SUDIN MOHAN GAWADEversusKONKAN RAILWAY CORPORATION LTD.

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        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 CIRCUIT BENCH AT KOLHAPUR
               CIVIL APPELLATE JURISDICTION

                     WRIT PETITION NO. 1556 OF 2023

       Sudin Mohan Gawade,
       Age 38 years, Occ. Nil,
       R/o At Ronapal, Post Madura, Sawantwadi,
       Dist. Sindhudurga
                                                                       ...PETITIONER

                                           VERSUS

       Konkan Railway Corporation Ltd.,
       A Government of India Undertaking
       Belapur Bhawan, Sector-11,
       CBD Belapur, Navi Mumbai 400614
       Through its Managing Director

                                                                      ...RESPONDENT
---------------------------------------------------------------------------------------------
Mr. Abhijit Kandarkar, a/w Mr. Swapnil Lokare, Advocate for the petitioner.
Mr. Rakesh Singh, Advocate for the respondent
---------------------------------------------------------------------------------------------

       CORAM                           :       MILIND N. JADHAV, &
                                               NANDESH S. DESHPANDE, JJ.

       RESERVED ON                     :       13th JULY, 2026.
       PRONOUNCED ON                   :       17th JULY, 2026.


JUDGMENT : [PER : NANDESH S. DESHPANDE, J.]



1.      Rule. Rule made returnable forthwith. Heard finally with the

consent of the learned Counsel appearing for the parties.


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2.    By this present petition, the petitioner challenges the

disciplinary   action   taken      by    respondent   Konkan    Railway

Corporation Limited, a Government of India Undertaking, whereby

the petitioner has been removed from service after about nine years

of employment under the land-loser category.

3.    The brief facts of the case are that the petitioner is a citizen of

India and that his land was acquired by respondent No.1 for the

Konkan Railway Project. Out of the total land admeasuring 3-39-7,

land admeasuring 1-58-1, i.e. 46.50%, was acquired, and therefore

the petitioner was considered eligible for employment under the

land-loser policy of respondent No.1. He was appointed as Trainee

Trackman on probation on 22.04.2005 under the land-loser

category and was later confirmed in service after scrutiny of the

documents submitted by him. The appointment was made on the

basis of the certificate and revenue record furnished by the

petitioner at the relevant time.

4.    That nearly nine years after the initial appointment, the

petitioner was served with a memorandum dated 24.11.2014

alleging that he had failed to furnish correct information regarding

the landowners and had not submitted NOC from all co-owners of



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jointly owned land. A further charge was raised that he had

furnished false information concerning certain survey numbers in

the application form.

5.    The petitioner submitted a detailed reply and stated that the

information furnished by him was based on the certificate issued by

the competent Tahsildar and the revenue record, and not on any

false declaration. He also participated in the enquiry and produced

the relevant documents during the proceedings. The enquiry officer,

by report dated 07.01.2017, held that the charges are proved.

Thereafter, by speaking order dated 20.06.2017, the Disciplinary

Authority imposed penalty of removal from service on the petitioner.

6.    The petitioner preferred an appeal, which was rejected by the

Appellate Authority on 12.07.2017. His review application was also

rejected on 16.10.2019. Thereafter, the mercy petition/appeal filed

by the petitioner also came to be rejected and the earlier orders

were confirmed. The petitioner also sought information regarding

other candidates who joined along with him, but the same has not

been supplied.All these orders are impugned in the present Writ

Petition.

7.    We have heard Shri Abhijit Kandarkar along with Shri Swapnil



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Lokare, learned Counsel for the petitioner and Shri Rakesh Singh,

learned Counsel for respondent.

8.    The learned Counsel for petitioner contends that the

information furnished by him was correct and was based on the

documents issued by the competent authority and that the alleged

discrepancy, if any, was never intended to secure appointment by

fraud and that the punishment of removal from service is extremely

harsh and disproportionate in the facts of the case.

9.    Per contra, the learned Counsel for the respondent opposed

the petition and submitted that the same is not maintainable before

this Court, since the petitioner is a workman and the dispute

squarely falls within the jurisdiction of the Industrial Tribunal/

CGIT. It is further submitted that the petition suffers from

suppression of material facts and is a deliberate attempt to mislead

this Court and, therefore, deserves to be dismissed in limine.

10.   It is also submitted that the respondent's Land Loser Policy is a

special welfare policy under which only one employment is given

per acquisition, and in case of joint ownership, the land is treated as

one holding and NOC from all co-owners is mandatory. The

Recruitment    Notification   and   appointment    letter   specifically



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required submission of the land-loser certificate, Tahsildar certificate

and NOC, and made the appointment provisional, reserving the

right of termination if any information or declaration was found

false or incorrect.

11.   The respondent further submitted that the petitioner had

furnished false particulars regarding ownership of Survey Nos.

18/10, 18/12, 18/17 and 18/22, and had not produced the

required NOC of co-owners. Instead it was found out that the owner

of land in Survey Nos. 18/10, 18/12, 18/17 and 18/22 was Shri

Shantaram Ganesh Gawade who is grandfather of one Shri Prashant

Pramod Gawade and not the present petitioner. The disciplinary

proceedings were initiated after scrutiny of the documents and after

giving opportunity of hearing, and the charges were proved. The

petitioner's appeal, review and mercy petition were thereafter

rejected, and in his appeal the petitioner himself admitted that he

had entered the information as per the Tahsildar's certificate

without verifying its correctness.

12.   It is further submitted that the petitioner's long service cannot

override the fact that the appointment was obtained on false

information. Fraud vitiates everything, and no equitable relief can



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be granted in favour of a person who secured public employment

contrary to the terms of recruitment. The petition is also hit by delay

and laches and therefore deserves dismissal.

13.   In reply to the respondent's affidavit, the petitioner in his

rejoinder further submitted that he had exhausted all the remedies

available under the Discipline and Appeal Rules of the respondent

Corporation and that the present petition had been filed only after

rejection of his appeal and revision. The petitioner further submitted

that the claim of the complainant for appointment had already been

dismissed by this Court on 06.02.2020. It was also reiterated that

the petitioner had furnished the documents on the basis of the

Tahsildar's certificate, that he had no mala fide intention, that the

railway employment was his only source of livelihood, and that the

punishment     of   removal     from     service   was    harsh     and

disproportionate.

14.   We have perused the material placed on record and

considered the submissions canvassed by the learned Counsel for

the parties. With the assistance of the learned Counsel for the

respective parties, we have gone through the record and, more

particularly, the charges which were framed against the petitioner.



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We have also gone through the recruitment/appointment letter

dated 22.04.2005.

15.    As       can    be      seen      from       the      said     letter     of

recruitment/appointment, the petitioner was appointed in the land

loser category and was on a probation for two years on

regularization. Even though there is no clear averment in the

petition, since the charge-sheet was issued on 24.11.2014, a

reasonable inference can be drawn that the petitioner completed his

probation period of two years and was regularized thereafter. It can

further be seen from the two dates mentioned supra that there is a

huge      gap     of   about     nine       years     from      the     date     of

recruitment/appointment and the date when the charge-sheet was

issued.

16.    Basically two charges were framed against the petitioner, that

the no objection certificate (NOC) submitted by the petitioner was

not in accordance with the format given in the notification dated

02.02.2005. The second charge was with respect to land Survey No.

18/29 and was regarding the omission to submit the NOC from

Mohan Nanu Gawade and Shantram Gawade, who, according to

7/12 extract, were joint owners of the said survey number. Thus,



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there is no whisper in the said charge-sheet that there was            a

complaint by one Prashant Pramod Gawade, who had applied for

securing a job under the land loser category. This fact assumes

importance since the respondent, in their affidavit in reply, has tried

to justify the said fact but it is noteworthy to mention that the said

person i.e Prashant, had applied under the land loser category and

had already challenged his rejection before this Court by filing a

Writ Petition No. 10500/2019. It is a matter of record that the said

petition was rejected by this Court vide order dated 06.02.2020.

Thus, this aspect of enquiry which prompted the respondent to

initiate action was not put forth in the charge-sheet and, in our

view, therefore the enquiry is vitiated.

17.   Furthermore, as can be seen from the record, the petitioner

has explained in his defence statement regarding the omission to

submit the NOC from the co-owners. It was his categorical defence

that the percentage-wise bifurcation of the co-owners in the 7/12

extract of Survey No. 18/29 was done on 19.03.1958. Thus, as per

the submission of the petitioner if bifurcation is done then NOC of

the co-owner is not required but a separate 7/12 extract was not

prepared, for which the petitioner cannot be blamed. Likewise, the



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petitioner had stated that he had inadvertently and rather blindly

copied the survey number which was written on the certificate

issued by the Tahsildar and it was not with mala fide intention. He

has also submitted a new document from the Additional Collector,

Land Acquisition, to substantiate his defence.

18.   The Enquiry Officer has not taken into consideration this

defence and has mechanically recorded a finding that after studying

the record submitted with the application by the petitioner the

charges were proved. The Disciplinary Authority has also not taken

into consideration these facts and has passed the order of removal

from service. The Appellate Authority i.e. the Senior Regional

Engineer, as also the authority deciding the mercy appeal, i.e. the

Chairman and Managing Director, have also mechanically confirmed

the said order of the Disciplinary Authority. This ,in our view, is

against the settled legal position of law. The object of granting an

opportunity to an employee to put forth his defence is not a mere

formality, it is expected from the Disciplinary Authority, as also the

Appellate/Revisional Authority, to consider the said defence in light

of the findings of the Enquiry Officer before imposing any

punishment on the delinquent employee. In our view, therefore, the



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order of the Disciplinary Authority, as confirmed by the Appellate

Authority and the Revisional Authority, is unsustainable in law.

19.   Furthermore, there is an objection in the affidavit in reply that

the petitioner ought to have approached the Industrial Tribunal, as

he is a workman. This objection, in our view, is also not sustainable

since the service rules appended to the petition do not provide for

any further appeal, and therefore, the petitioner is correct in

approaching this Court for indulgence under Article 226 of the

Constitution of India.

20.   As stated by us supra that the orders of all the authorities do

not take into consideration the specific defence raised by the

petitioner, nor they put forth the entire material on record which

prompted respondent-employer to initiate the enquiry, rendering the

enquiry vitiated and the resultant orders perverse. Thus, a judicial

review of the said orders would lead to a conclusion a that the

orders are perverse warranting interference in writ jurisdiction. We

therefore pass the following order :

                               ORDER

(i)   The Enquiry Report dated 20.06.2017 passed by the Senior

Engineer, Kankavli (Exhibit ‘H’), order dated 12.07.2017 passed by



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              the Appellate Authority (Exhibit ‘J’) order dated 16.10.2019 passed

              by the Reviewing Authority (Exhibit ‘K’) and the order dated

              20.08.2020     bearing    No.     CO-13014(14)/8/2020-PERS(40762)

              (Exhibit ‘N’) passed by the Chairman and Managing Director, are

              quashed set aside.

              (ii)   The respondent is directed to permit the petitioner to join the

              services as a Gangman           with continuity of service and other

              consequential benefits.

              21.    The petition is allowed in the above terms.. Rule is made

              absolute.




              [NANDESH S. DESHPANDE, J.]                  [MILIND N. JADHAV, J.]



Jayashree..




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