S.V. Gangapurwala, J.
The petitioner takes exception to the order of his removal dated 31/07/1996 passed by the Executive Director of the respondent No.1, thereby removing the petitioner from the service as Head Accountant with effect from 31/07/1996, and further prays for directing the respondents to take the petitioner on duty as Head Accountant with effect from 31/07/1996 along with salary, increments, back-wages and other benefits.
2. The petitioner at the relevant time was working as Head Accountant with the respondent No.1, departmental inquiry was initiated against one Shri P.S. Udawant, Shri N.L. Kundalikar a cashier and the petitioner on 27/03/1995 was issued the charge-sheet, as per the said charge-sheet, charge against petitioner was that the petitioner was guilty of dereliction of his duty by not verifying the character, honesty of Shri Kundalikar and intentionally committing breach of Rule 3 of the Maharashtra Civil Services (Discipline), Rules, 1976. The allegations against one Shri P.S. Udawant were of similar nature, whereas Shri Kundalikar was accused of mis-appropriating a sum of Rs. 5,86,016.37 paise. The petitioner filed reply to the charge-sheet denying the allegations. The Executive Director of respondent No.1 appointed one Shri S.G. Muglikar, as an Inquiry Officer. The witnesses came to be summoned and the Inquiry Officer submitted the report. The Board of Directors agreed with the findings of the Inquiry Officer, and as such show-cause notice was issued to all three delinquents i.e. Shri P.S. Udawant, N.L. Kundlikar and the petitioner. After receipt of the reply, the Board of Directors of respondent No.1 passed an order of removing petitioner and Shri Kundalikar from service and four annual increments of Shri P.S. Udawant were permanently with-held. The petitioner has challenged the said order of removal before this Court.
3. We have heard Shri M.D. Joshi, learned counsel for the petitioner, Shri R.P. Powar, learned counsel for the respondent No.1 and Shri K.B. Choudhari, Addl. G.P. for respondent No.2/State at length.
4. Shri M.D. Joshi, learned counsel for the petitioner put-forth following prepositions :-
i) The petitioner was not allowed the assistance of Shri Modak or any other person, during the course of the departmental proceedings and was also not supplied with the relevant documents, as such the inquiry is bad-in-law. According to him, the same tantamounts to violation of the principles of natural justice.
ii) Rule 8(2)) of the Maharashtra Civil Services (Discipline & Appeal) Rules, 1979 (here-in-after referred to as 'Rules, 1979) are not complied and as such the same vitiates the inquiry itself, inter alia the order of removal based on such inquiry is bad-in-law. The learned counsel for the petitioner relied on the judgment of the Division Bench of this Court, in a case of "Masuood Alam Khan-Pathan Vs. State of Maharashtar and others, reported in 2009 (5) Mh.L.J. 68."
iii) There were no allegations of mis-appropriation against the petitioner, the allegations of mis-appropriation were only against Shri Kundlikar and Shri Kundlikar had also accepted his guilt, he had also deposited the amount. Only allegation against the petitioner was that the petitioner was negligent in not verifying the character and honesty of Shri Kundlikar. The charge against the petitioner and Shri P.S. Udawant were similar. But Shri P.S. Udawant was imposed a minor punishment i.e. his four increments are only with-held. Whereas the petitioner is ordered to be removed from service and there is discrimination.
iv) The punishment imposed is too disproportionate to the charge levelled against the petitioner.
5. Shri R.P. Powar, learned counsel for the respondent No.1 strenuously contended that :-
i) In the present case, compliance of Rule 8(20) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 is not mandatory, keeping in view of the facts of the present case. No prejudice is caused to the petitioner by non-compliance of said Rule.
ii) The principles of natural justice were followed, proper opportunity was given to the petitioner.
iii) The charges levelled against the petitioner are proved and his conduct was not that befitting a person holding such a responsible post as Head Accountant, and as such the punishment imposed is proper.
iv) This Court cannot sit in appeal over the departmental proceedings and as such may not interfere with the findings in the departmental proceedings and consequent punishment.
v) The employer had lost faith in the petitioner. It is on record that petitioner has connived with Shri Kundlikar and the employer has rightly dismissed the petitioner.
6. The objection of the petitioner, that he was not provided the necessary documents and assistance of Shri Modak or other senior officer, is without any substance. The presenting officer was not a lawyer and whenever the petitioner asked for the documents, he was provided inspection of the same. From time to time the petitioner was given access and inspection to the documents, as such the objection of Shri M.D. Joshi, learned counsel for the petitioner on this count is unsustainable. Shri Powar has rightly pointed out the orders passed by the Inquiry Officer in that regard.
7. The argument of Shri Joshi that Rule 8(20) of the said Rules, 1979 are not followed requires consideration. The said Rule 8(20) of Rules 1979 reads as under :-
"(20) The inquiring authority may, after the Government servant closes his case and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing in the evidence against him."
On perusal of the said Rule, it is manifest that the said Rule mandates the inquiring authority to question the delinquent on the circumstances appearing against him in the evidence, so that the delinquent may get opportunity to explain any circumstances appearing in the evidence against him. In the present case, the delinquent has not examined himself. If the delinquent has not examined himself, in that case the Inquiry Officer is not left with any discretion but has to question the delinquent about the circumstances appearing against him. The use of the word shall shows that the said provision is imperative and the same is mandatory. In the first part of the said Sub rule the legislature has used the word 'may', but when the delinquent has not examined himself has used the word "shall", which itself clarifies that the word shall has to be considered as mandatory. The use of the word 'may' at one place and 'shall' at another place in the same rule would strengthen the inference that these words have been used in their primary sense, and that 'shall' should be considered as mandatory. The use of the word 'shall' therein as against 'may' shows that the same is mandatory. The use of the word 'shall' with respect to one matter and the used word 'may' with respect to another matter, in the same rule, would lead to the conclusion that the word 'shall' imposes an obligation. Whereas the word 'may' confers a discretionary powers. If, the delinquent has not examined himself, then it is obligatory on the inquiring authority to question the delinquent on the circumstances appearing against him in the evidence for the purposes of enabling him to explain any circumstances appearing in the evidence against him, and if the delinquent has examined himself, then the discretion vests with the Inquiry Officer to question the delinquent or not.
In the present case, it is not disputed that the delinquent has not examined himself, in such circumstances it was mandatory for the Inquiry Officer to question the petitioner regarding the circumstances appearing against him. The said Rule has not been complied, and as such inquiry stands vitiated. The Division Bench of this Court in the case of "Masuood Alam Khan-Pathan Vs. State of Maharashtra & others" referred supra has also observed that rule of Audi Alteram Partem is pregnant in the sub-rule(20) of Rule 8, departure there from would tantamount to violation of natural justice. On this count itself the inquiry vitiates, there cannot be any doubt that by non observance of the said rule the petitioner could not get the opportunity to explain regarding the circumstances which were prejudicial to him in the evidence.
8. The other argument of Shri Joshi, learned counsel for the petitioner that the allegations against the petitioner were only of negligence in not verifying the character and the integrity of Shri Kundlikar, and for the same he cannot be held for mis-appropriation. The punishment imposed upon him is shockingly disproportionate to the charge levelled against him. One Shri P.S. Udawant was also charged with the same allegation but to him a minor punishment was given. Whereas the petitioner is removed from service, he has been given the same punishment as is given to Shri Kundlikar who had misappropriated the amount needs consideration.
9. Now, it is a settled position that Wednesbury principle of unreasonableness is substituted by the doctrine of proportionality. The Apex Court in a case of "State of M.P. & Ors. Vs. Hazarilal, reported in A.I.R. 2003 S.C. 1300" in para No.12 to 14 has observed thus :-
"12:- Furthermore the legal parameters of judicial review has undergone a change. Wednesbury principle of unreasonableness has been replaced by the doctrine of proportionality. (See : Indian Airlines Ltd. Vs. Prabha D. Kumari : (2006) 1) SCC 67 : State of U.P. Vs. Sheo Shankar Lal Srivastava : (2006) 3 SCC 276 and M.P.Gangadharan and another Vs. State of Kerala and others : AIR 2006 SC 2360)."
"13 :- At this stage we may also notice the application of the Doctrine by the United Kingdom House of Lords in Seal (FC) (Appellant) Vs. Chief Constable of South Walves Police (Respondent) : (2007) 4 All. ER 177:Haung (FC) (Respondent) V. Secretary of State for the Home Department (Appellant) vs. Secretary of State for the Home Department(Respondent) (conjoined Appeals) : (2007) 4 All ER 15: Tweed (Appellant) vs. Parades Commission for Northern Ireland (Respondents) (Northern Ireland) (2007) 2 All ER 273: Belfast City Council (Appellants) Vs. Miss Behavin' Limited (Respondents) (Northern Ireland) (2007) 3 All ER 1007 and R (on the application of Countryside alliance and others) vs. Her Majesty's Attorney General and another (2007) 3WLR 922."
"14 :- It is interesting to note that distinguishing between the traditional grounds of judicial review and the doctrine of proportionality, Lord Carswell in Tweed (Supra) after referring to previous decisions and authorities observed:
"The starting point is that there is an overlap between the traditional grounds of review and the approach of proportionality. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various convention rights, which I do not propose to discuss, a few generalisations are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality may require the reviewing court to assess the balance which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to' relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R V Minister of Defence, Ex p Smith (1996) QB 517, 554 is not necessarily appropriate to the protection of human rights."
10. When Shri P.S. Udawant and the petitioner were charged alike, there was no reason for the respondent No.1 to discriminate between the two, nor any reasons are given to impose different punishment for both. The charge found to be proved against the petitioner is that the petitioner did not verify the character and integrity of Shri Kundlikar. For the same punishment of removal from service is too disproportionate and it does not satisfy the test of proportionality. On this count also the impugned order deserves to be quashed and set aside.
11. Though we have come to the conclusion that the impugned order deserves to be quashed and set aside, but we are not
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inclined to order back-wages to the petitioner on the principle of 'no work no pay'. So also the petitioner has not pleaded or proved that during the relevant period, he was not gainfully employed. It has also been brought on record that the respondent No.1 establishment has ceased to function and all the employees in service have been given benefit of Voluntary Retirement Scheme. As such, we also do not pass any order of reinstatement, and the petitioner would be entitled only to the benefit of voluntary Retirement Scheme as were given to the other employees. 12. In the result, we allow the petition and make Rule absolute and pass the following order :- The order of termination is quashed and set aside. However, since it is brought to our notice, that the respondent No.1's establishment has now ceased to function and all the employees who were in service have been given benefit of the Voluntary Retirement Scheme, we are not inclined to direct an order of reinstatement or the back wages. However, we direct the respondent No.1 to give benefit of Voluntary Retirement Scheme to the petitioner, on par with an equally circumstanced employee, treating the petitioner to be in the employment on the date on which the Voluntary Retirement Scheme was made applicable by the respondent No.1. 13. Rule is made absolute in the aforesaid terms. However, there shall be no order as to costs.