Matilal Babulal More vs The Zilla Parishad, Nandurabar ...
2015 Latest Caselaw 335 Bom

                                          1                    WP No. 4655/2014

             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                          
                                                 
                           WRIT PETITION NO.4655 OF 2014 

      Motilal s/o Babulal More
      Age: 59 Yrs., occu. Nil




                                                
      Pensioner, r/o Plot No. 10-A,
      Saraswati Nagar, Near Wagheshwari
      Mata Mandir, Nandurbar-425412.                    - PETITIONER




                                       
            VERSUS


      1)
                             
               The Zilla Parishad, 
                            
               Through its Chief
               Executive Officer,


      2)       The State of Maharashtra
      


               Through the Secretary,
   



               Rural Development &
               Water Conservation
               Department, Mantralaya,





               Mumbai.                                 -  RESPONDENTS
                                       
                                       *****
      Mr. Ajay S. Deshpande, Advocate for Petitioner;





      Mr.PS Patil, Advocate for Resp.No.1;
      Mrs. SK Kadam, AGP for Resp.No.2.
                                       -----
                                   CORAM :    S.S.SHINDE &
                                              P.R.BORA,JJ.

DATE :

15 September,2015.

th

ORAL JUDGMENT (PER:-S.S.SHINDE,J.)

1) Heard. Rule. Rule returnable forthwith by

consent of learned Counsel appearing for the

respective parties.

2) It is the case of the petitioner that on

31st May, 2013, he stood retired from services on

attaining the age of superannuation. The petitioner

has been already paid pension and pensionary benefits

save and except Gratuity of Rs.3,65,310/- and

commutation amount of Rs.4,44,802. After waiting for

more than six months' period, the petitioner has

submitted a representation requesting to release

gratuity and commutation amount by referring to the

provisions of Rule 27 of The Maharashtra Civil

Servoces (Pension) Rules, 1982 (for short, the Rules

of 1982), however, there was no response from

Respondent No.1.

3) On 29.1.2014, Respondent No.1 issued a show

cause notice to the petitioner as to why disciplinary

action should not be initiated against him

notwithstanding express bar imposed by Rule 27 of MCS

(Pension) Rules, 1982. The petitioner immediately

replied the said show cause notice. Aggrieved by the

said intended disciplinary proceedings sought to be

initiated against the petitioner, the present

petition is filed.

4) Learned Counsel appearing for the petitioner

invited our attention to the provisions contained in

Rule 27 of The Rules of 1982, and submits that such

disciplinary inquiry cannot be initiated in respect

of any event, which took place more than four years

before such institution of inquiry. According to the

learned Counsel for the petitioner, for the first

time, a copy of the charge sheet was issued to the

petitioner on 11.3.2015 for the alleged

irregularities committed during the year 2002 to

2005 and, therefore, it was not permissible for the

respondents to initiate the disciplinary proceedings

for the events, which have been taken place prior to

more than four years from institution of such

proceedings.

5) The learned Counsel for the petitioner also

invited our attention to sub-rule (6) of Rule 27 of

the Rules of 1982, and submits that the departmental

proceedings shall be deemed to be instituted on the

date on which statement of charges was issued to the

employee. In the present case, the charge sheet has

been issued on 11.3.2015 and, therefore, in view of

provisions contained in sub-rule (6) of Rule 27 of

the Rules of 1982, date of issuance of charge sheet

is important so as to reckon the period of alleged

irregularities/illegalities from issuance of such

charge sheet by the respondents. During the course

of arguments, he placed reliance on unreported

judgment of this Court in the case of Bhagwan

Manikrao Chavan Vs. The Zilla Parishad, Aurangabad

and Ors. (WP No.4807/2014, decided on 10.09.2014) and

submits that, similar fact situation was considered

and on interpretation of provisions of Rule 27 of the

Rules of 1982, the Division Bench has held that

taking into consideration the events, which happened

prior to four years of institution of such inquiry,

the departmental inquiry cannot be proceeded

further, and same was quashed.

6) On the other hand, learned Counsel appearing

for the respondents submits that so far as sanction

from the Government is concerned, in the present case

it was not necessary, since the petitioner was

serving as Class-III employee. The learned Counsel

further invited our attention to para 27 of the

judgment in the case of U.P. State Sugar Corporation

Ltd. Vs. Kamal Swaroop Tondon - IR 2008 SC 1235(1)

and submits that no rigid, inflexible or invariable

test can be applied as to when the proceedings should

be allowed to be continued and when they should be

ordered to be dropped. It is submitted that along

with the petitioner, there are other employees also

to whom charge sheet was issued and, therefore,

outcome of the present petition will affect on the

fate of the cases of other employees, wherein charge

sheet is already issued.

7) We have heard the learned Counsel for the

parties. With their able assistance, we have perused

the contents of the petition, grounds raised,

annexures thereof and the affidavit in reply filed on

behalf of Respondent No.1.

8) Certain undisputed facts are, that the

petitioner stood retired from service on 31st May,

2013. Charge sheet has been issued to the petitioner

on 11th March, 2015. The irregularities and

illegalities alleged to have been committed by the

petitioner during 2002 and 2005. Pensionary benefits

are already released in favour of the petitioner on

his retirement and the amounts towards gratuity and

commutation are not released. On these undisputed

facts, if the case of the petitioner is examined,

same is squarely covered by sub-rule (2)(b)(ii) and

sub-rule (6) of Rule 27 of the Rules of 1982. As

already observed, admittedly, charge sheet is issued

on 11.3.2015. In this view of the matter, the case

of petitioner squarely comes within the ambit of

aforesaid rule and covered by the ratio laid down by

the Division Bench judgment of this Court in the case

of Bhagwan Manikrao Chavan Vs. The Zilla Parishad,

Aurangabad and Ors.(cited supra).

9) In the light of the aforesaid discussion,

the departmental enquiry proceedings, sought to be

initiated against the petitioner, do not deserve to

be continued further. In the result, the writ

petition is allowed in terms of prayer clause (A). So

far as prayer clause (B) of the petition is

concerned, the respondents to take necessary steps,

keeping in view the date of retirement of the

petitioner, as expeditiously as possible and

preferably within a period of three months from

today.

10) Rule is made absolute in the aforesaid terms

with no order as to costs.

sd/-

(P.R.BORA)

sd/-

                                     (S.S.SHINDE)
              JUDGE                     JUDGE
                            
                                    
                                

      bdv/