Bombay High Court
Zp,Wardha,Thr.Its Cheif ... vs Bhaurao Bhagwan Golhar on 30 March, 2017
Bench: Ravi K. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO.295 OF 2007
1] Zilla Parishad, Wardha
through it's Chief Executive
Officer.
2] The Block Development Officer,
Panchayat Samiti, Hinganghat,
District Wardha. ....... PETITIONERS
...V E R S U S...
Bhaurao Bhagwan Golhar
Aged 62 years,
Occupation: Retired,
R/o Sant Gyneshwar Ward,
Hinganghat, District Wardha. ....... RESPONDENT
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Shri P.D. Meghe, Advocate for Petitioners.
Shri M.R. Rajgure, Advocate for Respondent.
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CORAM: R.K. DESHPANDE, J.
th MARCH, 2017.
DATE: 30
ORAL JUDGMENT
1] This petition challenges the order dated 24.10.2005
passed by the Industrial Court at Nagpur in Complaint (ULPN)
No.119 of 2003. The complaint has been allowed and it is
declared that the petitioners are engaged in an unfair labour
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practice prescribed under Item 9 of Schedule IV of the
Maharashtra Recognition of Trade Unions and Prevention of
Unfair Labour Practices Act, 1971 (for short "MRTU and PULP
Act) by issuing the order of punishment dated 15.01.2005 and
reducing the pension of the respondent-complainant by 5%
permanently and making recovery of Rs.3,03,701/- from the
pensionary benefits of the complainant.
2] The facts not in dispute are as under:
The respondent, hereinafter called as "the
complainant", was working as Junior Accounts Officer in
Panchayat Samiti at Hinganghat. An enquiry against him was
conducted for the act of negligence on his part in not depositing
124 cheques of Rs.8,55,457/- and 94 cheques of Rs.1,59,333/-
within a stipulated time. The enquiry report was submitted on
23.10.2001, holding the complainant guilty of the charges levelled
against him. A show cause notice dated 11.11.2002 was issued for
punishment of reducing the pension of the petitioner by 25% and
for recovery of Rs.9,11,103/- which is the interest on the loss of
Rs.99,47,768/- incurred, from the pension payable to the
complainant. This show cause notice was issued after the
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complainant retired from service on superannuation w.e.f.
30.09.2002. By an order dated 15.01.2003 the ultimate
punishment imposed upon the complainant was - (i) to reduce
the pension by 5% permanently and (ii) to recover an amount of
Rs.3,03,701/- from the retiral benefits available to the
complainant.
3] In the challenge to the order dated 15.01.2005 before
the Industrial Court in complaint (ULPN) No.119 of 2003, it was
held that the departmental enquiry against the complainant was
continued after the retirement of the complainant on 30.09.2002.
The second show cause notice was issued on 11.12.2002 and the
order of punishment was passed on 15.01.2003. It holds that
there was no order passed by the petitioner-employer, intimating
the complainant that the enquiry proceedings shall be continued
even after the complainant attained the age of superannuation.
Relying upon the decision of the Division Bench of this Court in
case of Madanlal Sharma vs. State of Maharashtra and others
reported in 2004(1) Mh.L.J. 581, it is held that the order dated
15.01.2005 cannot be sustained and it has therefore, quashed and
set aside.
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4] Shri Meghe, the learned counsel appearing for the
petitioner has relied upon Rule 27 (2)(a) of the Maharashtra Civil
Services (Pension) Rules, 1982 ("MCSR" for short) for the
proposition that the enquiry was initiated when the complainant
was in service, the final report was submitted before the
complainant retired from service. Though, prior to retirement on
30.09.2002 earlier show cause notice was issued, subsequent
show cause notice was issued on 11.11.2002 after the retirement
and the punishment was imposed on 15.01.2003. He submits that
Rule 27 (2)(a) does not speak of any order to be passed for
continuation of enquiry after the retirement. He submits that at
any rate, enquiry was completed when the report was submitted
on 22.10.2001. He therefore, submits that the Industrial Court
committed an error in relying upon the decision of this Court in
Madanlal Sharma's case cited supra.
5] With the assistance of the learned counsels appearing
for the parties, I have gone through the decision of the Division
Bench of this Court in Madanlal Sharma's case cited supra.
In paragraph 21 of the decision of the Division Bench has clearly
considered the provision of Rule 27 (2)(a) of MCSR, though it is
not specifically referred therein. The Division Bench holds that in
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case of an enquiry which is initiated while the Government
servant was in service, it is necessary that an order is passed
intimating the delinquent that the enquiry proceedings shall be
continued even after he had attained the age of superannuation,
lest it shall be presumed that the enquiry came to an end and the
delinquent was allowed to retire honourably. In my view, the
Industrial Court did not commit any error in following the said
decision, which was clearly applicable to the facts of present case.
6] It is informed that the petitioner-Zilla Parishad has
already recovered the amount from the pension or the gratuity
payable to the complainant. If any such amount is already
recovered from the complainant, either from gratuity payable or
from the pension, the same shall be repaid to the complainant
with interest at the rate of 10% per annum from the date of
recovery till the date of repayment. Necessary calculations be
carried out within a period of one month and the payment shall be
made within one month thereafter. If any amount of gratuity is
withheld, the same shall also be released within a period of 15
days from today. The petitioner shall not deduct any amount from
pension or gratuity payable to the complainant from the month of
March 2017 on the basis of the order which is set aside.
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7] In view of this, I do not find any substance in the
present petition, the same is dismissed. No order as to costs.
JUDGE
NSN
