wp706.02 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 706 OF 2002
Keshav Vitthalrao Fating,
aged about 59 years,
occupation - Retired,
Establishment Superintendent,
M.S.E.B., r/o Gayadin Painter's
House, Hansapuri, Central
Avenue, Nagpur, Dist. Nagpur. ... PETITIONER
Versus
1. Chairman,
The Maharashtra State Electricity
Distribution Prakashgad Bandra
(East), Mumbai.
2. Chief Engineer,
The Maharashtra State Electricity
Distribution, Nagpur.
3. Superintending Engineer,
The Maharashtra State Electricity
Distribution, Bhandara.
4. Executive Engineer,
The Maharashtra State Electricity
Distribution, O. & M. Dn., Bhandara. ... RESPONDENTS
Shri S.S. Ghate, Advocate for the petitioner.
Mrs. U.A. Patil, Advocate for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DECEMBER 07, 2017.
::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:11:22 ::: wp706.02 2 ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.) We have heard Shri Ghate, learned counsel for the petitioner and Mrs. U.A. Patil, learned counsel for the respondents.
2. The petitioner has superannuated on the day on which the impugned order of punishment was issued. The punishment order dated 29.09.2001 is under Regulation No. 90 of the Maharashtra State Electricity Board Employees Service Regulations. The said regulation is found ultra-vires and Division Bench of this Court in the judgment in the case of Dhanaykumar Chitriappa Bodale vs. The Managing Director, Maharashtra State Electricity Distribution Company Ltd. & Ors., reported at 2009 BCI 604, has held that the power cannot be used in summary manner to impose a punishment provided for under Regulation No. 91.
3. Here, by a separate order passed on the same day, the petitioner has been superannuated on 29.09.2001 afternoon as 30.09.2001 happens to be Sunday. By an order of ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:11:22 ::: wp706.02 3 punishment, amount of Gratuity and Leave encashment have been withheld for its appropriation against the recovery, if any, found in future.
4. A perusal of punishment order shows that it records a finding of guilt of violation of Rules and hence fine of Rs.500/- has been imposed on the petitioner as penalty for negligence. While so doing, apprehending that his misconduct might have resulted in some loss to the employer, the employer thought it proper to protect itself by withholding his gratuity, leave encashment. As gratuity could not have been withheld until and unless there is a finding of loss before superannuation, because of interim orders passed in present writ petition on 26.06.2003, that amount is already released to the petitioner unconditionally. The grievance, therefore, now is in relation to amount of leave encashment.
5. Shri Ghate, learned counsel submits that because of it, benefit of G.O. 74 has also not been released. ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:11:22 ::: wp706.02 4
6. Mrs. Patil, learned counsel points out that in punishment order, there is no reference to benefit flowing from G.O. 74 or then withholding of any travelling allowance bills. It is further submitted that in the interest of employer and only to safeguard against possible loss, the employer has taken the step and has not withheld the amount permanently.
7. We find it unnecessary to consider the controversy regarding G.O. 74. The petitioner has to demonstrate by relying upon a positive order issued by his employer, his entitlement to that benefit. Here, the petitioner has not produced any such order. Not only this, the impugned order of punishment also does not refer to G.O. 74 benefit. Hence, with liberty to the petitioner to raise suitable grievance independently as per law, we close that issue.
8. Insofar as the amount of leave encashment or any other amount due and payable to the petitioner is concerned, the said amount can be withheld only if a misconduct is established. Here, for misconduct, the petitioner has already ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:11:22 ::: wp706.02 5 been punished and penalty of Rs.500/- has been levied. At that stage, the employer felt that because of alleged belated deposit of compensation payable to workman with the office of Workmen Compensation Commissioner, some penalty or interest may be required to be paid. This contingency itself necessitated further inquiry. At that stage, there was no such loss and hence for alleged apprehended loss, amount could not have been withheld. Even otherwise, it is not in dispute that Service Regulations do not permit the employer to conduct any inquiry after superannuation of the petitioner.
9. We, therefore, find the direction of withholding the amount of leave encashment unsustainable. We, therefore, quash and set aside the order dated 29.09.2001. The benefits resulting therefrom shall be released to the petitioner within a period of three months from today. The amount of leave encashment shall carry interest @ 6% per annum from 01.11.2001 onwards till its realization.
10. Writ Petition is thus partly allowed and disposed of. ::: Uploaded on - 11/12/2017 ::: Downloaded on - 12/12/2017 01:11:22 ::: wp706.02 6 Rule accordingly. However, in the facts and circumstances of the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
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