wp.6108.16
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 6108/2016
* Parasram s/o Gomaji Nasre
Aged about 60 years, occu: Retired.
R/o Plot No. 60, Kachure Patil Nagar
Chinchbhuwan, Wardha Road,
Nagpur, Tah. & Dist.Nagpur. .. PETITIONER
versus
1) State of Maharashtra
Through the Secretary
Rural Development,
Zilla Parishad and Panchayat Samiti
Mantralaya, Mumbai-32.
2) President,
Zilla Parishad, Chandrapur
Tah. & Dist. Chandrapur.
3) The Chief Executive Officer,
Zilla Parishad, Chandrapur
Tah. & Dist. Chandrapur.
4) Chief Accountant & Finance Officer
Zilla Parishad, Chandrapur.
5) Divisional Commissioner,
Nagpur Division, Nagpur. .. RESPONDENTS
...............................................................................................................................................
Mr. H.N. Potbhare, Advocate for the petitioner
Mr. A.S. Fulzele, Addl. Govet,Pleader for respondents 1 and 5
Mr. N.W. Almelkar, Advocate for respondent no.4.
................................................................................................................................................
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wp.6108.16
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CORAM: B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED: 7th November, 2017 ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
1. Heard finally with consent, by issuing Rule and making it returnable forthwith.
2. Admittedly, proceedings of criminal nature alleging misappropriation are pending against the petitioner before the Chief Judicial Magistrate, Chandrapur. Grievance is petitioner's request for commutation of pension has not been declined.
3. Counsel for Chief Executive Officer and for President of Zilla Parishad has relied upon the reply-affidavit to show that in Criminal case No.328/2002 there is an allegation of misappropriation of Rs.21,66,648/- and in departmental enquiry he was found guilty.
4. The petitioner disputes misappropriation and contends that finding of guilt is perverse.
5. However, pendency of criminal prosecution is not in dispute.
6. Rule 130 of the Maharashtra Civil Services (Pension) Rules, ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 01:42:07 ::: wp.6108.16 3 1982, in terms, envisages only payment of provisional pension in such a situation. Rule 4 of the Maharashtra Civil Services (Commutation of Pension) Rules, 1984 disqualifies a Government servant from seeking commutation of fraction of his provisional pension during pendency of proceedings against him.
7. Adv. Potbhare, however, has relied upon the Division bench judgment of this Court in the case of Vishnu Sonawane vs. Chief Executive Officer, Z.P.Nashik and others, reported at 2015 (3) Mh.L.J.41. There, the Division Bench has considered the provisions of Article 300-A only and the Bench observes that in absence of any provision in law, pensionary benefit which is recognised as property cannot be withheld and/or stopped. There, employer was Nashik Zilla Parishad.
8. With respect, we find that above legal provisions were squarely applicable even in reported judgment. However, the Bench then did not receive effective assistance. Its attention was not invited to Rule 130 of Pension Rules or Rule 4 of Commutation Rules, supra, by any Advocate. The judgment therefore proceeds on a premise that pension being property, one cannot be deprived of it, except in accordance with law, as mandated by Article 300A. The fact that legal provisions already occupy the field was not pointed out by Nashik Zilla Parishad, to the Court. Said Division Bench judgment therefore ::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 01:42:07 ::: wp.6108.16 4 does not lay down correct proposition of law and it presumes that there are no legal provisions.
9. In present facts also, the counsel for petitioner has not pointed out the relevant legal provisions and has also not joined employer-Zilla Parishad as a party-respondent. We, therefore, dismiss the Writ Petition. No costs.
JUDGE JUDGE
sahare
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