Vasant Nivrutti Waghmare vs The State Of Maharashtra And ...
2017 Latest Caselaw 9220 Bom

                                     (1)                            wp11949.16

             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD


                      WRIT PETITION NO. 11949 OF 2016


Vasant Nivrutti Waghmare                              ..       Petitioner
Age. 58 years, Occ. Retired employee,
R/o. Plot No.F3, Guru Sahani Nagar,
Tirupati Park, CIDCO N4, Aurangabad,
Dist. Aurangabad.


                                    Versus


1.    The State of Maharashtra                        ..       Respondents
      Through its Secretary,
      Social Welfare Department,
      Maharashtra State, Mantralaya,
      Mumbai - 32.

2.    Sant Rohidas Charmodyog &
      Charmakar Vikas Mahamandal,
      45, Veer Nariman Road,
      Life Building, 5th Floor,
      Mumbai - 400 001.
      Through its Managing Director.


Mr.V.D. Salunke, Advocate for the petitioner.
Mr.S.G. Karlekar, AGP for respondent No.1.
Ms.S.A. Dhumal (Tambat), Advocate for respondent No.2.


                                     CORAM :  S.V.GANGAPURWALA &
                                              S.M.GAVHANE,JJ.

DATED : 30.11.2017

(2) wp11949.16

ORAL JUDGMENT [PER : S.V. GANGAPURWALA,J.] :-

1. Rule. Rule made returnable forthwith. With the

consent of the parties, taken up for final disposal.

2. The petitioner challenges the inquiry initiated

against him and the charge-sheet dated 08.11.2016.

3. Mr. Salunke, learned advocate for the petitioner

submits that on 30.04.2016, the petitioner retired from

the post of Joint Manager after rendering 34 years

service. After retirement of the petitioner, the

petitioner submitted pension proposal to the respondent

and the same is granted. Learned advocate submits that

the petitioner received show cause notice allegedly dated

26.04.2016. The allegation was about non-compliance of

customer's (Home Guard Department) order within one

month. Therefore, gratuity and other benefits of the

petitioner came to be withheld. Learned advocate submits

(3) wp11949.16

that at the relevant time, the petitioner was having

charge of Manager only for one month. During the said

period, work was going on. However, after his transfer,

nobody has taken interest to make the supply and now

capital is made that there is fault on the part of the

petitioner to supply production within one month, which

was impossible and against the norms prescribed in

Government Resolution dated 12.09.2012. Learned advocate

submits that without obtaining sanction from the

Government, the department has directed inquiry against

the petitioner. According to the learned advocate, till

the retirement of the petitioner on attaining the age of

superannuation, no show cause notice was served upon the

petitioner. Though the show cause notice is dated

26.04.206 same was dispatched in the month of May, 2016

to the petitioner after retirement of the petitioner. On

and after retirement of the petitioner, inquiry could not

have been initiated against the petitioner. Learned

advocate relied on the judgment of the Apex Court in the

case of Dev Prakash Tewari Vs. U.P. Cooperative

(4) wp11949.16

Institutional Service Board, Lucknow & Ors., reported in

2014(7) SCC 260. Another judgment of Division Bench of

this Court is in the case of Prabhakar s/o. Ambadasrao

Dongre Vs. The State of Maharashtra reported in AIR

Bombay Reporter 2016 (5) 251. He also relies on the

judgment of Division Bench of this Court in the case of

Dhairyasheel A. Jadhav Vs. Maharashtra Agro Industrial

Development Corp. Ltd., Mumbai reported in 2010(2)

Mh.L.J.618. Learned advocate also relies on the judgment

of the Apex Court in the case of Bhagirathi Jena Vs.

Board of Directors, O.S.F.C. & Ors., reported in (1999)3

SCC 666.

4. Ms. Tambat, learned advocate for the respondent

submits that the petitioner was on leave in the month of

April, 2016. The respondent tried to serve show cause

notice upon the petitioner on 26.04.2016. As he was on

leave, it was not served. He got his leave extended and

up to the date of retirement he never attended the

office. As such the show cause notice could not be

(5) wp11949.16

served. Eventually it was sent by post to him.

Thereafter, the Inquiry Officer is appointed and the

charges are also framed against the petitioner. The

charges against the petitioner are grave. Learned

advocate submits that from 01.04.2016 to 30.04.2016, the

petitioner was on leave and did not resume duties at the

office of respondent No.2. All leave applications were

sent either by post or courier. Learned Advocate submits

that the petitioner sought leave up to 18.04.2016

contending that there is a marriage ceremony and

thereafter leave application was given on 16.05.2016 that

he required medical leave from 20.04.2016 to 23.04.2016.

Learned advocate for the respondent submits that as the

petitioner never attended office with intention to avoid

acceptance of show cause notice, the show cause notice

was subsequently sent by post. The charges leveled in

the charge-sheet are subject matter of inquiry. The

petitioner is not a Government employee as such Rule

27(2)(b)(i) of Pension Rules, 1982 are not at all

applicable to the petitioner.

(6) wp11949.16

5. Learned advocate for respondent No.2 relies on

the judgment of the Apex Court in the case of U.P. State

Sugar Corporation Ltd. & Anr. Vs. Kamal Swaroop Tondon

(2008) 2 SCC 41 reported in 2008(2) SCC 41 to contend

that the inquiry was perfectly tenable against the

petitioner.

6. We have considered the submissions canvassed by

the learned advocates for the respective parties. In the

present writ petition, we need not travel through merits

or demerits of the charges leveled against the petitioner

as the inquiry is challenged basically on the ground that

inquiry could not have been initiated after the

petitioner has retired on attaining the age of

superannuation. It is not disputed that the petitioner

on attaining the age of superannuation retired on

30.04.2016. Even the respondent employer has issued

retirement order to the petitioner. It is also not

disputed fact that till the date of retirement of the

(7) wp11949.16

petitioner, no show cause notice was served upon the

petitioner nor any charges were framed against the

petitioner. The show cause notice seems to have been

sent by registered post on 08.05.2016, which is after the

retirement of the petitioner. Eventually the charges are

also framed subsequently.

7. It is not a matter of debate that till the

petitioner retired on the date of retirement, no inquiry

was initiated against the petitioner. The Apex Court in

the case of U.P. State Sugar Corporation (supra), relied

upon by the learned advocate for the respondent, has held

that regular show cause notice and charge seeking

recovery of loss caused by negligence of employee issued

on the date of his retirement on superannuation and

served on him after office hours is not illegal. In the

present matter the show cause notice admittedly is served

on or after 11.05.2016 i.e. 11 days after the retirement

of the petitioner. The show cause notice is dispatched

by post on 09.05.2016. The charges admittedly were not

(8) wp11949.16

framed till the date of retirement of the petitioner.

They were framed much later after the date of retirement.

The inquiry had never commenced till the date of

retirement.

8. In the case of Prabhakar (supra) the Court was

concerned with the provisions of Maharashtra Civil

Services Rules, 1982. The Court interpreted Rule 27(2)(a)

of the said Rules and held that inquiry could not have

been initiated after the retirement of employee, which is

not disputed.

9. We have asked learned advocates for the

respective parties as to whether Maharashtra Civil

Services (Pension) Rules are applicable to the parties.

Learned advocates for the petitioner and the respondent

submitted that the Maharashtra Civil Services (Pension)

Rules are adopted by the respondent-employer.

10. As the said rules of Maharashtra Civil Services

(9) wp11949.16

(Pension) Rules are applicable, considering the judgment

of this Court in the case of Prabhakar (Supra), which is

precisely on the said rule, the show cause notice issued

and the charges framed after the retirement of the

petitioner cannot be sustained.

11. In the light of above, rule is made absolute in

terms of prayer clause (B). No costs.

[S.M.GAVHANE,J.] [S.V.GANGAPURWALA,J.]

snk/2017/NOV17/wp11949.16