FRANCISCO COLACO Vs. MORMUGAO PORT TRUST

JUDGEMENT

(1.) Heard Shri Sudesh Usgaonkar, learned Counsel appearing for the Petitioner and Shri Y V. Nadkarni, learned Counsel appearing for the Respondent.

(2.) The above Petition, inter alia, prays for a writ of Certiorari to quash and set aside the Order dtd. 3/1/2008 and direct the Respondents to reinstate the Petitioner in service.

(3.) Briefly, the facts of the case as stated by the Petitioner are that the Petitioner joined the services of the Respondents as a Clerk (Outdoor) in the Traffic Department ATM(S) Sec. . On 7/3/2000, the Petitioner was prosecuted for an offence punishable under Secs. 342, 504 and 302 of the Indian Penal Code on the ground that he had wrongfully confined his wife Smt. Merciana Colaco in his residential flat and assaulted her as a consequence of which she suffered injuries and died on account of such injuries. It is further the contention of the Petitioner that the Respondents through its Disciplinary Authorities, place the Petitioner on suspension from 7/3/2000 in terms of the Regulation 3 of MPE (Conduct) Regulation 1964 and Regulation 8.1(b) and MPE (Classification, Control and Appeal) Regulation 1964. The learned Sessions Judge by Judgment dtd. 28/7/2004 found the Petitioner guilty and convicted him under Sec. 304 (II) and 342 of the Indian Penal Code and, as such, he was sentenced to suffer rigorous imprisonment for seven years and rigorous imprisonment for six months with fine of Rs.5000.00 in respect of the offences committed under Sec. 304 (II) and 342 of the Indian Penal Code respectively. The State carried the Judgment of conviction and sentence passed by the learned Sessions Judge before this Court in Criminal Appeal no. 57 of 2004 seeking enhancement of the conviction from Sec. 304(II) to Sec. 302 of the Indian Penal Code and the sentence from seven years rigorous imprisonment to life imprisonment. By Judgment and Order dtd. 18/9/2006, this Court dismissed the said Appeal. The Respondents through Deputy Conservator and Traffic Manager/ Disciplinary Authority, issued a show cause notice dtd. 16/2/2005 which was served on the Petitioner on 17/2/2005 at Aguada Jail for making a representation on the penalty proposed by the Respondent. The penalty proposed according to the Petitioner by the Respondents was of dismissal from service which shall ordinarily been a disqualification from future employment. It was also stated in the show cause notice that the Respondents had come to a provisional conclusion that the Petitioner is not a fit person to be retained in the service and, therefore, in terms of the Regulations Act, 1964, it was proposed to impose the above penalty. A reply was sent by the Petitioner to the show cause notice, inter alia, explaining the circumstances in which the tragic death of his wife occurred and stated that as it was a matrimonial issue, it is not proper on the part of the Respondent to impose such a severe penalty. The Deputy Conservator and the Disciplinary Authority of the Respondents confirmed the penalty of dismissal from service of the Petitioner with immediate effect. In exercise of powers under Regulation 9 sub-Regulation (vii) (Classification, Control and Appeal) Regulations 1964. Subsequently, on 24/8/2006, the Petitioner was released from jail. Thereafter, on 30/1/2007, the petitioner preferred an Appeal against the said Order dtd. 4/4/2005 to the Appellate Authority i.e. Deputy Chairman of the Respondent under the Mormugao Port Employees (Classification, Control, Appeal) Regulations. There were also contentions raised by the Petitioner with regard to the infirmities in the Orders of termination issued by the Respondents. The Appellate Authority by an Order dtd. 3/1/2008 rejected the Appeal of the Petitioners confirming the Order of termination passed by the Disciplinary Authority hold that the penalty imposed was proportionate with the gravity of the charges. But, however, the Disciplinary Authority modified the Order of Termination to the extent that the dismissal from service was made without its disqualification from future employment.