Pandhrinath Gathlu Wani vs The State Of Mah & Ors
2017 Latest Caselaw 3037 Bom

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD


                        WRIT PETITION NO. 3098 OF 2006


Pandhrinath s/o Gathlu Wani,
Age : 70 years, Occu. Retired
School Teacher, R/o Nizampur,
Bazarpeth Galli, Tq. Sakri,
District Dhule                                             PETITIONER 

       VERSUS

1.     The State of Maharashtra,
       through Secretary to Education 
       and Employment Department,
       Mantralaya, Fort, Mumbai

2.     The Chief Executive Officer,
       Zilla Parishad, Dhule

3.     The Education Officer
       (Primary), Zilla Parishad,
       Dhule

4.     The Block Development Officer,
       Taluka Panchayat Samittee,
       Sakri, District Dhule                               RESPONDENTS
 

                          ----
Mr. Amit A. Mukhedkar, Advocate for the Petitioner
Mr. S.W. Munde, A.G.P. for respondent No. 1/State
Mr. Unmesh B. Shriram, Advocate holding for Mr. D.S. 
Bagul, Advocate for respondent Nos. 2, 3 and 4
                          ----


                                    CORAM :   T.V. NALAWADE AND
                                              SANGITRAO S. PATIL, JJ.

                                    DATE  :   12th JUNE, 2017




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

Heard the learned counsel for the petitioner,

the learned counsel for respondent Nos. 2 to 4 and the

learned A.G.P.

2. The petitioner has claimed refund of

Rs.19,720/- with interest at the rate of Rs.18% per

annum which amount, according to him, has been wrongly

deducted from his pension by respondent-authorities of

the Zilla Parishad, Dhule.

3. The learned counsel for the petitioner submits

that the petitioner was serving as a Primary Teacher

with Zilla Parishad, Dhule. He retired on attaining the

age of superannuation on 31st March, 1993. He received a

notice dated 4th September, 1995 from respondent No. 4 -

Block Development Officer, calling upon him to show

cause as to why an amount of Rs. 19,720/- should not be

recovered from his pension on account of the alleged

misappropriation. The petitioner replied that notice on

21st September, 1995 and denied his liability to pay the

above mentioned amount. He refused to have committed

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any misappropriation. Thereafter, without holding any

enquiry, the amount of Rs. 19,000/- came to be deducted

from his pension with effect from February, 2003 to

September, 2004. The learned counsel submits that the

deduction so made from the pension of the petitioner

without holding any enquiry or extending any opportunity

of hearing to the petitioner, is totally unwarranted and

illegal. He submits that in Writ Petition No. 7496 of

2004 filed by one Vasantrao Ragho Mahale against the

respondent-authorities of Zilla Parishad, Dhule on the

similar set of facts, has been allowed by this Court

vide judgment and order dated 28th February, 2005 and the

respondent-authorities have been directed to refund the

amount deducted from the salary of the petitioner

therein.

4. The learned counsel for the respondent-

authorities, based on the contents of the affidavit-in-

reply, submits that as per the report of the Special

Auditor, the total amount of Rs.21,25,386.45 was found

to have been misappropriated and out of that amount, the

amount of Rs.19,720/- was found to have been

misappropriated by the petitioner. This amount was

required to be recovered from the petitioner. It was

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decided to impose minor penalty on the petitioner in the

form of recovery of the said amount. Therefore, after

giving him the show-cause notice and considering

the reply given by the petitioner, the amount of

Rs.19,720/- came to be recovered from his pension. He

submits that it was not necessary to hold any enquiry

since minor penalty was to be imposed on the petitioner.

He supports the impugned recovery.

5. The procedure for imposing minor penalty is

provided in Rule 7 of the Maharashtra Zilla Parishads

District Services (Discipline & Appeal) Rules, 1964,

which reads as follows :-

"7. Procedure for imposing minor penalties.-

(1) No order imposing any of the penalties specified in clauses (i) to (iii) and clause

(viii) of Rule 4 shall be passed except after -

(a) the Parishad servant is informed in writing of the proposal to take action against him and of the allegations on which it is proposed to be taken and given an opportunity to make any representation he may wish to make, and

(b) such representation, if any, is taken into consideration by the Disciplinary Authority.

(2) The record of proceedings in such cases shall include -

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(i) a copy of the intimation to the Parishad servant of the proposal to take action against him;

(ii) a copy of the statement of allegations communicated to him;

(iii)his representation, if any; and

(iv) the orders o the case together with the reasons thereof.

6. The learned counsel for the respondent-

authorities referred to Rule 4 clause (iii) of the said

Rules which speaks of the minor penalty in the form of

recovery from pay of the whole or part of any pecuniary

loss caused to the Zilla Parishad by negligence or

breach of orders.

7. Basically, as per the above mentioned clause

(iii) of Rule 4, the recovery can be made from the pay

of the employee of the Zilla Parishad and not from his

pension. That means the employee should be in the

service at the time of recovery. Moreover, the said

recovery can be made for any pecuniary loss caused to

the Zilla Parishad by negligence or breach of orders.

The amount alleged to have been misappropriated cannot

come under the loss caused by negligence or breach of

orders. Therefore, clause (iii), referred above, would

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not be applicable for recovery of the amount alleged to

have been misappropriated and that too from the pension.

Even if it is accepted for a while that such recovery

can be made from pension, the procedure laid down in

Rule 7, referred to above, was required to be followed.

Except issuing show-cause notice to the petitioner, no

further steps have been taken by the respondent-

authorities as contemplated under Rule 7. Thus, the

alleged recovery of the amount from the pension of the

petitioner is totally illegal.

8. There is one more hurdle in the way of the

respondent-authorities to recover the amount of alleged

misappropriation from the petitioner. It is alleged

that the misappropriation was committed during the

period from 1985-86 to 1991-92. The employees of the

Zilla Parishad are governed by the Maharashtra Civil

Services (Pension) Rules, 1982. As per clause (b) of

sub-Rule (2) of Rule 27 of the said Rules, in case the

departmental proceedings, if not instituted while the

Government servant was in service, whether before his

retirement or during his re-employment, shall not be

instituted save with the sanction of the Government and

it shall not be in respect of any event which took place

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more than four years before retirement. In the present

case, the departmental enquiry was not initiated against

the petitioner when he was in service or even after his

retirement. Consequently, the amount of Rs.19,720/- was

not liable to be deducted from the pension of the

petitioner.

9. We have perused the judgment dated 28 th

February, 2005, delivered by this Court in the case of

Vasantrao Ragho Mahale (supra), which was almost based

on the identical facts, wherein this Court has quashed

and set aside the order passed by the respondent-

authorities directing deduction of the alleged

misappropriated amount from the salary of the pension of

the petitioner therein and ordered to refund the amount

so deducted to him.

10. Considering the above facts and circumstances

of the case, the Writ Petition deserves to be allowed.

Since the amount of Rs. 19,720/- has been illegally

deducted from the pension of the petitioner, the

respondent-authorities will have to be directed to

refund the said amount with interest at the rate of Rs.

9% per annum from the date of filing of the Writ

8 wp3098-2006

Petition. In the result we pass the following order:-

(i)           The Writ Petition is allowed.


(ii)          The   order   passed   pursuant   to   the   show-cause 

notice dated 4th September, 1995 for deduction

of the amount of Rs. 19,720/- from the pension

of the petitioner, is quashed and set aside.

(iii) Respondent Nos. 2 to 4 are directed to refund

the amount of Rs. 19,720/- to the petitioner

with interest at the rate of Rs. 9% per annum

from the date of filing this Writ Petition i.e.

23rd December, 2005 until the date of refund.

(iv) The parties shall bear their own costs.

(v) Rule is made absolute in the above terms.

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


npj/wp3098-2006