Abdul Mannan Abdul Raouf Farooqui vs The State Of Maharashtra And ...
2016 Latest Caselaw 2126 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                           BENCH AT AURANGABAD




                                                  
                            WRIT PETITION NO. 1741 OF 2016




                                                 
     Abdul Mannan s/o Abdul Raouf Farooqui,
     Age : 71 years, Occ: Retired Forest Officer,
     R/o: Salim Complex, City Chowk,
     Deodi Bazaar, Bolck No.4, Aurangabad.                 ... Petitioner




                                        
                      Versus 
     1.       The State of Maharashtra,
                            
              Through the Secretary to the
              Government of Maharashtra in
              Revenue and Forest Department,
              Mantralaya, Fort, Mumbai.
      


     2.       Chief Conservator of Forest,
              Maharashtra State,
   



              Nagpur.

     3.       Dy. Conservator of Forest,
              Buldhana Forest Division,





              Ranibag, Buldhana.

              [Copies of Respondents to be
              served upon the Government
              Pleader having its office in the





              premises of the High Court of
              Judicature of Bombay, Bench
              at Aurangabad]                               ... Respondents
                                           .....

                  Mr. Amit A. Mukhedkar, advocate for the petitioner
                   Mr. S. B. Yawalkar, AGP for respondent-state.
                                        .....




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                                            CORAM : S. S. SHINDE AND




                                                                           
                                                    V. K. JADHAV, JJ.

RESERVED FOR JUDGMENT ON: 21st APRIL, 2016

JUDGMENT PRONOUNCED ON: 2nd MAY, 2016

JUDGMENT (PER V. K. JADHAV, J.) :-

1. By consent of the parties, heard finally at admission stage.

2. By way of this Writ Petition, petitioner is challenging the

correctness and legality of the judgment and order dated 27.11.2015

passed by the Maharashtra Administrative Tribunal, Mumbai, Bench

at Aurangabad in Original Application No. 75 of 2005, whereby the

Original Application filed by the petitioner came to be rejected.

3. Brief facts, giving rise to the present writ petition, are as

follows:

a) The petitioner, way back in the year 1968, joined his

services as a Range Forest Officer at Divisional Forest

Office, Thane Circle, and came to be appointed at Mandvi

Range, Vasai, District Thane. On 09.07.1990, when he was

serving at Deulgaon Raja, District Buldhana, he was served

with a suspension order passed by respondent No.2 under

Rule 4(1) of the Maharashtra Civil Services (Discipline &

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Appeal) Rules, 1979. On or about 30.12.1990, respondent

No.2 had initiated departmental enquiry against the

petitioner and in all four charges were leveled against him.

After completion of the enquiry, the enquiry officer came to

the conclusion that, petitioner is guilty of charges at serial

Nos. 1 and 2, and was exonerated from the charges at

serial Nos. 3 and 4. Respondent No.1, by order dated

11.10.2004,ig has withdrawn/withheld 100% of the

petitioner's pension amount for the misconduct committed

by him during the tenure of service.

b) Being aggrieved by the same, petitioner challenged the

said order dated 11.10.2004 passed by respondent No.1 by

filing Original Application No.75 of 2005 before the

Maharashtra Administrative Tribunal, Mumbai, Bench at

Aurangabad. The Tribunal, by impugned judgment and

order dated 27.11.2015, dismissed the Original Application.

Hence this Writ Petition.

4. Learned counsel appearing for the petitioner made the

following submissions:

A] It is mentioned in the order passed by Respondent No.1, that

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100% pension of the petitioner is withheld/withdrawn permanently as

per Rule 27(5)(1) of the Maharashtra Civil Services (Pension) Rules,

1982 (for short "the Pension Rules"). If the said provision is perused,

it reveals that the order dated 11.10.2004 is contrary to the said

provision. The Tribunal has not at all considered the points raised by

the petitioner. There is apparent and manifest error committed by

the respondent while passing the order impugned in the Original

Application. Even the enquiry officer suggested for inflicting minor

penalty as per Rule 5(1) of the Maharashtra Civil Services (Discipline

and Appeal) Rules, 1979 (for short "Discipline and Appeal Rules") by

way of withholding three increments of the petitioner, whereas,

respondent No.1, instead of withholding three increments of the

petitioner, by order dated 11.10.2004, which is impugned in the

Original Application before the Tribunal, has withdrawn/withheld

100% of the pension amount of the petitioner. Though aforesaid

point was urged before the Tribunal, the same is not at all discoursed

in the entire judgment delivered on 27.11.2015.

B] By filing rejoinder in the Original Application before the

Tribunal, petitioner contended that the order of conviction passed by

learned Judicial Magistrate First Class, Deulgaon Raja against the

petitioner in Regular Criminal Case No. 861 of 1992 arising out of the

same instance, was quashed and set aside by the judgment and

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order dated 27.06.2005, delivered by the Additional Sessions Judge,

Buldhana in Criminal Appeal No. 6 of 2001. Learned counsel

submits that the charges levelled against the petitioner in the said

criminal case, more particularly, point nos. 4 and 5, are exactly

similar to the two minor charges on which the petitioner is held guilty

by the enquiry officer in the disciplinary enquiry. However, the

Tribunal has not considered the same. The findings in the

disciplinary enquiry regarding holding the petitioner guilty of minor

charges at serial Nos. 1 and 2, is perverse. The other two charges,

in which the petitioner is held to be not guilty, are co-related with the

charges wherein he is held guilty. Therefore, the order of holding

petitioner guilty ought not to have passed in piece meal, as per wish

and whims of the enquiry officer.

C] The petitioner is now an old aged senior citizen and pension is

the only source for survival of himself and his old aged wife. Entire

service tenure of the petitioner is clean and unblemished, save and

except the disciplinary enquiry in question.

5. Learned AGP for respondent-State submits that after due

enquiry, the petitioner was found guilty of charges No. 1 and 2.

Respondent No.1 has correctly withdrawn/withheld pension to the

extent of 100% permanently by considering seriousness of the

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charges proved against the petitioner. Though in the order passed

by respondent No.1, which is impugned in the Original Application

before the Tribunal, it is mentioned that pension is being withdrawn/

withheld as per Rule 27(5)(1) of the Pension Rules, it is, in fact, being

withheld under Rule 27(1) of the said Rules, and sub-rule (5) of Rule

27 of the Pension Rules is applicable only when withholding or

withdrawing of pension pertains to recovery of pecuniary loss from

pension, and if the pension is withheld or withdrawn for recovery of

pecuniary loss, then in that case, such withholding or withdrawal

shall not exceed one third of the pension amount admissible on the

date of retirement. Pension of the petitioner has been withheld 100%

not as a recovery towards pecuniary loss caused to the Government,

and the same is withheld permanently after considering the

seriousness of charges leveled and proved against the petitioner.

Learned AGP submits that there is no substance in the Writ Petition

and the Writ Petition is liable to be dismissed.

6. Rule 27 of the Maharashtra Civil Services (Pension) Rules,

1982 reads thus:

"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

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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.

(2)(a) The departmental proceedings referred to in sub-rule

(1), if instituted while the Government servant was in service whether before his retirement or during his re-

employment, shall, after the final retirement of the Government Servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the

same manner as if the Government servant had continued in service.

(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

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Government,

(ii) shall not be in respect of any event which took

place more than four years before such institution, and

(iii) shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure applicable to the

departmental proceedings in which an order of dismissal from service could be made in relation to

the Government servant during his service.

(3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be

instituted in respect of a cause of action which arose or in respect of an event which took place, more than four

years before such institution.

(4) In the case of a Government servant who has retired on

attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are

continued under sub-rule (2), a provisional pension as provided in rule 130 shall be sanctioned.

(5) Where Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not, subject to the provision of sub-rule (1) of this rule, ordinarily be made at a rate exceeding one-third of the pension admissible on the

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date of retirement of a Government servant.

              (6)     For the purpose of this rule,-




                                                        
                      (a)     departmental proceedings shall be deemed to be

instituted on the date on which the statement of

charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on

such date; and

(b)

judicial proceedings shall be deemed to be instituted-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, or which the Magistrate takes cognizance is

made, and

(ii) in the case of civil proceedings, on the date of presenting the plaint in the Court."

7. Apparently, the provisions of law contained in sub-rule (1) of

Rule 27 of the Pension Rules empowers the Government to pass an

order withholding or withdrawing pension or any part of it, whether

permanently or for a specific period, if, in any departmental enquiry

or judicial proceeding, the pensioner is held guilty of grave

misconduct or negligence either during the period of his service or

during the period of re-employment. Rule 27(1) is comprised of two

parts. First part speaks of the power of the Government to pass an

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order regarding reduction or withdrawal of pension and the second

part deals with the circumstances in which such an order can be

passed. So far as sub-rule (5) of Rule 27 is concerned, the

provisions of sub-rule (5) comes into picture if the Government

decides not to withhold or withdraw the pension amount but orders

recovery of pecuniary loss from the pension, and in that event,

recovery shall not ordinarily be made at a rate exceeding one-third of

the pension admissible on the date of retirement of a Government

servant. It is, thus, clear that respondent authority has passed the

order dated 11.10.2004 under the provisions of Rule 27(1) and not

under Rule 27(5) of the Pension Rules, 1982. Merely because in the

order dated 11.10.2004, impugned in the Original Application before

the Tribunal, instead of mentioning Rule 27(1), Rule 27(5)(1) is

mentioned, the petitioner is trying to misinterpret the same and trying

to take undue advantage of the same.

8. In clear terms, Rule 27 of the Pension Rules provides that

departmental proceedings initiated for disciplinary action can be

concluded after the age of superannuation for the purpose of

reduction or withdrawal of pension and gratuity and not for the

purpose of disciplinary action. Further, Clause (a) of sub-rule (6)

thereof provides that "for the purpose of the said Rule, departmental

proceedings shall be deemed to be instituted on the date on which

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the statement of charges is issued to the Government servant or

pensioner, or if the Government servant has been placed under

suspension from the earlier date, on such date."

9. So far as the disciplinary enquiry initiated against an employee

for any misconduct on his part and continued till the employee

attends the age of superannuation, the departmental proceedings

enumerated in Rule 27 of the Pension Rules, 1982 are wholly and

solely in relation to the issue pertaining to the payment of pension.

10. Sub-rule (1) of Rule 27 refers to an event wherein the

pensioner is found guilty of grave misconduct or negligence during

the period of his service or during his re-employment in any

departmental proceedings. However, it does not specify to be the

departmental proceedings for disciplinary action with the intention to

impose punishment if the employee is found guilty, but it speaks of

the misconduct or negligence having been established and nothing

beyond that.

11. In the case in hand, after conclusion of the enquiry, a notice

dated 11.12.2000 was served on the petitioner as to why he should

not be dismissed from the services and the petitioner had also

submitted his defence statement to the said notice. However, during

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pendency of the same, the petitioner came to be retired on

superannuation. Respondent authorities proposed an action in

relation to withdrawal or reduction of pension payable to the

petitioner in respect of the allegations made and proved against him

in the disciplinary enquiry. Consequently, by letter dated 20.04.2002,

respondent No.1 has given a notice calling upon the petitioner to

explain as to why action as provided under Rule 27(1) should not be

taken against him. The petitioner has also submitted his explanation

to the same. Thus, there is sufficient compliance of the procedural

aspect and it appears from the record that the petitioner has been

given an opportunity of being heard before passing the order

impugned in the Original Application before the Tribunal.

12. It is well settled that the employee's right to pension being

statutory right, the measure of deprivation must be co-relative to or

commensurate with the gravity of the grave misconduct or

irregularities. In the case in hand, the order impugned before the

tribunal discloses that the competent authority withheld, on

permanent basis, the payment of 100% pension and also the gratuity

to the same extent. In the course of disciplinary enquiry, the enquiry

officer came to the conclusion that charge Nos. 1 and 2 are proved

against the petitioner, whereas charge Nos. 3 and 4 are not proved

against him. So far as charge Nos. 1 and 2 are concerned, charge

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No.1 speaks about the irregularity in Government work, whereas

charge No.2 pertains to misusing powers and thereby cheating the

Government. Charge Nos.3 and 4, which are not proved, are about

making forgery of the Government documents on the count of own

interest of the petitioner and making false entries in the muster-roll,

thereby misappropriating Government money, respectively. On

careful perusal of order dated 11.10.2004, which is impugned in the

Original Application before the Tribunal, it appears that respondent

No.1 has observed that the petitioner is found guilty of grave

misconduct during the period of his service. It is specifically

mentioned in the order that even though charge Nos. 3 and 4 are not

proved against the petitioner, the charge Nos. 1 and 2 are also

serious in nature and it speak about grave misconduct on the part of

the petitioner. The same is elaborated further in the said order that

the petitioner has issued passes for transportation of wood which

was not in existence. It is also observed that, even though nothing

was seized in some particular crimes, false passes came to be

issued by the petitioner by mentioning said crime numbers. It is

further observed that, even though a bullock cart containing wood

came to be seized in some particular crimes, passes have been

issued by mentioning said crimes number for one or two truck loads

of wood. It is also mentioned that, in some of the passes, it is not

mentioned as to in whose favour the passes have been issued, and

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the same have been issued by mentioning false date and crime

number. So far as charge No.2 is concerned, even though there is

no order from the superior office, the petitioner had issued passes. It

is also observed in the impugned order that, the petitioner has not

submitted his explanation about the aforesaid charges by giving

reference to the evidence recorded during the course of enquiry or

the documents submitted during the course of enquiry on his behalf.

13.

In our considered opinion, charge Nos. 1 and 2, as proved

against the petitioner, speak about grave mis-conduct on his part

during the period of his service. It is also difficult to find out the exact

pecuniary loss caused to the Government. Consequently, it appears

from the order dated 11.10.2004, that Government was constrained

to take action against petitioner by invoking powers under Rule 27(1)

of the Pension Rules, 1982.

14. Learned counsel for the petitioner vehemently submitted that,

as per recommendations made by the enquiry officer, had the

petitioner been in employment at the time of passing the order dated

11.10.2004, petitioner should have been at the most liable for minor

punishment as enumerated in Rule 5 of the Discipline and Appeal

Rules, 1979. Learned counsel submits that Respondent No.1 ought

to have imposed minor penalty considering the fact that it was a case

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for inflicting minor penalty had the petitioner been in employment.

We do not find any substance in said submissions. The petitioner

was served with show cause notice dated 11.12.2000 i.e. prior to his

retirement on superannuation, issued by the disciplinary authority

calling upon him to explain as to why he should not be dismissed

from services on the count that charge Nos.1 and 2 have been

proved against him in the enquiry.

15.

Learned counsel for the petitioner submits that the Ad-hoc

Additional Sessions Judge, Buldhana has given clean chit to the

petitioner and by judgment and order dated 27.06.2005, acquitted

him in criminal appeal No. 6 of 2001, preferred against the order of

conviction passed by the Magistrate. Learned counsel submits that

the charges leveled against the petitioner in the said criminal case,

more particularly point Nos. 4 and 5, are exactly similar to the

charges for which the petitioner is held guilty by enquiry officer in the

departmental enquiry.

16. It is well settled that the departmental proceedings and

proceedings in a criminal case can proceed simultaneously as there

is no bar in their being conducted simultaneously, though separately.

In the facts and circumstances of the present case, it appears that

the incident in question gave rise to the criminal trial and also the

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disciplinary proceedings. In a criminal trial, the accused is presumed

to be an innocent unless the charge against him is proved beyond

reasonable doubt. The burden of proving guilt of the accused is on

the prosecution. The same is not the case in the disciplinary

proceedings. The disciplinary proceedings cannot and should not be

delayed unduly. If the criminal case is unduly delayed, that may itself

be a good ground for going ahead with the disciplinary enquiry. It

would not be in the interest of the department that the delinquent of a

serious misconduct should be continued in office indefinitely awaiting

the result of the criminal proceedings. In the case in hand, the

petitioner was convicted by the Magistrate and thereafter, the appeal

preferred by the petitioner was pending before the Sessions Court.

On careful perusal of the charges leveled against the petitioner in

that criminal case, we do no think that the said charges are exactly

identical to the charge Nos. 1 and 2 in the disciplinary proceedings

which are duly proved against the petitioner.

17. In view of the above, we do not find any fault in the judgment

and order dated 27.11.2015 passed by the Maharashtra

Administrative Tribunal Mumbai, Bench at Aurangabad in Original

Application No. 75 of 2005. There is no substance in the Writ

Petition. Hence the following order:

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ORDER

I. The Writ petition is hereby dismissed.

II. In the circumstances, there shall be no order as to costs.

        ( V. K. JADHAV, J.)                               ( S. S. SHINDE, J. )




                                        
                             
                            
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