The State Of Maharashtra, Through ... vs Dr. Vinayak S/O Laxmanrao Bakale
2017 Latest Caselaw 2135 Bom

WP  2091/13                                                  1                             Judgment

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                    NAGPUR BENCH, NAGPUR.
                          WRIT PETITION No. 2091/2013
1.     The State of Maharashtra,
       Through its Secretary,
       Education Department,
       Mantralaya, Mumbai.

2.     The Director of Education,
       High Education, Pune.

3.     The State of Maharashtra,
       through its Secretary,
       Department Higher Technical Education,
       Mantralaya, Mumbai.

4.     The Director,
       Institute of Science,
       Near Maharajbag, Civil Lines, Nagpur.                                         PETITIONERS

                                          .....VERSUS.....
Dr.Vinayak S/o Laxmanrao Bakale,
Aged about 63 years,
R/o L-2, Sarang Building,
Nandanwan Colony, Chaprashipura,
Near Mosque, Amravati.                                                               RESPONDENT

           Mrs. A.R. Taiwade, Assistant Government Pleader for the petitioners.
                                None for the respondent.

                                           CORAM :SMT.VASANTI  A  NAIK AND
                                                       MRS. SWAPNA  JOSHI, JJ.    

DATE : 3 RD MAY, 2017.

ORAL JUDGMENT (PER : SMT.VASANTI A NAIK, J.)

By this writ petition, the petitioners-The State of Maharashtra

and others, challenge the order of the Maharashtra Administrative

Tribunal, Nagpur, dated 11.11.2011 allowing an original application filed

by the respondent and directing the petitioners to pay interest on the

gratuity and pension paid to the respondent.

WP 2091/13 2 Judgment

2. The respondent was a Professor and Head of Department of

Botany in the Institute of Science College and while in service, a

departmental enquiry was initiated against him. The respondent attained

the age of superannuation on 30.04.2002 but, the departmental enquiry

was not concluded by then. After the conclusion of the departmental

enquiry, by an order dated 04.11.2004, the respondent was punished and

a penalty of deduction of 5% pension on permanent basis was imposed on

him. Since the gratuity and the regular pension were paid to the

respondent on 12.06.2005 and 26.05.2005 respectively despite his

superannuation on 30.04.2002, the respondent sought interest on

pensionary benefits. The original application filed by the respondent was

allowed and the Tribunal directed the petitioners to pay interest to the

respondent on the delayed payment of gratuity and pension. The

petitioners were further directed to pay the amount sanctioned by the

Government towards special leave for the period commencing from

01.02.1989 to 31.01.1990. The order of the Tribunal, so far as it directs

the petitioners to pay interest on the delayed payment of gratuity and

pension is challenged by the petitioners in the instant petition.

3. Mrs.Taiwade, the learned Assistant Government Pleader

appearing for the petitioners, submitted that the Tribunal was not

justified in directing the petitioners to pay interest on the delayed

payment of gratuity and pension. It is submitted that the fact that a

WP 2091/13 3 Judgment

departmental enquiry was initiated against the respondent before his

retirement and the same continued after his retirement on 30.04.2002

was not noticed by the Maharashtra Administrative Tribunal before

allowing the original application. It is submitted that after the penalty

was imposed upon the respondent in the departmental proceedings on

04.11.2004, the petitioners immediately took steps to pay the gratuity

and regular pension to the respondent. It is stated that gratuity and

regular pension was paid to the respondent on 12.06.2005 and

26.05.2005 respectively after completing the necessary formalities. It is

submitted that in view of the pendency of the departmental proceedings,

the respondent was not entitled to gratuity and regular pension as per the

Maharashtra Civil Services (Pension) Rules, 1982. It is stated that neither

did the respondent bring the fact about the pendency of the departmental

proceedings to the notice of the Tribunal nor did the petitioners

specifically state about it in the affidavit filed by them. It is submitted

that though it is clearly averred in this writ petition that the departmental

enquiry was continued against the respondent for more than two years

after his retirement, there is no denial of the said fact by filing an

affidavit-in-reply.

4. We had heard the learned Assistant Government Pleader

on 30.03.2017, 07.04.2017 and 02.05.2017. We had called for the

Record & Proceedings in the original application. On all the earlier

WP 2091/13 4 Judgment

dates of hearing, the respondent was not represented in the Court. Today

also, none appears on behalf of the respondent to controvert the facts

stated on behalf of the petitioners by the learned Assistant Government

Pleader.

5. On a reading of the impugned order and on a perusal of the

writ petition as also the Record & Proceedings, it appears that the

Tribunal was not justified in directing the petitioners to pay interest on

the delayed payment of gratuity and pension to the respondent. It

appears that the departmental enquiry was initiated against the

respondent while he was in service and the said enquiry culminated in the

year 2004 when the order imposing punishment was passed against the

respondent on 04.11.2004. After the departmental enquiry proceedings

were culminated, steps were immediately taken by the petitioners to

ensure that the gratuity and regular pension is released in favour of the

respondent and it was so released, in the midst of the year 2005. We find

that provisional pension was paid to the respondent after his

superannuation though the departmental enquiry was pending against

him. On a reading of Rule 130 of the Maharashtra Civil Services

(Pension) Rules, 1982, we find that gratuity and regular pension of a

superannuated employee could be withheld if criminal proceedings or a

departmental enquiry is pending against the employee. In the instant

case, the departmental enquiry was pending against the employee till

WP 2091/13 5 Judgment

November-2004 and, hence, there was no occasion for the petitioners to

pay the gratuity and regular pension to the respondent till the enquiry

was concluded. These facts were, however, not brought to the notice of

the Tribunal by the parties.

6. Hence, though we did not find any error in the order of the

Tribunal, as is based on the facts which were then pointed out to the

Tribunal, we find it necessary to modify the order of the Tribunal so as to

set aside the order directing the petitioners to pay interest on delayed

payment of gratuity and regular pension. Since the departmental

proceedings were pending against the respondent, gratuity and regular

pension could not have been paid to the respondent immediately after his

superannuation. Since we find that the delay in releasing the gratuity

and regular pension is satisfactorily explained and there is no fault on the

part of the petitioners in belatedly releasing the same to the respondent,

the impugned order is liable to be set aside, so far as it directs the

petitioners to pay interest on the delayed payment of gratuity and regular

pension.

7. Hence, for the reasons aforesaid, the writ petition is partly

allowed. The part of the order that directs the petitioners to pay interest

to the respondent on delayed payment of gratuity and regular pension is

quashed and set aside.

WP 2091/13 6 Judgment

Rule is made absolute in the aforesaid terms with no order as

to costs.

              JUDGE                                    JUDGE

APTE