Bombay High Court
Asharam Maktaji Shikare vs The State Of Mah & Ors on 11 July, 2017
Bench: T.V. Nalawade
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2581 OF 2005
Asharam s/o Muktaji Shikare
(Since deceased through his L.Rs.)
1. Vimal w/o. Asaram Shikare,
age : 68 years, Occu.: Household,
2. Dnyandeo s/o Asaram Shikare,
age : 49 years, Occu.: Agriculture,
3. Sanjay s/o Asaram Shikare,
Age : 40 years, Occu.: Agriculture,
All r/o. Umbre, Tal. Rahuri,
District Ahmednagar PETITIONERS
VERSUS
1. The State of Maharashtra,
Through Secretary,
Rural Development Department,
Maharashtra State, Mantralaya,
Mumbai
2. The Chief Executive Officer,
Zilla Parishad, Ahmednagar
3. The Education Officer (Primary),
Zilla Parishad, Ahmednagar
4. The Block Education Officer,
P.S. Akole,
Dist. Ahmednagar RESPONDENTS
----
Mr. A.S. Shelke, Advocate for the Petitioners
Mr. S.B. Pulkundwar, A.G.P. for respondent No.1
Mr. S.T. Shelke, Advocate for respondent Nos.2 to 4
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CORAM : T.V. NALAWADE AND
SANGITRAO S. PATIL, JJ.
JUDGMENT RESERVED ON : 20th JUNE, 2017
JUDGMENT PRONOUNCED ON : 11th JULY, 2017
JUDGMENT (PER : SANGITRAO S. PATIL, J.) :
Heard the learned counsel for the contesting
parties and the learned A.G.P.
2. The deceased petitioner was serving as a
Primary Teacher in Zilla Parishad, Ahmednagar. Crime
No. III-10/27 of 1987 was registered against him in
Police Station, Akole, District Ahmednagar for the
offence punishable under Section 66 (1) (b) of the
Bombay Prohibition Act and under Section 110 punishable
under Section 117 of the Bombay Police Act. He was
arrested on 26th February, 1987 and produced on 27th
February, 1987 before the learned Judicial Magistrate
First Class, Akole with the chargesheet. The deceased
petitioner pleaded guilty and accordingly, he was
convicted and sentenced to suffer imprisonment till
rising of the Court and to pay a fine of Rs. 200/-, in
default to suffer simple imprisonment for ten days.
3. Respondent No. 2 - Chief Executive Officer,
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Zilla Parishad, Ahmednagar passed an order on 19 th
February, 1988 and dismissed the deceased petitioner
from service on the ground that he was convicted and
sentenced as stated above and the deceased petitioner
himself had informed by letter dated 8th August, 1987
that he had not filed any appeal against his conviction
and sentence.
4. It seems that the deceased petitioner then
filed an appeal before the Sessions Court and then
Revision Application No.116 of 1994 before the High
Court against his conviction and sentence. The Revision
Application came to be allowed and the conviction and
sentence passed against the deceased petitioner came to
be set aside and S.T.C. No.103/1987, in which he was
convicted, came to be remanded for trial before the
learned Judicial Magistrate First Class, Akole.
Accordingly, the said case was re-tried and ultimately,
the deceased petitioner came to be acquitted on 15th
November, 2003. In the meanwhile, the deceased
petitioner attained the age of superannuation on 31 st
March, 2002.
5. The petitioner made a representation before
respondent No.2 on 27th November, 2003 and claimed salary
4 wp2581-2005
in respect of the period from the date of termination of
his services till the date of his attaining the age of
superannuation and all the retiral benefits including
the pension and gratuity in respect of the period from
1st April, 2002 onwards.
6. Respondent No.2 passed an order on 16th
November, 2004 and set aside the order dated 19 th
February, 1988 terminating the services of the deceased
petitioner that was passed consequent upon his
conviction and sentence and ordered that the deceased
petitioner should be paid the admissible subsistence
allowance under Rule 68 of the Maharashtra Civil
Services (Joining Time, Foreign Service and Payment
during Suspension, Dismissal and Removal) Rules, 1981
("the Rules of 1981", for short), in respect of the
period from 9th March, 1988 to 31st March, 2002.
Respondent No.2 further issued a notice dated 16 th
November, 2004 to the deceased petitioner to show cause
as to why the period from 9th March, 1988 to 31st March,
2002, which is the period of deemed suspension, should
not be treated as the period of suspension only and why
the said period should not be excluded from
consideration for the purposes of salary, increments,
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leave, pension, etc.
7. The deceased petitioner replied the show cause
notice on 22nd November, 2004. He conceded to the
statement made in the show cause notice dated 16th
November, 2004 that the period from 9th March, 1988 to
31st March, 2002 should be treated as the period of
suspension and further expressed his approval for
payment of subsistence allowance only in respect of the
said period. However, he requested respondent No.2 to
treat the said period as qualifying service for the
purpose of pension and prayed for grant of pension
accordingly.
8. Respondent No. 2 considered the explanation of
the deceased petitioner and passed the impugned order on
6th January, 2005 treating the period from 9 th March, 1988
to 31st March, 2002 as the period of suspension only and
ordered payment of subsistence allowance in respect of
the said period. Respondent No.2 declined to treat the
said period as a qualifying service for the purpose of
pensionery benefits. The petitioner has challenged the
said part of the order passed by respondent No.2 in the
present petition.
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9. During the pendency of the petition, due to
demise of the petitioner, his widow and two sons, being
his legal heirs, came to be subsisted in his place.
10. The learned counsel for the petitioners submits
that respondent No.2 wrongly resorted to the provisions
of Rule 70 of the Rules of 1981 for denying the claim of
the petitioner for treating the period from 9 th March,
1988 to 31st March, 2002 as a qualifying service for the
purpose of pension. He further submits that the deceased
petitioner was never suspended under any of the clauses
under Rule 4 of the Maharashtra Zilla Parishads District
Services (Discipline and Appeal) Rules, 1964 ("the Rules
of 1964", for short). Therefore, neither Rule 70 nor
Rule 72 of the Rules of 1981 was applicable and the
deceased petitioner was entitled to claim full salary
during the period from the date of his pension till the
date of his attaining the age of superannuation and full
pension after he attained the age of superannuation. In
support of this contention, he relied on the judgment in
the following cases:-
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(i) Baban Shriram Wafare Vs. Zilla Parishad,
Ahmednagar,
2002 (3) Mh.L.J. 390
(ii) Balvantrai Ratilal Patel Vs. State of
Maharashtra,
AIR 1968 SC 800
(iii) Bhaurao Jairam Kadam Vs. Nanded Zilla Parishad,
Nanded
CLR 2000 3 322
(iv) Smt. Khairunnissa Rasool Golandaj Vs. State of
Maharashtra (through the Secretary, Public
Health Department) and the Commissioner
Employees State Insurance Scheme,
2015 (3) ALL M.R. 287
(v) Nanuram Vs. State of Maharashtra and others
2017 (3) Mh.L.J. 251
(vi) Dnyaneshwar Vs. State of Maharashtra
2015 (1) Mh.L.J. 761
(vii) Dattatraya Vasudeo Kulkarni Vs. Director
of Agriculture, Maharashtra and others
1984 Mh.L.J. 406
11. On the other hand, the learned counsel for
respondent nos.2 to 4 submits that the deceased
petitioner, on his admitting guilt, was convicted and
sentenced for the offence punishable under Section 66
(1) (b) of the Bombay Prohibition Act and under Section
110 punishable under Section 117 of the Bombay Police
Act. He pointed out to the order dated 19th February,
1988 passed by respondent No.2 wherein there is specific
mention that the petitioner himself informed respondent
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No.2 vide letter dated 8th August, 1987 that he had not
filed any appeal against his conviction and sentence.
Therefore, the deceased petitioner came to be terminated
from service. The order of termination was served on him
on 9th March, 1988. He pointed out to the provisions of
sub-rule (1) (b) of Rule 3 of the Rules of 1964.
Respondent No.2 was empowered to place the deceased
petitioner under suspension because of institution of
criminal case for the above-mentioned offences in which
he was convicted on the next date of his arrest. He
submits that the deceased petitioner subsequently filed
appeal and then revision challenging his conviction and
sentence. According to him, the appeal and revision
application filed by the deceased petitioner would
amount to the continuation of the trial. Therefore, in
view of sub-rule (4) of Rule 3, the deceased petitioner
would be deemed to have been placed under suspension
from the date of the order of his dismissal till the
date on which he attained the age of superannuation.
According to him, as per Rule 72 (5) of the Rules of
1981, the discretion was vested in respondent No. 2 to
consider the representation of the deceased petitioner
and to decide entitlement of the deceased petitioner to
the pay/pension by treating the period of suspension as
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the suspension only or a period spent on duty. He
submits that in view of the judgment in the case of
Vishwanath s/o Narayan Dhole Vs. The State of
Maharashtra and others in Writ Petition No. 4065 of
1994, decided by this Court on 23 rd June, 2010, the
deceased Petitioner was not entitled to claim that the
period from the date of his dismissal to the date of his
attaining the age of superannuation should be treated as
a period spent on duty for the purposes of getting the
pensionary benefits. He, therefore, prays that the Writ
Petition may be dismissed.
12. As per the show-cause notice dated 16th
November, 2004, respondent No. 2 specifically informed
the deceased petitioner that as per the provisions of
sub-rule (4) of Rule 3 of the Rules of 1964 and in view
of the Government Resolution dated 12th June, 1986, the
period from 9th March, 1988 to 31st March, 2002 is
required to be treated as a period of suspension and
accordingly, it has been treated so. He called upon the
deceased petitioner to show cause as to why the
subsistence allowance, which has been sanctioned to the
deceased petitioner in respect of the said period,
should not be confirmed and as to why the said period
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should not be considered for the purpose of his pay,
increments, leave, pension, etc.
13. In the reply dated 22nd November, 2004, the
deceased petitioner unequivocally accepted the decision
of respondent No. 2 to treat the period from 9th March,
1988 to 31st March, 2002 as the period of suspension of
the deceased petitioner and to accept payment of
subsistence allowance only in respect of that period.
With this specific admission on the part of the deceased
petitioner, he was estopped from challenging the said
decision subsequently. Once it is held that the period
from 9th March, 1988 to 31st March, 2002 was the period of
deemed suspension of the deceased petitioner, the
provisions of Rule 72 of the Rules of 1981 would be very
much applicable. The said Rule empowered respondent No.
2 to use his discretion in the matter of deciding
whether or not the above-referred period shall be
treated as the period spent on duty and whether pay and
allowances also should be paid or not. As per sub-rule
(5) of Rule 72, respondent No. 2 had a discretion to
decide as to what amount (not being the whole) of the
pay and allowances should be paid to the deceased
petitioner. Accordingly, respondent No. 2 rightly
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issued a notice to show cause on 16 th November, 2004 and
after considering the reply dated 22nd November, 2004
filed by the deceased petitioner, passed the impugned
order.
14. Though the petitioner was acquitted of the
above mentioned offences considering the fact that the
petitioner, who was holding a respectable post of a
Primary Teacher, was convicted and sentenced on his own
admission for the offences of unlawfully consuming
liquor and misbehaving in a public place under the
influence of liquor, respondent No. 2 rightly used his
discretion in not treating the period from 9th March,
1988 to 31st March, 2002 as a period spent by the
deceased petitioner on duty for the purpose of even
pensionary benefits. Respondent No. 2 rightly refused
the full salary to the deceased petitioner in respect
of the said period and pension as well on the basis of
full salary. The judgment in the case of Vishwanath
s/o Narayan Dhole (supra), cited by the learned counsel
for respondent No. 2, would be very much applicable to
the facts of the present case.
15. It seems that respondent No. 2 has wrongly
quoted Rule 70 instead of Rule 72 in the impugned order.
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However, it is well settled that if the exercise of a
power can be traced to a legitimate source, the fact
that the same was purported to have been exercised under
a different power does not vitiate the exercise of the
power in question. Moreover, mere mention of a wrong
provision of law, when the power exercised is available
even though under a different provision, is by itself
not sufficient to invalidate the exercise of that power.
16. Considering the peculiar facts of the present
case we hold that respondent No. 2 has rightly exercised
the discretion vested in him in refusing continuity of
service for the purpose of pensionary benefits as
claimed by the petitioner, the judgments cited above by
the learned counsel for the petitioners, which are
distinguishable on facts, would not be helpful to the
petitioner to claim the reliefs prayed for.
17. Considering the above facts and circumstances
of the case, we are not inclined to interfere with the
impugned order passed by respondent No. 2. The Writ
Petition is devoid of any substance. It is liable to be
dismissed. In the result, we pass the following order:-
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O R D E R
(i) The Writ Petition is dismissed.
(ii) Rule is discharged.
(iii) No costs.
[SANGITRAO S. PATIL] [T.V. NALAWADE]
JUDGE JUDGE
npj/wp2581-2005
