Mr. Sudhakar Govind Rave vs Maidc Ltd.) A Government Of
2011 Latest Caselaw 114 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                             
                    CIVIL APPELLATE JURISDICTION




                                                     
                    WRIT PETITION NO. 9398 OF 2010




                                                    
    Mr. Sudhakar Govind Rave
    Age - years, an adult, Indian inhabitant,
    R/at Flat No.18, Ganga Tirth,
    Near Aranyeshwar Mandir,




                                            
    Sahakar Nagar No.1,
    Pune - 09.               ig                       ..Petitioner.


          Versus
                           
    Maharashtra Agro Industries
    Development Corporation Ltd.
        

    (MAIDC Ltd.) A Government of
    Maharashtra Undertaking, having
     



    its office at Rajan House, 
    Prabhadevi, 
    Mumbai - 400 025.                                 ..Respondent.





    Ms. Leela Malu for the Petitioner.
    Ms. A.P. Purav for Respondent.





                                   CORAM        :  D.B.BHOSALE,
                                                   K.K. TATED, JJ.
                                   DATE         :  25/11/2011.




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    JUDGMENT (PER K.K. TATED, J.)

    1     Heard learned counsel for the parties.




                                                           
    2     Rule.




                                                          
    3     By consent heard forthwith.




                                              

                              

The Petitioner, by this Writ Petition under Article 226 of the

Constitution of India, challenges the enquiry initiated against him by

the Respondent - Corporation after tendering resignation from

service.

5 A few facts of the matter are as under:

The Petitioner is the Ex-Regional Manager of the Maharashtra

Agro Industrial Development Corporation Limited i.e. the

Respondent. The Petitioner was working with the Respondent -

Corporation since 1st July, 1982 and he was confirmed as permanent

employee by the letter dated 11th August, 1983. The Petitioner was

suffering from some health problems and was on medical leave from

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21st March, 2008. Due to the health problem, the Petitioner could not

continue to perform his duties and as such he decided to resign from

the employment and he voluntarily resigned from the services of the

Respondent by letter dated 20th June, 2008 and the said resignation

was accepted by the Respondent- Corporation by letter dated 30th

June, 2008 relieving the Petitioner from his services from 25th June,

2008. Thereafter, on 15th July, 2009, the Respondent-Corporation

served memorandum of charge-sheet alleging misconduct when the

Petitioner was working as the Regional Manager in the Respondent -

Corporation's office at Pune Region. Hence, the present Petition.

6 The learned counsel appearing on behalf of the Petitioner

submits that the Respondent - Corporation has no power to conduct

the enquiry against the Petitioner after the superannuation or after

relieving him from the service of the Respondent, there being no

relation of employer and employee. He further submits that there is

no rule or provision under the Maharashtra Civil Services (Discipline

and Appeal) Rules, which provides for holding of an enquiry for

major misconduct after retirement by issuing of chargesheet. He

submits that thus the enquiry initiated in the absence of provisions

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for holding such enquiry is ab-initio bad in law and as such the said

enquiry must cease or must be discontinued on the employee being

allowed to be relieved from service. He submits that in the present

case, the Petitioner resigned by letter dated 20th June, 2008 and it

was accepted by the Respondent - Corporation by their letter dated

30th June, 2008 with effect from 25th June, 2008 and thereafter, the

Respondent-Corporation issued memorandum of enquiry for the

alleged misconduct on 15th July, 2009. As there was no relationship of

the employer and employee between the Petitioner and Respondent-

Corporation, Respondent-Corporation has no right to initiate and

continue the said enquiry. He further submits that there is no

provision in the Respondent-Corporation's rules, regulation and

resolutions permitting the Respondent-Corporation to initiate and/or

to continue the enquiry in respect of misconduct after the date of

retirement and/or superannuation. In support of his submission, he

relies on the oral judgment of this court (Coram: Justice F.I. Rebello,

as he then was and Justice A.R.Joshi) dated 5th February, 2010 in

Writ Petition No.1930 of 2005. In that case also, the Respondent i.e.

the Maharashtra Agro Industrial Development Corporation Limited

initiated action against the said Petitioner after the date of

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retirement. In that case, this court held that enquiry against the

Petitioner after his superannuation in the absence of provisions, rules

and regulations to continue enquiry is without authority of law and

this court held that the enquiry started by the Respondent -

Corporation against the Petitioner was bad in law and same was set

aside. The paragraph 12 of the judgment reads thus:

"12. In our opinion, it is no doubt true, that the

gratuity is a terminal benefit and is subject to the terms and conditions. Withholding of the gratuity can therefore

be only if there be the provisions for withholding it in the Act or if there being any service condition which so provide. A person cannot be charged for a misconduct if

it does not constitute a misconduct within the definition

of misconduct either in terms of the standing order or the service regulations. Similarly no enquiry can be conducted for misconduct if there being no statutory

provisions. In the absence of any statutory provisions for continuing the enquiry, in our opinion, the ratio of Bhagirathi Jena's case (supra) which has directly dealt

with the issue would be applicable. In the case of Bhagirathi Jena (supra) the Court itself noted the effect of absence of a provision. In our opinion, therefore, the ratio of Bhagirathi Jena's case (supra) would squarely

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apply. The enquiry therefore against the Petitioner after his superannuation in the absence of a provision to

continue enquiry is without authority of law."

7 On the basis of these submissions, the learned counsel

appearing on behalf of the Petitioner submits that the Departmental

Enquiry initiated by the Respondent - Corporation against the

Petitioner vide Memorandum dated 15th July, 2009 is liable to be set

aside. He further submits that the Respondent - Corporation failed

and neglected to provide retirement benefits to the Petitioner on the

ground that Departmental Enquiry is pending. He submits that

though the Petitioner applied before the Controlling Authority under

the Payment of Gratuity Act, 1972 on 26th March, 2010, same is not

decided by the said Controlling Authority because of pending

Departmental Enquiry and without no objection from the

Respondent-Corporation. He submits that in view of the oral

judgment of this court dated 5th February, 2010 in Writ Petition No.

1930 of 2005 (supra), the Petitioner is entitled to all his retiremental

benefits also.

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    8      On the other hand, learned counsel appearing on behalf of the 




                                                                                         

Respondent - Corporation vehemently opposed the present Writ

Petition. She submits that the Petitioner failed to make out any case

for interference of this Hon'ble Court under Article 226 of the

Constitution of India. She further submits that for the benefit of

gratuity alternate remedy is available to the Petitioner and same is

adopted by him, therefore, the Petitioner is not entitled for any relief

in this Petition in respect of the gratuity amount. She further submits

that because of the misconduct on the part of the Petitioner, the

Respondent - Corporation suffered heavy losses and therefore, they

are entitled to hold Departmental Enquiry against him.

9 When we called upon the learned counsel appearing on behalf

of the Respondent to point out whether there is any provision in the

rules and regulations which permit them to hold and/or continue the

Departmental Enquiry for any misconduct against the person after the

date of retirement and/or superannuation date, the learned counsel

appearing on behalf of the Respondent-Corporation fairly made a

statement before this court that there is no provision under the rules

and regulations of the Respondent - Corporation which permits the

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Respondent - Corporation to continue and/or hold enquiry for

misconduct against retired person and/or after the date of attaining

superannuation. She further fairly admitted that the oral judgment of

this court dated 5th February, 2010 in Writ Petition No.1930 of 2005

(supra) squarely covers the present dispute also.

10 It is admitted fact that in the present case, the Petitioner

tendered his resignation on 20th June, 2008 to the Respondent-

Corporation. The Respondent - Corporation accepted the same on

30th June, 2008 with effect from 25th June, 2008. After about one

year, the Respondent - Corporation issued a memorandum dated 15th

July,2009 alleging misconduct to the Petitioner when the Petitioner

was working as Regional Manager in the Respondent-Corporation's

Pune Region. Therefore, it is crystal clear that the Respondent -

Corporation initiated the enquiry for the alleged misconduct against

the Petitioner after one year from the date of accepting the

resignation. The enquiry, therefore, against the Petitioner after his

superannuation in the absence of provisions to continue enquiry is

without authority of law. Undisputedly the law involved in the

present Petition is squarely covered by the oral judgment in Writ

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Petition No.1930 of 2005 (supra) and therefore, the Petitioner is

entitled to the relief in terms of prayer clause (a) of this Petition. In

respect of other prayers i.e. retirement benefits, gratuity, pension etc.

the Petitioner is entitled to take appropriate steps according to law.

In respect of gratuity payment, the Petitioner already filed an

application for direction before the Controlling Authority under sub

rule (i) of Rule 10 under the Payment of Gratuity Act, 1972 on 26th

March, 2010 and the same is pending for hearing and final disposal.

We hope that considering the facts and circumstances of the present

case, the Controlling Authority under the Payment of Gratuity Act,

1972 will decide the Petitioner's application as early as possible. As

the alternative remedy is available to the Petitioner, we are not

deciding the other prayers of the Petitioner.

11 We hope that the Controlling Authority under the Payment of

Gratuity Act, 1972, will decide the Petitioner's application dated 26th

March, 2010 as early as possible.

12 In view of the above mentioned facts and circumstances, the

Petition is partly allowed in terms of prayer clause (a) which reads

thus:

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         "a)    That this Hon'ble Court be pleased to quash and 

set aside the enquiry initiated against the Petitioner by

the Respondent by passing appropriate writ and or order as this Hon'ble Court may deem fit and proper."

13 No order as to costs.

         (K.K. Tated, J.)                                      (D.B.Bhosale, J.)