PANDIT D. AHERversusSTATE OF MAHARASHTRA

A                                PANDIT D. AHER
                                         v.
                           STATE OF MAHARASHTRA

                                OCTOBER 31, 2006

B                  [S.B. SINHA AND MARKANDEY KA TJU, JJ.]


          Service Law:

          Maharashtra Civil Service (Pension) Rules, 1982-Rule 27-
C Departmental proceeding-Charge of misconduct causing huge monetary
     loss to Government-Delinquent found guilty-Punishment of forfeiture of
    entire pension and gratuity and recovery of the loss to Government-
     Departmental appeal and application before Administrative Tribunal
    dismissed-Writ Petition on the ground that departmental proceeding was
D   vitiated on account of non-furnishing of copy of preliminary inquiry report
    and non-compliance of procedure laid down under the Rules-Dismissal of-
     ln appeal, held: Jn view offinding offact that charges of grave misconduct,
    have been proved and the procedure laid down under the rule has been
    followed, interference of Supreme Court not called for-Non-supply of
    document is not material-Documents which are required to be supplied are
E   only those whereupon reliance is placed by the department.

         Practice and Procedure-Plea-Raising of-For the first time before
    Supreme Court-Permissibility-Held: Such plea not permissible.

          A departmental proceeding was initiated against the appellant~official
F on the charge that he had committed serious misconduct causing loss to the
    Government to the tune of Rs. 2,85,658/-. Inquiry Officer found the appellant
    guilty of the misconduct and by show cause notice punishment of forfeiture
    of the entire pension and gratuity and recovery of the Government losses,
    was proposed. Disciplinary Authority imposed punishment of forfeiture of
G   entire pension and gratuity permanently. Departmental appeal, as well as the
    application before State Administrative Tribunal was dismissed.

         Appellant filed Writ Petition on the ground that a copy of preliminary
    inquiry report had not been furnished to him as a result whereof he was
    prejudiced in raising a proper defence; and that Disciplinary Authority had
H                                        120

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               PANDITD. AHER v. STATE OF MAHARASHTRA                         121

not followed the procedures laid down in the Maharashtra Civil Service              A
(Pension) Rules, 1982. High Court, rejecting the pleas of the appellant,
dismissed the Writ Petition.

       In appeal to this Court appellant contended that inquiry proceediµg was
vitiated as several documents asked for by the appellant had not been supplied,
                                                                                    B
      Dismissing the appeal, the Court

      HELD: 1. 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 fulfils the aforementioned conditions. He was found           C
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, it was not required to specifically mention therein that the
delinquent was guilty of grave misconduct or negligence. [125-F-G]

     2. The appellant being a Supervisory Head, had a duty to see that the
                                                                                    D
Scheme is implemented in its letter and spirit. Two of the charges framed
against him clearly relate to administrative lapses on his part. In the
departmental inquiry also, the said charges have been proved.
                                                          (125-G-H; 126-A)
                                                                                    E
     3. In view of finding of fact that all the procedures laid down under Rule
27 of the Rules have been complied with there is no reason to interfere
therewith. [126-B]

       4. A finding of fact has been arrived at that a copy of the inquiry report
was supplied to the-appellant. A copy of the document which has not been            F
relied upon, is not required to be supplied to a delinquent officer. The
documents which are required to be supplied are only those whereupon
relianc·e has been placed by the Department. (124-E-F]

       5. 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          G
Court. As no such contention had been raised, he cannot be permitted to raise
it for the first time before this Court. (126-A-B]

      CIVIL APPELLATE JURISDICTION: Civil App~al No. 4612 of2006

      From the Judgment and final order dated 22-7-2005 of the High Court           H
         122                         SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

     A of Judicature at Bombay in Wtit Petition No. 4467/2005.
·'
               Shivaji M. Jadhav for the Appellant.

               V.N. Raghupathy for the Respondent.

               The Judgment of the Court was delivered by
     B
               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 of2005 whereby and whereunder the writ petitJon filed
     C   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
     D   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 served on him on 20.07.2000
     E   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
     F   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.

     G         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
     H                 in the Maharashtra Civil Service (Pension) Rules, 1982 (for short
       PANDITD.AHER v. STATE OF MAHARASHTRA [S.B. SINHA,J.]                 123
             ~~~                                                                   A
      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    B
the appellant was not prejudiced by reason of non-supply of the 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        C
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            D
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 - (I)
       Government may, by order in writing, withholding or withdraw a pension      E
       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   F
       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
                                                                                   G
       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 (I), if
       instituted while the Government servant was in service whether before       H
    124                        SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A           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           (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;

C           (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
D·          service could be made in relation to the Government servant during
            his service ..... "

          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 withholding or
E   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 wa-s 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
F   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 Parish ad and Panchayat Samiti conduct
G           of Account Code 1968 while implementing the Jewandhara Well Scheme
            in Surgana.

            (ii) Has violated Government Decision bearing No. JRY-1090 -CR-1674
            52 dated 16.11.l 996 and an excess amount of Rs. 1,75, 198.00 has been
            distributed and thus has committed misconduct as contemplated under
H
       PANDIT D. AHER v. STATE OF MAHARASHTRA [S.B. SINHA, J.]               125

        Rule 3 of Maharashtra Civil Services (Conduct) Rules, 1979.                  A
        (iii) While working as Block Development Officer in Panchayat Samiti,
        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             B
        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        C
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          D
different officers, viz., Chief Accounts and Finance Officer, Zita Parishad,
Nashik, Executive Engineer (B&CD), Zita Parishad Nashik and Executive
Engineer (Minor Irrigation), Zita 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        E
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 fulfils the aforementioned conditions.      F
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 er
negligence.
                                                                                     G
      The appellant was a Block Development Officer. He was in charge 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 herein before clearly relate
to administrative lapses on his part. In the departmental inquiry also, the said     H
    126                       SUPREME COURT REPORTS [2006] SUPP. 8 S.C.R.

A charges have been proved.
          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 raise it for the first time before us. ·
B
          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
C which is dismissed accordingly. No costs.
    K.K.T.                                                    Appeal dismissed.




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