Bombay High Court
Parasram S/O Gomaji Nasre vs State Of Maha., Thr. Secretary, ... on 7 November, 2017
Bench: B.P. Dharmadhikari
wp.6108.16
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT NAGPUR, NAGPUR.
...
WRIT PETITION NO. 6108/2016
* Parasram s/o Gomaji Nasre
Aged about 60 years, occu: Retired.
R/o Plot No. 60, Kachure Patil Nagar
Chinchbhuwan, Wardha Road,
Nagpur, Tah. & Dist.Nagpur. .. PETITIONER
versus
1) State of Maharashtra
Through the Secretary
Rural Development,
Zilla Parishad and Panchayat Samiti
Mantralaya, Mumbai-32.
2) President,
Zilla Parishad, Chandrapur
Tah. & Dist. Chandrapur.
3) The Chief Executive Officer,
Zilla Parishad, Chandrapur
Tah. & Dist. Chandrapur.
4) Chief Accountant & Finance Officer
Zilla Parishad, Chandrapur.
5) Divisional Commissioner,
Nagpur Division, Nagpur. .. RESPONDENTS
...............................................................................................................................................
Mr. H.N. Potbhare, Advocate for the petitioner
Mr. A.S. Fulzele, Addl. Govet,Pleader for respondents 1 and 5
Mr. N.W. Almelkar, Advocate for respondent no.4.
................................................................................................................................................
::: Uploaded on - 09/11/2017 ::: Downloaded on - 11/11/2017 01:42:07 :::
wp.6108.16
2
CORAM: B.P. DHARMADHIKARI &
MRS. SWAPNA JOSHI, JJ.
DATED: 7th November, 2017
ORAL JUDGMENT: (PER B.P.DHARMADHIKARI, J.)
1. Heard finally with consent, by issuing Rule and making it
returnable forthwith.
2. Admittedly, proceedings of criminal nature alleging
misappropriation are pending against the petitioner before the Chief Judicial
Magistrate, Chandrapur. Grievance is petitioner's request for commutation of
pension has not been declined.
3. Counsel for Chief Executive Officer and for President of Zilla
Parishad has relied upon the reply-affidavit to show that in Criminal case
No.328/2002 there is an allegation of misappropriation of Rs.21,66,648/- and
in departmental enquiry he was found guilty.
4. The petitioner disputes misappropriation and contends that
finding of guilt is perverse.
5. However, pendency of criminal prosecution is not in dispute.
6. Rule 130 of the Maharashtra Civil Services (Pension) Rules,
wp.6108.16
1982, in terms, envisages only payment of provisional pension in such a
situation. Rule 4 of the Maharashtra Civil Services (Commutation of Pension)
Rules, 1984 disqualifies a Government servant from seeking commutation of
fraction of his provisional pension during pendency of proceedings against
him.
7. Adv. Potbhare, however, has relied upon the Division bench
judgment of this Court in the case of Vishnu Sonawane vs. Chief Executive
Officer, Z.P.Nashik and others, reported at 2015 (3) Mh.L.J.41. There, the
Division Bench has considered the provisions of Article 300-A only and the
Bench observes that in absence of any provision in law, pensionary benefit
which is recognised as property cannot be withheld and/or stopped. There,
employer was Nashik Zilla Parishad.
8. With respect, we find that above legal provisions were squarely
applicable even in reported judgment. However, the Bench then did not
receive effective assistance. Its attention was not invited to Rule 130 of Pension
Rules or Rule 4 of Commutation Rules, supra, by any Advocate. The judgment
therefore proceeds on a premise that pension being property, one cannot be
deprived of it, except in accordance with law, as mandated by Article 300A.
The fact that legal provisions already occupy the field was not pointed out by
Nashik Zilla Parishad, to the Court. Said Division Bench judgment therefore
wp.6108.16
does not lay down correct proposition of law and it presumes that there are
no legal provisions.
9. In present facts also, the counsel for petitioner has not pointed out the
relevant legal provisions and has also not joined employer-Zilla Parishad as
a party-respondent. We, therefore, dismiss the Writ Petition. No costs.
JUDGE JUDGE
sahare
