Bombay High Court
Yashwant S/O Natthuji Junankar vs Divisional Controller ... on 4 August, 2017
Bench: B.P. Dharmadhikari
Judgment wp3540.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION No. 3540 OF 2016.
Yashwant s/o Nathuji Junankar,
Aged 59 years, Occupation -
Retired Officer, resident of
Plot No.113, Gandhinagar,
Nagpur - 440010. ....PETITIONER.
VERSUS
1. Divisional Controller,
Maharashtra State Road Transport
Corporation, Division Officer,
Nanded 431 602.
2. Executive Engineer,
Maharashtra State Road Transport
Corporation, Region Office, Near
CIDCO Bus Stand,
Aurangabad 431 003. ....RESPONDENTS
.
-----------------------------------
Mr. S.A. Nerkar, Advocate for Petitioner.
Mr. V.G. Wankhede, Advocate for Respondents.
------------------------------------
CORAM : B. P. DHARMADHIKARI
AND ROHIT B. DEO, JJ.
DATED : AUGUST 04, 2017.
Judgment wp3540.16
ORAL JUDGMENT. (Per B.P. Dharmadhikari, J)
Heard Shri S.A. Nerkar, learned Counsel for the petitioner and
Shri V.G. Wankhede, learned Counsel for respondents. Considering the
controversy involved in the matter and with consent of the learned counsel
for the parties, Writ Petition is taken up for final disposal by issuing Rule,
making the same returnable forthwith.
2. Petitioner staying at Nagpur is informed on 09.09.2015 about
recovery of Rs. 4,15,828/- from his retiremental benefits, because of loss
sustained by the respondent employer due to his negligence.
3. Learned counsel for the petitioner submits that at the most
recovery can be legitimately made only for keeping quarter in occupation
beyond the period of superannuation, however, other heads cannot be used
to withhold any amount without proper inquiry. He submits that,
negligence attributed is without any opportunity to the petitioner and hence,
the order is unsustainable.
4. Learned Counsel is relying upon the judgment of Hon'ble Supreme
Court reported at 2014 (143) FLR 1014 (SC) (Nawal Kishore Sharma
Judgment wp3540.16
.vrs. Union of India and others), to urge that as deductions has been
informed at Nagpur, where terminal benefits are receivable by the
petitioner, this Court has jurisdiction.
5. Shri Wankhede, learned counsel appearing for respondents
submits that contents of letter dated 09.09.2015 are very clear. He is relying
upon Division Bench judgment of this Court reported at 2009 (4) Mh.L.J.
638 (Tulsiram Jago Dudhkohale .vrs. Union of India), to urge that Bench
at Nagpur does not possess territorial jurisdiction. He submits that entire
service was at Nanded in jurisdiction of Aurangabad Bench and entire
correspondence is either from Nanded or from Aurangabad.
6. He further fairly accepts that there was no departmental enquiry
against the petitioner.
7. At this stage, we are not concerned with the correctness of
assertions of communication dated 09.09.2015. The communication itself
states that while in service because of negligence in performance of duties,
the employer has sustained loss. 5 heads under which loss are claimed are
also mentioned in that communication. At Sr. No.2, recovery is for
retaining residential quarter in possession, after retirement and penalty on
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that account. At Sr. No.3, the recovery is on account of additional amount
claimed by the Municipal Corporation towards water consumption. Other
three heads are in relation to entering into a contract and lacunae therein,
about recovery towards PVC barrel and about contract entered into in
relation to commercial complex at Bus stand. These three heads necessarily
show need of affording opportunity to the petitioner before ordering any
recovery. Infact if petitioner was negligence a departmental enquiry ought
to have been conducted. That enquiry has not been conducted and it is not
in dispute that after superannuation such enquiry cannot be conducted.
Thus, recoveries under these three heads are unsustainable and liable to be
quashed and set aside.
8. In so far as the recovery on account of over stay in accommodation
provided by the employer is concerned, the petitioner has no objection, if
amount of Rs. 49,586/- is recovered and retained on that account.
However, learned counsel for petitioner submits that water bill was in
relation to office premises and hence, it is not concerned with petitioner.
We therefore find that if water bill is not in relation to residential quarter
used by the petitioner, recovery from petitioner on that account is not
sustainable.
Judgment wp3540.16
9. Hence, we permit respondents to retain amount of Rs. 49,586/-
only out of the amounts due and payable to the petitioner. To find out
whether petitioner is liable to pay an amount of Rs. 57,216/- towards
alleged extra amount for water charges, opportunity shall be given to him
and after verification if it is found that the amount is not towards domestic
use of water by the petitioner, the said amount shall also be returned to him.
In so far as other amounts i.e. Rs.57, 216/-, Rs. 4,200/- or Rs. 61,826/- is
concerned, the amount cannot be recovered from the petitioner at all. That
amount needs to be released to the petitioner immediately.
10. At this stage, we also wish to take note of the judgment of the
Hon'ble Supreme Court (supra), where a person had after termination
settled in Bihar and contention of his employer was cause of action has
occurred at Bombay. Pension and other terminal benefits were receivable
by him at Bihar, and the Hon'ble Supreme Court has therefore, held that
High Court at Bihar was competent to take cognizance of the jurisdiction.
11. Division Bench of this Court has in case of Tulsiram Jago
Dudhkohale (supra), found that the place where order takes effect may not
be decisive, but, the place where cause of action wholly or in part arises may
have relevance. There the petitioner was a military person punished after
Court Martial proceedings and he was dismissed from service in a place in
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State of Punjab. Thus, this judgment does not consider the issue of
determination or absence of jurisdiction between two Benches of very same
High Court.
12. Here facts reveal that the petitioner is entitled to receive amounts
and he was informed about alleged misconduct or withholding of amounts
without enquiry, vide above order by the employer. He got knowledge of
wrongful withholding at Nagpur only. Hence, we partly allow the Writ
petition and dispose of the same. Accordingly, the amounts directed to be
paid shall be released to the petitioner within a period of three months from
today.
13. Petitioner shall report in the office of the Divisional Controller,
Nanded on 28.08.2017, and on that day or within next three days
thereafter, the verification in relation to the water bill shall be completed
and the authorities shall thereafter find out whether any amount needs to be
retained towards alleged excess amount paid to Corporation for water
consumption.
14. Rule is made absolute in the aforesaid terms, with no order as to
costs.
JUDGE JUDGE
Rgd.
