Bombay High Court
Ashok Jaywantrao Chilke vs The Maharashtra State ... on 3 July, 2017
Bench: V.A. Naik
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH AT NAGPUR
WRIT PETITION NO.1164/2011
WITH
WRIT PETITION NO.1165/2011
WITH
WRIT PETITION NO.1166/2011
WITH
WRIT PETITION NO.1167/2011
WITH
WRIT PETITION NO.1168/2011
WITH
WRIT PETITION NO.1169/2011
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WRIT PETITION NO.1164/2011
PETITIONER : Nagorao Narayanrao Wasekar
aged about 63 years, resident of Karnalbagh, Nagpur.
(Dead) through L.Rs.
1) Smt. Lilabai wd/o Nagorao Wasekar,
aged 65 years.
2) Vijay s/o Nagorao Wasekar,
aged 47 years.
3) Avinash s/o Nagorao Wasekar,
aged 35 years.
4) Sushma Umesh Nikam,
aged 34 years.
Nos.1 to 4 R/o Model Mill Closed
Gage, Karnalbagh, Nagpur.
5) Usha Manoj Dhoble, aged 40 years,
R/o 96, Pawan Bhumi, Wardha Road, Nagpur.
(Amendment carried out as per Court order dated
03/07/2017)
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...Versus...
RESPONDENTS : 1. The Maharashtra State Warehousing Corporation,
583/B Market Yard, Gultekadi, Pune-37, through
its Chairman & Managing Director.
2. The Regional Manager Maharashtra State
Warehousing Corporation, Gokhulpeth,
Nagpur.
3. Food Grain Distribution Officer,
Civil Lines, Nagpur.
4. The Departmental Enquiry Officer,
Maharashtra State Warehousing Corp., Pune.
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Shri A.C. Dharmadhikari, Advocate for petitioners
Shri N.R. Saboo, Advocate for respondent no.1
Shri K.L. Dharmadhikari, AGP for respondent no.3
--------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.1165/2011
PETITIONER : Narayan Gangaram Shettiwar
aged 61 years, Occupation - retired
employee, resident of Ayodyanagar, Nagpur.
...Versus...
RESPONDENTS : 1. The Maharashtra State Warehousing Corporation,
583/B Market Yard, Gultekadi, Pune-37, through
its Chairman & Managing Director.
2. The Regional Manager Maharashtra State
Warehousing Corporation, Gokulpeth,
Nagpur.
3. Food Grain Distributor Officer,
Civil Lines, Nagpur.
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4. The Departmental Enquiry Officer,
Maharashtra State Warehousing Corp., Pune.
--------------------------------------------------------------------------------------------------
Shri A.C. Dharmadhikari, Advocate for petitioner
Shri N.R. Saboo, Advocate for respondent no.1
Shri K.L. Dharmadhikari, AGP for respondent no.3
--------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.1166/2011
PETITIONER : Ashok Jaywantrao Chilke,
aged 60 years, Occupation - retired
employee, resident of 104 Swastik
Apartment First Floor, Nilkanthnagar,
Hudkeshwar Road, Nagpur.
...Versus...
RESPONDENTS : 1. The Maharashtra State Warehousing Corporation,
583/B Market Yard, Gultekadi, Pune-37, through
its Chairman & Managing Director.
2. The Regional Manager Maharashtra State
Warehousing Corporation, Gokhulpeth,
Nagpur.
3. Food Grain Distributor Officer,
Civil Lines, Nagpur.
4. The Departmental Enquiry Officer,
Maharashtra State Warehousing Corp., Pune.
--------------------------------------------------------------------------------------------------
Shri A.C. Dharmadhikari, Advocate for petitioner
Shri N.R. Saboo, Advocate for respondent no.1
Shri K.L. Dharmadhikari, AGP for respondent no.3
--------------------------------------------------------------------------------------------------
WITH
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WRIT PETITION NO.1167/2011
PETITIONER : Surendra Baburao Bhandarwar,
aged about 62 years retired employee,
Resident of 29 A, Shri Sai Mandir Marg,
Ayodhyanagar, Nagpur.
...Versus...
RESPONDENTS : 1. The Maharashtra State Warehousing Corporation,
583/B Market Yard, Gultekadi, Pune-37, through
its Chairman & Managing Director.
2. The Regional Manager Maharashtra State
Warehousing Corporation, Gokhulpeth,
Nagpur.
3. Food Grain Distributor Officer,
Civil Lines, Nagpur.
4. The Departmental Enquiry Officer,
Maharashtra State Warehousing Corp., Pune.
--------------------------------------------------------------------------------------------------
Shri A.C. Dharmadhikari, Advocate for petitioner
Shri N.R. Saboo, Advocate for respondent no.1
Shri K.L. Dharmadhikari, AGP for respondent no.3
--------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.1168/2011
PETITIONER : Vilas Wasudeorao Dewal
Age about 62 years, Retired Employee,
R/o 116 Kailash Nagar, Ayodhyanagar,
Nagpur - 24.
...Versus...
RESPONDENT : 1. The Maharashtra State Warehousing Corporation,
583/B Market Yard, Gultekadi, Pune-37, through
its Chairman & Managing Director.
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2. The Regional Manager Maharashtra State
Warehousing Corporation, Gokulpeth,
Nagpur.
3. Food Grain Distributor Officer,
Civil Lines, Nagpur.
4. The Departmental Enquiry Officer,
Maharashtra State Warehousing Corp., Pune.
--------------------------------------------------------------------------------------------------
Shri A.C. Dharmadhikari, Advocate for petitioner
Shri N.R. Saboo, Advocate for respondent no.1
Shri K.L. Dharmadhikari, AGP for respondent no.3
--------------------------------------------------------------------------------------------------
WITH
WRIT PETITION NO.1169/2011
PETITIONER : Kalidas Krishnaji Gadpayale,
aged about 62 years,
occupation - Retired Employee,
Resident of 33, Dambhare Layout,
Trimurti Nagr, Nagpur - 440022.
...Versus...
RESPONDENT : 1. The Maharashtra State Warehousing Corporation,
583/B Market Yard, Gultekadi, Pune-37, through
its Chairman & Managing Director.
2. The Regional Manager Maharashtra State
Warehousing Corporation, Gokulpeth,
Nagpur - 02.
3. Food Grain Distributor Officer,
Civil Lines, Nagpur -1.
4. The Departmental Enquiry Officer,
Maharashtra State Warehousing Corp., Pune.
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--------------------------------------------------------------------------------------------------
Shri A.C. Dharmadhikari, Advocate for petitioner
Shri N.R. Saboo, Advocate for respondent no.1
Shri K.L. Dharmadhikari, AGP for respondent no.3
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CORAM : SMT. VASANTI A NAIK AND
ARUN D. UPADHYE, JJ.
DATE : 03.07.2017
ORAL JUDGMENT (PER : SMT. VASANTI A. NAIK, J.)
Since the issue involved in these writ petitions is identical
and similar prayers are made therein, they are heard together and are
decided by this common judgment.
The petitioners were working with the respondent -
Maharashtra State Warehousing Corporation on the posts of Junior Store
Superintendents, Assistant Superintendents, Store Keepers etc., when
they retired on attaining the age of superannuation.
The original petitioner in Writ Petition No.1164/2011 had
retired from service on 28.2.2005 and a no dues certificate was issued in
his favour on 29.9.2005. By a charge-sheet served on the original
petitioner in Writ Petition No.1164/2011, dated 13.12.2010, that is
impugned in the petition, the original petitioner was asked to reply to the
charges in respect of the events that occurred while the petitioner was in
service in the year 2003 to 2005. According to the Corporation, the loss
caused by the original petitioner to the Corporation is Rs.1,29,500/-.
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The petitioner in Writ Petition No.1165/2011 retired on
attaining the age of superannuation on 30.6.2009. He was also served
with a similar charge-sheet dated 13.12.2010 levelling allegations in
regard to his negligence in the years 1990 to 1995.
The petitioner in Writ Petition No.1166/2011, who had
retired by securing voluntary retirement on 20.11.2008 was also served
with a charge-sheet dated 13.12.2010 pertaining to the events that
occurred during the period from 1989 to 1994 and from 2000 to 2002.
The petitioner in Writ Petition No.1167/2011 had retired on
attaining the age of superannuation on 31.10.2008. A no dues certificate
was issued in his favour within a couple of months from the date of his
retirement. By a charge-sheet served on him on 13.12.2010 he was
allegedly held to be responsible for the loss caused to the Corporation
during the period from 1995-96 and 2003-04.
The petitioner in Writ Petition No.1168/2011, who had
retired on 24.2.2009 after attaining the age of superannuation was also
served with a similar charge-sheet dated 13.12.2010 that related to the
events of the years 1989 and 1998 to 2003.
The petitioner in Writ Petition No.1169/2011 who had
retired from service on 31.12.2006 and had also received a no dues
certificate was served with a charge-sheet dated 13.12.2010. The charges
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against the petitioner in this case pertained to the years 1994 to 1998.
The petitioners in all the writ petitions have challenged the
action on the part of the respondent - Corporation of initiating a
departmental enquiry against them after their retirement. The petitioners
have sought a declaration that the respondent - Corporation did not have
the authority to initiate the departmental enquiry against the petitioners
after they retired from service.
Shri Dharmadhikari, the learned Counsel for the petitioners
submitted that it is a well settled position of law that a Corporation or any
other authority cannot initiate a departmental enquiry against its
employees unless the regulations that govern the service conditions of the
employees provide for the initiation of a departmental enquiry after the
retirement of the employees. It is submitted by taking this Court through
the regulations framed by the respondent - Corporation in respect of the
service conditions of its employees that there is no provision in the said
regulations that authorizes the Corporation to initiate a departmental
enquiry against its employees after their retirement. It is submitted that in
the absence of any regulation authorizing the Corporation to do so, the
Corporation would not be empowered to initiate the enquiry. It is
submitted that the departmental enquiry is not only initiated against the
petitioners after the retirement of the petitioners but the enquiry relates
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to the events that have allegedly occurred long ago. It is submitted that an
enquiry is sought to be initiated against most of the petitioners in respect
of the events that took place between the years 1990 to 1998. It is stated
that in respect of a couple of petitioners the events pertained to the year
2003-04. It is submitted that in no case the events in respect of which the
charge-sheet is served on the petitioners relate to the year 2005 onwards.
It is submitted that the Corporation has sought to initiate a departmental
enquiry against the petitioners without any authority of law.
Shri Saboo, the learned Counsel for the respondent -
Corporation has supported the action of the Corporation. The learned
Counsel referred to the Staff Service Regulations of the Corporation and
specially, Regulation 110 thereof to submit that in the matters for which a
specific provision is not made in the regulations, the matters would be
regulated in the same manner as in the case of employees of the
Government of Maharashtra. It is stated that though there is no specific
regulation in the Staff Service Regulations of the Corporation providing
for the initiation of a departmental enquiry after the retirement of an
employee, in view of Regulation 110 of the Regulations, the Corporation
can take recourse to the provisions of the Maharashtra Civil Services
Rules to initiate the enquiry after the retirement of its employees. It is
submitted that in view of Rule 27 (2) (b) of the Maharashtra Civil
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Services (Pension) Rules, 1982 a departmental enquiry could be initiated
against a Government servant after his retirement. The learned Counsel
relied on Rule 27 (2) (b) (ii) of the Rules of 1982 to substantiate his
submission. It is submitted that under the said provisions the Corporation
is entitled to initiate an enquiry in respect of any event which has taken
place less then four years before the institution of the departmental
enquiry. It is submitted that the date of the event would mean the date on
which the Corporation has discovered the event. It is submitted that the
Government had recovered the dues from the Corporation several years
later and it was then noticed by the Corporation that the petitioners had
caused loss to the Corporation and hence the date on which the
Corporation became aware of the loss would be the date on which the
event would be deemed to have occurred. It is submitted that after the
retirement of the petitioners the amounts were sought to be recovered
from the petitioners towards the loss caused by them to the Corporation
but since the said amount could not have been recovered without
conducting an enquiry, a statement was made in the writ petitions filed
by the petitioners on the earlier occasion that the Corporation would
recover the loss after holding a departmental enquiry against the
petitioners. The learned Counsel sought for the dismissal of the writ
petitions.
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On hearing the learned Counsel for the parties, it appears
that the Corporation did not have any authority in law to initiate the
departmental enquiry against the petitioners by the issuance of
charge-sheet dated 13.12.2010. We find nothing in the Staff Service
Regulations of the respondent - Corporation that authorizes the
respondent - Corporation to initiate a departmental enquiry against its
employees after their retirement even if any loss is caused to the
Corporation. Regulation 110 on which a reliance has been placed by the
respondent - Corporation refers to the application of the Rules,
Regulations and Orders of the Government of Maharashtra, to the
matters, in respect of which the Regulations are silent. Regulation 110
specifically provides that in respect of all the matters for which specific
provisions have not been made in the Regulations, would be regulated in
the same manner as the case of the employees of the Government of
Maharashtra. By assuming that Regulation 110 of the Regulations may
come to the rescue of the respondent - Corporation for taking action as
per the service conditions that govern the services of the Government
servants of the State of Maharashtra, it would be necessary to consider
whether the action on the part of the respondent - Corporation of
initiating the enquiry against the petitioners after their retirement is
correct or not. We do not find anything in the Maharashtra Civil Services
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(Pension) Rules which specifically empowers the Government to initiate
the departmental enquiry against the employees after their retirement.
However, Maharashtra Civil Services (Pension) Rules, 1982 and Rule 27
thereof provides for the right of the Government to withhold or withdraw
the pension. There is no specific rule which relates only to the power of
the Government to initiate a departmental enquiry after the retirement of
a Government servant. Rule 27 of the Rules of 1982 however provides
that a part or whole of the pension of a Government servant could be
withdrawn or withheld either permanently or for a specific period, if the
Government servant is found guilty in any departmental or judicial
proceedings in respect of the pecuniary loss caused to the Government.
Sub Rule 2 of Rule 27 of the Rules provides that if the departmental
proceedings are continued against the Government servant after his
retirement the same would be continued against him as if he had
continued in service. Sub Rule 2 (b) of Rule 27 of the Rules, on which
great reliance has been placed by the learned Counsel for the
Corporation, reads thus : -
"Rule 27 (2) (b) : The departmental
proceedings, if not instituted while the Government servant
was in service, whether before his retirement or during his
re-employment. -
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(i) shall not be instituted save with the sanction of
the 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".
The Corporation has relied only on the provisions of Rule 27
(2) (b) (ii) of the Rules. This Rule provides that a departmental
proceedings, if not instituted against the Government servant while he
was in service shall not be instituted after his retirement in respect of any
event which took place more than four years before the institution of the
departmental proceedings. Even assuming that Rule 27 (2) (b) (ii) of the
Rules applies to these cases as is stated on behalf of the Corporation, in
the circumstances of the case the Corporation could not have initiated the
departmental enquiry against the petitioners by service of charge-sheet
dated 13.12.2010 when the charges against none of the petitioners relate
to the events which took place within four years before the service of the
charge-sheet dated 13.12.2010. The events by which the petitioners are
allegedly held to be responsible for causing loss to the Corporation
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pertain to the years 1990 to 2004-05. The charge-sheet dated 13.12.2010
is served on all the petitioners in December, 2010. The events that had
resulted in causing loss to the Corporation should have taken place within
four years before 13.12.2010. The events should have taken place after
13.12.2006. However, none of the events had taken place in the year
2006. The petitioners are served with the charge-sheet pertaining to the
events that had taken place from the year 1990 to 2004-05. Even Rule 27
(2) (b) (ii) of the Rules would not give any right or authority to the
respondent - Corporation to initiate the departmental enquiry by service
of the charge-sheet dated 13.12.2010. There is no other rule on which the
respondent-Corporation has relied on. Rule 27 (2) (b) (ii) of the Rules
will not be helpful to the Corporation for initiation of the departmental
enquiry against the petitioners after 13.12.2010. We have minutely
perused the charge-sheets served on each of the petitioners. At the outset,
in every charge-sheet, it is mentioned that while the petitioners were
working during the period which is specified therein, they had committed
the acts that had resulted in causing loss to the Corporation but none of
the charge-sheets refers to the period after 2005. We have already
mentioned herein above that the events referred to in the charge-sheet
should have taken place after 13.12.2006. The events that are mentioned
in each of the charge-sheets have taken place long time back. We do not
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find that Rule 27 (2) (b) (ii) of the Rules would help the Corporation in
defending the petitions. While holding so, we are not inclined to accept
the submission made on behalf of the respondent - Corporation that since
the Corporation was made liable to make good, the losses to the
Government several years later it should be considered that the events
took place when the Corporation was made liable for the losses. There is
no legal base for the submission made on behalf of the respondent -
Corporation. In the circumstances of the case, it would be necessary to
allow the writ petitions and quash and set aside the impugned charge-
sheets.
Hence, for the reasons aforesaid, the writ petitions are
allowed. The impugned charge-sheets are quashed and set aside. It is
hereby held that the respondent - Corporation would not be entitled to
initiate a departmental enquiry against the petitioners. The petitioners are
permitted to withdraw the amount deposited by the respondent -
Corporation in this Court.
Rule is made absolute in the aforesaid terms with no order
as to costs.
JUDGE JUDGE
Wadkar
