Bombay High Court
Trimbak Ramchandra Sontakke vs The State Of Maharashtra And ... on 2 August, 2016
Bench: S.S. Shinde
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 11324 OF 2015
Shri. Trimbak s/o Ramchandra Sontakke,
Age : 67 yrs. Occu. Retired,
R/o.: Yeshwant Nagar (Extention),
Plot No. 46, Near Jagrut Hanuman Mandir,
Pawadewadi Road,
Nanded - 431602 .. PETITIONER
VERSUS
1. The State of Maharashtra,
Through Secretary,
Department of Higher & Technical
Education, Mantralaya,
Fort, Mumbai - 400 032
2. The Director,
Technical Education,
Maharashtra State,
Mumbai
3. The Director,
Shri Guru Gobind Singhji
Institute of Engineering and
Technology, Vishnupuri,
Nanded 431606
4. The Chairman,
Board of Management,
Shri Guru Gobind Singhji
Institute of Engineering and
Technology, Vishnupuri,
Nanded 431606 .. RESPONDENTS
----
Mr. Amit A. Mukhedkar, Advocate for the Petitioner
Mr. V.S. Badakh A.G.P. for respondent nos. 1 and 2
Mr. K.M. Suryawanshi, Advocate for respondent no. 3
None for respondent no. 4 though served.
----
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CORAM : S.S. SHINDE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 21st JULY, 2016
JUDGMENT PRONOUNCED ON : 2nd AUGUST,2016
JUDGMENT (PER : SANGITRAO S. PATIL, J.):
Rule. Rule made returnable forthwith. With the
consent of the learned counsel for the parties, the
petition is heard finally.
2.
The petitioner has approached this Court under
Article 226 of the Constitution of India, seeking
directions against respondent nos. 2 to 4 to release his
pensionery benefits with interest at the rate of 18% per
annum from the date of his retirement i.e. 31st July,
2008 till the actual payment thereof.
3. The petitioner was appointed as a Professor in
the subject of Electronics with Shri Guru Gobindsinghji
College of Engineering and Technology at Nanded in the
year 1984. The approval to his appointment was granted
by the then Marathwada University vide order dated 30 th
September, 1984. The said college became an Autonomous
Institute in the year 2005. Accordingly, its name came
3 wp11324-2015
to be changed as "Shri Guru Gobindsinghji Institute of
Engineering and Technology". The petitioner came to be
designated as the Director of the said college. The
petitioner retired on attaining the age of
superannuation on 31st July, 2008. The petitioner was
prosecuted for the offences punishable under sections
406, 408, 409 and 420 of the Indian Penal Code, in the
Court of the learned Chief Judicial Magistrate at
Nanded. He came to be acquitted by the said Court vide
order dated 3rd May, 2013 passed in Regular Criminal Case
No.116 of 2009.
4. The learned counsel for the petitioner submits
that the pensionery benefits of the petitioner are
withheld by respondent nos. 2 to 4 i.e. the Director of
Technical Education, State of Maharashtra, the Director
of Shri Guru Gobindsinghji Institute of Engineering and
Technology, Nanded and the Chairman, Board of Management
of Shri Guru GobindSinghji Institute of Engineering and
Technology, Nanded, respectively, merely because the
above-mentioned criminal case was pending against him.
The petitioner has been paid provisional pension after
his retirement. He was never communicated the reasons
4 wp11324-2015
for withholding of his pensionery benefits. The learned
counsel submits that there is no departmental enquiry
initiated against the petitioner on any count. He
further submits that there is absolutely no reason for
withholding the pensionery benefits of the petitioner.
No written order as contemplated under Rule 27(3) of the
Maharashtra Civil Services (Pension) Rules, 1982, (for
short, "the Pension Rules"), has been passed at any
point of time. He, therefore, prays that respondent nos.
2 to 4 may be directed to pay pensionery benefits to the
petitioner. He further states that there has been delay
on the part of respondent nos. 2 to 4 in paying the
pensionery benefits of the petitioner. Therefore, the
petitioner is entitled to get interest at the rate of
18% per annum vide Rules 129-A and 129-B of the Pension
Rules and the Government Resolution dated 6th May, 1991
on account of delayed payment of the pensionery
benefits.
5. The learned A.G.P. relying on the contents of
the affidavit-in-reply of one Vijay Laxman Bhangare,
Assistant Director (Non-Technical), attached to the
Office of the Joint Director, Technical Education,
5 wp11324-2015
Regional Office, Aurangabad, filed on behalf of
respondent nos. 1 and 2, submits that the petitioner had
committed serious financial irregularities, when he was
serving with respondent nos. 3 and 4. Therefore, a
preliminary enquiry was conducted and a proposal was
submitted to respondent no. 2 for initiation of
department enquiry against the petitioner. However,
respondent no.1 - Secretary, Department of Higher and
Technical Education, informed that since the matter was
pertaining to Shri Guru GobindSinghji College of
Engineering and Technology, Nanded, which is a private
institute receiving grant-in-aid from the State of
Maharashtra, the Board of Governors (B.O.G.) would be
the Competent Authority to take appropriate decision in
the matter of initiating the departmental enquiry
against the petitioner. He submits that the said
proposal is still pending at the level of the Board of
Governors (B.O.G.). He further submits that the
departmental enquiry has been proposed against the
petitioner. Therefore, he is not entitled to get
pensionery benefits, as sought in the present writ
petition. He, therefore, prays that the writ petition
may be dismissed.
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6. Respondent no. 3 appeared but did not file
reply. Respondent no. 4 was duly served with the notice
of the writ petition, but none appeared for him.
7. Indisputably, the petitioner has retired on
attaining the age of superannuation on 31st July, 2008.
No departmental enquiry has been initiated against him
on any ground. Here, it would be useful to reproduce the
relevant portion of Rule - 27 of the Pension Rules,
which reads as under.
"27. Right of Government to withhold or withdraw
pension.
(1) Government may, by order in writing, withhold
or withdraw a pension or any part of it
whether permanently or for a specified period,
and also order the recovery, from such
pension, the whole or part of any pecuniary
loss caused to Government, if, in any
departmental or judicial proceedings, the
pensioner is found guilty of grave misconduct
or negligence during the period of his service
including service rendered upon re-employment
after retirement:
Provided that the Maharashtra Public Service
Commission shall be consulted before any final
orders are passed in respect of officers
holding posts within their purview:
Provided further that where a part of pension
is withheld or withdrawn, the amount of
remaining pension shall not be reduced below
the minimum fixed by Government.
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(2) (a)..............
(b) The departmental proceedings, if not
instituted while the Government servant
was in service, whether before his
retirement or during his re-employment,-
(i) shall not be instituted save with
the sanction of the Government,
(ii) shall not be in respect of any
event which took place more than
four years before such institution,
and
(iii)........"
8. As seen from the judgment dated 3rd May, 2013,
delivered in Regular Criminal Case No. 116 of 2009
instituted against the petitioner for the offences
punishable under sections 406, 408, 409 and 420 of the
Indian Penal Code, the petitioner has been acquitted of
the said offences. The learned Chief Judicial
Magistrate, Nanded, has observed that the prosecution
has miserably failed to establish the offences, with
which the petitioner was charged. There is nothing on
record to show that respondent nos. 2 to 4 have
challenged the said judgment of acquittal at any point
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of time. Moreover, no departmental enquiry has been
initiated against the petitioner. Admittedly, the period
of about eight years has been elapsed after retirement
of the petitioner. Consequently, in view of sub-clause
(ii), Clause (b), Sub-Rule (2) of Rule 27 of the Pension
Rules, no departmental proceedings can be instituted
against him in respect of the events those took place
prior to his retirement. No order has been passed
withholding the pensionery benefits of the petitioner as
contemplated under Sub-Rule (1) of Rule 27 of the
Pension Rules. If that be so, respondent nos. 2 to 4 are
not at all justified in withholding the pensionery
benefits of the petitioner on any ground, much less
under the provisions of Rule 27 of the Pension Rules.
9. The petitioner is entitled to get full
pensionery benefits as admissible under the provisions
of the Pension Rules. His pensionery benefits have been
withheld by respondent nos. 2 to 4 without any
justifiable reasons. Consequently, in view of the
provisions of Rule 129-B of the Pension Rules, they are
liable to pay interest at the rates applicable to the
General Provident Fund deposits on the amount of pension
9 wp11324-2015
payable to the petitioner, in respect of period beyond
six months after his retirement i.e. from 1 st February,
2009 onwards till the actual payment thereof. In case
the retirement gratuity amount also has not been paid to
the petitioner, respondent nos. 2 to 4 would be liable
to pay the same to the petitioner at the rates
applicable to the General Provident Fund deposits with
effect from three months after the date of retirement of
the petitioner i.e. from 1st November, 2008 onwards till
the date of payment thereof. In the result, we allow the
Writ Petition with the following order.
(i) The Writ Petition is allowed.
(ii) Respondent nos. 2 to 4 shall take necessary
steps to pay to the petitioner all the pensionery
benefits as admissible to him as per the Maharashtra
Civil Services (Pension) Rules, 1982.
(iii) Respondent no. 2 to 4 shall pay interest on the
amount of pension, from 1st February, 2009 and on the
amount of gratuity, if not paid earlier, from 1 st
November, 2008 onwards till the actual payment thereof
to him at the rates made applicable to General Provident
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Fund (GPF) deposits from time to time during the above-
stated period.
(iv) Respondent nos. 2 to 4 shall pay costs of the
petition to the petitioner and shall bear their own.
(v) Rule made absolute in the above terms.
(vi) The Writ Petition is accordingly disposed of.
Sd/-
[SANGITRAO S. PATIL]
ig Sd/-
[S.S. SHINDE]
JUDGE JUDGE
samandawgad/wp11324-2015
