is common, it does not bar the Petitioner from prosecuting this Petition. Reason is earlier Petition is yet not",

decided. That objection is turned down.,

Departmental Inquiry after Retirement,

It is admitted fact that the Petitioner superannuated on 31st January 2016. Rule 27 (2) (a) of the Maharashtra Civil Services (Pension) Rules, 1982",

(herein after referred to as ‘Pension Rules’) mentions about continuance of the departmental proceedings after retirement. It is to be continued,

in the same manner as if the Government servant had continued in service. However, such departmental inquiry ought to have been instituted before",

his retirement.,

In this case, Petitioner’s explanation was called on 30th January 2016. Charge-sheet was issued to him on 5th October 2016. While letter",

Date,Events

22/12/2006,Sanction of project.

January 2010,Project completed.

11/06/2010,Performance report given by Shrikhande Consultants Pvt. Ltd.

15/12/2015,Three member Committee appointed to conduct inquiry

28/01/2016,Report given by Committee.

30/01/2016,Explanation was called why disciplinary proceeding should not be initiated.

31/01/2016,Retirement of Petitioner.

08/04/2016,Explanation given by Petitioner.

01/06/2016,"Proposal given by Deputy Municipal Commissioner through Commissioner thereby proposing departmental inquiry against the

Petitioner.

16/06/2016,Approval given by General Body of the Corporation to initiate Department Inquiry (page 72).

05/10/2016,Inquiry Officer and Presenting Officer appointed and Charge-sheet given.

23/01/2018,Inquiry report submitted.

01/03/2018,Explanation of the Petitioner was called on inquiry report.

09/03/2018,Explanation given by the Petitioner.

13/04/2018,Proposal for conducting General Body Meeting to be held on 23rd April 2018.

19/07/2018,Approval given by the General Body to take action under Rule 27 of Pension Rules

06/08/2018,Order issued by the Commissioner thereby freezing 10% of the Pension amount.

15/10/2018,The Order of calculation

On reading the above papers, we may find that the proposal to initiate Departmental Inquiry was approved by the General Body as per the",

Resolution passed on 1st June 2016 (page 72). There is a reference that the General Body of the Corporation is the appointing authority as,

contemplated under Section 53(1) of the Maharashtra Municipal Corporation Act. The Petitioner was working as Executive Engineer as a Class I,

Officer.,

As said above, the provisions of Pension Rules are applicable. As per Rule 27(1) power to withhold or withdraw the pension is given to appointing",

authority. Earlier this power was with the Government, however the amendment is carried out on 18th January 2016. In the case of the Petitioner, the",

appointing authority is a Corporation. As said above, the General Body of the Corporation passed a Resolution on 19th July 2018, thereby approving",

10% freezing of pension of the Petitioner. However, prior to placing the proposal before the General Body, it is the Municipal Commissioner, who has",

to scrutinize the papers.,

The Municipal Commissioner was not satisfied with the findings recorded by the Inquiry Officer and that is why explanation of the Petitioner was,

called as per the letter dated 1st March 2018. The Commissioner was not satisfied about the explanation of the Petitioner. With his remarks he has,

placed the proposal before the General Body. Even in the Resolution, there is a reference of Section 53(1) of the Maharashtra Municipal Corporation",

Act that the General Body being the appointing authority. So we are convinced that the Municipal Commissioner has adopted the proper procedure,

prior to taking the approval of the General Body. However, there is one issue which needs to be looked into.",

Procedure while disagreeing with Inquiry Report,

It is true that the powers of judicial review are very limited in departmental inquiry cases. It is also true that though the Petitioner has made,

representation dated 4th September 2018 before the standing committee, there is nothing on record to show that the standing committee has taken a",

decision. These references find place in the Affidavit-in-Reply filed by the Respondent. Standing Committee is superior authority to the Commissioner,

and Corporation is a superior authority to the Standing Committee. We may find the provision in Section 56(4) of MMC Act.,

It is also true that, the Court should not substitute its opinion for the opinion expressed by disciplinary authority. It is permissible only in exceptional",

cases. However, in this case, we find that firstly the Municipal Commissioner and secondly the General Body while disagreeing with the findings of",

Inquiry Officer has failed to follow the accepted norms before disagreeing with the findings of Inquiry Officer.,

It would be relevant to peruse the necessary correspondence. They are as follows:-,

(a) The forwarding letter dated 23rd January 2018 sent by the Inquiry Officer Dr.Giri (page 47), however the Inquiry Report is not made available.",

(b) Show Cause Notice dated 1st March 2018 issued by the Municipal Commissioner to Petitioner thereby informing him, as to, why action should not",

be taken against him under Rule 27 of Pension Rules.,

(c) Explanation dated 9th March 2018 given by the Petitioner.,

(d) Proposal dated 13th April 2018 put up before the General Body.,

(e) Resolution dated 19th July 2018 passed by the General Body of the Corporation.,

It is true that, the Inquiry Officer conducts the inquiry on behalf of the disciplinary authority. His report is only an opinion. Being the disciplinary",

authority there are various options available. They are as follows:-,

(a) To accept the report and to pass the necessary Order.,

(b) To disagree with the report and to pass further Order including further inquiry.,

(c) To disagree with the report and come to his own conclusion and pass an Order.,

It is clear from the record that, according to Inquiry Officer charges could not be proved against the Petitioner. When we have read all above",

correspondence, we may find that in the resolution certain reasons for disagreeing with the report of Inquiry Officer are given. They are as follows:-",

(a) Grievance of Petitioner not giving the copy of preliminary inquiry report was not accepted.,

(b) Bar of 4 years for conducting inquiry is not accepted.,

(c) Explanation given by the administration to the objection taken by auditor was not accepted by the auditor.,

(d) Responsibility to prepare complete DPR is of the Petitioner and there is a delay in preparing DPR by the Petitioner and it has caused loss to the,

Corporation.,

(e) The Petitioner is responsible for preparing wrong DPR and for keeping the machinaries idle.,

After reading them, we may find that the disciplinary authority has mainly relied upon the report of preliminary inquiry. It will be material to note",

the importance of preliminary inquiry report. The disciplinary authority got knowledge about alleged misconduct or negligence and accordingly he,

Ordered for preliminary inquiry, which is not required in every case. So the Officer conducting preliminary inquiry is supposed to verify the allegations",

and to give a report whether the disciplinary inquiry is required or not. That is one side inquiry. As against this, the report given by Inquiry Officer is",

after full-fledged inquiry including perusing documents and recording of evidence. So the report of inquiry stands on higher pedestal than the report of,

preliminary inquiry. So what we find is that the final inquiry report stands on a higher footing than the preliminary inquiry. There is every reason to,

believe that the disciplinary authority while disagreeing with the inquiry report has overlooked this fact. They have overlooked that, the Inquiry Officer",

had given report after full-fledged inquiry. Unfortunately the inquiry report is not made available; otherwise we could have got an opportunity to,

ascertain the findings given by the disciplinary authority. So what we feel is that, there is reason for this Court to interfere.",

Except that, the other reasons given by the disciplinary authority are not of a such nature which may change the entire scenario.",

We have already concluded that, action taken by the disciplinary authority perfectly falls within the time limit. We have also concluded that the",

decision was taken by proper disciplinary authority, only above lacuna we have noticed. So entire Order cannot be set-aside, but it needs to be",

remanded back. We have not expressed any opinion on the point of proof of acts of misconduct and we have left it to be decided by the disciplinary,

authority.,

Hence, we proceed to pass the following Order.",

ORDER,

(i) Writ Petition is partly allowed.,

(ii) Resolution dated 19th July 2018 passed by the General Body of the Corporation and the Orders dated 6th August 2018 and 15th October 2018,

passed by the Municipal Commissioner are set-aside.,

(iii) Matter is remanded back to the Corporation for taking a fresh decision. Respondents-Corporation is directed to again issue notice to the Petitioner,

on the report of Inquiry Officer and give him 15 days to give reply.,

(iv) Respondent-Corporation further directed to take appropriate decision (after taking into account issues decided by us), as per law within two",

months from the expiry of the time limit for giving a reply.,