MORESHWAR RAJARAM KULKARNI Vs. GOVERNMENT OF MAHARASHTRA

JUDGEMENT

(1.) MORESHWAR Rajaram Kulkarni, the original plaintiff in Special Civil Suit No. 47 of 1980 has preferred this appeal to challenge judgment and decree dated August 22, 1983 passed by Civil Judge, Senior Division, Thane, dismissing the suit with costs. During the pendency of the appeal, original plaintiff died and his legal representatives are brought on record to prosecute the litigation. The original plaintiff entered the Government service as Gram Sevak on May 4, 1963. The plaintiff was posted at village Talasari in Mokhada Taluka of Thane District. The plaintiff was required to visit villages and hamlets and write down a diary of the work carried out by him and report to Block Development Officer. The services of plaintiff were allotted to Zilla Parishad, Thane with effect from December 28, 1973. On May 15, 1973 the plaintiff was served with a charge -sheet and the charges were that the plaintiff had remained absent from duty from April 1, 1969 to April 4, 1971. The plaintiff had also disobeyed the orders of the superiors. The plaintiff gave reply which was not satisfactory and thereupon departmental enquiry commenced. The Enquiry Officer was appointed and before the Enquiry Officer, three witnesses were examined and those were Block Development Officer Ambulkar, Extention Officer Sambre and Extention Officer Rajesh. After considering the defence of the delinquent the Enquiry Officer recommended to the Disciplinary Authority that all the charges were duly established. The Disciplinary Authority accepted the report and imposed the penalty of compulsory retirement in accordance with the provisions of Maharashtra Civil Services Rules. The delinquent preferred an appeal before the Commissioner, Bombay Division and the Commissioner by order dated August 29, 1975 (Exh. 47) dismissed the appeal.

(2.) THE delinquent then addressed letter to Lokayukta, Maharashtra State and was advised to approach the Government by filing revision application against the order of the Divisional Commissioner. The plaintiff then filed a, revision application and claims that the application was heard by the Minister in January, 1979 but the decision was not communicated. On July, 9 the plaintiff filed application to prosecute the suit filed by him, in forma pauperis. After leave was granted, the suit was numbered and the relief sought was a declaration that the order of compulsory retirement is void. The plaintiff asked for accounts for past wages and claimed payment of Rs. 50,000/ - on that count. The plaintiff also claimed damages of Rs. 70.000/ - on account of mental torture, monetary loss, defamation and stigma on his service.

(3.) SHRI Paradkar, learned Counsel appearing on behalf of the appellant, submitted that the Trial Judge was in error in holding that the enquiry was not vitiated for the defects claimed by the delinquent. We are unable to find any merit in the contention. Shri Paradkar submitted that the Enquiry Officer failed to supply copies of documents sought by the delinquent by application dated July 25, 1973. The delinquent sought the copies of (a) service book; (b) copies of papers pertaining to earlier enquiry which resulted into stoppage of two increments of the delinquent; (c) the order passed by the Enquiry Officer in that proceeding and (d) copies of papers relating to the complaint made by the delinquent to the Government regarding non -receipt of his salary. The Enquiry Officer informed the delinquent that the documents relating to the earlier enquiry were not relevant and in any case the delinquent could collect the same from the Block Development Officer who conducted the earlier enquiry. It is obvious that the grievance of the plaintiff that the enquiry was vitiated for non -supply of documents is without any substance. The documents which the delinquent asked for were in his custody and in any event they were totally irrelevant to determine the charges against the plaintiff in respect of absence from duty for over several years. Shri Paradkar then submitted that the Enquiry Officer examined Extention Officer Rajesh behind the back of the plaintiff and that had vitiated the enquiry. The grievance is devoid of any merit for more than one reason. In the first instance, such a grievance was never made before the Commissioner, Bombay Division when the delinquent filed a statutory appeal. That was the first and immediate opportunity for the delinquent to raise such a contention but the delinquent did not do so and obviously because the grievance now made out is frivolous. Secondly, the order passed by the Appellate authority clearly indicates that Rajesh was examined on August 27, 1973 and before that date, intimation was sent to the delinquent but the delinquent deliberately remained absent. The delinquent was also subsequently informed about his absence and the delinquent had no grievance. Thirdly, in the plaint filed before the Trial Court, the plaintiff did not specifically contend that Rajesh was examined behind his back and the only contention was that some witnesses were not examined in the presence of the plaintiff. The name of Rajesh was not even mentioned and when confronted in the cross -examination, plaintiff had no answer. Shri Paradkar then submitted that witness Ambulkar was not permitted to cross -examine. The difficulty of the learned Counsel is that such a contention was not raised by the delinquent when the appeal was preferred before the Divisional Commissioner. The name of Ambulkar was not also referred to in the plaint. It is obvious that the plaintiff is raising a false plea for the first time in the Trial Court and such a plea cannot be entertained. In our judgment, the alleged defects claimed by the plaintiff are not defects at all and the enquiry did not suffer from any infirmity. On the other hand, the order of the Appellate Authority indicates that plaintiff was an incorrigible worker and had remained absent between years 1968 and 1973 for a period more than the time spent on duty. The delinquent was punished by stoppage of two increments in the previous enquiry but the delinquent had not learnt any lesson, but on the contrary the delinquent was making complaint against each and every superior to the Government. The reason for remaining absent possibly is that the delinquent was not interested in carrying out the duties of Gram Sevak in the remote villages situated in the tribal area. The order of the Appellate Authority so indicates that the delinquent had secured some other job while continuing in the Government service. We have no hesitation in concluding that the grievance of the plaintiff that the enquiry was defective is entirely worthless.