Bombay High Court

Balwant Mohan Badve vs Ahmednagar Municipal ... on 10 December, 2015

Bench: R.V. Ghuge

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              IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                         BENCH AT AURANGABAD               
                                                  
                               WRIT PETITION NO.6795/2013




                                                 
                                                   
    Balwant S/o. Mohan Badve,
    Age 63 years, Occu, Retired,
    R/o. 129/1, Lal Taki, Ahmednagar,




                                                
    Taluka & District Ahmednagar.     ...Petitioner...
     
                Versus

    Ahmednagar Municipal Corporation,




                                       
    Ahmednagar.
    Through its Commissioner.         ...Respondent... 
                                  
                            
                       .....
    Shri. P. V. Barde, Adv. for petitioner.
                                 
    Shri. V. S. Bedre, Adv. for respondent.     
                       .....
      
                               CORAM: RAVINDRA V. GHUGE, J.

DATE: 10.12.2015

ORAL JUDGMENT :

1] Rule. Rule made returnable forthwith and heard

finally by the consent of the parties.

2] The petitioner is aggrieved by the impugned

judgment and order dated 9.7.2013, by which his Complaint

(ULP) No.5/2008 has been dismissed.

3] The petitioner is a Civil Engineer. He has been

issued with a show cause notice on 30.3.2007. He retired

on 1.4.2007 on attaining the age of superannuation. A

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charge-sheet setting out the charges against the

petitioner is dated 24.7.2007, which is obviously issued

after the retirement of the petitioner.

4] The issue, therefore, raised before this Court

is as to whether disciplinary proceedings can be

initiated after the retirement of an employee. The issue

raised is no longer res integra in the light of the

judgment of the Apex Court in the case of UCO Bank &

another v. Rajinder Lal Capoor (AIR 2007 SC 2129).

5] Considering the above, having heard the learned

Advocates for the respective sides at length on 7.12.2015

and again today, I am to consider the undisputed fact

situation in the light of the judgment of the Apex Court

in the case of UCO Bank (supra).

6] The undisputed facts are as under:-

[a] Show cause notice was issued on 30.3.2007

calling for an explanation from the petitioner.

[b] He stood superannuated on 1.4.2007.

[c] The respondent - Corporation issued a

charge-sheet dated 24.7.2007.

[d] An enquiry was conducted pursuant to the

above-said charge-sheet.

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[e] By order dated 5.1.2008, the petitioner was

directed to deposit Rs.15,000/- as loss caused to

the Government.

[f] By order dated 30.5.2008, an order

deducting Rs.25/- from the retiral benefits of the

petitioner in relation to a charge-sheet dated

12.2.2008 was also passed.

7] The petitioner preferred Complaint (ULP)

No.5/2008 before the Industrial Court at Ahmednagar. By

an interim order, he was protected against recovery of

Rs.15,000/- pursuant to the order dated 5.1.2008.

8] By the impugned judgment dated 9.7.2013, the

complaint was dismissed.

9] The Industrial Court had framed an issue as to

whether the complaint is maintainable under the

Maharashtra Recognition of Trade Unions and Prevention of

Unfair Labour Practices Act, 1971. The complaint was

held tenable. This conclusion of the Industrial Court

has not been challenged by the respondent - Corporation

before this Court.

10] The Industrial Court concluded that since a show

cause notice was issued on 30.3.2007, the charge-sheet

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dated 24.7.2007 will have to be deemed to be connected

with the show cause notice and hence it will have to be

construed that the enquiry was initiated prior to the

superannuation of the petitioner on 1.4.2007.

11] Rule 5 of the Maharashtra Civil Services

(Discipline & Appeal) Rules, 1979, prescribes minor and

major penalties. The minor penalties are set out below

Rule 5(1) and which read as under:

"5. Penalties :

(l) Without prejudice to the provisions of any law for the time being in force, the following penalties may, for good and sufficient reasons and

as hereinafter, provided, be imposed on a

Government servant, namely -

Minor Penalties -

(i) Censure;

(ii) Withholding of his promotion;

(iii) Recovery from his pay of the whole or part of any pecuniary loss caused by him to Government, by negligence or breach of orders;

(iv) Withholding of increments of pay;

(v) Reduction to a lower stage in the time-scale of pay for a specified period, with further directions as to whether or not the Government servant will earn increments of pay during the period of such reduction and whether on the expiry of such period, the reduction will or will not

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have the effect of postponing the future

increments of his pay;

(vi) Reduction to lower time-scale of pay, grade,

post or service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the Government servant during such

specified period to the time-scale of pay, grade, post or service from which he was reduced, with directions as to whether or not, on promotion on

the expiry of the said specified period, --

a) the period of reduction to the time-scale of pay, grade, post or service shall operate to

future increment of his pay, and if so, to what extent, and,

b) the Government Servant shall regain his

original seniority in the higher time-scale of

pay, grade, post or service."

12] Rule 8 provides for the procedure to be followed

for imposing major penalties. Rule 8(1), (2) and (3)

read as under:-

"8. Procedure for imposing major penalties:

(1) No order imposing any of the major penalties shall be made except after an inquiry held, as far as may be, in the manner provided in this rule and rule 9, or where such inquiry is held under the Public Servants (Inquiries) Act 1850 (37 of 1850), in the manner provided in that Act.

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(2) Whenever the disciplinary authority is of the

opinion that there are grounds for inquiring into the truth of any imputation of misconduct or

misbehaviour against a Government servant it may itself inquire into, or appoint under this rule or under the provisions of the Public Servants

(Inquiries) Act, 1850, as the case may be, an authority to inquire into the truth thereof. Provided that, where there is a complaint of

sexual harassment within the meaning of rule 22 A

of Maharashtra Civil Service (Conduct) Rules, 1979, the Complaints Committee established in each

Department or Office for inquiring into such complaints, shall be deemed to be the inquiring authority appointed by the disciplinary authority

for the purpose of these rules and the Complaints

Committee shall hold, if separate procedure has not been prescribed for the Complaints Committee for holding the inquiry into the complaints of

sexual harassments, the inquiry as far as practicable in accordance with the procedure laid down in these rules.

Explanation -

Where a disciplinary authority itself holds an inquiry under this rule, any reference to an inquiring authority in this rule shall, unless the context otherwise requires, be construed as reference to the disciplinary authority. (3) Where it is proposed to hold an inquiry against a Government servant under this rule,

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the disciplinary authority shall draw up or cause

to be drawn up -

(i) the substance of the imputations of misconduct

or misbehaviour into definite and distinct articles of charge;

(ii) a statement of the imputation of misconduct

or misbehaviour in support of each article of charge, which shall contain-

(a) a statement of all relevant facts including

any admission or confession made by the Government

servant; and

(b) a list of documents by which, and a list of

witnesses by whom, the articles of charges are proposed to be sustained."

13] It is, therefore, apparent that if a major

penalty is attracted, the employer has to initiate a

departmental enquiry and if it proposes to hold an

enquiry, the disciplinary authority shall draw up the

substance of the imputations of mis-conduct or mis-

behaviour into definite and distinct articles of charge.

14] Rule 10 of the said Rules prescribes the

procedure for imposing minor penalties. Rule 10 reads as

under:-

"10. Procedure for imposing minor Penalties:

(1) Save as provided in sub-rule (3) of rule 9, no

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order imposing on a Government servant any of the

minor penalties shall be made except after

(a) informing the Government servant in writing of

the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a

reasonable opportunity of making such representation as he may wish to make against the proposal;

(b) holding an inquiry in the manner laid down in

rule 8, in every case in which the disciplinary authority is of the opinion that such inquiry is

necessary;

(c) taking into consideration the representation, if any, submitted by the Government servant under

clause (a) of this rule and the record of inquiry,

if any, held under clause (b) of this rule;

(d) recording a finding on each imputation of misconduct or misbehaviour; and

(e) consulting the Commission where such consultation is necessary.

(2) Notwithstanding anything contained in clause

(b) of sub-rule (1), if in a case it is proposed,

after considering the representation if any, made by the Government servant under clause (a) of that sub-rule, to withhold increments of pay and such withholding of increments is likely to affect adversely the amount of pension payable to the Governments servant or to withhold increment of pay for a period exceeding three years or to

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withhold increments of pay with cumulative effect

for any period [or to impose any of the penalties specified in clauses (v) and (vi) of sub-rule (1)

of the rule (5)], an inquiry shall be held in the manner laid down in sub- rule (3) to (27) of rule 8, before making any order of imposing on the

Government servant any such penalty. (3) The record of the proceeding in such cases shall include-

(i) a copy of the intimation to the Government

servant of the proposal to take action against to him;

(ii) a copy of the statement or imputations of misconduct or misbehaviour delivered to him;

(iii) his representations, if any;

(iv) the evidence produced during the inquiry;

(v) the advice of the Commission, if any;

(vi) the findings on each imputation of misconduct or misbehaviour; and

(vii) the orders on the case together with the reasons therefor."

15] It is clear from Rule 10 that the employer is

not required to conduct an enquiry if the charges leveled

are of minor character and the punishment, which is

likely to be attracted, is a minor penalty. However,

under Rule 10(1)(b), it is left to the discretion of the

employer to hold an enquiry if it so desires and the same

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shall have to be done in accordance with Rule 8.

16] Shri V.S. Bedre, learned Advocate appearing for

the Corporation, on a pertinent query with regard to Rule

5(1)(iii), reproduced above, submits that since the

District Collector conducted an enquiry and arrived at a

conclusion that the petitioner, while performing his duty

of demolishing a dilapidated house in which the tenant

Shri Pargaonkar was staying, had caused a loss to the

tenant, which can be computed in terms of money, which is

Rs.15,000/-. Shri V.S. Bedre frankly submits that the

Government or the respondent - Corporation has not paid

the amount of Rs.15,000/- to the said tenant.

17] In the light of this fact situation, it cannot

be said that the respondent was attempting recovery of

any pecuniary loss caused by the petitioner by negligence

or breach of orders as is set out under Rule 5(1)(iii).

18] The Apex Court in the case of UCO Bank (supra)

has considered initiation of disciplinary proceedings

when the concerned employee had superannuated. The

observations of the Apex Court in paragraph nos.21, 22

and 23 of the UCO Bank's judgment are as under:-

"21. The aforementioned Regulation, however, could be invoked only when the Disciplinary Proceedings had

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clearly been initiated prior to the respondent's

ceases to be in service. The terminologies used therein are of seminal importance. Only when a

disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be

allowed on the basis of the legal fiction created thereunder, i.e., continue "as if he was in service". Thus, only when a valid departmental proceeding is

initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer

would be deemed to be in service although he has reached his age of superannuation. The departmental

proceeding, it is trite law, is not initiated merely by issuance of a show cause notice. It is initiated only when a chargesheet is issued (See Union of India

etc. etc. v. K.V. Jankiraman, etc. etc. reported in AIR 1991 SC 2010). This aspect of the matter has also

been considered by this Court recently in Coal India Limited & others v. Saroj Kumar Mishra [2007 (5) SCALE 724] wherein it was held that date of application of

mind on the allegations leveled against an officer by the Competent Authority as a result whereof a chargesheet is issued would be the date on which the

disciplinary proceedings said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact situation but involving a similar question of law in Coal India Ltd. (supra) this Court held :

"13. It is not the case of the appellants that

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pursuant to or in furtherance of the complaint

received by the vigilance department, the competent authority had arrived at a

satisfaction as is required in terms of the said circulars that a chargesheet was likely to be issued on the basis of a preliminary enquiry

held in that behalf or otherwise.

14. The circular letters issued by the appellants put restrictions on a valuable right

of an employee. They, therefore, are required to be construed strictly. So construed there cannot

be any doubt whatsoever that the conditions precedent contained therein must be satisfied

before any action can be taken in that regard."

It was furthermore observed that :

"20. A departmental proceeding is ordinarily

said to be initiated only when a chargesheet is issued."

(See also Union of India v. Sangram Keshari Nayak 2007 (6) SCALE 348)

22. Respondent, therefore, having been allowed to

superannuate, only a proceeding, inter alia, for withholding of his pension under the Pension Regulations could have been initiated against the

respondent. Discipline and Appeal Regulations were, thus not attracted. Consequently the chargesheet, the enquiry report and the orders of punishment passed by the Disciplinary Authority and the Appellate Authority must be held to be illegal and without jurisdiction. An order of dismissal or removal from service can be passed only when an employee is in service. If a person is not in employment, the question of

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terminating his services ordinarily would not arise

unless there exists a specific rule in that behalf. As Regulation 20 is not applicable in the case of the

respondent, we have no other option but to hold that the entire proceeding initiated against the respondent became vitiated in law."

19] There is no dispute that a show cause notice was

issued on 30.3.2007. The Apex Court, however, has

concluded that the disciplinary proceedings shall be said

to have been initiated by the issuance of a charge-sheet

in accordance with the Discipline & Appeal Rules or such

rules as may be applicable to an employee. Shri Bedre is

unable to point out from the concerned rules as regards

the existence of any provision, which would indicate that

the disciplinary proceedings can be said to have been

initiated on the basis of a show cause notice.

20] As such, in the light of the view taken by the

Apex Court in the case of UCO Bank (supra), I am of the