arises is as regards the power of the Disciplinary Authority in the instant case
being the Hon'ble the Chief Justice, the Hon'ble Judges of this Court to
institute the disciplinary proceedings against the Petitioner. There can be no
dispute about the fact that the Maharashtra Civil Services Rules are applicable.
A useful reference could be made to Rule 8(1) and (2) of the said Rules which
are relevant for the purpose of the present Petition:
8. Procedure for imposing major penalties:(
1)
No order imposing any of the major penalties
shall be made except after an inquiry held, as far
as may be, in the manner provided in this rule
and Rule 9, or where such inquiry is held under
the Public Servants (Inquiries) Act, 1850 (37 of
1850) in the manner provided in that Act.
(2) Whenever the disciplinary authority is of the
opinion that there are grounds for inquiring into
the truth of any imputation of misconduct or
misbehaviour against a Government servant, it
may itself inquire into, or appoint under this rule
or under the provisions of the Public Servants
(Inquiries) Act, 1850, as the case may be, an
authority to inquire into the truth thereof.
Provided that, where there is a complaint of
sexual harassment within the meaning of Rule 22A
of Maharashtra Civil Services (Conduct) Rules
1979, the Complaints Committee established in
each Department or Office for inquiring into such
complaints, shall be deemed to be the inquiring
authority appointed by the disciplinary authority
for the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has
not been prescribed for the Complaints
Committee for holding the inquiry into the
complaints for sexual harassments, the inquiry as
for as practicable in accordance with the
procedure laid down in these rules.
ExplanationWhere
a disciplinary authority
itself holds an inquiry under this rule, any
reference to an inquiring authority in this rule
shall, unless the context otherwise requires, be
construed as reference to the disciplinary
authority.
A reading of the said Rule 8(2) therefore discloses that the
discretion is of the Disciplinary Authority if it is of the opinion that there are
grounds for inquiring into the truth of any imputation of misconduct or
misbehaviour against a Government servant. Hence the said Rule (2) can be
said to confer a wide discretion in the Disciplinary Authority in the matter of
inquiring into the truth of any misconduct or misbehaviour against the
Government servant.
12 Now coming to the guide lines which have been formulated by the
Hon'ble The Chief Justice of India which are comprised in the letter dated 3102014
they read thus:A.
The complaint making allegations against
members of the Subordinate Judiciary in the
States should not be entertained and no action
should be taken thereon, unless it is accompanies
by a duly sworn Affidavit and verifiable material
to substantiate the allegations made therein.
B. If action on such complaint meeting the
above requirement is deemed necessary,
authenticity of complaint should be duly
ascertained and further steps thereon should be
taken only after satisfaction of the competent
authority designated by the Chief Justice of the
High Court.
C. If the above requirements are not complied
with, the complaint should be filed/lodged
without taking any steps thereon.
The said guidelines were modified and communicated vide letter
dated 1632017
issued by the Hon'ble The Chief Justice Of India. The
modification carried out which is relevant for the purposes of the present
Petition is in clause (A). The modified clause (A) reads thus:
A. The complaint making allegations against
members of the Subordinate Judiciary in the
States should not be entertained and no action
should be taken thereon, unless it is accompanied
by a duly sworn Affidavit and/or verifiable
material to substantiate the allegations made
therein.
(emphasis supplied)
13 Hence by modification the requirement is that a complaint should
be accompanied by duly sworn affidavit and/or verifiable material to
substantiate the allegations made therein. Hence a complaint can be
entertained in two contingencies one is when a complaint is accompanied by a
duly sworn affidavit and second is when the complaint contains verifiable
material. It is in the light of the said modification that the instant case would
have to be considered. The said modification being in the matter of the
procedure which is required to be followed prior to holding a Departmental
Enquiry, the same would obviously relate back to the date of issuance of the
show cause notice, even if the notice is prior to the issuance of the
modification.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.643 OF 2017
Asif Badremunir Tahasildar Vs. State of Maharashtra
CORAM :R. M. SAVANT, &
SARANG V KOTWAL, JJ
PRONOUNCED ON : 4th MAY, 2018
Citation: 2018(6) MHLJ 850
JUDGMENT (PER R.M.SAVANT J.)
