WP 6470/11 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 6470/2011
Dharmendra S/o Gopalrao Dudhe,
Aged 40 years, Occupation Nil,
R/o Jaibhim Nagar, Behind Corporation
Library, Babulkheda, Nagpur. PETITIONER
…..VERSUS…..
1. The State of Maharashtra,
through Principal Secretary,
Home Department,
Mantralaya, Mumbai – 32.
2. The Commissioner of Police,
Nagpur city, Civil Lines, Nagpur. RESPONDENTS
Shri V.M. Moon, counsel for the petitioner.
Shri A.S. Fulzele, Additional Government Pleader for the respondents.
CORAM :SMT.VASANTI A NAIK AND
V.M. DESHPANDE, JJ.
DATE : 14 TH MARCH, 2017.
ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)
By this writ petition, the petitioner challenges the order of the
Maharashtra Administrative Tribunal, Nagpur, dated 08.09.2011,
dismissing the original application filed by the petitioner.
2. Few facts giving rise to the petition, are stated thus:-
The petitioner was appointed as a police constable on
09.09.1991 and was posted at Nagpur. On 06.02.1998, the petitioner
was suspended after a criminal complaint was filed against him by
Ku.Bebinanda Ganar at Police Station Ajni for the offences punishable
under Sections 294, 506-B and 34 of the Indian Penal Code. During the
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period of suspension, the petitioner was charge-sheeted and two charges
were levelled against the petitioner. According to the respondents, the
petitioner had developed intimacy with Bebinanda by taking advantage of
her helplessness and had developed physical relationship with her. It was
alleged that though it was the responsibility of the petitioner as a police
constable to assist the helpless, he had taken advantage of the
helplessness of Bebinanda and committed an act that was unbecoming of
a policeman. The petitioner denied the charges and stated that he had
desired to marry Bebinanda but, on securing the knowledge that a divorce
petition was pending between Bebinanda and her husband, he had
dropped the idea of marrying her. According to the petitioner, a false
police complaint was lodged by Bebinanda against him. The enquiry
officer conducted an enquiry and after examination of the witnesses and
on a consideration of their evidence, the enquiry officer found that the
charges levelled against the petitioner were proved. A show cause notice
was served on the petitioner in regard to the proposed punishment of
removal of the petitioner from service. The petitioner replied to the show
cause notice and requested the respondents that a minor punishment be
inflicted on him in the circumstances of the case. The disciplinary
authority, however, passed an order of compulsorily retiring the
petitioner from service, dated 03.03.2000. The petitioner filed two
departmental appeals against the said order but, without success. The
order of the disciplinary authority was challenged by the petitioner before
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the Maharashtra Administrative Tribunal. The Maharashtra
Administrative Tribunal, on an appreciation of the material on record,
dismissed the original application filed by the petitioner.
3. Shri Moon, the learned counsel for the petitioner, submitted
that the Maharashtra Administrative Tribunal failed to consider that the
punishment imposed on the petitioner was extremely harsh and
disproportionate to the act of misconduct proved against him. It is
submitted that the petitioner had pointed out before the enquiry officer as
well as the disciplinary authority that Bebinanda had filed the complaint
against the petitioner with vengeance as he was not ready to marry her
after he became aware that a divorce petition between Bebinanda and her
husband was pending. It is submitted that Bebinanda had filed civil
proceedings against the petitioner, seeking a permanent injunction
restraining him from marrying any other woman and in those
proceedings, it is held by the civil Court that Bebinanda had sworn a false
affidavit and the verification of the facts by Bebinanda was false and
incorrect. It is stated that the civil Court had even directed action against
Bebinanda for filing the false affidavit. It is submitted that though there
was some cordial relationship between the petitioner and Bebinanda as
he had decided to marry her, the marriage could not be solemnized with
Bebinanda as the proceedings between Bebinanda and her husband were
pending. It is stated that the petitioner was made a scapegoat and on a
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complaint filed by Bebinanda, the petitioner is compulsorily retired from
service. It is submitted that the service record of the petitioner was
otherwise unblemished and on a false complaint of Bebinanda, the
petitioner was victimized and a major punishment was inflicted on him.
It is submitted that in the circumstances of the case, it would be necessary
to send the matter to the respondents for imposing a lesser punishment
on the petitioner. It is stated that if the petitioner is reinstated in service,
the petitioner would not claim the arrears of salary for the period during
which he was out of service. It is stated that in the circumstances of the
case, when it is apparent that Bebinanda had made the petitioner a
scapegoat, a direction to the respondents to impose a lesser punishment
on the petitioner should be issued.
4. Shri Fulzele, the learned Additional Government Pleader
appearing for the respondents, supported the order of the respondents.
It is submitted that the Tribunal has rightly found that there was no
flaw in the departmental enquiry conducted against the petitioner and
the principles of natural justice were followed while conducting the
departmental enquiry. It is submitted that in the circumstances of the
case, it cannot be said that the punishment imposed upon the petitioner
is harsh and disproportionate to the charges proved against him.
It is, however, admitted by the learned Additional Government
Pleader on a reading of the documents annexed to the petition that it
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appears from some of the orders of the civil Court that Bebinanda had
filed a false affidavit and had falsely pleaded against the petitioner in the
civil proceedings that were filed against him for an order restraining him
from marrying any lady, other than Bebinanda.
5. On hearing the learned counsel for the parties and on a
perusal of the documents annexed to the petition, it is apparent that the
punishment imposed upon the petitioner appears to be extremely harsh
and disproportionate to the misconduct proved against the petitioner.
The criminal proceedings that were instituted against the petitioner have
resulted in the acquittal of the petitioner. Even in the civil proceedings
filed by Bebinanda, it appears that the trial Court has made serious
observations in respect of the falsity of the statements made by Bebinanda
in her pleadings and her verification. The civil Court has gone to the
extent of contemplating action against Bebinanda in view of the falsity of
the statements made before the Court. In the instant case, the petitioner
had come up with a clear case that he had desired to marry Bebinanda
but, when he became aware, after going to the parental house of
Bebinanda to have a talk in respect of the marriage, about the pendency
of the divorce proceedings between Bebinanda and her husband and had,
therefore, refused to marry Bebinanda. Though the charges levelled
against the petitioner are proved in the departmental enquiry, it appears
that the charges levelled against the petitioner in the criminal proceedings
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are not proved by the prosecution and even in the civil proceedings filed
by Bebinanda, it is held by the civil Court that Bebinanda had approached
the Court with a false case against the petitioner. The petitioner had
worked for nearly ten years as a police constable with unblemished
service record and in our view, even if the charge levelled against the
petitioner was proved, the respondents could not have compulsorily
retired the petitioner from service. In our view, it would be necessary for
the respondents to impose a lesser punishment on the petitioner. In the
circumstances of the case, the punishment is shockingly disproportionate
to the misconduct proved against the petitioner. Hence, in view of the
settled position of law, we are inclined to remand the matter to the
respondents so as to impose a lesser punishment on the petitioner.
6. Hence, for the reasons aforesaid, the writ petition is partly
allowed. The original application filed by the petitioner is partly allowed.
The order of the Tribunal is hereby modified. The respondents may
impose a lesser punishment on the petitioner in accordance with law.
The necessary action in this regard should be completed within three
months.
Rule is made absolute in the aforesaid terms with no order as
to costs.
JUDGE JUDGE
APTE
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