RANGANATH BANDUJI SALVE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE question involved in this writ petition under Article 226 of the Constitution of India is whether the impugned orders bearing No. CJM. 4777/306/ (46)-D-III dated 1st August, 1980 read with order bearing No. CJM. 4777/306 (46)-D-III dated 28th June, 1982 passed by the respondent the State of Maharashtra, by which the services of the petitioner as Joint Civil Judge, Junior Division, and Judicial Magistrate. First Class (Parbhani) came to be discharged, constitute an order of simple discharge or whether they constitute an order of dismissal.

(2.) THE facts giving rise to this writ petition briefly are as follows :

(3.) IT is the case of the petitioner in the petition that the petitioner is a member of the Scheduled Caste; that pursuant to the advertisement dated 25th January, 1973 he was selected by Maharashtra Public Service Commission for the post of C. J. J. D. and J. M. F. C. ; the petitioner was thereafter appointed as Civil Judge, Junior Division and J. M. F. C. on the 8th February, 1974. According to the petitioner, he was deemed to be confirmed on expiry of two years or on 6th March, 1977 or at the highest from 9th May, 1977 when the last extension for probationary period came to an end. According to the petitioner, in the year 1975 in the course of his duties at Ausa the petitioner convicted one advocate by name Chandrakant Bhosale and 21 others in Criminal Case No. 189 of 1975 which judgment was pronounced by the petitioner on 28th May, 1976 and on the same day when he was sitting in the house with professor Wavare, certain advocates, whose names are mentioned in paragraph 3 of the petition, came to the residence of the petitioner and insisted for interim bail. According to the petitioner, he was threatened by the said persons and the petitioner brought the said fact to the notice of the District Judge, Osmanabad. According to the petitioner, due to the said incident tension grow against him as he belonged to the Scheduled Caste and the advocates named in paragraph 3 of the petition were caste Hindus. The petitioner has also referred to certain complaints against him by anonymous letters which were received by the President of the Nanded Bar Association in which certain allegations of corruption were made against the petitioner. By the said petition, the petitioner has further alleged that while he was working at Ausa due to the incident of conviction of certain caste Hindus, Complaints were made against him by advocate Hashmi. It is further the case of the petitioner that while he was discharging his duties as Judicial Officer certain persons were antagonistic towards him and on the basis of their complaints certain action was sought to be taken against him. The petitioner further states in the petition that the learned District Judge, Osmanabad Shri N. V. Saswadkar made enquiry and recorded statements of various persons who had been convicted by him as also the statements of Saravashri Musande, Hashmi, Deshpande, Taklikar etc. who had come to his residence for interim bail and had threatened him to the certain consequences. According to the petitioner, the District Judge, Osmanabad had recorded ex parte statements behind his back and the said statements were based on hear-say evidence. According to the petitioner, the District judge, osmanabad had submitted report on the basis of the said ex parte statements to the Registrar, High Court by his confidential letter dated 1st December, 1976 and on the basis of the said report a show-cause notice referred to hereinabove was given to him by the respondent on 6th April, 1977. According to the petitioner, the said show cause notice contained nine allegations relating to the non-payment of full purchase price of articles purchased by him, non-payment of loans, borrowing moneys from the advocates, demanding bribes, giving threats to the members of the Bar and ill-treating medical officers appearing before him as witnesses. According to the petitioner, he denied all allegations made in the said show cause notice dated 6th April, 1977. According to the petitioner, he was sought to be victimised both by the members of the Bar who at the relevant time has passed resolution boycotting his Court as he was member of the Scheduled Caste and that he was being victimised by the caste Hindus. According to the petitioner the enquiry made by the District Judge, Osmanabad Shri N. V. Saswadkar was ex parte enquiry. The petitioner in the said petition also admitted that a private complaint was filed on 7th April, 1976 in the Court of the Judicial Magistrate, First Class, Lature in which he was made accused No. 6 By his reply to the show cause notice, he had admitted the existence of the said complaint dated 7th April, 1976 but according to the petitioner the said private complaint ultimately was not proceeded with because the Government did not sanction the prosecution against him. According to the petitioner, the District Judge, Osmanabad ought not to have recorded the statement of the persons concerned behind his back and that no opportunity was given to the petitioner to cross-examination the said persons who had made the said allegations. According to the petitioner, the enquiry made by the District Judge, Osmanabad was ex parte enquiry and the letters written by the petitioner to the District Judge, Osmanabad were not considered. According to the petitioner, without holding any enquiry behind the back of the petitioner and without giving to him any chance to cross-examine the persons who had made statements against him he was served with the order of termination on 1st August, 1980. According to the petitioner, he was a permanent civil servant of the respondent because he became permanent automatically on the expiry of two years from the date of the appointment or in any event on 6th March, 1977 or in any event on 9th May, 1977 after the last extension of probationary period came to an end. The petitioner further submitted that he became permanent, in any event by reason of the resolution of the Government of Maharashtra dated 9th September, 1975 and also in view of the record of service which contained remark Good, which was communicated to the petitioner by the then District and Sessions Judge, Osmanabad by his memo dated 21st June, 1976. According to the petitioner, therefore, he fulfilled all the conditions mentioned in the said Government Resolution dated 9th September, 1975. In the petition, the petitioner submitted that even assuming that he was not a permanent servant and that he was a probatitioner, even then, according to him, the order of termination amounted to dismissal from service because the said order was passed on the basis of misconduct and the said order was passed after an ex parte enquiry came to be held against him on the allegations of the gross misconduct. According to the petitioner, the said impunged order of termination was clearly in violation of Article. 311 (2) of the Constitution of India as also the provisions of the Bombay Civil Services (Conduct, Discipline and Appeal) Rules, 1932 as amended from time to time (hereinafter referred to for the sake of brevity as the Old Civil Services Rules) as also in violation of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (hereinafter referred to as the Disciplinary Rules ). According to the petitioner, since the allegations of gross misconduct were made against him, the respondent was under statutory obligations to follow the Disciplinary Rules of 1979 which came into force on 12th July, 1979 and as he was not served with the charge-sheet as required under the said Rules of 1979 and as he was not allowed to cross-examine the witnesses, who had given statements against him and nor was he allowed to lead evidence, the order of termination in substance was an order of dismissal based and founded on grounds of misconduct and since the order of termination was an order of dismissal and not simple discharge it violated the provisions of Article 311 (2) of the Constitution of India as also the provisions of the Disciplinary Rules of 1979. In the circumstances, the petitioner prayed in the writ petition that the above order dated 1st August, 1980 and 28th June, 1982 terminating the services of the petitioner be set aside and/or quashed under Article 226 of the Constitution of India.