Babulal Fakira Vasaikar vs State Of Maharashtra & Ors
2017 Latest Caselaw 8722 Bom

                                                      906.WP.4184.04.doc

              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                      CIVIL APPELLATE JURISDICTION

                      WRIT PETITION NO. 4184 OF 2004
                                   WITH
                     CIVIL APPLICATION NO. 388 OF 2017
                                     IN
                      WRIT PETITION NO. 4184 OF 2004

 Shri Babulal Fakira Vasaikar
 Bhagirthi Nivas, Sadichha Housing
 Society, Charnipada, Behind Anjurphata,
 Jakat Naka, At and Post Rahnal, 
 Taluka Bhiwandi, District Thane.                     ...   Petitioner
              V/s.
 1 State of Maharashtra 
   Mantralaya, Mumbai 400 032
   copies to be served in the office-
   Addl. Government Pleader, High Court,
   (A.S.) (Writ Cell) Bombay 400 032.

 2 Dr. S.N. Pathan,
   Director of Higher Education,
   Maharashtra State, Pune 411 001.

 3 Dr. A.D. Sawant,
   Joint Director of Higher Education,
   Mumbai Region, Mumbai,
   Elphinstone  Technical High School's
   Campus, Dhobi Talao, 3, Mahaplika
   Marg, Mumbai 400 001.

 4 The President/Secretary,
   Padmshree Annasaheb Jadhav Bharatiya
   Samaj Unnati Mandal, Bhiwandi,
   Vidyashram Post Dhamankar Naka,
   Bhiwandi, District Thane.

 5 The Accountant General,
   Maharashtra State, M. Karve Road,
   Marine Lines, Mumbai 400 020.


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 6 The Administrator/Principal,
   B.N.N. College, Bhiwandi, 
   Dhamankar Naka, Vidyashram,
   Post Bhiwandi, Dist. Thane.

 7 The Registrar, University of Bombay,
   University Marg, Fort, Mumbai 400 032.                        ...   Respondents
                                     


 Mr. R.V. Desai, Senior Advocate a/w R.B. Pardeshi i/b K.R.P. Legal 
 for the Petitioner.
 Ms. Jyoti Jadhav, A.G.P. for the State.
 Mr. Sharique Nachan i/b Judicare Law Asso. for Respondent Nos.4 
 and 6.
 Mr. R. Jain i/b Rui A. Rodriques for Respondent No.7.


                                     CORAM : ANOOP V. MOHTA AND
                                               MANISH PITALE, JJ.

                                     DATE    :  15th NOVEMBER, 2017.


 ORAL JUDGMENT [PER : ANOOP V. MOHTA, J.] 


 1                  Heard   the   learned   senior   Advocate   for   the   Petitioner 

and Advocates appearing for respective Respondents.

2 The Respondents concerned have withheld the

retirement benefits of the Petitioner on unsustainable reasons,

therefore, the present Writ Petition.

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                                                                906.WP.4184.04.doc

 3                 This Court on 29.07.2004, while admitting the Petition, 

directed the Respondents to release the part pension with Dearness

Allowance, on regular basis. The Petitioner has been getting this

part amount, but not the full pension/retirement benefits in

accordance with law. The Petitioner, who had served 33 years and

11 months in the various institutions run by Respondent Nos.4 and

6 - Management and retired on 31.05.2002, is still awaiting his full

retirement benefits. It is settled that the retirement benefits are not

bounty. It is the property, as contemplated under Article 300A of

the Constitution of India. Therefore, there is no question of

depriving a person of such retirement benefits/property, unless

provided and/or prescribed in rules in any law.

4 Background of the matter is crystallized:-

The Petitioner served as the Head Master in New

English School, Sonale, Taluka Wada, District Thane, under the

Management of Respondent No.4 since 15.6.1967 till 28.03.1973.

During the above period, he also served from 17.6.1968 to

18.12.1968 as Assistant Teacher in the New English School,

Bhiwandi, District Thane and also in Ambishte High School. For the

period from 29.3.1973 to 14.6.1973, he worked as Extension Officer

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in the Education Department of Zilla Parishad, Thane. Thereafter,

from 15.6.1973 to 18.7.1975, the Petitioner worked as Head Master

in Ambishte High School, Ambishte, Taluka Wada, District Thane.

On 19.7.1975, the Petitioner was appointed as a Lecturer in B.N.N.

College-Respondent No.6 and worked till 8.10.1992. He was

appointed as the Vice-Principal on 9.10.1992 and worked till

14.3.1995. From 15.3.1995 till 14.3.2002, the Petitioner worked as

Principal of the B.N.N. College, Bhivandi, District Thane. Upon

request, the Petitioner posted as a Lecturer from 15.3.2002 to

31.5.2002, in B.N.N. College, Bhiwandi, District Thane. On

31.5.2002 the Petitioner was retired.

5 On 5.6.2002, Respondent No.6 sent the complete

pension file of the Petitioner to the Joint Director-Respondent No.3

on his superannuation and requested to forward the same to the

Accountant General, for necessary action. On 3.7.2002, the

Petitioner, by letter, requested to the in-charge Principal of

Respondent No.6 to give him all the retirement benefits including

pension, gratuity, leave benefits and provident fund immediately as

he has completed all the formalities and served about 35 years, as

he has no other source of income. On 4.7.2002, a Secretary of

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Padmshri Annasaheb Jadhav Bharatiya Samaj Unnati Mandal wrote

a letter to the In-charge Principal and requested to take an action

for all the pensionary benefits of the Petitioner. By letter dated

20.9.2002, the Petitioner requested Respondent No.3 to take

necessary action for his pensionary benefits, since he has no source

of livelihood. On 20.1.2003, Respondent No. 6 also requested the

Joint Director to release all the pensionary benefits to the Petitioner.

The Petitioner, on 3.2.2003 submitted a detailed representation and

requested to release him all the retirement benefits, since he has no

source of income. Respondent No.4 also made similar

representations on 13.3.2003, 24.4.2003 and 12.3.2003, to the

Education Minister and the Joint Director. The Petitioner, again on

19.9.2003, made representation to Respondent No.3 to release his

pension and retirement benefits, so also on 2.10.2003. However, no

reply was received to the Petitioner from Respondent No.3. The

Petitioner also personally visited and met the authorities on number

of occasions but invain.

6 On 9.1.2004, the Joint Director, Higher Education,

informed the Petitioner that he is granted the pension from

6.6.2002 to 30.11.2002 as a provisional pension along with

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dearness allowance and in addition to that, Rs.1,66,140/- were

given as gratuity. On 21.1.2004, the Petitioner replied to the Joint

Director and explained the entire position. No reply was given to the

same by the Authority. Hence the present Petition.

7 The Petitioner is governed by the Maharashtra

Universities Act, 1994. The Government of Maharashtra has

published a Notification on 12.8.1999, by which, the Maharashtra

Civil Services Pension Rules, 1982 ("Pension Rules") are made

applicable to the teachers and the Lecturers, as well as, the Principal

serving in the Colleges. As per the notification dated 12.8.1999, the

Maharashtra Civil Service Rules ("MCSR") are applicable to them

from 1.10.1982. As per the Resolution and the provisions of the

MCSR are applicable to the teachers, lecturers and principals serving

in the college. The Petitioner is entitled to all retirement benefits as

are admissible to the teachers, lecturers and principals of the

Colleges affiliated to the University. The Petitioner was serving as a

Head Master, Lecturer, Principal and lastly as a Lecturer in B.N.N.

College of Respondent No.6 at the time of his retirement, therefore,

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as per the provisions of Rules 140 and 146, he is entitled to the

pension from from 1.6.2002.

8 The basic contention so raised by the learned counsel

appearing for the Petitioner is that there was no reason for the

Respondents to withhold the pension, mainly on the ground of

pendency of the criminal proceedings against the trustees of the

Management trust. The Petitioner was not directly involved in those

matters. The original complainant never mentioned the Petitioner

as an accused in the year 2004. There was no specific departmental

action and/or enquiry initiated against the Petitioner for the same

reason. There was no specific charge-sheet against the Petitioner

and no trial was faced by the Petitioner, at any point of time.

Therefore, there was no question of withholding pension merely

because of pendency of such criminal litigation. There is no specific

provision which empowered the Respondents in these background,

to withhold the pension of the Petitioner as the Petitioner had

retired in 2002 itself.

9 There was no break-in-services of the Petitioner, as he

was working with the Management/other institutions since

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15.06.1967 till 31.05.2002. The break, even if there was of three

months, as worked as the Extension Officer which was also

condoned by the Management at the relevant time. All the service

records and the necessary proceedings were submitted at the

appropriate time to the concerned department, for

assessment/calculation of the retiremental benefits. The

management has also forwarded all the necessary service records of

the Petitioner for the same. There was no such demand and/or

objection raised about non submission of full service record of the

Petitioner. Therefore, there was no question of not granting the full

retirement benefits. There was no break-in-service.

10 The Petitioner has placed on record, apart from

rejoinder, various documents in support of his original case and to

support that the pendency of those criminal matters, even if any,

should not have been the foundation to deny the retirement benefits

of the Petitioner. There is specific averment made in respect of the

criminal matters, which reads as under :-

"In that all complaints, my name is not included in five complaints. However, it appeared only in remaining five cases and from which two cases has

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been finalised as 'C' Summary as per the Court's order. It means that Jt. Director has deliberately included my name in five more cases."

11 The material placed on record goes to show that the

Petitioner was not involved in main criminal matter at any point of

time. The reply of contesting Respondent, itself is not sufficient to

withhold the pension and all other benefits at any point of time.

There was no specific criminal case made out against the Petitioner

specifically referring to any pecuniary loss to the Government.

There was no case, where the Petitioner was found guilty of grave

misconduct or negligence during the period of his service. As noted

earlier, even there was no departmental enquiry initiated against

the Petitioner, at the relevant time.

12 Rule 26 and 27 of the Maharashtra Civil Services

(Pension) Rules 1982, as noted by the Division Bench of this Court

while passing the interim order, are also of no assistance to the

Respondents to take such action. There is no other justification,

which according to us, placed on record and/or even available from

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the record, empowering the State Government and/or Respondents

to withhold the retirement benefits.

13 The Apex Court in State of Jharkhand and others vs.

Jitendra Kumar Srivastava and Anr.1 while dealing with the similar

issue of withholding even a part of pension or gratuity during the

pendency of departmental/criminal proceedings, is crystallized in

following words :-

" 11. Reading of Rule 43(b) makes it abundantly clear that even after the conclusion of the departmental inquiry, it is permissible for the Government to withhold pension etc. ONLY when a finding is recorded either in departmental inquiry or judicial proceedings that the employee had committed grave misconduct in the discharge of his duty while in his office."

"14. Article 300 A of the Constitution of India reads as under :-

"300A Persons not to be deprived of property save by authority of law. - No person shall be deprived of his property save by authority of law."

Once we proceed on that premise, the answer to the question posed by us in the beginning of this judgment becomes too obvious. A person cannot be deprived of this pension without the authority of law, which is the Constitutional mandate enshrined

1 (2013) 12 SCC 210

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in Article 300 A of the Constitution. It follows that attempt of the appellant to take away a part of pension or gratuity or even leave encashment without any statutory provision and under the umbrage of administrative instruction cannot be countenanced. "

14 So also the Supreme Court in Madhukar vs. State of

Maharashtra2 while considering the aspect of break in service and

qualifying period of service revolving around right of pension,

further reiterated the entitlement of pensioner and while passing the

order by noting the permissible aspects of the condonation of break-

in-service. The Respondents' action of withholding of retirement

benefits, in view of above clear position of law, is unsustainable and

in breach of service conditions, apart from violation of constitutional

and legal rights of the Petitioner.

15 The learned counsel appearing for the Management,

apart from the rejoinder filed on record by the Petitioner, by placing

on record the subsequent events and specifically referring to the

pendency of criminal matters has contended that there was no

break-in-service and made the statement that the Petitioner was

discharged from those proceedings which were basically against the

2 (2014) 15 SCC 565

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previous Management/ trustees and employees. A statement is also

made that there was no issue about non supply of any service record

of the Petitioner to Respondent No.3. The Petitioner has placed on

record every documents to support the same. The Management,

therefore, all the time supported the Petitioner's case in this regard.

Therefore, the action of Respondent denying the pension/retirement

benefits by holding or by not treating the Petitioner continuity of

service by overlooking the provisions of law so referred above and

wrongly denying pensionary benefits on account of the pendency of

the criminal proceedings, reflects non application of mind to the fact

as well as, to the law. The action of withholding of pension is

unjust, illegal and, therefore, unsustainable. The Petitioner as of

right is entitled to get these benefits from the date of his retirement

which were wrongly illegally withheld by the Respondents. The

justification, even if any, as noted above, and as pointed out by the

learned counsel appearing for the Respondents, in no way, is

acceptable. Therefore, we are of the view that this is a case where

the Petitioner is entitled for the interest on the balance amount of

retirement benefits not received by the Petitioner since 2002, apart

from the balance retirement benefits.

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                                                                   906.WP.4184.04.doc

 16                This Court, while admitting the Writ Petition, by order 

dated 29.07.2004 directed the Respondents to continue to pay

Rs.6,000/- per month along with Dearness Allowance. The

Petitioner has been getting the same. The petitioner, however, has

specifically made averments, based upon the service conditions and

the rule that he is entitled for Rs.9,630/- per month as pension.

However, as Respondents restricted it in view of the order passed by

this Court to Rs.6,000/- per month + Dearness Allowance, we are

inclined to direct the Respondents to calculate the pension of the

Petitioner from the date of his retirement, in accordance with law,

after adjusting the amount already received by the Petitioner. The

Respondents are further directed to pay the interest on the balance

amount/unpaid amount @ 9%, p.a. as early as possible. It is

clarified that the Petitioner is entitled for all other benefits arising

out of the amount including the Dearness Allowance and all other

benefits in accordance with law on the basic amount of pension of

Rs.9,630/-. It is also made clear that Petitioner is entitled for all the

benefits, even otherwise available to such service conditions,

including the benefits of the pay commissions. It is one of the case,

where the Petitioner is entitled for the costs also apart from the

interest for the reasons so recorded above.

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 17                The  learned  senior   Advocate  Mr. Desai  appearing  for 

the Petitioner, on instructions, makes a statement that the statement

of balance amount along with @9% p.a. interest thereon, will be

calculated and submitted by 23.11.2017. Order accordingly. The

Respondents to deal with the same in accordance with law as early

as possible preferably within eight weeks from today. Hence the

following order.

                                      ORDER



          (i)      Writ Petition is allowed.



          (ii)     It is declared that there was no break in service of the 

Petitioner, and therefore, the Petitioner is entitled for all the

retirement benefits from the date of his retirement i.e. from

31.05.2002, in accordance with law.

(iii) We direct the Respondents to pay interest on the balance

amount @ 9% p.a. from the date of retirement i.e. from

31.05.2002. The amount to be paid/deposited in the account

of the Petitioner, as early as possible, preferably within eight

weeks from today.

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                                                                906.WP.4184.04.doc

(iv) The Petitioner is entitled for the costs of Rs.10,000/-.

(v) Rule is made absolute accordingly in the aforesaid

terms.

(vi) In view of disposal of the Writ Petition, Civil

Application No. 388 of 2017 filed in the Writ Petition does

not survive and is also disposed of accordingly.

  (MANISH PITALE, J.)                                  (ANOOP V. MOHTA, J.)




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