Bombay High Court
Nagesh Jagdishrao Deshpande vs The State Of Maharashtra And ... on 7 May, 2021
Bench: Ujjal Bhuyan, M. G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6077 OF 2016
1. Nagesh s/o Jagdishrao Deshpande,
(original petitioner),
Died through L.Rs.
1a. Namita Nagesh Deshpande,
Age 56, Occu. Housewife,
1b. Nilesh Nagesh Deshpande,
Age 34 years, Occu. Service,
1c. Nitesh Nagesh Deshpande,
Age 28, Occu. Service,
All Residing at Plot No.78,
Maya Nagar, N-2, Cidco,
Aurangabad - 431 003 ...PETITIONER
VERSUS
01. State of Maharashtra,
Through its Secretary,
Social Justice Department,
Mantralaya, Mumbai - 32
02. Managing Director,
Maharashtra State Other Backward
Class, Finance and Development
Corporation Ltd.,
4th Floor, R.C. Chmburkar Marg,
Chembur, Mumbai - 71 ...RESPONDENTS
Mr V.D. Gunale, Advocate for the petitioners;
Mr P.N. Kutti, A.G.P. for respondent no.1;
Mr Amit A. Yadkikar, Advocate for respondent no.2
CORAM : UJJAL BHUYAN
AND
M.G. SEWLIKAR, JJ.
::: Uploaded on - 07/05/2021 ::: Downloaded on - 10/09/2021 18:16:08 :::
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(Date of reserving the judgment : 6th April, 2021
Date of pronouncing the judgment : 7th May, 2021)
JUDGMENT (PER UJJAL BHUYAN, J.)
We have heard Mr Gunale, learned Counsel for the
petitioners; Mr Kutti, learned A.G.P. for respondent no.1; and Mr
Yadkikar, learned Counsel for respondent no.2.
2. Rule. Rule made returnable forthwith. Heard learned
Counsel appearing for the parties finally by consent.
3. By filing this petition under Article 226 of the Constitution
of India petitioners seek quashing of order dated 17 th February,
2016 passed by respondent no.2 and further seek a direction to
respondent no.2 to pay gratuity and earned leave encashment
with interest at the rate of 9% per annum. It may be mentioned
that initially the writ petition was filed by Nagesh Jagdishrao
Deshpande but after his death he has been substituted by his
legal heirs i.e., wife and two sons vide order of this Court dated
26th February, 2021.
4. It may also be mentioned that the writ petition was
allowed by this Court vide order dated 7 th January, 2019 by
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directing respondent no.2 to pay gratuity to the original
petitioner within three months and also to take a decision
regarding payment of leave encashment within three months.
However, on a review application filed by respondent no.2 being
Review Application (Civil) No.259 of 2019 order dated 7 th
January, 2019 was reviewed and re-called whereafter the
present writ petition was heard afresh.
5. For a proper adjudication of the lis, the relevant facts as
pleaded may be briefly noted at the outset.
5.1. The original petitioner i.e., Nagesh Jagdishrao
Deshpande (referred to as the "petitioner" hereinafter) was
initially appointed as Accounts Officer in the year 1988 in
Maharashtra Electronic Corporation Ltd. (MELTRON). He
served in MELTRON as a permanent employee till the year
2003. For various reasons MELTRON was closed down
whereafter petitioner was absorbed in the Maharashtra State
Other Backward Class Finance and Development Corporation
Ltd. (briefly the "respondent no.2" hereinafter) in the year 2003
with continuity of past service in MELTRON.
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6. While the petitioner was working as District Manager at
Aurangabad, a show cause notice was issued to him on 3 rd
April, 2008 calling upon the petitioner to show cause on certain
allegations made against him while discharging duty as District
Manager. The allegations pertained to disbursement of loans to
fictitious beneficiaries or ineligible beneficiaries leading to non
recovery of the disbursed loan amounts. Petitioner submitted
show cause reply pointing out therein that the list of
beneficiaries was prepared by the district level committee
constituted by respondent no.2 with the Collector of the district
as the head. Loan amounts were sanctioned by respondent
no.2 as per list of beneficiaries so prepared. Petitioner was in
no way connected with the sanction or disbursement of loan.
Being the District Manager he had no role to play. Regarding
recovery of loan amounts the same was done from the share of
the beneficiaries as per their own request. Neither the
beneficiaries suffered nor there was any loss to respondent
no.2. On the other hand, there was 100% recovery of the
disbursed loan amounts. The loans were disbursed by way of
crossed account payee cheques. Question of misappropriation
of such amount did not arise.
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6.1. However, without considering the show cause reply
submitted by the petitioner, another show cause notice was
issued to him which was also replied back. Finally he received
charge-sheet from respondent no.2 on 7 th August, 2008. Reply
was submitted by the petitioner on 29 th August, 2008
controverting and denying the charges. It appears respondent
no.2 was not satisfied with the reply submitted by the petitioner
and decided to hold enquiry. As a result, one Shri N.G.
Gaikwad, retired Deputy Collector was appointed as Enquiry
Officer for conducting enquiry against the petitioner. On being
asked, petitioner nominated next friend to defend him in the
enquiry. However, Enquiry Officer prepared report of enquiry
and submitted the same to respondent no.2. Upon receipt of
enquiry report, respondent no.2 issued notice to the petitioner
on 8th June, 2010 seeking his response on the enquiry report
and also as to why penalty of removal from service should not
be imposed on him. Petitioner submitted his response on 25 th
June, 2010.
7. At that stage petitioner approached the Labour Court by
filing complaint challenging the legality and validity of the notice
of respondent no.2 dated 8th June, 2010. On 1st July, 2010 the
Labour Court while framing a preliminary issue as to the
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jurisdiction of the Labour Court directed maintenance of status
quo as regards service of the petitioner.
8. By order dated 7th March, 2011 Labour Court dismissed
the complaint filed by the petitioner.
9. Against the aforesaid order petitioner preferred revision
petition before the Industrial Court. Initially a status quo order
was passed on 13th March, 2011. However, the Industrial Court
referred the matter back to the Labour Court to decide the
matter afresh and till the matter was decided to continue with
the status quo order.
10. On remand, Labour Court heard the matter and
thereafter passed an order dated 3rd September, 2011 holding
that while the enquiry conducted against the petitioner was not
legal and proper, it did not have the jurisdiction to adjudicate the
same.
11. Being aggrieved by that portion of the aforesaid order
dated 3rd September, 2011 holding that Labour Court lacked
jurisdiction, petitioner filed revision petition before the Industrial
Court. Respondent no.2 also challenged the said order
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whereby Labour Court held the enquiry against the petitioner to
be not legal and proper before the Industrial Court by filing a
separate revision. Initially the Industrial Court passed an order
of status quo. Subsequently by the order dated 16 th November,
2011, revision filed by the petitioner was dismissed whereas the
revision filed by respondent no.2 was allowed.
12. Aggrieved by the aforesaid order dated 16 th November,
2011 petitioner filed Writ Petition No.8952 of 2011 before this
Court. Vide order dated 23rd November, 2011 this Court
directed the parties to maintain status quo, which order was
continued thereafter. During this period, petitioner was
transferred to the head office of respondent no.2 and was given
additional charge of Accounts Officer.
13. On attaining the age of superannuation i.e., 58 years
respondent no.2 passed office order dated 31 st December, 2013
retiring the petitioner from the service of respondent no.2 on
31st December, 2013.
14. On 2nd April, 2014 Writ Petition No.8952 of 2011 was
disposed of by this Court as having been rendered infructuous.
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15. It may be mentioned that petitioner had filed another writ
petition before this Court being Writ Petition No.677 of 2013
challenging the notice issued to him by the disciplinary authority
on 8th June, 2010 proposing to impose the penalty of removal
from service. On 26th June, 2014 when it was submitted before
the Court that petitioner had retired from service on attaining
the age of superannuation and that he had only assailed a
show cause notice in the writ petition, this Court disposed of the
said writ petition by taking the view that petitioner had retired
from service on attaining the age of superannuation and the
challenge was only to the show cause notice; therefore the
Court need not entertain the writ petition.
16. After his retirement from service petitioner submitted an
application on 2nd January, 2014 before respondent no.2
requesting the latter to pay the petitioner his due gratuity
amount as well as the earned leave encashment. According to
the petitioner he is entitled to gratuity of Rs.7,84,605/- and
leave encashment of Rs.4,65,532/-. Petitioner was informed by
respondent no.2 on 7th February, 2014 that since the writ
petitions filed by him were pending before this Court, gratuity
and leave encashment could not be determined and paid to the
petitioner.
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17. Being aggrieved by such a response of respondent no.2,
petitioner filed Writ Petition No.3545 of 2014 before this Court.
The said writ petition was disposed of by order dated 17 th
December, 2015 by directing respondent no.2 to decide the
representation filed by the petitioner for payment of gratuity and
leave encashment within six weeks. While directing the
respondent no.2 as above, this Court mentioned about disposal
of the previous writ petitions which we have already noted
above.
18. Instead of deciding payment of gratuity and leave
encashment to the petitioner as directed by this Court,
respondent no.2 issued the impugned order/communication
dated 17th February, 2016 dismissing the petitioner from service
with effect from 31st December, 2013 i.e., the date of
superannuation. It has also been held that since petitioner had
caused financial loss to respondent no.2 he is not entitled to
receive gratuity as per Rule 4 (6) (a) (b) (ii) of the Payment of
Gratuity Act, 1972. Similarly, he would also not be entitled to
leave encashment which stood forfeited to compensate the loss
of respondent no.2, further stating that for recovery of the
remaining amount civil suit would be instituted against the
petitioner.
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19. Aggrieved, petitioner has filed the present writ petition
assailing the legality and validity of the aforesaid order dated
17th February, 2016 and seeking a direction to respondent no.2
for payment of gratuity and leave encashment.
20. As already mentioned above during the pendency of the
present writ petition, petitioner had expired and he has since
been substituted by his legal heirs.
21. Respondents have filed reply affidavit. Detailed
averments have been made on the merit of the charges brought
against the petitioner in the departmental proceeding.
21.1. It is stated that a charge-sheet was issued to the
petitioner for committing financial irregularities of more than
Rs.1 crore while disbursing the loans to beneficiaries when he
was working at Aurangabad District Office of respondent no.2.
An enquiry was conducted whereafter final show cause notice
was issued to the petitioner on 8 th June, 2010. Petitioner had
approached the Labour Court and thereafter the Industrial Court
at Latur and had obtained stay. Though the stay was vacated
by the Industrial Court, petitioner filed Writ Petition No.8952 of
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2011 before this Court and obtained stay. Since the stay order
was operational, respondent no.2 could not take disciplinary
action against the petitioner. Petitioner retired from service on
attaining the age of superannuation on 31 st December, 2013.
Writ Petition No.8952 of 2011 and another writ petition filed by
the petitioner being Writ Petition No.677 of 2013 were disposed
of by this Court as infructuous in view of petitioner's
superannuation from service. After disposal of both the writ
petitions there was no stay order in operation. Therefore,
respondent no.2 passed order dated 17 th February, 2016
dismissing the petitioner from service with retrospective effect
from 31st December, 2013.
21.2. As the petitioner was dismissed for financial
irregularities, gratuity amount and leave encashment payable to
the petitioner stood forfeited. Referring to order of this Court
dated 17th December, 2015 passed in Writ Petition No.3545 of
2014, it is stated that direction of the Court was to consider the
representation of the petitioner for payment of gratuity and
leave encashment and not for payment. Accordingly, it was
considered and thereafter decision was taken that since the
petitioner had caused heavy financial loss to respondent no.2,
therefore respondent no.2 forfeited the amounts of gratuity and
leave encashment payable to the petitioner.
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21.3. It is stated that petitioner was issued charge-sheet
levelling seven charges against him on 7 th August, 2008.
Maharashtra Civil Services (Discipline and Appeal) Rules, 1979
is applicable to respondent no.2 and the departmental
proceeding against the petitioner was conducted thereunder.
21.4. Entire amount of gratuity payable to the petitioner has
been forfeited under Section 4 (6) (a) (b) (ii) of the Payment of
Gratuity Act, 1972 as the misconduct of the petitioner falls
under 'moral turpitude'. Likewise, leave encashment of the
petitioner has also been forfeited due to financial irregularities
committed by him. Since the above two amounts have been
forfeited, question of delay in payment of the same does not
arise.
21.5. Reliance has been placed on a decision of the Supreme
Court in U.P. State Sugar Corporation Ltd. vs. Kamal
Swaroop Tandon, AIR 2008 SC 1235, in support of the
contention that steps for recovery of loss sustained by the
employer due to negligence of delinquent employee can be
continued even after retirement of the employee and can be
recoverred from his retiral benefits.
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21.6. In the circumstances, respondents contend that there is
no merit in the writ petition and therefore, the writ petition
should be dismissed.
22. Petitioner has filed a longish re-joinder affidavit to the
reply affidavit of the respondents. Stand taken is that after
disposal of Writ Petition Nos.8952 of 2011 and 677 of 2013,
respondent no.2 was not entitled to terminate the service of the
petitioner retrospectively from the date of superannuation.
Therefore, the impugned order/communication dated 17 th
February, 2016 is illegal. Such action has been done
deliberately and with mala fide intent to defeat the legal rights of
the petitioner. Direction of this Court dated 17 th December,
2015 passed in Writ Petition No.3545 of 2014 has been
deliberately misconstrued to deny legitimate dues of the
petitioner. In fact, such order passed by respondent no.2
amounts to committing contempt of court.
22.1. On merit, it is submitted that there is no single charge of
misappropriation against the petitioner; therefore, the question
of such a charge being proved or not been proved in the
enquiry does not arise. There was no charge of moral turpitude
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against the petitioner. Therefore, his gratuity amount cannot be
forfeited on the ground that misconduct of the petitioner is of
moral turpitude.
22.2. Petitioner has reiterated his explanations given to the
authority against the allegations brought against him.
22.3. Regarding application of the Maharashtra Civil Services
(Discipline and Appeal Rules), 1979 it is contended that there is
no notification making such Rules applicable to respondent
no.2. No retirement benefit can be withheld under the garb of
disciplinary proceeding. In this connection, reliance has been
placed on a decision of the Supreme Court in Dev Prakash
Tewari vs. U.P. Cooperative Institutional Service Board,
Civil Appeal No.5849 of 2014, decided on 30th June, 2014.
22.4. In the circumstances petitioner submits that impugned
order/communication dated 17th February, 2016 is wholly
unsustainable in law and the same is as such liable to be set
aside and quashed with further direction to respondent no.2 to
pay the admissible gratuity and leave encashment to the
petitioner.
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23. It may be mentioned that a sur-rejoinder has been filed
by the respondents to the re-joinder affidavit filed by the
petitioner wherein it is asserted that impugned action taken by
respondent no.2 is as per the Maharashtra Civil Services
(Discipline and Appeal) Rules, 1979 and based upon the
enquiry report submitted by the Enquiry Officer. Respondent
no.2 had adopted resolution on 25th February, 2004 to the effect
that the provisions of Maharashtra Civil Services (Discipline and
Appeal) Rules, 1979 would be applicable to respondent no.2 till
separate service rules were framed. Petitioner had played a
crucial role in disbursement of loans to the beneficiaries and
therefore, cannot escape accountability for causing huge
financial loss to respondent no.2. Charges levelled against the
petitioner would come under the expression 'moral turpitude'.
24. Learned Counsel for the petitioner has assailed the
impugned order/communication dated 17th February, 2016 on
several counts. Firstly, he submits that in the facts and
circumstances of the case petitioner could not have been
dismissed from service retrospectively from the date of
superannuation i.e., 31st December, 2013, i.e., after almost
three years of retirement. Secondly, he submits that by passing
such an order respondent no.2 has tried to over-reach the
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orders of this Court whereby earlier two writ petitions were
disposed of as infructuous in view of superannuation of the
petitioner and in the last writ petition direction was given to
respondent no.2 to consider payment of gratuity and leave
encashment to the petitioner. Instead of doing that, respondent
no.2 illegally dismissed the petitioner from service with
retrospective effect. On the decision of respondent no.2 to
forfeit gratuity he submits that having regard to the overriding
provisions of the Payment of Gratuity Act, 1972, such a course
of action is not open to respondent no.2. That apart, when the
impugned order is legally unsustainable and the order of
dismissal from service is illegal, question of withholding or
forfeiture of gratuity would not arise. Likewise, decision of
respondent no.2 to forfeit leave encashment of the petitioner is
not at all justified; rather it is wholly illegal and liable to be
appropriately interfered with by this Court. In support of his
submissions, Mr Gunale, learned Counsel for the petitioner has
placed reliance on a number of decisions of the Supreme Court
as well as of this Court.
25. Per contra, Mr Yadkikar, learned Counsel for respondent
no.2 submits that show cause notice was issued to the
petitioner on 7th August, 2008 when the petitioner was in
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service. It is now a settled legal position that when a
departmental proceeding is initiated against a delinquent
employee in the course of his employment, intervening
superannuation of the delinquent would not debar the employer
from carrying forward the departmental proceeding post
superannuation to its logical conclusion and impose adequate
penalty if so warranted. He submits that respondent no.2 was
constrained from passing an appropriate order of penalty
because of pendency of the writ petitions with an order of status
quo. After the writ petitions were disposed of as having been
rendered infructuous, there was no impediment upon
respondent no.2 for passing the impugned order of penalty.
Subsequent order of the High Court dated 17 th December, 2015
directing respondent no.2 to consider entitlement of the
petitioner to gratuity and leave encashment has to be
understood in the overall context. No direction was issued for
payment of gratuity and leave encashment to the petitioner.
Respondent no.2 was well within its right to impose the
impugned penalty having initiated the departmental proceeding.
25.1. Insofar forfeiture of gratuity and leave encashment is
concerned, he submits that action of respondent no.2 is fully
justified and in accordance with the provisions of the Payment
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of Gratuity Act, 1972. Section 4 (6) (a) (b) (ii) clearly
empowered respondent no.2 to forfeit the gratuity of the
petitioner. On similar basis leave encashment of the petitioner
has been forfeited.
25.2. Learned Counsel for the respondents has placed heavy
reliance on a decision of the Supreme Court in Chairman-cum-
Managing Director, Mahanandi Coalfields Limited vs. Sri
Rabindranath Choubey, AIR 2020 SC 2978, and submits that
respondent no.2 is fully justified in not only dismissing the
petitioner from service but in also forfeiting the gratuity and
leave encashment of the petitioner.
26. Learned A.G.P. submits that it is a matter between the
petitioner and respondent no.2. Respondent no.1 has no role
to play.
27. Submissions made by learned Counsel for the parties
have received the due consideration of the Court. Also perused
the materials on record and considered the citations referred to
and relied upon by the rival parties at the bar.
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28. From an analysis of the pleadings and submissions
made what is discernible is that the impugnment is to the order/
communication dated 17th February, 2016 passed by
respondent no.2. The said order/communication can be
bisected into two parts. The first part provides for termination of
service of the petitioner by way of dismissal with retrospective
effect from the date of superannuation i.e., 31 st December,
2013. Second part deals with forfeiture of gratuity for causing
financial loss to respondent no.2 and also on account of
misconduct of the petitioner being in the category of 'moral
turpitude'. Similarly, leave encashment due to the petitioner is
being forfeited to compensate the loss of respondent no.2.
29. Before we deal with challenge, it would be apposite to
briefly highlight the admitted facts which are relevant for
adjudication.
30. There is no doubt that the charge-sheet was issued to
the petitioner on 7th August, 2008 when he was in service of
respondent no.2. Show cause reply filed by the petitioner to the
charge-sheet was found to be not satisfactory. Consequently,
enquiry was ordered. Enquiry Officer after holding enquiry
submitted enquiry report. Respondent no.2 accepted the report
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of enquiry and issued notice to the petitioner on 8 th June, 2010
seeking his comments on the enquiry report and also on the
proposed penalty of removal from service. Petitioner submitted
his response on 25th June, 2010. At this stage we may mention
that while respondent no.2 has contended that the departmental
proceeding against the petitioner was conducted in terms of the
Maharashtra Civil Service (Discipline and Appeal) Rules, 1979,
the same is being disputed by the petitioner. Without entering
into this controversy, at this stage we may mention that
petitioner had unsuccessfully moved the Labour Court and
thereafter the Industrial Court against the notice dated 8 th June,
2010 whereafter petitioner filed Writ Petition No.8952 of 2011
before this Court in which status quo order was passed on 23rd
November, 2011. Subsequently petitioner also filed Writ
Petition No.677 of 2013 directly assailing the aforesaid notice
dated 8th June, 2010. While the two writ petitions were pending
before this Court, respondent no.2 passed office order dated
31st December, 2013 declaring that petitioner had retired from
service on attaining the age of superannuation on 31 st
December, 2013. We may mention that in the said office order
dated 31st December, 2013 it was not indicated that a
departmental proceeding was pending against the petitioner
and that such superannuation was subject to out-come of the
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departmental proceeding. It was also not indicated therein that
service of the petitioner stood notionally extended post
superannuation for the purpose of the pending departmental
proceeding. Be that as it may, Writ Petition No.8952 of 2011
was disposed of on 2nd August, 2014 by taking the view that
since petitioner had retired from service upon superannuation,
the writ petition had been rendered infructuous. Similarly, Writ
Petition No.677 of 2013 was disposed of by this Court on 26 th
June, 2014 by taking the view that since the petitioner had
retired on attaining the age of superannuation and the
challenge was only to the show cause notice the Court need not
entertain the writ petition. When the petitioner's request for
payment of gratuity and leave encashment was not favourably
considered by respondent no.2, petitioner filed Writ Petition
No.3545 of 2014 before this Court which was disposed of on
17th December, 2015 by directing respondent no.2 to decide the
representation of the petitioner regarding release of gratuity and
leave encashment within six weeks. It was thereafter that the
impugned order/communication came to be passed on 17 th
February, 2016.
31. Let us now examine the impugned order/communication
dated 17th February, 2016. After narrating that memo dated 7 th
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August, 2008 was issued to the petitioner under Rule 8 of the
Maharashtra Civil Services (Discipline and Appeal) Rules, 1979
it is stated that respondent no.2 decided to initiate departmental
enquiry on the various charges levelled against petitioner. Shri
N.G. Gaikwad, retired selection grade Deputy Collector was
appointed as Enquiry Officer. He conducted enquiry and
thereafter submitted enquiry report to respondent no.2 on 22 nd
October, 2009. Petitioner was informed vide letter dated 6 th
November, 2009 to record his statement on the enquiry report
which the petitioner did on 8 th December, 2009 but the
statement of the petitioner was found to be not satisfactory.
Disciplinary authority agreed with the enquiry report whereby all
the seven charges against the petitioner stood proved.
Because of reckless distribution of loans by committing financial
irregularities most of the loans would not be recoverred putting
respondent no.2 at a financial loss. Thus, conduct of the
petitioner was not honest. Notice dated 8 th June, 2010 was
issued to the petitioner as to why penalty of removal from
service should not be imposed on the petitioner. Explanation
furnished by the petitioner was found to be unsatisfactory. It is
stated that respondent no.2 suffered financial loss of Rs.81.51
Lakhs which should be recoverred from the petitioner and one
Shri Bhale in the ratio of 50 : 50. The order referred to the stay
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order granted by the Labour Court which was vacated by the
Industrial Court and also to the two writ petitions filed by the
petitioner stating that the High Court had rejected both the writ
petitions and that petitioner had superannuated from service on
31st December, 2013. Respondent no.2 has taken the view that
there is no stay order of any Court to the proposed action as
per notice dated 8th June, 2010. Considering the seriousness of
the charges which stood proved in the departmental enquiry
petitioner was dismissed from service with retrospective effect
from the date of superannuation i.e., 31 st December, 2013.
Relevant portion of the order/communication dated 17 th
February, 2016 pertaining to dismissal from service of the
petitioner is extracted hereunder :-
"The Inquiry Report submitted by the Inquiry
Officer has been accepted by the Managing Director and
'Disciplinary Authority' and he is agreed with the Inquiry
Report. The charges of serious nature have been proved
against you in the Departmental Inquiry. Considering the
gravity of the charges it was required to award you the
harsh punishment under Rule 9 of the Maharashtra Civil
Service (Discipline & Appeal) Rules. Due to your
misconduct and financial irregularities committed by you
the corporation and consequently the government is at
financial loss.
According to the report submitted by the Inquiry
Officer, all the 7 charges framed against you are proved
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completely. According to that you have disbursed the
loans without following prevailing method, by the wrong
way, unlawfully, without following the norms of
Corporation, and committed financial irregularities. Out of
which most of the loan amount will never be recovered.
Due to which the Corporation is at financial loss in lakhs
of rupees. While performing the duty of District Manager
your conduct was not honest and dutiful. Since you are a
government servant your conduct is unbecoming of a
government employee. Therefore, you have committed
breach of the provisions of rule 3(1)(one)(two)(three) and
3 (3) of the Maharashtra Civil Service (Conduct) Rules,
1979.
As the serious charges leveled against you are
proved, why the action of removal from the service should
not be taken against you. Similarly, in spite of giving the
benefit of the debt waiver to the concerned beneficiaries
as per government rule, the Corporation is at the financial
loss of Rs.81.51 Lakh. The directions regarding the
explanation as to why the said amount should not be
recovered from you and Shri. Bhale individually 50% from
each one of you, had been issued to you through the
notice by Corporation letter bearing no.
OBCFDC-2010/Manag.of.Corpo/477 dtd. 08/06/2010.
Accordingly you have submitted your explanation by the
letter dtd. 25.06.2010. The explanation submitted by you
is found unsatisfactory therefore it has been rejected.
The stay order was granted to you by the Labour
Court, Latur against the proposed dismissal notice. That
order was rejected by the Hon'ble Industrial Court, Latur.
However, you had preferred Writ Petitions no.8952/2013
and 677/2013 to the Hon'ble High Court of Bombay,
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Aurangabad Bench. Then after your retirement on
superannuation from the Corporation service on dtd.
31.12.2013 you have submitted the said information to the
Hon'ble High Court through your advocate and the
Hon'ble High Court has rejected both the writ petitions.
Hence, now there is no stay order of any Court to the
proposed action as per the notice dtd. 08.06.2010.
As you are retired on superannuation and in view
of the Court's stay order, your retirement order has been
issued on dtd. 31/12/2013. However, at present there is
no stay order, against the charges of illegal loan
disbursement and other serious charges are also proved
against you in the Departmental Inquiry, therefore it
became required to award you harsh punishment as per
Maharashtra Civil Service Rules. Therefore you have
been dismissed since dtd. 31.12.2013."
31.1. Though in the notice dated 8 th June, 2010 petitioner was
informed that respondent no.2 had proposed to impose the
penalty of removal from service, in the final
order/communication dated 17th February, 2016 the penalty that
is imposed is dismissal from service. While in service
jurisprudence there is a distinction between the penalties of
removal from service and dismissal from service, we need not
labour much on it for the simple reason that the original
petitioner is no longer alive; that apart he had retired from
service on attaining the age of superannuation with effect from
31st December, 2013. Having retired from service and having
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expired, the minute distinction between the two concepts may
not have much relevance.
32. We have already noticed that petitioner had filed Writ
Petition No.8952 of 2011 against the decision of the Industrial
Court rejecting the revision of the petitioner assailing the
decision of the Labour Court on the notice dated 8 th June, 2010.
The High Court had initially passed a status quo order on 23rd
November, 2011. Subsequently petitioner filed another writ
petition being Writ Petition No.677 of 2013 directly assailing the
legality and validity of the notice dated 8 th June, 2010. In the
meanwhile petitioner attained the age of superannuation on 31 st
December, 2013 and respondent no.2 issued an office order on
the same day relieving the petitioner from service having
attained the age of superannuation. But as we have pointed
out above, in the said office order it was not indicated that
departmental proceeding was pending against the petitioner
and that such superannuation would be subject to the out-come
of the departmental proceeding or that service of the petitioner
stood notionally extended post superannuation to await final
decision in the departmental proceeding. Subsequently both
the writ petitions were disposed of on 2 nd August, 2014 and 26th
June, 2014 respectively as having been rendered infructuous.
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The two writ petitions were not dismissed by this Court as has
been urged by respondent no.2 in the impugned
order/communication dated 17th February, 2016 and certainly
were not dismissed on merit. From a perusal of the two orders
dated 2nd August, 2014 and 26th June, 2014 it becomes quite
clear that High Court had taken the view that since the
petitioner had superannuated from service, the show-cause
notice dated 8th June, 2010 had lost its force and ceased to
have effect. Therefore the writ petitions were closed. When
the petitioner's request for payment of gratuity and leave
encashment was not favourably considered by respondent
no.2, petitioner had approached this Court by filing Writ Petition
No.3545 of 2014 which was disposed of on 17 th December,
2015 by directing respondent no.2 to decide on the
representation filed by the petitioner regarding release of
gratuity and leave encashment. Instead of taking a decision on
such representation of the petitioner, what respondent no.2 did
was to pass the order/communication dated 17 th February, 2016
dismissing the petitioner from service giving retrospective effect
to such dismissal from the date of his superannuation.
33. In the light of the admitted factual position as stated
above, we cannot help but harbour a feeling that respondent
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no.2 acted in a manner as if to circumvent the orders of this
Court. We have already noted and would like to reiterate that
when respondent no.2 had passed the office order dated 31 st
December, 2013 relieving the petitioner from service on his
attaining the age of superannuation there was no indication or
condition in such order that service of the petitioner stood
notionally extended so as to give effect to the departmental
proceeding drawn up against the petitioner or that such
superannuation was subject to out-come of the departmental
proceeding drawn up against the petitioner in pursuance of
which notice dated 8th June, 2010 was issued to the petitioner.
Therefore, a view can legitimately be taken that respondent
no.2 had unconditionally released the petitioner from service on
attaining the age of superannuation on 31 st December, 2013. If
that be so, the relationship of master and servant or employer
and employee stood breached and that relationship no longer
existed between respondent no.2 and petitioner post 31 st
December, 2013. In such circumstances it cannot be said that
respondent no.2 had any administrative or disciplinary control
over the petitioner. Therefore, the dismissal order of the
petitioner after superannuation that too giving retrospective
effect from the date of superannuation becomes untenable in
law.
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34. In S.B.I. vs. A.N. Gupta, (1997) 8 SCC 60 Supreme
Court took the view that disciplinary proceedings cannot be
permitted after an employee has ceased to be in the service of
the bank as service rules do not provide for continuation of
disciplinary proceedings after the date of superannuation.
Again in Bhagirathi Jena vs. Board of Directors, (1999) 3
SCC 666, Supreme Court held that after retirement of the
delinquent employee a pending departmental enquiry lapses in
absence of a specific provision for its continuation after
retirement.
35. We have carefully perused the Maharashtra Civil
Services (Discipline and Appeal) Rules, 1979 but we do not find
any provision therein which provide for continuation of enquiry
post superannuation. We also do not find any such provision
therein for extension of service of a Government servant post
superannuation for the purpose of completion of disciplinary
proceeding which was initiated while the Government servant
was in service.
36. However, we find that Rule 27 of the Maharashtra Civil
Services (Pension) Rules, 1982 confers right to the
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Government to withhold or withdraw pension. As per sub-rule
(1) the appointing authority may by order in writing withhold or
withdraw a pension or any part of it whether permanently or for
a specified period and also order recovery from such pension
the whole or part of any pecuniary loss caused to the
Government if the pensioner is found guilty of grave misconduct
or negligence during the period of his service including service
rendered upon re-employment after retirement. Such guilt must
be found or proved in a departmental or judicial proceeding.
The two provisos to sub-rule (1) are not relevant for the present
discourse and are therefore not referred to.
36.1. Clause (a) of sub-rule (2) provides that the departmental
proceedings referred to in sub-rule (1) if instituted while the
Government servant was in service whether before his
retirement or during his re-employment shall after the final
retirement of the Government servant be deemed to be
proceedings under Rule 27 and shall be continued and
concluded by the authority by which they were commenced in
the same manner as if the Government servant had continued
in service.
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36.2. Clause (b) of sub-rule (2) deals with institution of
departmental proceedings post superannuation. The same is
not relevant for the present case and, therefore, need not be
dealt with.
36.3 Rule 27 (1) and (2) (a) being relevant is extracted
hereunder :-
"27. Right of Government to withhold or withdraw pension.-(1)
[Appointing Authority may], by order in writing, withhold or withdraw a
pension or any part of it, whether permanently or for a specified
period, and also order the recovery from such pension, the whole or
part of any pecuniary loss caused to Government, if, in any
departmental or judicial proceedings, the pensioner is found guilty of
grave misconduct or negligence during the period of his service
including service rendered upon re-employment after retirement:
Provided that the Maharashtra Public Service Commission
shall be consulted before any final orders are passed in respect of
officers holding posts within their purview:
Provided further that where a part of pension is withheld or
withdrawn, the amount of remaining pension shall not be reduced
below the minimum fixed by Government.
(2) (a) The Departmental proceedings referred to in sub-rule (1), if
instituted while the Government servant was in service whether
before his retirement or during his re-employment, shall, after the
final retirement of the Government servant, be deemed to be
proceedings under this rule and shall be continued and concluded by
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the authority by which they were commenced in the same manner as
if the Government servant had continued in service."
36.4. At the first glance, from a reading of the aforesaid
provision one may gather an impression that a departmental
proceeding if instituted while the Government servant was in
service shall be deemed to be proceedings under Rule 27 even
after retirement of the Government servant and shall be
continued and concluded by the authority in the same manner
as if the Government servant had continued in service.
37. Rule 27 of the Maharashtra Civil Services (Pension)
Rules, 1982 came up for consideration before a Single Judge of
this Court in Chairman/Secretary of Institute of Acharya
Ratna Deshbhushan Shikshan Prasarak Mandal, Kolhapur
vs. B.B. Patil, 2003 (3) Mh.L.J. 602. After an indepth analysis
of the aforesaid provision, learned Single Judge held that this
rule nowhere empowers the Government to initiate or continue
disciplinary proceedings after the employee attains the age of
superannuation. The rule is meant for and confined to the
power of the Government to reduce or withdraw the pension of
a pensioner on account of proven grave misconduct or
negligence of such pensioner while he was in service. Such
proceedings would be deemed to have been continued post
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superannuation only for the purpose of action relating to
pension and not for disciplinary purpose. Provisions of Rule 27
disclose that departmental proceedings spoken thereof are
wholly and solely in relation to the issue pertaining to payment
of pension. Those proceedings do not relate to disciplinary
enquiry which can otherwise be initiated against the employee
for any misconduct on his part and continued till the employee
attains the age of superannuation. Even here also the fact that
proceedings are continued post superannuation only to deal
with the issue of withdrawal of pension is necessarily required
to be made known to the employee. It has specifically been
held that proceedings under Rule 27 after attaining the age of
superannuation can be only for the purpose of deciding the
issue of pension and cannot have any link with the disciplinary
proceedings.
38. The above decision of the learned Single Judge of this
Court was approved by a Division Bench of this Court in
Manohar B. Patil vs. State of Maharashtra, 2013 (6) Mh.L.J.
311. In the said decision Division Bench held that on a conjoint
reading of sub-rules (1) and (2) of Rule 27 it is obvious that in
departmental proceedings initiated after retirement no penalty
can be imposed on a Government servant in accordance with
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the Maharashtra Civil Services (Discipline and Appeal) Rules,
1979. The departmental enquiry can be initiated after
superannuation only for the purpose of withholding the whole or
part of the pension. Reference was also made to another
Division Bench judgment of this Court in Dhairyasheel A.
Jadhav vs. Maharashtra Agro Industrial Development
Corporation Ltd., 2010 (2) Mh.L.J. 618 wherein it was held
that if a Government servant is not in service then none of the
penalties provided for in Rule 5 of the Maharashtra Civil
Services (Discipline and Appeal) Rules, 1979 can be imposed.
Adverting to Rule 27 of the Maharashtra Civil Services
(Pension) Rules, 1982 the Division Bench held that the said rule
permits institution of departmental proceedings after
superannuation of an employee only for the purposes of taking
action contemplated under sub-rule (1) of Rule 27 in relation to
pension and in the said proceedings no penalty can be imposed
in accordance with the Maharashtra Civil Services (Discipline
and Appeal) Rules, 1979. Relevant portion of paragraph 15 of
the said judgment in Manohar B. Patil (supra) is extracted
hereunder :-
"15. * * * *
Thus we hold that Rule 27 permits institution of departmental
proceedings after superannuation of an employee only for the
purposes of taking action contemplated by Sub-Rule (1) of Rule 27 in
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relation to pension and in the said proceedings, no penalty can be
imposed in accordance with the Discipline and Appeal Rules. To that
extent, we approve the view taken by the learned Single Judge in the
case of Shri Acharya Ratna Deshbhushan Shikshan Prasarak
Mandal, 2003 (3) Mh.L.J. 602 = 2003 (5) Bom. C.R. 197."
39. Consequently and in the light of the above, we hold that
the order/communication dated 17th February, 2016 dismissing
the petitioner from service retrospectively from 13 th December,
2013 is unsustainable in law and is accordingly set aside and
quashed.
40. If the order of dismissal is interfered with in the above
manner, question of forfeiture of gratuity and leave encashment
would not arise. None the less, to complete the narrative we
may advert to that portion of the order dated 17 th February,
2016 whereby gratuity and leave encashment of the petitioner
have been forfeited. Relevant portion of the order dated 17 th
February, 2016 is extracted hereunder :-
"You have intentionally caused a financial loss to the
Corporation as per the charges proved against you in the
Departmental Inquiry. Moreover, your misconduct falls
under the category of moral turpitude hence you are not
entitled to receive the amount of gratuity as per Rule IV
(6) (a) (b) (2) of the Gratuity Act, 1972 therefore said
amount has been forfeited. Similarly, the leave
encashment amount which was entitled to you has been
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forfeited to compensate the loss of Corporation and for
the recovery of remaining amount civil suit will be filed
against you."
41. We find from the above that according to
respondent no.2 petitioner had intentionally caused
financial loss to it and that petitioner's misconduct fell in
the category of 'moral turpitude'. Therefore, the gratuity
has been forfeited under Section 4 (6) (1) (a) and (b) (ii) of
the Payment of Gratuity Act, 1972. Thus gratuity has been
forfeited both for causing financial loss to respondent no.2
and on the ground of the misconduct falling in the category
of 'moral turpitude'. On similar ground the leave
encashment has also been forfeited.
42. Payment of gratuity to a employee by a employer is
covered by the Payment of Gratuity Act, 1972 (briefly the
"Act" hereinafter). The Act provides for a scheme for
payment of gratuity to an employee. It is a welfare piece of
legislation. Gratuity is a statutory right of an employee
under the Act. Withholding of such statutory right to an
employee is not permissible under any circumstances
other than those mentioned in Section 4 (6) of the Act. The
conditions under which the statutory right of gratuity can be
forfeited are mentioned in sub-section (6) of Section 4 of
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the Act which is extracted hereunder :-
"4 (6) Notwithstanding anything contained in sub-section
(1), -(a) the gratuity of an employee, whose services
have been terminated for any act, wilful omission or
negligence causing any damage or loss to, or
destruction of, property belonging to the employer, shall
be forfeited to the extent of the damage or loss so
caused;
(b) the gratuity payable to an employee may be wholly or
partially forfeited]-(i) if the services of such employee
have been terminated for his riotous or disorderly
conduct or any other act of violence on his part, or(ii) if
the services of such employee have been terminated for
any act which constitutes an offence involving moral
turpitude, provided that such offence is committed by
him in the course of his employment."
43. Thus, from the above what is noticeable is that gratuity of
an employee can be forfeited if his services have been
terminated for committing any act of misconduct causing
damage or loss but forfeiture of the gratuity can only be to the
extent of the damage or loss so caused. While still on clause (a)
we may summarize the position that for forfeiture of gratuity two
conditions are required to be fulfilled. Firstly, service of the
employee should be terminated for an act of misconduct which
caused damage or loss to the employer and secondly, forfeiture
of gratuity shall be to the extent of the damage or loss so
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caused. Therefore, to invoke the provision of Section 4 (6) (1)
(a) quantification of the extent of damage or loss so caused due
to the misconduct of the terminated employee is essential.
44. Constitutional validity of the Act, more particularly
Section 4 (1) (b) was challenged in Bakshish Singh vs. Darshan
Engineering Works, AIR 1994 SC 251. Though the High Court
had initially struck down the said provision as being
unconstitutional, decision of the High Court was reversed by the
Supreme Court. While upholding validity of the aforesaid
provision Supreme Court made a detail survey of the relevant
law and held as under :-
"7. The aforesaid survey of the relevant authorities shows that in
labour jurisprudence the concept of gratuity has undergone a
metamorphosis over the years. The dictionary meaning may
suggest that gratuity is a gratuitous payment, a gift or a boon
made by the employer to the employee as per his sweet-will. It
necessarily means that it is in the discretion of the employer
whether to make the payment or not and also to choose the
payee as well as the quantum of payment. However, in the
industrial adjudication it was considered as a reward for a long
and meritorious service and its payment, therefore, depended
upon the duration and the quality of the service rendered by the
employee. At a later stage, it came to be recognized as a retiral
benefit in consideration of the service rendered and the
employees could raise an industrial dispute for introducing it as
a condition of service. The industrial adjudicators recognized it
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as such and granted it either in lieu of or in addition to other
retiral benefits such as pension or provident fund depending
mainly upon the financial stability and capacity of the employer.
The other factors which were taken into consideration while
introducing gratuity scheme were the service conditions
prevalent in the other units in the industry and the region, the
availability or otherwise of the other retiral benefits, the standard
of other service conditions etc. The quantum of gratuity was
also determined by the said factors. The recognition of gratuity
as a retiral benefit brought in its wake further modifications of
the concept. It could be paid even if the employee resigned or
voluntarily retired from service. The minimum qualifying service
for entitlement to it, rate at which it was to be paid and the
maximum amount payable was determined likewise on the
basis of the said factors. It had also to be acknowledged that it
could not be denied to the employee on account of his
misconduct. He could be denied gratuity only to the extent of the
financial loss caused by his misconduct, and no more. Thus
even before the present Act was placed on the statute book, the
Courts had recognized gratuity as a legitimate retiral benefit
earned by the employee on account of the service rendered by
him. It became a service condition wherever it was introduced
whether in lieu of or in addition to the other retiral benefits. The
employees could also legitimately demand its introduction as
such retiral benefit by raising an industrial dispute in that behalf,
if necessary. The industrial adjudicators granted or rejected the
demand on the basis of the factors indicated above. It is true
that while doing so, the industrial adjudicators insisted upon
certain minimum years of qualifying service before an employee
could claim it whether on superannuation or resignation or
voluntary retirement. This was undoubtedly inconsistent with the
concept of the gratuity being an earning for the services
rendered. What is, however, necessary to remember in this
connection is that there is no fixed concept of gratuity or of the
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method of its payment. Like all other service conditions, gratuity
schemes may differ from establishment to establishment
depending upon the various factors mentioned above, the
prominent among them being the financial capacity of the
employer to bear the burden. There has commonly been one
distinction between a retiral benefit like provident fund and
gratuity, viz., the former generally consists of the contribution
from the employee as well. It is, however, not a necessary
ingredient and where the employee is required to make his
contribution, there is no uniformity in the proportion of his share
of contribution. Likewise, the gratuity schemes may also provide
differing qualifying service for entitlement to gratuity. It is true
that in the case of gratuity an additional factor weighed with the
industrial adjudicators and Courts, viz., that being entirely a
payment made by the employer without there being a
corresponding contribution from the employee, the gratuity
scheme should not be so liberal as would induce the employees
to change employment after employment after putting in the
minimum service qualifying them to earn it. But as has been
pointed out by this Court in the Straw Board Mfg. Co. Ltd. case
(AIR 1977 SC 941) (supra), in view of the constantly growing
unemployment, the surplus labour and meagre opportunities for
employment, the premise on which a longer qualifying period of
service was prescribed for entitlement to gratuity on voluntary
retirement or resignation, was unsupported by reality. In the face
of the dire prospects of unemployment, it was facile to assume
that the labour would change or keep changing employment to
secure the paltry benefit of gratuity."
44.1. Supreme Court further held that it is apparent both from
its object as well as its provisions that the Act was placed on the
statute book as a welfare measure to improve the service
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conditions of the employees. The Act has laid down gratuity as
one of the minimal service conditions available to employees
covered by the Act. Payment of gratuity under the Act is thus
obligatory being one of the minimum conditions of service.
45. Supreme Court in Jaswant Singh Gill vs. Bharat
Cooking Coal Ltd., (2007) 1 SCC 663, held that the Act
provides for a close-knit scheme for payment of gratuity. It is a
complete code containing detailed provisions covering the
essential provisions of a scheme for gratuity. It not only creates
a right to payment of gratuity but also lays down the principles
for quantification thereof as also the conditions on which an
employee may be denied gratuity. The amount liable to be
forfeited would be only to the extent of damage or loss caused
which has to be quantified and while quantifying the said
amount an opportunity of hearing must be given to the
employee. This is because payment of gratuity is a statutory
right of an employee covered under the Act.
46. In Y.K. Singla vs. Punjab National Bank (2013) 3 SCC
472 Supreme Court referred to Section 14 of the Act which says
that provisions of the Act or any rule made thereunder shall
have effect notwithstanding anything inconsistent therewith
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contained in any enactment other than the Act or in any
instrument or contract having effect by virtue of any enactment
other than the Act. Supreme Court has observed that in view of
Section 14 there is no doubt that superior status has been
vested in the provisions of the Act vis-a-vis any other enactment
inconsistent therewith . Supreme Court further held that under
the Act an employee would be entitled to interest on account of
delayed payment of gratuity in consonance with Section 7 (3-A)
of the Act.
47. Thus, from the above it becomes evident that imposition
of penalty of dismissal from service on an employee would not
automatically lead to forfeiture of gratuity of the employee. To
withhold or to make forfeiture of gratuity the employer is first
required to quantify damage or loss caused due to the
misconduct of the employee. In the exercise of such
quantification the employee must be put on notice and must be
given a reasonable opportunity of putting forward his case.
Only after the damage or loss is quantified, withholding or
forfeiture of gratuity would be permissible that too to the extent
of damage or loss so quantified and caused due to the
misconduct of the employee.
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48. Insofar forfeiture of gratuity on account of moral turpitude
as is contemplated in Section 4 (6) (1) (b) (ii) of the Act is
concerned, the expression 'moral turpitude' is an expression of
serious import and consequence. Though it is not a defined
expression, we cay say that it is something which is to describe
a conduct which is inherently base, vile, depraved or having any
connection showing depravity. Thus, to arrive at the conclusion
or finding that misconduct of the delinquent employee falls
within the ambit of 'moral turpitude' there must be application of
mind to the above aspect by the employer and after due
deliberation a finding has to be reached. Just by making a
sweeping statement without any deliberation that the
misconduct of the employee falls in the category of moral
turpitude, the statutory right of an employee to receive gratuity
cannot be snatched away. As in the case of quantification of
damage or loss, in the case of moral turpitude too an employee
is required to be put on notice and heard before he is denied
gratuity.
49. In the instant case neither was there any quantification
nor any serious deliberation on the aspect of petitioner's
misconduct falling under the category of moral turpitude.
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50. However, we have already come to the conclusion that
dismissal of the petitioner from service in the manner in which it
has been done cannot be sustained legally. If that be so and in
any view of the matter, neither gratuity nor leave encashment of
the petitioner can be withheld and forfeited.
51. Before we wind up our deliberation, we may refer to the
decision of the Supreme Court in Rabindranath Choubey
(supra) on which much emphasis was placed by learned
Counsel for the respondents. In the facts of that case,
Supreme Court considered two questions. The first question
was whether it is permissible for an employer to withhold
payment of gratuity payable to an employee even after his
superannuation from service because of pendency of
disciplinary proceedings? The second question posed by the
Supreme Court for its consideration was where departmental
enquiry was instituted against an employee while he was in
service and continued after he had attained the age of
superannuation, whether punishment of dismissal can be
imposed? In that case the respondent was an employee of the
appellant governed by the Conduct, Discipline and Appeal
Rules, 1978 ("CDA Rules") While in service a departmental
proceeding was initiated against respondent under the CDA
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Rules. In due course he retired from service on
superannuation. However, at the time of superannuation the
departmental enquiry against him remained pending.
Therefore, the appellant withheld gratuity due to the
respondent. When the respondent claimed gratuity, the same
was turned down by the authority on the ground that a
disciplinary proceeding was pending against him. Respondent
challenged the said decision by filing a writ petition in the High
Court. Learned Single Judge dismissed the writ petition on the
ground of non availing the alternative remedy of appeal. Writ
appeal filed by the respondent was allowed by a Division Bench
of the High Court. Division Bench held that since respondent
had retired from service on superannuation question of
imposing major penalty of removal from service would not arise.
Therefore, the gratuity amount could not be withheld. It is in
that context that Supreme Court framed the above two
questions for its consideration.
51.1. Supreme Court referred to Rule 34 of the CDA Rules
which permits the management to withhold gratuity during
pendency of disciplinary proceedings. More specifically, Rule
34.2 permits the disciplinary proceedings to be continued and
concluded even after the employee has attained the age of
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superannuation, provided the disciplinary proceedings were
instituted while the employee was in service. It further provides
that such disciplinary proceedings shall be deemed to be the
proceedings and shall be continued and concluded by the
authority by which it was commenced in the same manner as if
the employee had continued in service. Further, Rule 34.3
permits withholding of gratuity during the pendency of the
disciplinary proceedings. It was held that in view of such a
provision even a retired employee who was permitted to retire
on attaining the age of superannuation can be subjected to
major penalty provided the disciplinary proceedings were
initiated while the employee was in service. Therefore, the
amount of gratuity can be withheld till the disciplinary
proceedings are concluded. The second question was also
answered by holding that considering Rules 34.2 and 34.3 of
the CDA Rules departmental enquiry can be continued post
superannuation given the deeming fiction that the employee
continued in service and therefore, post superannuation
appropriate punishment can be imposed. In the facts of that
case, the employer was directed to conclude the disciplinary
proceedings within four months.
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52. Admittedly, facts of the present case are clearly
distinguishable. Unlike in Rabindranath Choubey (supra), in the
present case a dismissal order has been passed whereafter
gratuity and leave encashment has been forfeited. In
Rabindranath Choubey (supra) Supreme Court held that in the
light of Rules 34.2 and 34.3 of the CDA Rules, the employer
has a right to withhold gratuity post superannuation till
conclusion of departmental proceeding and that if the
disciplinary proceedings remained pending at the time of
superannuation of the employee, the employee would be
deemed to have continued in service post superannuation till
conclusion of disciplinary proceedings. Supreme Court
accordingly directed the employer to conclude the disciplinary
proceeding at the earliest. In the instant case, firstly the
dismissal order has been found to be unsustainable in law as
there is no such provision in the Maharashtra Civil Services
(Discipline and Appeal) Rules, 1979 as well as in the
Maharashtra Civil Services (Pension) Rules, 1982 like Rules
34.2 and 34.3 of the CDA Rules. Additionally, forfeiture of
gratuity has been found to be without following the due
procedure laid down in Section 4 (6) (1) (a) and (b) of the Act.
So also leave encashment.
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53. Thus, having regard to the discussions made above and
upon thorough consideration of the matter, we are of the view
that impugned order/communication dated 17th February, 2016
is wholly unsustainable in law. The same is accordingly set
aside and quashed. Consequently, respondent no.2 is directed
to release the admissible gratuity to the petitioners (legal heirs
of the original petitioner) with interest under Section 7 (3-A) of
the Act. Likewise, respondent no.2 is directed to release the
due leave encashment to the petitioners. Both the amounts as
directed above shall be paid to the petitioners within a period of
eight weeks from the date of receipt of a copy of this order. Writ
Petition is accordingly allowed. However, there shall be no
order as to costs.
54. Rule made absolute in above terms.
(M.G. SEWLIKAR) (UJJAL BHUYAN)
JUDGE JUDGE
amj
