Bombay High Court
Pravin S/O Bhaskarrao Ragit vs Maharashtra Jeevan Pradhikaran, ... on 21 July, 2017
Bench: B.P. Dharmadhikari
wp5988.16 1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH
WRIT PETITION NO. 5988 OF 2016
Pravin s/o Bhaskarrao Ragit,
aged 48 years, occupation -
Nil, r/o 117, Shastri Layout,
Khamla, Nagpur. ... PETITIONER
Versus
1. Maharashtra Jeevan Pradhikaran,
4th Floor, Express Towers, Nariman
Point, Mumbai, through its Member
Secretary.
2. Chief Administrative Officer,
Maharashtra Jeevan Pradhikaran,
4th Floor, Express Towers, Nariman
Point, Mumbai.
3. The Chief Engineer, Maharashtra
Jeevan Pradhikaran, Nagpur Region,
Telangkhedi Road, Civil Lines,
Nagpur.
4. State of Maharashtra through
Secretary, Department of Water
Supply and Sanitation,
Mantralaya, Mumbai 400 032. ... RESPONDENTS
Shri P.D. Meghe, Advocate for the petitioner.
Shri D.M. Kakani, Advocate for respondent Nos. 1 to 3.
Shri A.A. Madiwale, AGP for respondent No. 4.
.....
CORAM : B.P. DHARMADHIKARI &
ROHIT B. DEO, JJ.
JULY 21, 2017.
ORAL JUDGMENT : (PER B.P. DHARMADHIKARI, J.)
Heard Shri P.D. Meghe, learned counsel for the
petitioner, Shri D.M. Kakani, learned counsel for respondent Nos. 1
to 3 and Shri A.A. Madiwale, learned AGP for respondent No. 4.
2. The petitioner has approached this Court, challenging a
communication dated 12.04.2016, by which his notice for Voluntary
Retirement has been rejected on the ground that if the period from
19.03.2012 to 23.02.2014 of one year and 11 months, during which
he was absent without permission, is excluded, till 03.04.2016, he
completes total service of 18 years and 7 months and as such, does
not satisfy the requirement of putting in qualifying service of 20
years as per Voluntary Retirement Scheme (VRS).
3. Shri Meghe, learned counsel for the petitioner submits
that the petitioner gave application for proceeding on VRS on
04.01.2016 and it was not rejected within a period of 90 days. It is,
therefore, deemed to have been granted on 04.04.2016.
Accordingly, on that day, the petitioner has proceeded on voluntary
retirement.
4. Without prejudice, he points out that for processing
said application, his employer needed necessary clearance and
certificate that no Departmental Enquiry is pending, which was also
issued by the Competent Authority on 29.03.2016. However, after
his retirement, by way of after thought, two orders have been
issued. By order dated 03.12.2016, the period of absence
mentioned supra has been treated as 'dies non' and by the other
order dated 17.12.2016, two future increments of the petitioner
have been withheld for two years without cumulative effect.
5. Shri Meghe, learned counsel submits that punishment
of withholding increments is in relation to charge sheet dated
08.09.2014. The petitioner had submitted reply thereto immediately
and thereafter did not receive any intimation about the
Departmental Enquiry. No dates of hearing were fixed and as such,
the petitioner was under the impression that the departmental
inquiry has been dropped. Shri Meghe, learned counsel, therefore,
seeks a direction to his employer to treat the petitioner as retired on
04.04.2016 and to release in his favour, necessary consequential
benefits.
6. Shri Kakani, learned counsel is relying upon the reply
affidavit. He points out that the service of charge sheet dated
08.09.2014 upon the petitioner or submission of reply thereto on
27.12.2014 is not in dispute. In this situation, when there was no
order passed by the employer, dropping Departmental Enquiry, the
alleged impression of the petitioner is erroneous and misconceived.
He relies upon the letter dated 11.03.2016 sent by the Chief
Engineer to the Establishment Officer (Vigilance) inquiring about
the Departmental Enquiry and soliciting no inquiry certificate. The
copy of that communication is sent to the petitioner also.
7. Shri Kakani, learned counsel heavily relies upon the
insistence therein, though no inquiry certificate was received, to
examine the status of pending inquiry, and said letter was sent with
a request to communicate the correct position. He, therefore,
contends that the petitioner was even on 04.04.2016 aware that
inquiry against him is not dropped. As office procedure took some
time, no express reply could be given to the petitioner and the
petitioner unilaterally got himself relieved on 04.04.2016. He was
not relieved by any responsible officer of the respondents, as his
VRS request was not accepted. He further contends that in
Departmental Inquiry, appropriate punishment order has been
passed on 17.12.2016 and two increments have been withheld. The
petitioner also moved an application for regularizing his absence on
20.06.2016 and consequent to it, on 03.12.2016, an order treating
said period as 'dies non' has been passed. He contends that in this
situation, the presumption of acceptance of VRS, in view of non
communication of decision, cannot be attracted.
8. After hearing respective counsel and perusal of records,
we find that the petitioner was very much aware of the fact that the
period of his absence from 19.03.2012 to 23.02.2014 was not
regularized. He, therefore, on 20.06.2016 moved an application and
sought regularization. In this application, he has pointed out that
this issue of regularization was pending since last more than 2½
years.
9. The communication dated 11.03.2016 sent by the Chief
Engineer to Establishment Officer (Vigilance) mentioned supra
again shows knowledge to the petitioner that clarification on status
of pending Departmental Inquiry was expressly sought by the Chief
Engineer. The petitioner, therefore, on 04.04.2016 was very much
aware that the Departmental Enquiry against him for alleged
absence between 19.03.2012 to 23.02.2014 was very much pending.
10. It is no doubt true that in a given case, employer may
forget or forgive such lapse and grant VRS. But here, when
Departmental Inquiry was pending, period of absence was not
regularized and the petitioner himself was aware that he was not
completing the requisite period of 20 years of qualifying service, we,
therefore, find that the contention of deemed acceptance of request
for VRS is misconceived.
11. The Chief Administrative Officer of the respondents has
on 12.04.2016 sent a communication to the Chief Engineer, pointing
out that minus the above period, the petitioner puts in only 18 years
and 7 months of service and, therefore, does not qualify for VRS. A
perusal of said communication shows that the petitioner was absent
during the said period without permission and recommendation was
made on 27.01.2016 by the office of the Chief Engineer to
regularize that absence as extra ordinary leave. The Chief
Administrative Officer has pointed out that the said period could not
have been accepted as period of qualifying service while computing
pension.
12. We find that thereafter on 20.06.2016, the petitioner
sought regularization of his period of absence. The first order in this
respect is issued on 03.12.2016 and in that order, without mention
of pending Departmental Inquiry or any inquiry report, Member
Secretary has directed to treat said period as dies non and break in
service. Thereafter on 17.12.2016, the Superintending Engineer has
passed an order and in that order, he mentioned report of Inquiry
Officer. The report of Enquiry Officer appears to be dated
04.06.2016. For the reasons recorded by the Superintending
Engineer, punishment of withholding two increments, after said
period, for a period of two years without cumulative effect, has been
imposed upon the petitioner.
13. The respondents are not in a position to point out any
provision in Service Rules which empowers them to treat said period
as dies non. The question is, if the period is wiped out totally from
services of the petitioner, whether it constitutes punishment ? We
need not go into that aspect here, as admittedly for the very same
period of absence, the Superintending Engineer has imposed
punishment of withholding two increments. This order of
punishment along with the order dated 03.12.2016 has been
questioned before this Court.
14. The record does not show that after the petitioner
submitted his reply to charge sheet, any hearing has been conducted
before the Enquiry Officer and the petitioner was given an
opportunity by the Enquiry Officer. The respondents have also not
demonstrated that the adverse report of the Enquiry Officer was
forwarded to the petitioner and he was given an opportunity to
meet the findings therein. This act of not forwarding the report
militates with the observations of the Hon'ble Apex Court in the case
of Union of India & Ors. vs. Mohd. Ramzan Khan, reported at AIR
1991 SC 471 and in Managing Director, Electronics Corporation of
India Limited vs. Karunakar & Ors., reported at (1993) 4 SCC 727.
15. In this situation, though we cannot find fault with the
action of the respondents in refusing to accept his request for
voluntary retirement, later two orders i.e. dated 03.12.2016 and
17.12.2016 cannot be upheld. We, therefore, quash and set aside
those orders.
16. As the petitioner has now received a copy of inquiry
report with submissions, we grant him leave to submit his say before
the Disciplinary Authority in relation to findings recorded against
him.
17. It is open to the Disciplinary Authority to grant him an
opportunity to cross examine the witnesses, if any, lead evidence in,
defence. After completing inquiry in accordance with law, a fresh
order in this respect shall be passed by the Enquiry Officer. This
exercise shall be completed within a period of four months.
18. The decision regarding treatment to be accorded to the
period of absence of the petitioner from 04.04.2016 onwards shall
be taken by the Competent Authority thereafter within a period of
next three months. The petitioner states that he would report for
duties on 01.08.2017. The period mentioned supra shall commence
from the said date.
19. Accordingly, we partly allow the present writ petition
and dispose it of. However, in the facts and circumstances of the
case, there shall be no order as to costs.
JUDGE JUDGE
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*GS.
