Rajendra B. Dangre vs The State Of Maharashtra Thru ...
2021 Latest Caselaw 1725 Bom

                                                                     5.wpst.92555.2020.doc

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              CIVIL APPELLATE JURISDICTION

                           WRIT PETITION (ST.) NO. 92555 OF 2020

   Rajendra B. Dangre                                   ...   Petitioner
             Versus
   The State of Maharashtra & Ors.                      ...   Respondents
                                              .........
   Mr. Vaibhav V. Ugle for the Petitioner.
   Mr. C.D. Mali, A.G.P. for the Respondent-State.
                                         .........
                                         CORAM          :   K.K. TATED &
                                                            R.I. CHAGLA, JJ.

                                         DATE           :   27th JANUARY, 2021.

   P.C. :-



   1                  Heard learned Counsel for the parties.

   2                  Advocate Mr. Vaibhav V. Ugle appearing on behalf of the Petitioner

undertakes to serve the Respondent-State a hard copy of the Petition during

the course of the day. His undertaking is accepted.

3 By this Petition under Article 226 of the Constitution of India, the

Petitioner is seeking direction to the Respondents to give their retirement

benefits to the Petitioner including pension, gratuity and leave encashment.

4 The learned Counsel for the Petitioner submits that in the present

proceedings the learned Sessions Court, Nashik in Special Case No.11 of 2001

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convicted the Petitioner vide Section 235(2) of Cr.P.C. for the offence

punishable under Section 7 of the Prevention of Corruption Act 1988, for one

year. Operative part of the said order dated 15.10.2009 reads as under :

": ORDER :

Accused No.1 is convicted vide Section 235(2) of Cr.P.C. for the offence punishable u/s 7 of the Prevention of Corruption Act 1988, and he is sentenced to suffer S.I. for 1 year (One year) and to pay fine of Rs.1000/- I/D of payment of fine to undergo S.I. for 1 (One) month.

Accused No.1 is also convicted vide Section 235(2) of Cr.P.C. for the offence punishable u/s 13(1)(d) r.w.13(2) of Prevention of Corruption Act, and he is sentenced to suffer S.I. for one year and to pay fine of Rs.1000/- I/D of payment of fine S.I. for 1 (One) month.

Both the sentences shall run concurrently. Accused No.2 is hereby acquitted vide Section 235(1) of Cr.P.C. for the offence punishable u/s 7, 13(1)(d) r.w. 13(2) of Prevention of Corruption Act, 1988. His bail bonds stands cancelled, and sureties are discharged.

Mudemal object Currency notes be returned to the complainant, and documents be returned to the concern department, after expiry of appeal period."

4 The learned Counsel for the Petitioner submits that thereafter the

Petitioner filed Appeal before this Court and same is pending for hearing and

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final disposal on its own merits. The learned Counsel for the Petitioner

submits that this cannot be the ground to withhold the Petitioner's pensionery

benefits. In support of this contention, he relies on the judgment of the Apex

Court in the matter of State of Jharkhand & Ors. vs. Jitendra Kumar Srivastava

& Anr. in Civil Appeal No.6770 of 2013 dated 14.08.2013. He relies on paras

3, 12, (34 and 35) which reads thus :

"3. For the sake of convenience we will gather the facts from Civil Appeal arising out of SLP(Civil) No. 1427 of 2009. Only facts which need to be noted, giving rise to the aforesaid questions of law, are the following:

The respondent was working in the Department of Animal Husbandry and Fisheries. He joined the said Department in the Government of Bihar on 2.11.1966. On 16.4.1996, two cases were registered against him under various Sections of the Indian Penal Code as well as Prevention of Corruption Act, alleging serious financial irregularities during the years 1990- 1991, 1991-1992 when he was posted as Artificial Insemination Officer, Ranchi. On promulgation of the Bihar Reorganisation Act, 2000, State of Jharkhand (Appellant herein) came into existence and the Respondent became the employee of the appellant State. Prosecution, in respect of the aforesaid two criminal cases against the respondent is pending. On 30th January, 2002, the appellant also ordered initiation of disciplinary action against him. While these proceedings were still pending, on attaining -

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the age of superannuation, the respondent retired from the post of Artificial Insemination Officer, Ranchi on 31.08.2002. The appellant sanctioned the release and payment of General Provident Fund on 25.5.2003. Thereafter, on 18.3.2004, the Appellant sanctioned 90 percent provisional pension to the respondent. Remaining 10 percent pension and salary of his suspension period (30.1.2002 to 30.8.2002) was withheld pending outcome of the criminal cases/ departmental inquiry against him. He was also not paid leave encashment and gratuity."

"12. Right to receive pension was recognized as right to property by the Constitution Bench Judgment of this Court in Deokinandan Prasad vs. State of Bihar; (1971) 2 SCC 330, as is apparent from the following discussion:

34. This Court in State of Madhya Pradesh v. Ranojirao Shinde and Anr. MANU/SC/0030/1968 : [1968]3SCR489 had to consider the question whether a "cash grant" is "property" within the meaning of that expression in Articles 19(1)

(f) and 31(1) of the Constitution. This Court held that it was property, observing "it is obvious that a right to sum of money is property".

35. Having due regard to the above decisions, we are of the opinion that the right of the petitioner to receive pension is property under Article 31(1) and by a mere executive order the State had no power to withhold the same. Similarly, the

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said claim is also property under Article 19(1)(f) and it is not saved by Sub-article (5) of Article 19. Therefore, it follows that the order dated June 12, 1968 denying the petitioner right to receive pension affects the fundamental right of the petitioner under Articles 19(1)(f) and 31(1)of the Constitution, and as such the writ petition under Article 32 is maintainable. It may be that under the Pension Act (Act 23 of 1871) there is a bar against a civil court entertaining any suit relating to the matters mentioned therein. That does not stand in the way of a Writ of Mandamus being issued to the State to properly consider the claim of the petitioner for payment of pension according to law".

5 Considering the submission made by the learned Counsel for the

Petitioner and as the learned A.G.P. requires some time to file reply, the

following order is passed :

i) The Respondents to file their Affidavit-in-Reply on or before

12.02.2021 with copy to other side.

ii) Rejoinder if, any, to be filed on or before 17.02.2021 with

copy to other side.

Digitally signed by iii) Matter to appear on board on 24.02.2021. Waishali S.

Waishali Waghmare S.

Waghmare Date:

2021.01.29 23:58:01 +0530

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

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