Bombay High Court
Somnath Dnyanoba Paul vs The Maharashtra State Co ... on 6 October, 2016
Bench: S.V. Gangapurwala
1 W.P.No.1512/15
UNREPORTED
IN THE HIGH COURT OF JUDICATURE AT
BOMBAY
BENCH AT AURANGABAD.
WRIT PETITION NO.1512 OF 2015.
Somnath S/o Dnyanoba Paul,
Age 59 years, Occ.Pensioner,
R/o BH-1/1, Thakare Nagar,
N-2, Cidco, Aurangabad. ... Petitioner.
Versus
1. The Maharashtra State
Co-operative Cotton Growers
Marketing Federation Ltd.,
Khatan Bhavan, 6th floor,
198, Jamshedji Tata Road,
Infront of Rits Hotel Church
Gate, Mumbai-20.
2. The General Manager (Adm.),
The Maharashtra State
Cooperative Cotton Growers
Marketing Federation Ltd.,
Khatan Bhavan, 6th floor,
198, Jamshedji Tata Road,
Infront of Rits Hotel Church
Gate, Mumbai-20. ... Respondents.
...
Mr.A.N.Nagargoje, advocate for the petitioner.
Mr.S.T.Shelke, advocate for Respondent No.1.
...
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2 W.P.No.1512/15
CORAM : S.V.GANGAPURWALA AND
K.L.WADANE,JJ.
Date : 06.10.2016.
ORAL JUDGMENT (Per S.V.Gangapurwala,J.)
1. Heard.
2. Rule. Rule returnable forthwith. With
the consent of the parties, the petition is taken
up for final hearing.
3. Mr.Nagargoje, learned counsel for the
petitioner states that the petitioner on
attaining the age of superannuation retired from
the service of the Respondent No.1 on 30.3.2013.
The retiral benefits were not paid.
Subsequently, after great persuasion the
petitioner was paid the amount of gratuity.
However, the amount receivable on account of
leave encashment and Medical leave was not paid
to the petitioner. The petitioner again on
10.11.2014 made representation to the Respondent
for payment of the amount, however, the
Respondent vide letter dated 25.11.2014
communicated that as the Departmental Inquiry as
well as Criminal case is pending, the said amount
can not be paid. The learned counsel submits
that on 4.1.2007 on account of registration of a
Criminal case against the petitioner, the
petitioner was suspended, however, on 2.3.2010
the said suspension was withdrawn and the
petitioner was reinstated on the post of Senior
Grader and thereafter has retired from service.
The learned ig counsel submits that there is no
provision in the Rule authorising the Respondent
to withhold the retiral benefits. In absence of
any provision in the Rule, the Respondents can
not withhold the retiral benefits on the ground
of pendency of a Criminal case. The learned
counsel relies on the judgment of the Apex Court
in a case of "State of Jharkhand and others Vs.
Jitendra Kumar Srivastava and another" reported
in (2013) 12 Supreme Court Cases 210.
4. Mr.Shelke, learned counsel for the
Respondent submits that the Criminal prosecution
against the petitioner is pending with regard to
Anti Corruption Law, so also the Departmental
proceedings. As the same is pending, the retiral
benefits with regard to leave encashment and
Medical leave is validly and legitimately
withheld. No error has been committed by the
Respondent in that regard.
5. We have considered the submissions. In
a case of "State of Jharkhand and others Vs.
Jitendra Kumar Srivastava and another" referred
to supra, the question before the Apex Court was
"Whether in absence of any provision in the
Pension Rules, the State Government can withhold
a part of pension and/or gratuity during the
pendency of a Departmental/Criminal proceedings".
The Apex Court categorically held that in absence
of any provision in the Rules, the pensionary
benefits can not be withheld.
6. Rule 43 as is relied by the learned
counsel for the Respondent is pari materia with
the Rule which was also a subject matter of
interpretation before the Apex Court in the case
of "State of Jharkhand and others Vs. Jitendra
Kumar Srivastava and another" referred to supra.
Rule 35 which is relied by the Respondent
operates only after the punishment is imposed and
the same does not apply in the case of pendency
of Criminal proceedings or a Departmental
Inquiry.
7. In view of that, the impugned order
rejecting the application of the petitioner for
claiming the leave encashment and the Medical
leave can not be sustained and deserves to be set
aside and is hereby set aside.
8. The Respondents shall make the payment
of the amount towards leave encashment and
Medical leave as may be due and payable to the
petitioner as per Rules expeditiously. The
learned counsel for the petitioner claims
interest on the said amount. Considering that
there was a bonafide dispute, we are not inclined
to grant the said prayer.
9. Rule accordingly made absolute in above
terms. No costs.
Sd/- Sd/-
(K.L.WADANE,J.) (S.V.GANGAPURWALA,J.)
asp/office/wp1512.15
