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Dharmendra S/O Gopalrao Dudhe vs The State Of Maharashtra, Through … on 14 March, 2017

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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WP 6470/11 2 Judgment

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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WP 6470/11 3 Judgment

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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WP 6470/11 4 Judgment

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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WP 6470/11 6 Judgment

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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