Vijaya Pramodkumar Paithankar & ... vs State Of Maha & Ors
2017 Latest Caselaw 4291 Bom

         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    BENCH AT AURANGABAD

                    WRIT PETITION NO.5546 OF 2004 

1.     Smt. Vijaya Pramodkumar Paithankar, 
       Age : 46 years, Occu.: Nil,
       R/o.: Partur, Tq. Partur,
       District Jalna

2.     Ku. Vaishali Pramodkumar Paithankar,
       Age : 24 years, Occu.: Nil,
       R/o.: Partur, Tq. Partur,
       District Jalna

3.     Ashish Pramodkumar Paithankar,
       Age : 22 years, Occu.: Nil,
       R/o.: Partur, Tq. Partur,
       District Jalna

4.     Amol Pramodkumar Paithankar,
       Age : 20 years, Occu.: Nil,
       R/o.: Partur, Tq. Partur,
       District Jalna                               PETITIONERS

       VERSUS

1.     The State of Maharashtra
       Through Secretary of Civil
       Supply, Mantralaya, Mumbai

2.     The Commissioner,
       Commissioner Office,
       Aurangabad

3.     The Collector,
       Collector Office,
       Jalna

4.     The District Supply Officer,
       Jalna

5.     The Accountant General
       Account (Pension Divn.) Dept.,
       Nagpur, Maharashtra State                    RESPONDENTS


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                       ----
Mr. V.A. Bagal, Advocate for the petitioners
Mrs.P.V.Diggkar, A.G.P. for respondent Nos.1 to 5
                       ----

                                    CORAM :  T.V.NALAWADE AND
                                            



                                             SANGITRAO S.PATIL, JJ.

                         RESERVED ON  :  15th JUNE, 2017   
                         PRONOUNCED ON:  11th JULY, 2017   


JUDGMENT (PER : SANGITRAO S. PATIL, J):

The petitioners, who are the legal heirs

of the deceased Pramod Sadashivrao Paithankar

(hereinafter referred to as "the deceased

Paithankar"), have challenged the judgment and

order dated 8th August, 2003 passed in Original

Application No.445 of 1994 by the Maharashtra

Administrative Tribunal, Bench at Aurangabad,

("the Tribunal" for short) confirming the orders

dated 28th February, 1994 and 1st March, 1994 passed

by respondent No.2 - Divisional Commissioner,

Aurangabad directing recovery of Rs.86,514.45 from

the pensionery benefits of the deceased

Paithankar.

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2. The deceased Paithankar was serving as a

Godown Keeper for Government Godown at Partur,

District Jalna. Respondent No.3 - Collector, Jalna

passed nine orders between the years 1987 and 1990

holding the deceased Paithankar responsible for

loss of food grains due to his negligence in

keeping them in good condition and directed

recovery of the total amount of Rs.86,514.45 from

the deceased Paithankar. The petitioner challenged

the said orders by filing an appeal before

respondent No.2, but did not succeed. He,

therefore, challenged the orders of respondent

No.2 before the Tribunal by filing the above-

numbered original application. During the pendency

of the said application, he died on 22nd January,

1999. The petitioners got themselves substituted

for the deceased Paithankar and prosecuted the

application. The Tribunal rejected that

application as per the impugned order.

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3. The learned counsel for the petitioners

submits that respondent No.3 did not conduct any

inquiry under the provisions the Maharashtra Civil

Services (Discipline and Appeal) Rules, 1979,

("Rules of 1979" for short) and without following

the principles of natural justice, directed

recovery of the above-mentioned amount from the

deceased Paithankar. He further submits that as

per the Maharashtra Civil Services (Pension)

Rules, 1982 ("Rules of 1982" for short), the

Government dues as prescribed in sub-rule (3) only

can be recovered by the Government from the

Government servant due for retirement. He submits

that the liability for the loss due to negligence

does not fall under sub-rule (3) of Rule 132.

Therefore, the above-mentioned amount was not

liable to be recovered from the pensionery

benefits of the deceased Paithankar. He submits

that the impugned orders directing recovery of the

above-mentioned amount from the deceased

Paithankar are totally illegal. On the basis of

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the said orders, petitioner No.1, who is the widow

of the deceased Paithankar, could not get family

pension. He, therefore, prays that the impugned

orders may be set aside and the respondent

Authorities may be directed to sanction family

pension to petitioner No.1.

4. The learned A.G.P. supports the orders

passed by respondent No.3 for recovery of the

above-mentioned amount from the deceased

Paithankar. He submits that the Tribunal has

rightly considered the controversy involved in the

matter and rightly upheld the orders passed by

respondent Nos.2 and 3. He submits that the

amounts sought to be recovered from the deceased

Paithankar were towards the loss sustained by the

Government due to negligence on the part of the

deceased Paithankar in performing his duties as

Godown Keeper. He prays that the Writ Petition may

be dismissed.

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5. As per clause (iii), sub-rule (1) of Rule

5 of the Rules of 1979, recovery from the pay of

the Government Servant of the whole or the part or

any pecuniary loss caused by him to the

Government, by negligence, is a minor penalty. The

procedure for imposing minor penalties has been

given in Rule 10 (1), which reads as under:-

"10. Procedure for imposing minor penalties.-

(1) Save as provided in sub-rule (3) of Rule 9, no order imposing on a Government servant any of the minor penalties shall be made except after,-

(a) informing the Government servant in writing of the proposal to take action against him and of the imputations of misconduct or misbehaviour on which it is proposed to be taken, and giving him a reasonable opportunity of making such representation as he may wish to make against the proposal;

(b) holding an inquiry in the manner laid down in Rule 8, in every case in which the

7 wp5546-2004

disciplinary authority is of the opinion that such inquiry is necessary;

(c) taking into consideration the representation, if any, submitted by the Government servant under Clause (a) of this rule and the record of inquiry, if any, held under Clause (b) of this rule;

(d) recording a finding on each imputation of misconduct or misbehaviour; and

(e) consulting the Commission, where such consultation is necessary."

6. The orders passed by respondent No.3 are

produced on record. There is absolutely no mention

in these orders that the deceased Paithankar was

informed in writing of the proposal to take action

against him and of the misconduct or misbehaviour

of the deceased Paithankar and that he was given

a reasonable opportunity to make representation

against the said proposal, that respondent No.3

took into consideration the representation, if

any, submitted by the deceased Paithankar, and

8 wp5546-2004

that respondent No.3 recorded his finding on

imputations of misconduct or misbehaviour. The

orders passed simply mention that the loss has

been caused to the Government in the sum mentioned

in those orders because of negligence on the part

of the deceased Paithankar and that the amount

mentioned in those orders should be recovered from

him. There is absolutely nothing on record to show

that respondent No.3 had considered the replies

filed by the deceased Paithankar and respondent

No.3 after considering those replies, recorded his

findings on the imputations of misconduct levelled

against the deceased Paithankar. Thus, respondent

No.3 has passed these orders in total disregard to

the provisions of sub-rule (1) of Rule 10 of the

Rules of 1979.

7. It is all along the case of the deceased

Paithankar that he was not at all negligent in

performing his duties as Godown Keeper. A number

of orders have been produced on record passed by

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respondent No.3 holding the deceased Paithankar

not responsible for the loss and writing off the

amounts of the alleged loss. It was expected of

respondent No.3 to record his specific findings in

respect of the charges levelled against the

deceased Paithankar. The orders for recovery of

the amounts towards loss have been passed without

following the due procedure laid down in sub-rule

(1) of Rule 10 of the Rules of 1979 and without

observing the principles of natural justice.

8. Respondent No.2 also did not take into

consideration the deficiencies on the part of

respondent No.3 in passing the orders for recovery

of money from the deceased Paithankar. The orders

passed by respondent No.2 are also very cryptic.

There is absolutely no mention as to why the

explanation given by the deceased Paithankar was

not accepted. Such cryptic orders were not

expected to be passed in such serious matters

where the deceased Paithankar was held responsible

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to pay the amount of Rs.86,514.45.

9. The Tribunal did not attach any importance

to the procedure laid down in sub-rule (1) of Rule

10 of the Rules of 1979 while confirming the

orders passed by respondent Nos.2 and 3. The

Tribunal observed that the deceased Paithankar

himself mentioned that he had furnished his

explanation to the notices issued by respondent

No.3 and therefore, the principles of natural

justice cannot be said to have been flouted by the

respondent No.3. We are of the view that merely

giving notices and seeking explanations of the

Government servant would not fulfill the

requirements of principles of natural justice. It

is expected to pass reasoned orders to show as to

why explanations were not accepted. The orders

for recovery of money from the deceased Paithankar

ought to have been passed as contemplated under

sub-rule (1) of Rule 10 of the Rules of 1979. The

total disregard to the procedure laid down in this

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Rule itself indicates that respondent No.3 did not

follow the principles of natural justice.

10. Admittedly, no departmental enquiry was

held against the deceased Paithankar. Even the

procedure laid down in sub-rule (1) of Rule 10 of

the Rules of 1979 also has not been followed.

Moreover, in the meantime, Shri Paithankar has

expired on 22nd January, 1999. In the

circumstances, the impugned orders directing

recovery of the above mentioned amount from

Paithankar would not sustain.

11. The Writ Petition will have to be allowed.

The impugned order passed by the Tribunal will

have to be quashed and set aside. The respondents

will have to be ordered to process the pension

papers of the deceased Paithankar and consider the

claim of the petitioner No.1 for family pension.

In the result, we pass the following order:-

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                                  O R D E R


(i)           The Writ Petition is allowed.

(ii)          The impugned order passed by the Tribunal 

is quashed and set aside. 


(iii)         The respondents shall process the pension 

case of the deceased Pramod Sadashivrao Paithankar

and release the pensionary benefits as well as

family pension in favour of petitioner No.1 as

expeditiously as possible and preferably within a

period of four months from today, failing which

the respondents would be liable to pay the amount

of pension/family pension with interest at the

rate of Rs. 10% per annum from the date of filing

of the petition till payment of the entire amount.

(iv) Rule is made absolute on the above terms.

(v)           No costs.



       [SANGITRAO S. PATIL]                    [T.V. NALAWADE]
             JUDGE                                  JUDGE

sam/wp5546-2004