Bombay High Court Dismisses State's Petition Challenging Tribunal's Order Setting Aside Penalty for Denial of Fair Hearing. Failure to Question Delinquent Under Rule 8(20) of Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 Violates Mandatory Procedural Safeguard, and Tribunal Justified in Not Granting Liberty to Resume Inquiry After Retirement.

Writ petition challenging the judgment of the Maharashtra Administrative Tribunal that set aside penalty orders in disciplinary proceedings against a retired government employee.

The petitioners (State authorities) sought to quash the Tribunal's order and uphold the penalty orders dated November 3, 2012 and December 23, 2013.

The petitioners challenged the Tribunal's decision on the ground that the Inquiry Officer's action substantially complied with Rule 8(20) and that the Tribunal ought to have granted liberty to resume inquiry.

The Maharashtra Administrative Tribunal, by judgment dated January 24, 2019, allowed the respondent's Original Application No.170 of 2015, setting aside the penalty orders and directing that the suspension period be treated as duty with full retiral benefits, without granting liberty to resume inquiry.

Whether the Inquiry Officer's failure to question the delinquent under Rule 8(20) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979, and instead seeking submissions on witness statements, amounts to substantial compliance of the mandatory provision. Whether the Tribunal was justified in not granting liberty to the Disciplinary Authority to resume inquiry after setting aside the penalty orders, given the respondent's retirement.

The petitioners argued that the opportunity extended to the respondent to offer submissions on witness statements amounted to substantial compliance of Rule 8(20), and that the Tribunal erred in nullifying the penalty orders on this ground. They also submitted that the Tribunal was unjustified in not granting liberty to resume inquiry, given the seriousness of the charges involving misappropriation of funds. The respondent supported the Tribunal's finding that Rule 8(20) is mandatory and its breach vitiated the inquiry, and that no liberty to resume inquiry should be granted due to retirement and passage of time.

Rule 8(20) of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 is mandatory and requires the Inquiry Officer to question the delinquent on circumstances appearing against him in evidence if the delinquent has not examined himself. Failure to do so vitiates the inquiry as it denies fair hearing. The Tribunal has discretion to refuse remand for fresh inquiry after the delinquent's retirement if it would cause great injustice.

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. An executive agency must be rigorously held to the standards by which it professes its action to be judged. Accordingly, if dismissal from employment is based on a defined procedure, even though generous beyond the requirements that bind such agency, that procedure must be scrupulously observed.... He that takes the procedural sword shall perish with the sword. 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. ... The use of the word shall shows that the said provision is imperative and the same is mandatory.

The respondent was suspended on September 30, 1999, reinstated on January 12, 2001, and charge-sheeted on February 3, 2006. After inquiry, the Inquiry Officer submitted a report on October 22, 2008 holding four charges proved. The respondent replied on April 13, 2009. The Disciplinary Authority passed penalty orders on November 3, 2012 and December 23, 2013. The respondent retired on November 30, 2012. He filed Original Application No.170 of 2015 before the Maharashtra Administrative Tribunal, which allowed it on January 24, 2019. The State filed Writ Petition No.3248 of 2020 in the Bombay High Court, which was dismissed on July 23, 2021.

• Maharashtra Civil Services (Discipline and Appeal) Rules, 1979: Rule 8, Rule 8(20)