Vinodsing Vijaysing Chavan v. The State of Maharashtra Through the Secretary and Ors

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8631 OF 2024 Vinodsingh Vijaysingh Chavan ...Petitioner VERSUS The State of Maharashtra and Ors. ...Respondents …. Ms. Shivani S. Shinde, Advocate for the Petitioner. Ms. G. R. Raghuvanshi, AGP for the Respondent – State. …. CORAM : M. S. KARNIK & N. R. BORKAR, JJ. DATE : 1st July, 2025 ORAL JUDGMENT (PER : N.R. BORKAR J.)

¶1The facts giving rise to the present petition are as under:

¶2The petitioner, a police constable was subjected to regular departmental inquiry for misconduct in relation to the incident, which took place on 30.08.2010, while he was on training at the Police Training Centre at Marol, Mumbai.

¶3The charge against the petitioner was that on

30.08.2010 while he and his batchmate police constable 1 of 7 Sachin Gaikwad were in classroom, an altercation took place between them on some trivial issue and during the said altercation they abused each other. As the said police constable Sachin Gaikwad was abused in filthy language, he got enraged and assaulted the petitioner by wooden log, due to which the left hand of the petitioner was fractured. The petitioner was further charged that he misrepresented to the department that he sustained the fracture injury as he slipped while running. The charge reads thus : "

दिनांक३०/08/

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ठरणारआहात." 2 of 7

¶4The petitioner was found guilty of the alleged misconduct. Thus, by order dated 27.12.2010, the petitioner was dismissed from service.

¶5Against the order of dismissal from service an appeal was filed, however, the same was dismissed. The petitioner thereafter filed a revision before the respondent No. 1 State-Government. In the revision, the punishment of dismissal was found to be disproportionate. Thus, by order dated 28.08.2014 passed by the respondent No.1 the punishment of dismissal from service was set aside and instead the punishment of withholding of increments for five years, with cumulative effect was imposed. On

18.10.2014 the petitioner was thus reinstated in service.

¶6The petitioner vide representation dated

13.11.2014, sought review of the order dated 28.08.2014 to the extent of imposing the punishment of withholding of five increments with cumulative effect and further prayer was made for grant of full pay and allowances for the period during which he was out of service i.e. from

27.12.2010 to 28.10.2014. The respondent No. 1 by its order dated 06.07.2017 granted 50 percent of pay and allowances to the petitioner for the period of three years 3 of 7 preceding to the reinstatement of the petitioner in terms of Rule 70 (4) & (5) of the Maharashtra Civil Services (Joining Time, Foreign Service and Payments During Suspension, Dismissal and Removal) Rules 1981 (for short the Rules of 1981).

¶7The petitioner being aggrieved by the orders of respondent No. 1 dated 28.08.2014 and 06.07.2017 approached the Maharashtra Administrative Tribunal, (for short Tribunal). By order dated 14.06.2023 the learned Tribunal declined to interfere with the orders passed by respondent No. 1. Hence, this petition.

¶8We have heard learned counsel for the petitioner and learned AGP for the Respondent-State.

¶9The learned counsel for the petitioner has drawn our attention to the findings recorded by the inquiry officer. It is submitted that the co-delinquent police constable Sachin Gaikwad was equally responsible for the alleged incident dated 30.08.2010. It is submitted that the said co-delinquent was also subjected to an inquiry, however, only a minor punishment of recovery of one month pay was imposed upon him. It is submitted that thus the punishment imposed upon the petitioner cannot 4 of 7 be allowed to stand. In support of the submission the learned counsel for the petitioner has relied upon the decision of The Hon'ble Supreme Court in Rajendra Yadav versus State of Madhya Pradesh and Ors1.

¶10The learned counsel for the petitioner further submits that respondent No.1 erred in denying full pay and allowance for the period during which the petitioner was out of service. It is submitted that respondent No.1 while denying full pay and allowances has relied upon Rule 70 (4) & (5) of the Rules of 1981. It is submitted that the said rule would apply when dismissal is set aside on the ground of non-compliance of Clause (2) of Article 311 of the Constitution of India and no further inquiry proposed to be held.

¶11On the other hand, the learned AGP for respondents submits that considering the nature of misconduct the impugned orders may not be interfered with.

¶12We have perused the inquiry report. We find that co-delinquent police constable Sachin Gaikwad was equally responsible for the incident dated 30.08.2010. (2013 (3) SCC 73). 5 of 7

¶13The Hon'ble Supreme Court in Rajendra Yadav versus State of Madhya Pradesh and Ors. (supra) has held :

¶9The doctrine of equality applies to all who are equally placed: even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed.

Punishment

should

not

be disproportionate

while

comparing

the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.

¶14It is not in dispute that minor punishment of recovery of one month pay was imposed upon the co-delinquent police constable Sachin Gaikwad, even though he assaulted the petitioner by wooden log due to which the left hand of the petitioner was fractured.

¶15Considering the overall facts and circumstances of the case and in view of the decision of The Hon'ble 6 of 7 Supreme Court in Rajendra Yadav versus State of Madhya Pradesh and Ors. (supra) we were inclined to modify the punishment, similar to the punishment as imposed upon the co-deliquent Sachin Gaikwad. However, considering the nature of misconduct, we are of the view that ends of justice would be met by directing the respondents to pay full pay and allowances to the petitioner for the period during which the petitioner was out of service. The respondents are accordingly directed to pay full pay and allowances to the petitioner for the period during which he was out of service i.e. from 27.12.2010 to

28.10.2014 within a period of four months from the date of receipt of copy of this order by them. Needless to mention that the period from 27.12.2010 to 28.10.2014 shall be treated as a period spent on duty for all purposes. The order of the Tribunal is set aside and the Original Application filed by the petitioner is allowed to the aforesaid extent. The petition is disposed of in aforesaid terms. (N. R. BORKAR, J.) (M. S. KARNIK, J.) 7 of 7