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Saturday 21 March 2015

When charge of misbehaviour with female employees is not proved?



The charges 

levelled   against   the   petitioner   were   that   he   misbehaved   with   the   female 
employees working in the department and the behaviour of the petitioner with 
the female employees was improper. 
After hearing the learned advocates for the respective parties and 
examining the record, particularly, the report submitted by the Enquiry Officer, I 
find that the report submitted by the Enquiry Officer is as vague as it could be 
and it cannot be said that there is any finding recorded by the Enquiry Officer 
which brings home the alleged guilt of the petitioner.  There is no justification on 
the record as to why the complaint about the alleged incidents was made after 

the period of 7 or 8 years.   The Enquiry Officer has found that the statements 
given by some of the witnesses examined during the enquiry are not supported 
by  the   statements   of the   other  witnesses  or  there  are  contradictions.       I  am 
conscious that the charges against the delinquent in the departmental enquiry 
are required to be considered on the basis of the theory of preponderance of 
probabilities and it is not necessary that the parameters applicable in criminal 
trial are required to be applied.   However, the employee cannot be deprived of 
his   legal   right   of   continuing   in   the   employment   on   the   basis   of   motivated 
complaints without examining the truthfulness of the allegations made against 
the employee.  Moreover, the Enquiry Officer is required to give definite finding 
after considering the material on the record that the charges levelled against the 
delinquent are proved.    In the present case, the Enquiry Officer has not been 
able to bring home the alleged guilt for which the petitioner was charged and 
therefore, he has recorded that charges 1 and 2 are partly proved against the 
petitioner.  

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

Dhanraj s/o Nankuprasad Gupta V  Public Works Department, 

CORAM  :  Z.A. HAQ, J.
DATE  :     12.11.2014
Citation;2015(2) MHLJ 351

Heard Shri V.P. Marpakwar, the learned advocate for the petitioner 
The   petition   takes   exception   to   the   orders   passed   by   the 
2.
and Ms Rashi Deshpande, the learned advocate for the respondents 1 and 2. 
subordinate Courts rejecting the complaint filed by the petitioner under Section 
28 read with Item 1 of Schedule IV of the Maharashtra Recognition of Trade 
Unions and Prevention of Unfair Labour Practices Act, 1971 upholding the order 
passed   by   the   respondent   no.1   compulsorily   retiring   the   petitioner   from   the 
service. 
3.
It is undisputed that the petitioner had been in the employment of 
the   respondents   from   27th  December,   1972   till   4th  June,   2003   when   he   is 
compulsorily retired  from service.    The petitioner had  good  and  unblemished 
record to his credit till the complaint against the petitioner was filed on the basis 
of which the charge­sheet dated 15th November, 2002 was issued.   The charges 

levelled   against   the   petitioner   were   that   he   misbehaved   with   the   female 
employees working in the department and the behaviour of the petitioner with 
the female employees was improper.   The enquiry was conducted against the 
petitioner  pursuant   to   the   charge­sheet   dated   15th  November,  2002   and   after 
completing the enquiry, the Enquiry Officer submitted the report dated 30th April, 
2003 concluding that the charges 1 and 2 levelled against the petitioner were 
partly proved.   On the basis of the report submitted by the Enquiry Officer, the 
Disciplinary Authority took further steps and by the order dated 4th June, 2003, 
exercising its powers under Rule 6(2) and Rule 9(4) of the Maharashtra Civil 
Services (Discipline and Appeal) Rules, 1979 directed compulsory retirement of 
the petitioner. 
4.
The petitioner being aggrieved by the above mentioned order filed 
complaint before the Labour Court.  The respondents justified their action. 
The Labour Court by the order dated 26th October, 2005 concluded 
that   the   petitioner   failed   to   prove   that   the   findings   recorded   by   the   Enquiry 
Officer   are   perverse   and   that   the   punishment   of   compulsory   retirement   is 

disproportionate.   The complaint filed by the petitioner was rejected. 
The petitioner challenged the order in revision. The Industrial Court 
by the order dated 29th  December, 2009 affirmed the findings recorded by the 
Labour Court and dismissed the revision. 
The petitioner being aggrieved in the matter has filed the present 
5.
petition.     
Shri   Marpakwar,   the   learned   advocate   for   the   petitioner   has 
submitted  that at the relevant time the President of the  Union ­ Maharashtra 
Rajya   Sarvajanik   Bandhkam   Karmachari   Sangh   had   grudge   against   the 
petitioner and he manipulated the complaint against the petitioner by obtaining 
the   signatures   of   workers   though   the   signatories   were   not   aware   about   the 
contents of the complaint.   The learned advocate submitted that the complaint is 
made in the year 2002 and in the complaint the grievance was made about the 
incidents alleged to have taken place in 1994, 1995 and 1996.    It is submitted 
that there is no explanation for the inordinate delay in making the complaint. 
According to the learned advocate for the petitioner, the manner in which the 

complaint of the alleged incidents was made against the petitioner shows that 
the   complaint   was   motivated.       Shri   Marpakwar,   the   learned   advocate   has 
pointed out from the enquiry report that Enquiry Officer was also not sure about 
his conclusions and consequently he recorded that the charges 1 and 2 levelled 
against the petitioner are partly proved.   It is submitted that though the Enquiry 

Officer  has recorded  that the  charges 1  and  2  are  partly proved   against  the 
petitioner it is not explained as to what part of the charges against the petitioner 
are proved.     The submission on  behalf of the  petitioner is that the  order of 
compulsory retirement could not have been issued on the basis of the enquiry 
report in which there is no conclusive decision that the charges levelled against 
the petitioner are proved.  It is prayed that the orders passed by the subordinate 
Courts   rejecting   the   challenge   of   the   petitioner   to   the   order   of   compulsory 
retirement, be set aside  and the order of compulsory retirement be quashed.   It 
is   submitted   that   it   be   held   that   the   petitioner   is   entitled   to   be   treated   as   in 
service   till   he   attained   the   age   of   superannuation,   with   all   the   consequential 
benefits. 

Ms   Rashi   Deshpande,   the   learned   A.G.P.   has   opposed   the 
6.

submissions as made on behalf of the petitioner.  It is submitted that the Enquiry 
Officer   has   rightly   observed   that   no   female   employee   would   make   false 
complaint or allegations of the nature as in the present case.    She has further 
submitted that the Enquiry Officer in his capacity as the fact finding Authority 
has found that charges 1 and 2 are partly proved against the petitioner hence 
the   decision   of   retiring   the   petitioner   compulsorily   considering   the   nature   of 
allegations against the petitioner cannot be said to be unjustified.   The learned 
A.G.P. supported the order retiring the petitioner compulsorily and prayed that 
the petition be dismissed. 
7.
After hearing the learned advocates for the respective parties and 
examining the record, particularly, the report submitted by the Enquiry Officer, I 
find that the report submitted by the Enquiry Officer is as vague as it could be 
and it cannot be said that there is any finding recorded by the Enquiry Officer 
which brings home the alleged guilt of the petitioner.  There is no justification on 
the record as to why the complaint about the alleged incidents was made after 

the period of 7 or 8 years.   The Enquiry Officer has found that the statements 
given by some of the witnesses examined during the enquiry are not supported 
by  the   statements   of the   other  witnesses  or  there  are  contradictions.       I  am 
conscious that the charges against the delinquent in the departmental enquiry 
are required to be considered on the basis of the theory of preponderance of 
probabilities and it is not necessary that the parameters applicable in criminal 
trial are required to be applied.   However, the employee cannot be deprived of 
his   legal   right   of   continuing   in   the   employment   on   the   basis   of   motivated 
complaints without examining the truthfulness of the allegations made against 
the employee.  Moreover, the Eqnuiry Officer is required to give definite finding 
after considering the material on the record that the charges levelled against the 
delinquent are proved.    In the present case, the Enquiry Officer has not been 
able to bring home the alleged guilt for which the petitioner was charged and 
therefore, he has recorded that charges 1 and 2 are partly proved against the 
petitioner.   
8.
In view of the above, it cannot be said that the charges levelled 

against   the   petitioner   are   proved   and   consequently,   the   order   issued   by   the 
respondent no.1 compulsorily retiring the petitioner is quashed.  The subordinate 
Courts have not examined the material on the record properly and the orders 
The writ petition is allowed.   The impugned orders passed by the 

9.
passed by them are also unsustainable in law. 
Labour   Court   in   complaint   ULPA   No.262/2003   on   26/10/2005   and   by   the 
Industrial Court in Revision (ULPN) No.261/2005 on 29/12/2009 are set aside. 
The   order   dated   4thJune,   2003   issued   by   the   respondent   no.1 
retiring the petitioner compulsorily is quashed.  The respondents shall treat the 
petitioner to be in service till the date of his attaining the age of superannuation. 
Considering the facts of the case and in view of my finding that the order of 
compulsory retirement was on the basis of enquiry report which is unsustainable 
in law, I am of the view that the petitioner is entitled for the arrears  of salary and 
all other monetary benefits from 4th June, 2003 till the date on which he attained 
the age of superannuation. 
The   petitioner   is   entitled   for   fixation   of   his   pension   and   other 
on attaining the age of superannuation.  
terminal benefits accordingly treating that the petitioner has retired from service 
Rule is made absolute in the above terms.   In the circumstances, 
JUDGE

                            
the parties to bear their own costs.   


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