Naik Vasanti A. (Smt.), J.@mdashBy this petition, the petitioner impugns the judgment and order passed by the Maharashtra Administrative Tribunal on 5.1.2007 dismissing the original application filed by the petitioner. The petitioner also challenges the order passed by the respondent No. 1 on 29.9.1995 dismissing the petitioner from service. The petitioner was appointed as a Talathi on 5.11.1958 and was promoted as a Revenue Inspector on 12.11.1959. On 14.12.1975, the petitioner was appointed as a Naib Tahsildar and was then promoted as a Tahsildar by an order dated 9.3.1982. On 11.6.1988 the petitioner was promoted as a Deputy Collector and posted at Nanded. On 27.3.1989 the petitioner received a show cause notice wherein certain charges were levelled against the petitioner. It was the case of the respondents that the petitioner had permitted the allottees of the land to fell the trees in their land at mouja Chikyala though the petitioner was aware that the allottees of the land had not paid the royalty [price of the trees] to the State Government and the trees belonged to the State Government. According to the other charge the contractor had illegally felled 960 trees though permission was granted for felling 422 teak trees and 66 other trees. It was the case of the State Government that in view of the aforestated actions of the petitioner the State Government had suffered huge loss. A departmental enquiry was conducted against the petitioner and after the Enquiry Officer held that the petitioner was guilty of one of the charges levelled against him, the petitioner was dismissed from service by the impugned order dated 29.9.1995. The petitioner challenged the order of dismissal before the Maharashtra Administrative Tribunal by an original application, but the same was dismissed by the Maharashtra Administrative Tribunal by the impugned order dated 5.1.2007.
2. Shri Ukey, the learned Counsel for the petitioner submitted that the respondents were not justified in initiating the enquiry when there was a gross and unexplained delay in initiation of the same. It is submitted on behalf of the petitioner that the State had not advanced any cogent reason for the delay in initiating the enquiry against the petitioner. The learned Counsel for the petitioner submitted that the petitioner had duly checked the 7/12 extracts to find the names of the allottees therein and after being satisfied about the fact that the permission ought to have been granted to the allottees to fell the trees, the same was granted after receiving the favourable reports from his subordinates. The learned Counsel for the petitioner submitted that the order passed by the petitioner granting permission to the allottees to fell the trees was passed while working in the official capacity and since the charge levelled against the petitioner is not of misappropriation or misconduct, the petitioner could not have been dismissed from service. At the most, according to the learned Counsel for the petitioner, the decision of the petitioner granting permission to the allottees to fell the trees could be said to be a wrong decision, but when it was not the case of the respondent that there was misappropriation or misconduct on the part of the petitioner, the petitioner could not have been dismissed from service. According to the learned Counsel for the petitioner, there was absolutely no evidence to prove the charge that the petitioner granted permission to the allottees to fell the trees inspite of the knowledge of the fact that the trees belonged to the Government and the allottees had not paid the royalty for the trees. The learned Counsel for the petitioner submitted that the Enquiry Officer did not refer to any evidence whatsoever to hold that the petitioner had knowledge of the fact that the trees did not belong to the allottees and the allottees had not paid the royalty for the trees. The learned Counsel for the petitioner submitted that the alleged act was committed in the year 1982, the show cause notice was issued to the petitioner in the year 1989 and the petitioner was dismissed from service in the year 1995, just two months prior to his superannuation and this shows that the delay in initiating the enquiry has caused serious prejudice to the petitioner. The learned Counsel for the petitioner relied on the decisions reported in (Dattatraya Madhao Jamkar Vs. State of Maharashtra)1, 1991(2) Bom. C.R. 706(N.B.) : 1990 Mh. L.J. Page 950 and ((1993)24 Administrative Tribunal Cases Page 74)2, to substantiate his submission that no disciplinary action would lie even if a palpably erroneous decision is taken while performing the official duty and there is no charge of improper or corrupt motive against the employee. The learned Counsel for the petitioner by relying on the aforesaid decisions, submitted that there was nothing in the proved charge to suggest that the act had been done by the petitioner with an ulterior motive of gaining some monitory or other benefits for himself or to others. The learned Counsel for the petitioner relied on the decisions reported in (1992(1) Service Law Reporter Page 38)3, and
3. Shri Dharmadhikari, the learned Assistant Government Pleader appearing on behalf of the respondents supported the order passed by the respondent No. 1 on 29.9.1995 as also the order passed by the Maharashtra Administrative Tribunal on 5.1.2007. The learned Assistant Government Pleader submitted that two witnesses were duly examined by the State to prove the charge against the petitioner and it was apparent from the evidence tendered by the witnesses that the petitioner had been negligent in performing his duties. It is submitted on behalf of the respondents that after the S.D.O. noticed that the order granting permission for felling of trees was improper, the show cause notice was issued to the petitioner in the year 1989 and hence that constitutes sufficient cause for issuance of the show cause notice after a period of 7 years from the date of the alleged act of misconduct. The learned Assistant Government Pleader submitted that the trees on the land allotted to the allottees were owned by the Government and when the allottees had not paid the royalty for the trees, the petitioner could not have granted permission to the allottees to fell the trees without verifying the fact about the ownership of the trees and without making a spot inspection. The learned Assistant Government Pleader relied on the decision of the Hon. Supreme Court reported in (Union of India Vs. Sardar Bahadur)5, 1971 DGLS (soft) 551 : 1972(4) S.C.C. Page 618to substantiate his submission that the scope of jurisdiction exercisable under Article 226 of the Constitution of India is limited and this Court may not interfere with the findings of fact recorded by the Maharashtra Administrative Tribunal. The learned Assistant Government Pleader submitted that the Enquiry Officer had duly considered the evidence of the parties and the Maharashtra Administrative Tribunal has therefore rightly held that there was no reason to interfere with the order of dismissal. The learned Assistant Government Pleader sought for the dismissal of the writ petition.
4. On hearing the learned Counsel for the parties and on perusal of the impugned order of the Maharashtra Administrative Tribunal and the other relevant documents, it appears that the only charge proved against the petitioner was that he had permitted the allottees to fell the trees inspite of the knowledge of the fact that the allottees had not paid the royalty for the trees to the Government. On a perusal of the enquiry report and the other documents it appears that there is no evidence whatsoever to show that the petitioner did have knowledge of the fact that the trees belonged to the Government and the allottees had not paid the royalty for the trees to the State Government. The grant of permission to the allottees to fell the trees was an act of the petitioner in performance of his official duties. One of the witnesses examined on behalf of the state had admitted that there was nothing in the pattas issued to the allottees to show that the ownership of the trees was that of the Government. The petitioner had duly considered the 7/12 extracts and the favourable reports of his subordinates before granting permission to the allottees to fell the trees. As rightly submitted on behalf of the petitioner, it is not the charge of the respondent that the petitioner had granted permission to the allottees with an ulterior motive of gaining some monetary or other benefits for himself or to others. The charge does not attribute any corrupt or improper motive to the petitioner. The learned Counsel for the petitioner is justified in saying that at the most it could be said that the decision of the petitioner to grant permission to the allottees to fell the trees was a wrong decision, but that would not tantamount to misconduct specially when it is not the charge of the State that the petitioner did not perform the act by exercising due diligence or the petitioner granted the permission with an intent of gaining some monetary benefit for himself or to others. There is absolutely nothing in the evidence and the enquiry report to show that the petitioner had knowledge of the fact that the trees belonged to the Government and the allottees had not paid the royalty for the trees. In the absence of any evidence in that regard, it cannot be said the aforesaid charge levelled against the petitioner was proved.
5. Though the charge levelled against the petitioner was of granting permission to the allottees of felling the trees inspite of the knowledge of the fact that the allottees had not paid the royalty for the trees, the Maharashtra Administrative Tribunal erroneously framed the issue in regard to the exercise of due diligence and care by the petitioner before performing the act. The Maharashtra Administrative Tribunal was not justified in framing the issues in regard to due diligence and care and failure to hold a detailed enquiry, though that was not the charge levelled against the petitioner. There is also no finding of the Enquiry Officer that the petitioner had knowledge of the fact that the allottees had not paid the royalty for the trees which belonged to the Government. If that was the only proved charge against the petitioner, the Enquiry Officer as well as the Maharashtra Administrative Tribunal committed an error in drifting from the charge which was levelled against the petitioner and holding that the charge was proved. The judgments reported in Dattatraya Madhao Jamkar Vs. State of Maharashtra, 1991(2) Bom.C.R. 706(N.B.) : 1990 Mh. L.J. 950 and 1993(24) Administrative Tribunal Cases Page 74 are surely helpful to the case of the petitioner as the facts in those cases and the present case are similar and it was held by the Hon. Supreme Court in those cases that the departmental action would not lie even in cases of palpably erroneous decision taken by virtue of the office of the employee when no corrupt or ulterior motive is attributed to the employee. We find that the Enquiry Officer as well as the Maharashtra Administrative Tribunal were not justified in holding that one of the charges levelled against the petitioner was proved.
6. There is one more reason which may vitiate the enquiry. The petitioner had granted permission to the allottees to fell the trees in the year 1982 while working as a Tahsildar and the charge sheet was issued against the petitioner in the year 1989. The only reason stated by the Government for explaining the delay in filing the charge sheet is that in the year 1985 the S.D.O. while exercising the suo motu power of revision had noticed that the petitioner had illegally granted permission to the allottees to fell the trees and hence the show cause notice was issued in the year 1989. The said reason would not constitute sufficient cause for belatedly initiating the enquiry against the petitioner in the year 1989. The delay from 1985 to 1989 stands unexplained. We must not be forgetful of the fact that the alleged act was performed by the petitioner in his official capacity some time in the year 1982 and after a lapse of 7 years it would have been difficult for the petitioner or for that matter any other person levelled with such a charge to explain under what circumstances, he had rendered the decision 7 years earlier. The delay in initiating the enquiry surely causes prejudice to the employee in raising his defence. With short-lived memories, it is difficult for a Government servant to state under what circumstances and on what enquiry a particular official act was performed specially when the act is one of the several acts which the Government servant is required to perform in his official capacity. There is nothing on record to show as to why the state did not issue the show cause notice immediately in the year 1985, after the S.D.O. realised in the year 1985 that the action taken by the petitioner in the year 1982 in his official capacity was improper. The judgments reported in 1992(1) Services Law Reporter Page 38 and
