Bombay High Court
Diwakar Moreshwar Raje Nagpur vs State Of Mah. Bombay & Another on 20 July, 2017
Bench: Ravi K. Deshpande
wp.863.02
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
WRIT PETITION N0. 863/2002
* Diwakar s/o Moreshwar Raje
Aged about 67 years, occu: Retired
R/o Plot No. 82/83,
Gajanan Prasad Cooperative Housing Society,
Behind Veterinary College,
Seminary Hills, Nagpur. ..PETITIONER.
V E R S U S
1) State of Maharashtra
Through its Secretary
Cooperation and Textile Department
Mantralaya, Bombay-32.
2) The Maharashtra Administrative Tribunal
Nagpur Bench, Nagpur
Through its Registrar ..RESPONDENTS
.
...................................................................................................................
Shri Chinmay S.Dharmadhikari, Adv.h/for Shri Uday Dastane, Advocate
for the petitioner
Shri V.P. Maldhure, Assistant Government Pleader for respondent no.1
...................................................................................................................
CORAM : R.K. DESHPANDE &
MRS. SWAPNA JOSHI, JJ.
DATED : 20 th
July, 2017
ORAL JUDGMENT: (Per R.K.DESHPANDE, J.)
The petitioner was working as a Divisional Joint Registrar,
wp.863.02
Cooperative Societies, Ministry of Cooperation, Marketing and Textiles.
While in service, the petitioner was sent on deputation to work as
Secretary, Agriculture Produce Market Committee at Nagpur ("APMC"
for short) in the year 1988 where he worked till 31.05.1992 when he
attained the age of superannuation as an employee of the State
Government. Upon his superannuation, the petitioner joined the
employment of APMC with effect from 01.06.1992 and in the year 1995
he retired from the service of the APMC also.
2. While working on deputation as Secretary of APMC, the
establishment of APMC forwarded the proposals on 09.05.1992 and
28.05.1992 to the State Government for granting permission to employ
the petitioner in APMC as a Secretary, upon his superannuation from the
services of the State Government. No response was received and the
petitioner joined his employment with APMC on 01.06.1992. The
petitioner was issued show cause notice dated 09.02.1993 under Rules
163 (1) and (3) (c) (f) of the Maharashtra Civil Services (Pension)
Rules, 1982 ( 'Pension Rules' for short), as to why the pension drawn by
the petitioner upon his superannuation from the State Government
should not be withdrawn, as it was found that the petitioner was
wp.863.02
drawing emoluments in the re-employment more than one which he
was getting while in service of the State Government. The petitioner
submitted his explanation and second show-cause notice was issued to
him on 27.05.1993 to which the petitioner submitted reply on
07.06.1993.
3. The petitioner challenged both these show-cause notices by
filing Original Application No.419/1993 before the Maharashtra
Administrative Tribunal at Nagpur. The proceedings of show cause
notice were stayed. During the pendency of the said Original
Application, the State Government passed an order dated 05.01.1995
withdrawing the proceedings of show-cause and granting the petitioner
post-facto permission for employment in APMC with effect from
01.06.1992 i.e. the date on which the petitioner joined his re-
employment. This order imposed certain conditions on which the
petitioner was granted permission which included : (i) return of the
entire amount of pension which the petitioner received from the State
Government from 01.06.1992 till 05.01.1995; and (ii) to refund the
difference of the amount of salary last drawn by the petitioner under the
State Government and the salary which the petitioner received upon his
wp.863.02
re-employment under the APMC. It is not in dispute that the last pay
drawn by the petitioner was of Rs. 4000/- whereas on re-employment
the petitioner started getting an amount of Rs.5,805/- per month.
4. The Maharashtra Administrative Tribunal by its judgment
and order dated 03.01.2002 dismissed the Original Application No.
419/1993 filed by the petitioner recording the finding that the petitioner
secured employment in "commercial establishment" without prior
permission of the State Government which was covered by sub-rule (8)
of Rule 163 of the Pension Rules and by re-employment, the petitioner
was earning profit which would amount to his commercial employment
and apart from this, whether he is employed in "non-commercial
employment", is a fact which is not relevant. The Tribunal has taken a
view that the re-employment of the petitioner was in violation of the
statutory provisions of Rule 163(6) of the Pension Rules and, therefore,
the respondents are granted liberty to take suitable disciplinary action
against the petitioner even to recover the pension paid to him from
01.06.1992 till the date of the delivery of judgment by the Tribunal on
03.01.2002. This is the subject-matter of of challenge in this petition.
wp.863.02
5. We have heard Shri Chinmay Dharmadhikari, the learned
counsel holding for Shri Uday Dastane, for the petitioner and Shri V. P.
Maldhure, the learned Assistant Government Pleader for respondent no.
1. We find that basically two questions are involved in the matter : (i)
whether the "employment" of the petitioner in APMC Nagpur with effect
from 01.06.1992 amounts to the 'commercial employment' as defined in
sub-rule 8(a) (i) of Rule 163 of the Pension Rules, and (ii) whether the
respondent was competent to impose the conditions for grant of
permission in the order dated 05.01.1995 issued under Rule 163(6) of
the Pension Rules, to deprive the pension payable to the petitioner upon
his superannuation from the services of the State Government.
6. Shri Dharmadhikari, for the petitioner has taken us through
the provisions of Sections 11, 12(2), 13(2), 31, 36(1) and 37 of the
Maharashtra Agricultural Produce Marketing (Development &
Regulation) Act, 1963 and the definition of 'commercial employment' in
sub-rule (8) of Rule 163 of the Pension Rules, to urge that the APMC is
a statutory body incorporated under Section 12 performing the functions
of regulating the marketing activities, to prevent the exploitation of the
farmers and is working under the complete supervision and control of
wp.863.02
the State Government. The sources of revenue of the Market Committee
are under Section 31. The constitution of market fund and the expenses
for which the fund is required to be utilized are stipulated under
Sections 36 and 37 of the APMC Act. As such, according to him, the
possibility of the APMC being called as "commercial establishment" is
completely ruled out. He has also urged that once the permission is
granted by the State Government under Rule 163(6) of the Pension Rules
after withdrawing the show cause notice issued, the only ground on
which the pension could be withdrawn is of the breach of any of the
conditions specified in the order granting permission of re-employment.
He therefore submits that the State Government was not competent,
having once granted such permission, to withdraw the pensionary
benefits.
7. Shri Maldhure, the learned Assistant Government Pleader
appearing for the respondent no.1 invited our attention to the reply filed
by the respondents in response to the present petition, in which a stand
is taken that the employment of the petitioner in APMC on the post of
Secretary, is a "commercial employment" as defined under sub-rule (8)
(a) (i) of Rule 163 of the Pension Rules and that the petitioner having
wp.863.02
undertaken the work involving liaison or contract with the officers or the
officers of the Government as contemplated by sub-rule (8)(a) (iii) of
Rule 163 of the Pension Rules, the State Government was competent to
pass an order of withdrawal of pension and putting the conditions in the
order granting permission.
8. Sub-rules (2) ad (3) of Rule 163 of the Pension Rules being
relevant, are reproduced below :
"163. Commercial employment after retirement. -
(1) .....
(2) Subject to the provisions of sub-rule (3), the
Government may, by order in writing on the application
made under sub-rule (1), grant permission, subject to
such conditions, if any, as it may deem necessary, or refuse
permission for reasons to be recorded in the order, to such
pensioner to take up the commercial employment specified
in the application.
(3) In granting or refusing permission under sub-
rule (2) to a pensioner for taking up any commercial
employment, the Government shall have regard to the
wp.863.02
following factors, namely:-
(a) the nature of the employment proposed to be
taken up and the antecedents of the employee;
(b) whether his duties in the employment which
he proposed to take up might be such as to bring him
into conflict with Government;
(c) whether the pensioner while in service had
any such dealing with the employer under whom he
proposed to seek employment as might afford a
reasonable basis for the suspicion that such
pensioner had shown favour to such employer;
(d) whether the duties of the commercial
employment proposed involve liaison or contract
work with government departments;
(e) whether his commercial duties will be such
that his previous official position or knowledge or
experience under Government could be used to give
the proposed employer an unfair advantage;
(f) the emoluments offered by the proposed
employer; and
wp.863.02
(g) any other relevant factors."
There is no total prohibition for re-employment of the
Government servant in commercial establishment immediately upon his/
her superannuation from the Government service. The commercial
employment is permissible by obtaining permission under sub-rule (2)
of Rule 163 reproduced above. There is no prohibition for securing re-
Corrected as
per Court's employment by the Government servant upon retirement, in non-
order dated
03-08-2017
commercial employment. If the application is made for grant of such
permission, the Government may grant or refuse to grant such
permission for the reasons to be recorded in the order, in terms of sub-
rule (2) of Rule 163. The factors which are to be taken into consideration
by the Government while granting or refusing to grant such permission
are enumerated under sub-rule (3) of Rule 163.
9. Sub-rule (6) of Rule 163 of the Pension Rules provides for
the consequences of taking up commercial employment by any
Government servant before expiry of two years from the date of his
retirement without obtaining prior permission of the Government and
also of committing breach of any conditions subject to which the
wp.863.02
permission to take up any commercial establishment has been granted.
In both these events, the consequences provided are the same that the
Government becomes competent to declare by an order in writing and
for the reasons to be recorded therein that such Government servant
shall not be entitled to the whole or such part of pension and for such
period as may be specified in the order.
10. If the re-employment of the petitioner in APMC is not
covered by the expression 'commercial employment' as defined in sub-
rule (8) of Rule 163 of Pension Rules, then it was not necessary for the
petitioner to have obtained the prior permission of the State Government
while joining the service in APMC. However, it is not necessary for us
to consider the argument of Shri Dharmadhikari that the petitioner's re-
employment in APMC was under a body corporate wholly or specifically
controlled by the State Government and, therefore, excluded from the
definition of "commercial employment". The reason being that the State
Government has already granted permission that too with effect from the
date on which the petitioner was re-employed in the services of the
APMC with effect from 01.06.1992.
wp.863.02
11. Once the permission was granted for re-employment to the
petitioner with effect from 01.06.1992, it was not permissible for the
respondents to withdraw whole or any part of the pension available to
the petitioner, without having come before the court with a case of the
breach of the terms and conditions of such permission. After going
through the order granting permission passed by the State Government,
we find that the permission granted is totally unconditional and still the
petitioner is made to suffer the consequences of withdrawing the
pension. In our view, this is not permissible under sub-rule (6) of Rule
163 of the Pension Rules. Once the permission is granted, the question
as to whether the petitioner has undertaken the work involving liaison
or a contract with the Officers or the Officers of the Government without
narrating specific instances, would hardly be of any relevance. The State
Government is deemed to have taken into consideration the factors
specified in sub-rule (3) of Rule 163, while granting permission. We
therefore, find that the State Government was not competent to pass an
order of withdrawal of pension while granting permission to the
petitioner for re-employment by an order dated 5th January, 1995.
12. Coming to the finding recorded by the Maharashtra
wp.863.02
Administrative Tribunal, we are unable to subscribe the view taken that
even if the employment of the petitioner is considered to be one in non-
commercial, still if the petitioner gets benefits and profits from his re-
employment in violation of the statutory provisions of law, he has to
face suitable disciplinary action for recovery of pension paid to him from
01.06.1992 till the date of the judgment. Merely because the petitioner
started drawing more emoluments upon his re-employment than one
which he was getting while in the employment of the State Government,
that by itself, would not be enough to attract the penalty under sub-rule
(6) of Rule 163 of the Pension Rules. We, therefore, cannot sustain the
order passed by the Maharashtra Administrative Tribunal dismissing the
Original Application filed by the petitioner.
13. In the result, this Writ Petition is allowed. The judgment
and order dated 03.01.2002 passed by the Maharashtra Administrative
Tribunal in Original Application No.419/1992 is hereby quashed and set
aside. The Original Application No.419/1993 is allowed. The order dated
05.01.1995 passed by the State Government to the extent it proposes to
recover the amount of pension paid to the petitioner and to make
adjustments cannot be sustained and the same is therefore quashed and
wp.863.02
set aside. The respondents shall continue to pay the regular full pension
to the petitioner upon his superannuation with effect from 31.05.1992,
if there is no other impediment.
14. Rule is made absolute in the aforesaid terms. No order as to
costs.
JUDGE JUDGE
sahare
