Bombay High Court
Manohar vs The Zilla Parishad on 7 April, 2016
Bench: B.P. Dharmadhikari
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.3590 OF 2003.
PETITIONER: Manohar s/o Balwantrao Wankhede (dead)
Legal Representatives.
1. Smt.Pushpa wd/o Manoharrao Wankhede,
ig aged about 64 years.
2. Suhas s/o Manoharrao Wankhede,
aged about 33 years.
Both resident of Ashti, Tq.Ashti, Distt.
Wardha.
: VERSUS :
RESPONDENT: The Zilla Parishad, Wardha,
through its Chief Executive Officer.
-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
Mr.N.R.Saboo, Advocate for the petitioner.
=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
CORAM: B.P.DHARMADHIKARI
AND P.N.DESHMUKH, JJ.
DATE: 7th APRIL, 2016.
ORAL JUDGMENT : (Per B.P.Dharmadhikari, J.)
1. Petitioner, now dead, is prosecuting present matter
through his legal heirs. Grievance is about withholding amount of
Rs.1,71,171/- from his Pension and Gratuity. Submission is, after
retirement of petitioner on 28th of February, 2001, in breach of
principles of natural justice for alleged misconducts, which have
taken place more than four years before the date of
superannuation, the punishment has been imposed. Advocate
Shri Saboo submits that this Court issued notice in the matter on
26th of April, 2004 and interim relief was granted while issuing
Rule on 4th of November, 2004. However, in the meanwhile a
impugned recovery was completed.
3. Respondent - Zilla Parishad filed submissions opposing
the petition and along with the submission, for the first time, a
copy of order dated 12th of November, 2001 pointing out the
recovery was produced. He submits that said order was not within
knowledge of petitioner and hence after receipt of this reply on
13th of August, 2004 prayer iii(a) has been added for quashing and
setting aside of said order. He therefore submits that amount
recovered should be directed to be returned to legal heirs of
deceased petitioner with interest, as per law.
4. Matter was heard in first half and as nobody appeared
for respondent it was adjourned to second-half. Even in second
half, there is no appearance for respondent.
5. Recovery is for works done by petitioner as a Gram-
Sevak at Gram Panchayat Ashti between 1990-91 and 1991-92.
During said period he had additional charge of Antora and
Khambit Gram-Panchayats. Total amount of Rs.46,728/- is alleged
to be misappropriated by the petitioner during this period.
6. The recovery of Rs.83,989/- is for work done by
petitioner at Karanja (Ghadge). The period of recovery show as
from 1994-1995 to 1999-2000.
7. Petitioner was serving at Gram Panchayat Karanja when
on 27th of February, 2001 he was informed that he would be
reaching age of superannuation on 28 th of February, 2001 and
stand relieved in the afternoon on that day. For the the first time
on 3rd of October, 2001 a show cause notice calling upon him to
explain as to why recovery of amount of Rs.1,67,977/- for works
at Karanja (Ghadge), recovery of Rs.1,10,219/- for works at Ashti
and recovery of Rs.12,538/- under other heads should not be
effected from him. He was called upon to remain present at 11
a.m. on 8th of October, 2001 with available material in defence.
On that day petitioner has given his reply pointing out that
valuation of the works done by him was not carried out in the year
in which works were complete. It is further submitted that the
rates looked into by administration were less than the market rates
and all works were done after previous resolutions of Gram-
Panchayat. The expenditure incurred at each stage was placed
before General Body and General Body had approved the same.
8. After this explanation, a PPO has been issued on 14 th of
February, 2002 and in it recovery of Rs.1,71,171/- is shown
against the petitioner as per order dated 12 th of November, 2001.
Block Development Officer has accordingly sent a communication
on 16th of March, 2013 to him.
9. Thereafter, petitioner has made representation pointing
out injustice done to him but did not receive the readiness.
10 Perusal of Circular issued by the State Government on
the subject of valuation of such works done by Gram-Pancyayat
dated 25th of February, 2000 reveals that if any misappropriation is
noticed, liability therefor should be fastened upon Gram-Sevak,
Sarpanch, Extension Officer (construction), Junior Engineer and
Deputy Engineer. The percentage of their responsibility and
therefore liability is stated to be equal. Thus, resulting loss is
required to be recover equally from all these Officers. Here 50% of
the loss amount (alleged) is sought to be recovered from present
petitioner only. Thus, there is violation of Circular dated 25 th of
February, 2000.
11. Petitioner has worked as Gram-Sevak at Ashti in 1990-
1991. During said period he also had additional charge of Gram
Panchayat Antora and Gram Panchayat Khambit. The respondents
have not shown that petitioner continued to serve either in Gram
Panchayat Ashti or Antora or then Khambit even thereafter or then
during the period in dispute for which recovery has been ordered
as per order dated 12th of November, 2001. We have already
stated supra that period of recovery at Karanja (Ghadge) is from
the year 1994-95 till year 1999-2000. The period of recovery at
Ashti is shown to be from 1990-1991 to 1991-1993. In order of
punishment dated 12th of November, 2001 additional amount of
Rs.40,455/- is also sought to be recovered but that amount does
not figure anywhere in show cause notice given to petitioner.
12. Fact that petitioner superannuated in 2001 is not in
dispute. Perusal of provisions of Rule 27(b) of the Maharashtra
Civil Services Pension Rules, 1982 shows that no departmental
enquiry can be instituted against a superannuated person without
sanction of State Government. Such erquiry cannot be in relation
to any event which occurred more than four years before his
superannuation. Here, admittedly, no departmental enquiry has
been instituted against the petitioner. He was not served with any
show cause notice, no witnesses have been examined by
prosecution and also no documents were produced before any
enquiry Officer. In fact, no Inquiry Officer was appointed.
Perusal of the Maharashtra Civil Services Pension Rules, 1982
shows that no departmental enquiry can be instituted against
petitioner in present matter. It needs to be noted that he did not
get opportunity to cross-examine any of the witnesses/officers or
to question the valuation reports.
13. Material on record does not show that valuation reports
were obtained within reasonable time of completion of work. If
there is time gap between date of completion of work and its
measurement, petitioner cannot be blamed as completed work
cannot be seen. In any event, petitioner ought to have been given
notice to remain present for the purpose of such valuation.
Report of valuation procured behind his back could not have been
made use of in such enquiry.
14.
The petitioner has pointed out that amount of
Rs.40, 454/- is sought to be recovered from him and that amount
finds mention for first time in impugned order dated 12 th of
November, 2001. From records it is seen that petitioner was not
informed about that amount or any such head of recovery.
15. Thus, valuation done behind back of petitioner is being
used to his prejudice that too without giving him any opportunity
to defend himself. The circular mentioned supra clearly shows
that in this situation responsibility is required to be shouldered
equally by various Officers. In present matter, Zilla Parishad has
not pointed out action, if any, taken against the other employees,
office berars or Sarpanch. If liability is to be shouldered equally,
it is not clear why 50% of the amount is being recovered from
petitioner. No special reasons for it are recorded in the impugned
order.
16. The works at Gram Panchayats Ashti, Antora and
Khambit as also the work for which amount of Rs.40, 454/- sought
to be recovered are for a period prior to 1992-1993. Thus, these
works are more than four years before the date of superannuation.
Hence, as mandated under Rule 27(2) of the Rule of 1982, the
respondent - Zilla Parishad could not have proceeded to take
action against petitioner in relation thereto.
17. Work at Karanja (Ghadge) is from year 1994-1995 till
1999-2001. Going back four years, works completed prior to 28 th
of February, 1997, therefore, could not have been looked into
except for first five works in impugned order dated 12 th of
November, 2001. The remaining five works at Karanja (Ghadge)
are for period after 31st of March, 1997. The misappropriation is
alleged only on account of difference in its worth in valuation
report and actual expenditure. The impugned order does not
show that records were verified or material as disclosed in records,
was not received at all.
18.
In this situation, as petitioner is not given due
opportunity, no recovery is possible for alleged work at Karanja
(Ghadge).
19. We, therefore, find that petitioner has been victimized
and recovery from him is unsustainable. Order dated 12 th of
November, 2001 is therefore quashed and set aside. Respondent -
Zilla Parishad is directed to pay to petitioner amount of
Rs.1,71,171/- within period of four months from today. The
amount shall be paid with interest as stipulated in Maharashtra
Civil Services Pension Rule 1982.
20. Writ Petition is thus allowed. Rule is made absolute
accordingly. No costs.
JUDGE JUDGE.
chute
