Narayan Ghanashyam Mahajan vs Maharashtra Housing And Area ...
2016 Latest Caselaw 4673 Bom

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                IN THE  HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                
                        ORDINARY ORIGINAL CIVIL JURISDICTION




                                                        
                            WRIT PETITION NO. 2204  OF 2013




                                                       
    Narayan G. Mahajan                                   ....   Petitioner
         vs
    Maharashtra Housing & Area Development 
    Authority                                            ....    Respondent




                                            
    Mr. Mahendra Agavekar for the petitioner.
                                   
    Ms. Neha Bhide for respondent/MHADA.

                            CORAM:    ANOOP V. MOHTA AND 
                                  
                                      G. S. KULKARNI,  JJ. 

DATE : August 12, 2016

ORAL JUDGMENT (Per G. S. Kulkarni, J.):

Rule, returnable forthwith. Respondent waives service. By

consent of the parties, taken up for final hearing.

2 The Petitioner retired from the services of the Respondent

as an Executive Engineer on 31.02.2011. The grievance of the

Petitioner is to the impugned order dated 1.07.2011 which reads

thus:-

"With reference to the Office Note on page N-39to N- 40 ante, it appears that Shri Mahajan has been allowed

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to retire from the services subject to final outcome of the Criminal proceedings initiated against him. On this

background, the issue regarding payment of his dues towards retirement benefits is arising. It is seen that

Shri Mahajan has been convicted vis-a-vis collapse of cessed building situated at Saraf Manzil 57/57 Temkar Street, Nagpada, Mumbai. Thereafter it is pointed out that against the conviction order Shri Mahajan has

preferred Appeal in the Hon. High Court and his Appeal is pending. On this background, the matter will have to be referred to the Authorised Officer/Competent Authority appointed under the

MHAD (CPF Rules) 1985 as well as MHAD Gratuity Regulations for deciding the issue in accordance with

law"

3 The case of the Petitioner is that by virtue of the above

order, the terminal benefits which are entitled to the Petitioner are

withheld by the Respondent. The contention is that the Petitioner

was permitted to retire and that only because criminal proceedings are

pending against the Petitioner, it would not entitle the Respondent to

withhold the terminal dues. More so when the Petitioner was

permitted to retire and no disciplinary proceedings were initiated

during the subsistence of the Petitioner's employment with the

Respondents.

    4               Though this Petition   is filed on 27.11.2012,  till date the 







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Respondent though appeared in these proceedings has chosen not to

file any counter affidavit opposing the Petition. This despite several

adjournments in that regard. Further on the last two occasions we

had adjourned the matter to enable the Respondent to appraise the

Court as to whether there exists any rule which would authorize the

Respondent to withhold the terminal benefits for the reasons as set

out under the impugned order dated 1.7.2011 (supra). However, Mrs.

Bhide, learned counsel appearing for the Respondent fairly concedes

that there is no such rule which would permit the Respondent to

withhold the payment of the terminal dues when the Petitioner was

permitted to retire on the ground as contained in the impugned order.

5 If this be the position, then certainly the terminal benefits

which are legitimately entitled to the Petitioner on his retirement

cannot be withheld and the same are required to be released. We may

observe that admittedly, at the time of Petitioner's retirement there

were no departmental proceedings which were pending against the

Petitioner and the Petitioner was permitted to retire. Part of the

benefits are already granted to the Petitioner. In this view of the

matter, the petition deserves to succeed.

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    6               The writ petition is accordingly allowed in terms of prayer 




                                                                
    (a) which reads thus :

"a) That this Hon'ble Court be pleased to exercise its powers under Article 226 of the Constitution and issue

a writ of certiorari or a writ in the nature of certiorari or any other writ, order or direction to call for the records and proceedings leading to the orders dated 1.7.2011 and 29.9.2011 and after going through the

same quash and set aside the said orders dated 1.7.2011 and 29.9.2011."

7 The Respondent is directed to make the payment of the

outstanding dues within a period of eight weeks from today along

with simple interest at 9% per annum.

    8               Rule  made absolute in the above terms.  





    9               There shall be no order as to costs. 





    (G. S. KULKARNI, J.)                                   (ANOOP V. MOHTA, J.)