wp 1556-2023.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 1556 OF 2023 Sudin Mohan Gawade, Age 38 years, Occ. Nil, R/o At Ronapal, Post Madura, Sawantwadi, Dist. Sindhudurga ...PETITIONER VERSUS Konkan Railway Corporation Ltd., A Government of India Undertaking Belapur Bhawan, Sector-11, CBD Belapur, Navi Mumbai 400614 Through its Managing Director ...RESPONDENT --------------------------------------------------------------------------------------------- Mr. Abhijit Kandarkar, a/w Mr. Swapnil Lokare, Advocate for the petitioner. Mr. Rakesh Singh, Advocate for the respondent --------------------------------------------------------------------------------------------- CORAM : MILIND N. JADHAV, & NANDESH S. DESHPANDE, JJ. RESERVED ON : 13th JULY, 2026. PRONOUNCED ON : 17th JULY, 2026. JUDGMENT : [PER : NANDESH S. DESHPANDE, J.] 1. Rule. Rule made returnable forthwith. Heard finally with the consent of the learned Counsel appearing for the parties. 1 of 11 wp 1556-2023.doc 2. By this present petition, the petitioner challenges the disciplinary action taken by respondent Konkan Railway Corporation Limited, a Government of India Undertaking, whereby the petitioner has been removed from service after about nine years of employment under the land-loser category. 3. The brief facts of the case are that the petitioner is a citizen of India and that his land was acquired by respondent No.1 for the Konkan Railway Project. Out of the total land admeasuring 3-39-7, land admeasuring 1-58-1, i.e. 46.50%, was acquired, and therefore the petitioner was considered eligible for employment under the land-loser policy of respondent No.1. He was appointed as Trainee Trackman on probation on 22.04.2005 under the land-loser category and was later confirmed in service after scrutiny of the documents submitted by him. The appointment was made on the basis of the certificate and revenue record furnished by the petitioner at the relevant time. 4. That nearly nine years after the initial appointment, the petitioner was served with a memorandum dated 24.11.2014 alleging that he had failed to furnish correct information regarding the landowners and had not submitted NOC from all co-owners of 2 of 11 wp 1556-2023.doc jointly owned land. A further charge was raised that he had furnished false information concerning certain survey numbers in the application form. 5. The petitioner submitted a detailed reply and stated that the information furnished by him was based on the certificate issued by the competent Tahsildar and the revenue record, and not on any false declaration. He also participated in the enquiry and produced the relevant documents during the proceedings. The enquiry officer, by report dated 07.01.2017, held that the charges are proved. Thereafter, by speaking order dated 20.06.2017, the Disciplinary Authority imposed penalty of removal from service on the petitioner. 6. The petitioner preferred an appeal, which was rejected by the Appellate Authority on 12.07.2017. His review application was also rejected on 16.10.2019. Thereafter, the mercy petition/appeal filed by the petitioner also came to be rejected and the earlier orders were confirmed. The petitioner also sought information regarding other candidates who joined along with him, but the same has not been supplied.All these orders are impugned in the present Writ Petition. 7. We have heard Shri Abhijit Kandarkar along with Shri Swapnil 3 of 11 wp 1556-2023.doc Lokare, learned Counsel for the petitioner and Shri Rakesh Singh, learned Counsel for respondent. 8. The learned Counsel for petitioner contends that the information furnished by him was correct and was based on the documents issued by the competent authority and that the alleged discrepancy, if any, was never intended to secure appointment by fraud and that the punishment of removal from service is extremely harsh and disproportionate in the facts of the case. 9. Per contra, the learned Counsel for the respondent opposed the petition and submitted that the same is not maintainable before this Court, since the petitioner is a workman and the dispute squarely falls within the jurisdiction of the Industrial Tribunal/ CGIT. It is further submitted that the petition suffers from suppression of material facts and is a deliberate attempt to mislead this Court and, therefore, deserves to be dismissed in limine. 10. It is also submitted that the respondent's Land Loser Policy is a special welfare policy under which only one employment is given per acquisition, and in case of joint ownership, the land is treated as one holding and NOC from all co-owners is mandatory. The Recruitment Notification and appointment letter specifically 4 of 11 wp 1556-2023.doc required submission of the land-loser certificate, Tahsildar certificate and NOC, and made the appointment provisional, reserving the right of termination if any information or declaration was found false or incorrect. 11. The respondent further submitted that the petitioner had furnished false particulars regarding ownership of Survey Nos. 18/10, 18/12, 18/17 and 18/22, and had not produced the required NOC of co-owners. Instead it was found out that the owner of land in Survey Nos. 18/10, 18/12, 18/17 and 18/22 was Shri Shantaram Ganesh Gawade who is grandfather of one Shri Prashant Pramod Gawade and not the present petitioner. The disciplinary proceedings were initiated after scrutiny of the documents and after giving opportunity of hearing, and the charges were proved. The petitioner's appeal, review and mercy petition were thereafter rejected, and in his appeal the petitioner himself admitted that he had entered the information as per the Tahsildar's certificate without verifying its correctness. 12. It is further submitted that the petitioner's long service cannot override the fact that the appointment was obtained on false information. Fraud vitiates everything, and no equitable relief can 5 of 11 wp 1556-2023.doc be granted in favour of a person who secured public employment contrary to the terms of recruitment. The petition is also hit by delay and laches and therefore deserves dismissal. 13. In reply to the respondent's affidavit, the petitioner in his rejoinder further submitted that he had exhausted all the remedies available under the Discipline and Appeal Rules of the respondent Corporation and that the present petition had been filed only after rejection of his appeal and revision. The petitioner further submitted that the claim of the complainant for appointment had already been dismissed by this Court on 06.02.2020. It was also reiterated that the petitioner had furnished the documents on the basis of the Tahsildar's certificate, that he had no mala fide intention, that the railway employment was his only source of livelihood, and that the punishment of removal from service was harsh and disproportionate. 14. We have perused the material placed on record and considered the submissions canvassed by the learned Counsel for the parties. With the assistance of the learned Counsel for the respective parties, we have gone through the record and, more particularly, the charges which were framed against the petitioner. 6 of 11 wp 1556-2023.doc We have also gone through the recruitment/appointment letter dated 22.04.2005. 15. As can be seen from the said letter of recruitment/appointment, the petitioner was appointed in the land loser category and was on a probation for two years on regularization. Even though there is no clear averment in the petition, since the charge-sheet was issued on 24.11.2014, a reasonable inference can be drawn that the petitioner completed his probation period of two years and was regularized thereafter. It can further be seen from the two dates mentioned supra that there is a huge gap of about nine years from the date of recruitment/appointment and the date when the charge-sheet was issued. 16. Basically two charges were framed against the petitioner, that the no objection certificate (NOC) submitted by the petitioner was not in accordance with the format given in the notification dated 02.02.2005. The second charge was with respect to land Survey No. 18/29 and was regarding the omission to submit the NOC from Mohan Nanu Gawade and Shantram Gawade, who, according to 7/12 extract, were joint owners of the said survey number. Thus, 7 of 11 wp 1556-2023.doc there is no whisper in the said charge-sheet that there was a complaint by one Prashant Pramod Gawade, who had applied for securing a job under the land loser category. This fact assumes importance since the respondent, in their affidavit in reply, has tried to justify the said fact but it is noteworthy to mention that the said person i.e Prashant, had applied under the land loser category and had already challenged his rejection before this Court by filing a Writ Petition No. 10500/2019. It is a matter of record that the said petition was rejected by this Court vide order dated 06.02.2020. Thus, this aspect of enquiry which prompted the respondent to initiate action was not put forth in the charge-sheet and, in our view, therefore the enquiry is vitiated. 17. Furthermore, as can be seen from the record, the petitioner has explained in his defence statement regarding the omission to submit the NOC from the co-owners. It was his categorical defence that the percentage-wise bifurcation of the co-owners in the 7/12 extract of Survey No. 18/29 was done on 19.03.1958. Thus, as per the submission of the petitioner if bifurcation is done then NOC of the co-owner is not required but a separate 7/12 extract was not prepared, for which the petitioner cannot be blamed. Likewise, the 8 of 11 wp 1556-2023.doc petitioner had stated that he had inadvertently and rather blindly copied the survey number which was written on the certificate issued by the Tahsildar and it was not with mala fide intention. He has also submitted a new document from the Additional Collector, Land Acquisition, to substantiate his defence. 18. The Enquiry Officer has not taken into consideration this defence and has mechanically recorded a finding that after studying the record submitted with the application by the petitioner the charges were proved. The Disciplinary Authority has also not taken into consideration these facts and has passed the order of removal from service. The Appellate Authority i.e. the Senior Regional Engineer, as also the authority deciding the mercy appeal, i.e. the Chairman and Managing Director, have also mechanically confirmed the said order of the Disciplinary Authority. This ,in our view, is against the settled legal position of law. The object of granting an opportunity to an employee to put forth his defence is not a mere formality, it is expected from the Disciplinary Authority, as also the Appellate/Revisional Authority, to consider the said defence in light of the findings of the Enquiry Officer before imposing any punishment on the delinquent employee. In our view, therefore, the 9 of 11 wp 1556-2023.doc order of the Disciplinary Authority, as confirmed by the Appellate Authority and the Revisional Authority, is unsustainable in law. 19. Furthermore, there is an objection in the affidavit in reply that the petitioner ought to have approached the Industrial Tribunal, as he is a workman. This objection, in our view, is also not sustainable since the service rules appended to the petition do not provide for any further appeal, and therefore, the petitioner is correct in approaching this Court for indulgence under Article 226 of the Constitution of India. 20. As stated by us supra that the orders of all the authorities do not take into consideration the specific defence raised by the petitioner, nor they put forth the entire material on record which prompted respondent-employer to initiate the enquiry, rendering the enquiry vitiated and the resultant orders perverse. Thus, a judicial review of the said orders would lead to a conclusion a that the orders are perverse warranting interference in writ jurisdiction. We therefore pass the following order : ORDER (i) The Enquiry Report dated 20.06.2017 passed by the Senior Engineer, Kankavli (Exhibit ‘H’), order dated 12.07.2017 passed by 10 of 11 wp 1556-2023.doc the Appellate Authority (Exhibit ‘J’) order dated 16.10.2019 passed by the Reviewing Authority (Exhibit ‘K’) and the order dated 20.08.2020 bearing No. CO-13014(14)/8/2020-PERS(40762) (Exhibit ‘N’) passed by the Chairman and Managing Director, are quashed set aside. (ii) The respondent is directed to permit the petitioner to join the services as a Gangman with continuity of service and other consequential benefits. 21. The petition is allowed in the above terms.. Rule is made absolute. [NANDESH S. DESHPANDE, J.] [MILIND N. JADHAV, J.] Jayashree.. 11 of 11