Sushil Sadanand Sawant vs The State Of Maharashtra And Anr
2021 Latest Caselaw 1212 Bom

                                                                     7-WPST-94232-2020.DOC

Jitendra   Digitally signed
           by Jitendra S.
S.         Nijasure
           Date: 2021.01.29
Nijasure   14:44:46 +0530



                 Jsn
                              IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                      CIVIL APPELLATE JURISDICTION
                                   WRIT PETITION (ST.) NO.94232 OF 2020
                  Sushil Sadanand Sawant                                    ... Petitioner
                        V/s.
                  The State of Maharashtra & Anr.                       ...Respondents


                  Mr. Sumit S. Kothari, for the Petitioner.
                  Mr. S.S. Panchpor, AGP for State.

                                           CORAM:             K.K.TATED AND
                                                              R.I. CHAGLA, JJ.

DATE : 19TH JANUARY, 2021.

O R A L O R D E R (Per R.I. Chagla, J.)

1. This Petition has been filed under Article 226 of the

Constitution of India for a direction against the Respondent No.1

to forthwith decide the representation dated 14th March, 2018

submitted by the Petitioner with Respondent No.1 - State of

Maharashtra through its Principal Secretary to the Home

Department (Exhibit - I to the Petition).

2. The Petitioner had filed a Summary Criminal Case No.930

of 1994 before the Judicial Magistrate, First Class Dapoli under

Section 323, 504, 506 read with 34 of the Indian Penal Code,

1860 (for short "IPC 1860") against the Respondent No.2 and five

others. At that time, the Respondent No.2 was serving for the

State of Maharashtra as Assistant Police Inspector at Dapoli

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Police Station. The learned JMFC, Dapoli by his judgment and

order dated 29th October, 2005 convicted Respondent No.2 and

others for the said offences. An Appeal bearing Criminal Appeal

No.533 of 2010 had been filed by the Respondent No.2 and

others in the Sessions Court, Khed. The Additional Sessions

Judge, Khed by his judgment and order dated 29th May, 2010,

allowed the Appeal but the conviction of the Respondent No.2 was

maintained and upheld.

3. The Petitioner thereafter filed Criminal Appeal No.533 of

2010 and the Respondent No.2 filed Criminal Revision Application

No.353 of 2010 before this Court. The Respondent No.2 despite

conviction by the JMFC, Dapoli and the learned Sessions Judge,

Khed was promoted from Assistant Police Inspector to Deputy

Superintendent of Police.

4. The Criminal Appeal filed by the Petitioner was allowed by

this Court vide order dated 25th June, 2015 whilst dismissing the

Criminal Revision Application filed by Respondent No.2. The

Supreme Court by order dated 7th August, 2015 dismissed the

Special Leave Petition filed by the Respondent No.2.

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5. The Petitioner has in the Petition referred to a Writ Petition

No.2014 of 2020, which had been filed by the Petitioner against

Respondent No.2 herein for recovery of post retiral benefits and

challenging the promotion order of Respondent No.2. This Petition

came to be dismissed by the Division Bench of this Court

(Coram :- Nitin Jamdar & M.S. Karnik, JJ.) vide order dated 3rd

March, 2020. The Division Bench in the said order held that the

recovery of post retirement benefits which had been sought for by

the Petitioner were matters of employer - employee relationship

vis-a-vis State Government and its employees. It is for the State

Government to stop the retiral benefits or to recover excess

amount as per rules and service conditions as applicable. It is

further observed that in service matters, even in Public Interest

Litigation, the Courts have been reluctant to interfere and issue

directions. The Petition was accordingly disposed of for lack of

locus on behalf of the Petitioner.

6. The Petitioner had prior to the filing of the prior Writ Petition

No.2014 of 2020 submitted the detailed complaint and / or

representation dated 14th March, 2018 with the Additional Chief

Secretary of Respondent No.2 for cancellation of the promotion

order and to recover the retirement benefits including cancellation

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of pension given to the Respondent No.2, considering the

conviction of the Respondent. The Petitioner had failed to refer to

the representation and / or seek prayers in respect thereof in the

prior Writ Petition.

7. Since according to the Petitioner, the representation

remained to be decided and that the State Police Complaints

Authority (for short S.P.C.A.) Complaint Case No.1 of 2019

challenging the promotion of Respondent No.2 had been disposed

of by the members of the S.P.C.A. on 8th March, 2019 as not

being maintainable, the present Petition has been filed.

8. Mr. Kothari, learned Counsel for the Petitioner has

submitted that the representation although submitted on 14th

March, 2018 remained to be decided by Respondent No.1. He has

submitted that it is necessary for Respondent No.1 to immediately

decide this representation as the Respondent No.2 was enjoying

post retiral benefits having been convicted for the offences

committed under IPC, 1860 by two Courts. The Respondent No.2

had further during service been promoted from Assistant Police

Inspector to Deputy Superintendent of Police despite his

conviction of the offences committed under IPC 1860. He has

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submitted that, it is therefore, necessary for this Court to direct the

Respondent No.1 to forthwith decide the representation dated

14th March, 2018 submitted by the Petitioner.

9. Mr. Panchpor, learned AGP appearing for the Respondent

No.1 - State has raised a preliminary objection as to the

maintainability of the Writ Petition on the ground that it is barred

by the principles of constructive res judicata. He has submitted

that the present Petition has been filed seeking directions against

the Respondent No.1 for deciding the representation which had

sought for cancellation of promotion order and to recover amounts

of post retirement benefits, pension and for cancellation of

pension given to the Respondent No.2 in view of the Petitioner's

conviction for the offences punishable under IPC, 1860. This

despite the Petitioner having previously filed Writ Petition No.2014

of 2020, wherein the Petitioner had sought the directions against

the Respondents as sought for in the representation viz. for

stopping post retirement benefits enjoyed by Respondent No.2 as

well as for cancellation of promotion order made by Respondent

No.1 - State from the date of promotion of Respondent No.2 in the

year 2013, despite his conviction for the offences committed under

the IPC, 1860. This Petition had been dismissed by the order

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dated 3rd March, 2020 by holding that, it is for the Respondent

No.1 - State to stop the retirement benefits or to recover excess

amounts as per the rules and conditions as applicable and that the

Petitioner had lack of locus. He has submitted that despite the

said order dismissing the prior Petition, the Petitioner had filed this

Petition seeking a decision on the representation. The present

Petition has been filed despite there being no mention of the prior

representation in Writ Petition No.2014 of 2020. He has further

submitted that the Petitioner is now estopped from seeking

prayers of consideration of representation in the present Petition

having failed to refer to the representation and / or make such

prayer in the prior Writ Petition No.2014 of 2020 which had been

dismissed on the ground of lack of locus of the Petitioner.

10. We have considered the submissions. The Petitioner has

filed the present Writ Petition seeking directions against the

Respondent No.1 to decide his representation dated 14th March,

2018 for cancellation of promotion order as well as for recovery of

the benefits which included post retirement benefits, pension and

excess benefits of promotion which were being enjoyed by

Respondent No.2 despite his conviction for the offences

committed under the IPC, 1860. The Petitioner had filed a

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previous Writ Petition No.2014 of 2020 against the Respondent

No.2, wherein the same directions had been sought as contained

in the representation. The Petitioner had in the prior Writ Petition

failed to make any mention of the said representation dated 14th

March, 2018 despite the Petition having been filed subsequently

i.e. on 6th August, 2019.

11. It would be necessary to refer to the prayers in Writ Petition

No.2014 of 2020, which reads follows:-

(a) Ad-interim relief:- This Hon'ble High Court may be pleased to pass a writ of Mandamus or any other Writ against the Respondents and stop the post-retirement benefits of a criminal convicted Police Officer Mr. Vilas Bhosale, forthwith, till this writ petition is decided on merits;

(b) This Hon'ble High Court may be pleased to issue a writ of Mandamus, or any other Writ against the Respondents to compel all Respondents to bring all records of "Service Book" before this Hon'ble High Court and other investigation records and reports, no objection issued by the Home Department, etc.:

(c) This Hon'ble High Court may be pleased to issue a writ of Mandamus, or any other Writ against the Respondents and stop the post-retirement benefits of a Promotion, obtained through concealment / suppression of vital facts, for a convicted Police Officer Mr. Vilas Bhosale, permanently and forever;

(d) This Hon'ble High Court may be pleased to issue a writ of Mandamus, or any other Writ against the Respondents to cancel the promotion and / or its Order,

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made by the State, from the date of promotion from year 2013;

(e) This Hon'ble High Court may be pleased to issue a Writ of Mandamus, or any other Writ against the Respondents and recover the excess payment made to Mr. Vilas Bhosale, from the date of his promotion and / or date of conviction and / or date of retirement till date, within the period of 3 months after passing the final orders in this Writ Petition, as arrears of Land revenue;

(f) This Hon'ble High Court may be pleased to issue a writ of Mandamus, or any other Writ against the Respondents, to recover the payment of the Benefits of Leave encashment, Gratuity and any other benefits, from Mr. Vilas Bhosle;

(g) This Hon'be High Court may be pleased to issue a writ of Mandamus, or any other Writ against the Respondents to initiate and finalize the action of Departmental inquiry and imposed punishment upon the responsible clerks viz. S.L. Patil, R.S. Shere and S.S. Hadpad, who are held responsible for misconduct, by Mr. Abdur Rehman, within the period of next 4 months OR to produce the 'documents for the action taken by the State against all of them.

(h) The Petitioner prays to add, amend, alter or modify, the averments made in the said Petition;

(i) The Petitioner prays to grant any such other reliefs that the Hon'ble Court deems suitable and fit;

12. This Court had by order dated 3rd March, 2020 dismissed

Writ Petition No.2014 of 2020 on the ground of lack of locus of the

Petitioner. The said order dated 3rd March, 2020 reads as under:-

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"In this Petition, the Petitioner has prayed to stop the post retiral benefits to the Police Officer given by the Respondent - State Government . The said officer is not joined as a party Respondent. Petitioner has also sought that the amount paid to the said police officer should be recovered from the date of his promotion. The Petitioner has based his locus to make these prayers on the fact that he had made a complaint against the said police officer. As far as matters of post retiral benefits are concerned they are matters of employer employee relationship vis-a-vis State Government and its employees. It is for the State Government to stop the retiral benefits or to recover excess amount as per rules and service conditions as applicable. In service matters even in Public Interest Litigation the Courts have been reluctant to interfere and issue directions. In view of this position, for lack of locus on behalf of the Petitioner, we dispose of the Petition.

Thus, it was held that post retirement benefits are matters of

employer - employee relationship vis-a-vis State Government and

its employees. This Court observed that it is for the State

Government to stop retiral benefits or recover excess amount as

per rules and service conditions as applicable. Despite the said

order dated 3rd March, 2020, the present Petition has been filed

on 8th October, 2020 seeking directions against Respondent No.1

to decide the representation of the Petitioner dated 14th March,

2018 by which the representation the Petitioner had sought the

very same stoppage of retiral benefits and recovery of excess

amount as sought from this Court in Writ Petition No.2014 of 2020

without making reference therein to the said representation.

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13. We find that the Petitioner having been faced with the

dismissal of his Writ Petition No.2014 of 2020 by the order of this

Court dated 3rd March, 2020 for lack of locus, having held that in

service matters, even in Public Interest Litigation, the Courts have

been reluctant to interfere and issue directions as sought for by

the Petitioner, in abuse of the process of this Court, filed the

present Writ Petition.

14. We had accordingly made it clear to the learned Advocate

for the Petitioner of our inclination to impose costs on the

Petitioner, if he chose to continue with this Petition. The learned

Advocate for the Petitioner had thereafter sought instructions from

the Petitioner and upon which he stated that the Petitioner wants

to press the prayer sought for in the Petition.

15. Accordingly, we pass the following order:-

      (a)    The Writ Petition is dismissed.


      (b)    The Petitioner shall pay costs of Rs.25,000/- by
             cheque / pay order drawn in favour of the

Maharashtra Legal Services Authority and deposit the same with the office of the Prothonotary and Senior

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Master of this Court within a period of one week from uploading of this Order.

(c) In the event, the Applicant fails to make payment of costs as directed above, the Prothonotary and Senior Master of this Court shall serve a copy of this Order on the Collector, Mumbai for taking appropriate action against the Petitioner for recovery of the costs of Rs.25,000/- as and by way of land revenue.

      ( R. I. CHAGLA J. )             ( K.K. TATED, J. )