Dinkar Sadashivrao Deshpande vs The State Of Maharashtra And ...
2016 Latest Caselaw 3928 Bom

                                                            10010.2014WP.odt
                                           1




                                                                       
                   IN THE HIGH COURT OF JUDICATURE AT BOMBAY 
                              BENCH AT AURANGABAD




                                               
                            WRIT PETITION NO.10010 OF 2014 

              Dr. Dinkar s/o. Sadashivrao Deshpande,  
              Age: 71 years, Occu: Pensioner,  




                                              
              R/o. 11, New Shreyanagar,  
              South Osmanpura, Aurangabad.      PETITIONER 

                               VERSUS 




                                        
              1.       The State of Maharashtra,
                             
                       Through Principal Secretary,  
                       Urban Development Department,  
                       Mantralaya, Mumbai-32.  
                            
              2.       Aurangabad Municipal Corporation,  
                       Aurangabad 
                       Through it's Commissioner    RESPONDENTS 
      


                                    ...
              Mr.Pradeep   Deshmukh,   Advocate   holding   for 
   



              Mr.Y.P.Deshmukh,Advocate for the petitioner 
              Mr.A.V.Deshmukh,AGP for Respondent no.1.  
              Mr.S.B.Deshpande,Advocate for Respondent no.2 
                                    ...





                              CORAM:  S.S.SHINDE & 
                                      SANGITRAO S.PATIL,JJ. 

Reserved on : 01.07.2016

Pronounced on : 19.07.2016

JUDGMENT: (Per S.S.Shinde, J.):

1. Heard.

10010.2014WP.odt

2. Rule. Rule made returnable

forthwith, and heard finally with the consent

of the parties.

3. This Petition is filed with the

following prayers:

B) By issue of writ of mandamus or any

other writ of like nature, the respondent No.2 Corporation be

directed to release the pensionary benefits with interest for causing delay in making payment of the same

within period of two weeks.

C) It be held and declared that, the action of Corporation seeking

suspension / rescission of the resolutions passed by the standing committee and general body by invoking powers contemplated U/sec.

451 of the Bombay Provincial and Municipal Corporation Act is without authority of law and void ab-initio.

4. It is the case of the petitioner

that the petitioner came to be appointed as a

10010.2014WP.odt

Medical Officer of Health in the respondent

Corporation on 21.04.1983. The petitioner,

since then, discharged his duties honestly

and sincerely to the utmost satisfaction of

his superiors. The petitioner was on the

verge of retirement when the departmental

proceedings for imposing major penalty as

contemplated under Rule 8 of the Maharashtra

Civil Services (Discipline & Appeal) Rule,

1989 were initiated against him on the basis

of audit report submitted by the Chief

Auditor of the respondent Corporation in

respect of medicines purchased in the Health

Department for the years 2000-2001 and

2001-2002. The petitioner was served with a

copy of charge-sheet to which he filed

detailed reply and explained that the charges

levelled against him are false, baseless and

made with a mala fide intention and denied

the same.

5. It is further the case of the

10010.2014WP.odt

petitioner that during pendency of the

departmental proceedings, the petitioner

stood retired on attaining the age of

superannuation. Due to the pendency of

departmental enquiry, his pensionary benefits

as well as other benefits accrued to him were

withheld by the respondent Corporation.

Being aggrieved by the said action of

respondent Corporation withholding the

pensionary benefits, the petitioner

approached this Court by way of filing Writ

Petition no.2449/2003, seeking directions to

the respondent Corporation to release the

provisional pension from the date of

superannuation and to release the benefits

such as leave encashment, GPF and gratuity

etc. During pendency of the said Writ

Petition, the disciplinary enquiry was

concluded and the disciplinary authority i.e.

the Commissioner of Municipal Corporation,

Aurangabad, by order dated 27.07.2004 imposed

10010.2014WP.odt

punishment of recovery against the

petitioner. It is submitted that this Court

declined to consider the prayer made in the

said Writ Petition in view of the remedy of

appeal provided under the Discipline and

Appeal Rules. Ultimately, the Court was

pleased to dispose off the said Writ

Petition, with a liberty to approach the

Appellate Authority.

6. It is further the case of the

petitioner that the respondent Municipal

Corporation, pursuant to the order dated

30.07.2004 passed by the Court in Writ

Petition no.2449/2003, paid provisional

pension for a period from 01.08.2002 to

31.01.2004 and till today is paying the same.

In view of the liberty granted by this Court

to approach the Appellate Authority under

Discipline and Appeal Rules, the petitioner

filed Appeal before the Standing Committee,

which is a Superior Authority next to the

10010.2014WP.odt

Commissioner, challenging the order dated

27.07.2004. The Standing Committee, in its

meeting dated 27.01.2005, discussed the

matter on merits and passed a Resolution

no.211 and unanimously allowed the appeal

after hearing the Commissioner of the

Municipal Corporation, Aurangabad. The

Standing Committee not only set aside the

order dated 27.07.2004 imposing punishment of

recovery against the petitioner, but also

directed to release the pensionary benefits

to which the petitioner is entitled.

7. It is further the case of the

petitioner that he was under an impression

that as the Standing Committee had allowed

his appeal, the pensionary benefits to which

he is legally entitled would be released,

however, the respondent Municipal Corporation

did not release the pensionary benefits in

favour of the petitioner. The petitioner made

several representations to the respondent

10010.2014WP.odt

Municipal Corporation, requesting to release

the pensionary and other monetary benefits,

however, the respondent did not reply to any

of his representations and sat tight over

those representations. It is submitted that

in this background, the respondent Municipal

Corporation, Aurangabad, shockingly and

surprisingly, kept the matter of the

petitioner on agenda of general body meeting

to be held on 20.02.2010. It is submitted

that during pendency of the Writ Petition,

the general body of respondent no. 2

Corporation passed a Resolution in respect of

the petitioner to the effect that the

decision of Standing Committee be

implemented. The general body also approved

the said Resolution no.1060 dated 26.04.2010.

It is further the case of the petitioner that

twice the general body had resolved in

favour of the petitioner and passed a

Resolution to implement the decision of the

10010.2014WP.odt

Standing Committee, taken earlier to the

extent of pensionary benefits to the

petitioner, keeping in view 32 years service

rendered by the petitioner.

8. The learned counsel appearing for

the petitioner submits that though the

Standing Committee has taken a decision,

which is approved by the general body,

respondent no.2 Corporation acted contrary to

the said decision by withholding the

pensionary benefits of the petitioner without

any just and proper reasons and virtually

harassed the petitioner. It is submitted that

the respondent Corporation, vide its

communication dated 24.09.2013, requested

respondent no.1 herein to suspend / rescind

the Resolutions passed by the Standing

Committee as well as the general body. It is

submitted that in the month of September,

2014, letter was addressed by the Corporation

to the Desk Officer of respondent no.1

10010.2014WP.odt

stating therein that appeal filed by the

petitioner before the Standing Committee in

the year 2005 itself was not maintainable as

the Standing Committee had no jurisdiction.

It is submitted that the said point was not

raised before the Standing Committee by the

Officers of the Corporation. It is submitted

that the Standing Committee of respondent

no.2 Corporation is an Appellate Authority as

the same is superior to respondent no.2

Commissioner as per the provisions of Section

56 (4) of the Maharashtra Provincial

Municipal Corporations Act, 1949 ('the Act of

1949' for short). It is submitted that it is

an accepted position that the gratuity and

pension are not the bounties. An employee

earns these benefits by dint of his long,

continuous, faithful and unblemished service.

It is submitted that the right of employee to

receive pension is right to property under

Article 300A of the Constitution of India and

10010.2014WP.odt

by executive orders, the State has no power

to withhold the same. Therefore, the learned

counsel for the petitioner submits that the

Petition deserves to be allowed.

9. The petitioner has filed rejoinder-

affidavit and stated that the purchase order,

which is subject matter of the enquiry, the

said order was approved by the Standing

Committee and the Commissioner at the

relevant time. The learned counsel for the

petitioner submits that in the similar fact-

situation in the case of Dattatray Anandgir

Giri Vs. The Aurangabad Municipal

Corporation, Aurangabad in Writ Petition no.

4146/2014 on 08.05.2015, the Division Bench

of the Bombay High Court Bench at Aurangabad

has taken a view that the Commissioner is not

Competent to sit over the decision of the

Appellate Authority. It is also observed that

in case of one Shri Ramteke, who was also

employee of the Municipal Corporation, the

10010.2014WP.odt

decision of the Appellate Authority was

accepted by the respondent and pensionary

benefits were extended to him, though he was

held guilty in the department enquiry.

10. The learned counsel appearing for

respondent no.2 relying upon the averments in

the affidavit-in-reply submits that since the

petitioner was held guilty in the

departmental enquiry, the petition filed by

the petitioner in the year 2004 was not

entertained by the High Court and the

petitioner was asked to file appeal and

liberty was granted to the petitioner to file

appeal. It is submitted that based upon the

enquiry report, the Commissioner, Municipal

Council issued office order on 27.07.2004,

directing the petitioner that he is held to

be guilty in the enquiry whereby the amount

of Rs.10,55,323/- is the loss caused to the

Corporation and the petitioner was directed

to deposit the said amount within 7 days, in

10010.2014WP.odt

view of clause 56 (2) (c) of the Municipal

Councils Services (Discipline & Appeal)

Rules, 1979 as a penalty. However, the

Standing Committee passed a Resolution no.211

on 27.01.2005 wherein appeal filed by the

petitioner was allowed and the service

benefits were directed to be given to the

petitioner. The Municipal Commissioner

placed the report of Standing Committee

before the general body on 07.10.2005 bearing

Resolution no.80/2011, wherein the general

body passed a resolution to appoint again two

member committee for enquiry. The said

Committee requested respondent no.1 to cancel

the part of the Resolution by the general

body and allowed recovery of the amount from

the petitioner.

11. It is submitted that the said

Enquiry Committee gave its enquiry report to

the Corporation on 31.08.2009, wherein the

petitioner was held to be guilty under Rule 3

10010.2014WP.odt

(1) of the Maharashtra Civil Services

(Conduct) Rules, 1979 ('the Rules of 1979'

for short). The said report was placed before

the general body of the Corporation on

26.04.2010. The general body without

assessing first and second enquiry report

directed the Corporation to implement the

order of Standing Committee. The

Commissioner, Municipal Council, wrote a

letter to the Principal Secretary, Urban

Development Department, Mantralaya, Mumbai on

24.09.2013, requesting to cancel / rescind

the Resolution passed by the Standing

Committee dated 27.01.2005 and the Resolution

of the general body dated 26.04.2010 and

18.10.2012 in view of the fact that these

Resolutions are taken without considering

seriousness of the case whereby the Municipal

Corporation has sustained financial loss

because of passing such Resolution. The Desk

Officer, Urban Development Department, by its

10010.2014WP.odt

letter dated 15.10.2013 communicated to the

Commissioner, Municipal Corporation,

Aurangabad, seeking certain clarifications

and in reply, the Municipal Commissioner

addressed a letter on 19.09.2014 to

respondent no.1. It is submitted that two

Writ Petitions filed by the petitioner

arising out of the same issue and subject

matter have been dismissed by this Court.

The Municipal Corporation has not yet

received response from respondent no.1 in

respect of decision of the State Government

under Section 451 of the Act of 1949 to

cancel / rescind the Resolution passed by the

Standing Committee as well as the general

body directing the Corporation to extend

pensionary benefits to the petitioner.

12. We have considered the submissions

of the learned counsel appearing for the

petitioner, learned AGP appearing for

respondent no. 1 - State and the learned

10010.2014WP.odt

counsel appearing for respondent no.2. With

their able assistance, perused the pleadings

in the petition, grounds taken therein,

annexures thereto, rejoinder-affidavit filed

by the petitioner, reply filed by respondent

no.2 and also the judgment in the case of

Dattatray Anandgir Giri (supra). It is not

in dispute that the Standing Committee had

taken a decision to extend pensionary

benefits to the petitioner, though the

Enquiry Committee held the petitioner guilty.

In the similar fact-situation wherein the

stand taken by the Municipal Commissioner was

that the appeal was not maintainable before

the Standing Committee, this Court in the

case of Dattatray Anandgir Giri (supra) in

para 11 held thus:

"The stand taken by the Municipal Commissioner that, the appeal filed by the petitioner under Section 56 (4) of the said Act was not maintainable is concerned, the

10010.2014WP.odt

appellate authority i.e. Standing Committee has taken decision in the

year 2009. As already observed, there is no specific challenge to the said decision by the Respondent

- Corporation before the appropriate Forum. The said decision has attained finality. The Supreme Court

in the case of ig Santoshkumar Shivgonda Patil & ors V/s Balasaheb Tukaram Shevale and ors1 while

interpreting the provisions of Section 247 of the Maharashtra Land Revenue Code, meant for filing

revision, observed that, in absence

of any limitation provided for filing such revision, the reasonable period would be of three years from

the date of cause of action.

Applying the said parameters in the present case, if the respondents were said to have been aggrieved by

the said decision of the Standing Committee, they ought to have challenged the said decision within three years from passing of such decision. Even as on today, there

1 2009 (6) Bom.C.R. 664

10010.2014WP.odt

is no specific challenge to the said decision and only by way of filing

reply in the present Petition which is filed by the petitioner, the stand is taken by the respondent

no.1 that, such appeal was not maintainable. Therefore, the belated attempt of the respondents to say

that, the appeal is not maintainable

cannot be countenanced in the peculiar facts and circumstances of

the present case."

13. In the facts of the present case,

though the Municipal Corporation has

requested respondent no.1 by communication

dated 24.09.2013 to cancel the Resolution

passed by the Standing Committee on

27.01.2005 and Resolutions of the general

body dated 26.04.2010 and 18.10.2012, no

decision of the State Government is placed on

record either by respondent no.1 or by

respondent no.2. In that view of the matter,

the petitioner cannot be asked to wait

10010.2014WP.odt

anymore for receiving his retiral benefits

for which he is legitimately entitled to.

The Supreme Court in the case of State of

Jharkhand V. Jitendra Kumar Srivastava2 held

thus:

"14. Article 300 A of the Constitution of India reads as

under:

"300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his

property save by authority of law."

Once we proceed on that premise, the answer to the question posed by us

in the beginning of this judgment becomes too obvious. A person cannot be deprived of his pension without the authority of law, which

is the Constitutional mandate enshrined in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity

2 2013 (12) SC 210

10010.2014WP.odt

or even leave encashment without any statutory provision and under the

umbrage of administrative instruction cannot be countenanced.

15. It hardly needs to be emphasized that the executive instructions are not having

statutory character and, therefore,

cannot be termed as "law" within the meaning of aforesaid Article 300A.

On the basis of such a circular, which is not having force of law, the appellant cannot withhold - even

a part of pension or gratuity. As

we noticed above, so far as statutory rules are concerned, there is no provision for withholding

pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different."

14. In the light of discussion in the

foregoing paragraphs, though at this stage we

are not inclined to entertain prayer clause-C

in the Petition, since it appears that the

10010.2014WP.odt

State Government has not taken any decision

under Section 451 of the Act of 1949, in

respect of request of the respondent -

Commissioner, Municipal Corporation to cancel

the Resolution passed by the Standing

Committee on 27.01.2005 and Resolutions of

the general body on 26.04.2010 and

18.10.2012. However, we are inclined to

issue directions to the respondent

Corporation to prepare and submit the

proposal in respect of pensionary benefits of

the petitioner within four weeks from today

and release the said pensionary benefits to

the petitioner as expeditiously as possible,

however, within 12 weeks from today subject

to filing personal undertaking by the

petitioner that in case the Resolution passed

by the Standing Committee and General Body is

cancelled by invoking powers contemplated

under Section 451 of the Act of 1949 by the

State Government, he would re-deposit the

10010.2014WP.odt

amount disbursed to him so as to suffer the

order passed by the Disciplinary Authority on

27.07.2004.

15. The Rule is made absolute partly and

the Writ Petition stands disposed of

accordingly. No costs.

Sd/-

                              ig                 Sd/-
               [SANGITRAO S.PATIL]          [S.S.SHINDE]
                            
                     JUDGE                     JUDGE  

              DDC