Bombay High Court
Keshav Vitthalrao Fating vs Chairman,M.S.E.B.Office & 3 Ors on 7 December, 2017
Bench: B.P. Dharmadhikari
wp706.02 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 706 OF 2002
Keshav Vitthalrao Fating,
aged about 59 years,
occupation - Retired,
Establishment Superintendent,
M.S.E.B., r/o Gayadin Painter's
House, Hansapuri, Central
Avenue, Nagpur, Dist. Nagpur. ... PETITIONER
Versus
1. Chairman,
The Maharashtra State Electricity
Distribution Prakashgad Bandra
(East), Mumbai.
2. Chief Engineer,
The Maharashtra State Electricity
Distribution, Nagpur.
3. Superintending Engineer,
The Maharashtra State Electricity
Distribution, Bhandara.
4. Executive Engineer,
The Maharashtra State Electricity
Distribution, O. & M. Dn., Bhandara. ... RESPONDENTS
Shri S.S. Ghate, Advocate for the petitioner.
Mrs. U.A. Patil, Advocate for the respondents.
.....
CORAM : B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DECEMBER 07, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
We have heard Shri Ghate, learned counsel for the
petitioner and Mrs. U.A. Patil, learned counsel for the
respondents.
2. The petitioner has superannuated on the day on
which the impugned order of punishment was issued. The
punishment order dated 29.09.2001 is under Regulation No. 90
of the Maharashtra State Electricity Board Employees Service
Regulations. The said regulation is found ultra-vires and
Division Bench of this Court in the judgment in the case of
Dhanaykumar Chitriappa Bodale vs. The Managing Director,
Maharashtra State Electricity Distribution Company Ltd. & Ors.,
reported at 2009 BCI 604, has held that the power cannot be
used in summary manner to impose a punishment provided for
under Regulation No. 91.
3. Here, by a separate order passed on the same day,
the petitioner has been superannuated on 29.09.2001
afternoon as 30.09.2001 happens to be Sunday. By an order of
punishment, amount of Gratuity and Leave encashment have
been withheld for its appropriation against the recovery, if any,
found in future.
4. A perusal of punishment order shows that it records
a finding of guilt of violation of Rules and hence fine of
Rs.500/- has been imposed on the petitioner as penalty for
negligence. While so doing, apprehending that his misconduct
might have resulted in some loss to the employer, the employer
thought it proper to protect itself by withholding his gratuity,
leave encashment. As gratuity could not have been withheld
until and unless there is a finding of loss before
superannuation, because of interim orders passed in present
writ petition on 26.06.2003, that amount is already released to
the petitioner unconditionally. The grievance, therefore, now is
in relation to amount of leave encashment.
5. Shri Ghate, learned counsel submits that because of
it, benefit of G.O. 74 has also not been released.
6. Mrs. Patil, learned counsel points out that in
punishment order, there is no reference to benefit flowing from
G.O. 74 or then withholding of any travelling allowance bills.
It is further submitted that in the interest of employer and only
to safeguard against possible loss, the employer has taken the
step and has not withheld the amount permanently.
7. We find it unnecessary to consider the controversy
regarding G.O. 74. The petitioner has to demonstrate by
relying upon a positive order issued by his employer, his
entitlement to that benefit. Here, the petitioner has not
produced any such order. Not only this, the impugned order of
punishment also does not refer to G.O. 74 benefit. Hence, with
liberty to the petitioner to raise suitable grievance
independently as per law, we close that issue.
8. Insofar as the amount of leave encashment or any
other amount due and payable to the petitioner is concerned,
the said amount can be withheld only if a misconduct is
established. Here, for misconduct, the petitioner has already
been punished and penalty of Rs.500/- has been levied. At that
stage, the employer felt that because of alleged belated deposit
of compensation payable to workman with the office of
Workmen Compensation Commissioner, some penalty or
interest may be required to be paid. This contingency itself
necessitated further inquiry. At that stage, there was no such
loss and hence for alleged apprehended loss, amount could not
have been withheld. Even otherwise, it is not in dispute that
Service Regulations do not permit the employer to conduct any
inquiry after superannuation of the petitioner.
9. We, therefore, find the direction of withholding the
amount of leave encashment unsustainable. We, therefore,
quash and set aside the order dated 29.09.2001. The benefits
resulting therefrom shall be released to the petitioner within a
period of three months from today. The amount of leave
encashment shall carry interest @ 6% per annum from
01.11.2001 onwards till its realization.
10. Writ Petition is thus partly allowed and disposed of.
Rule accordingly. However, in the facts and circumstances of
the case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
