Bombay High Court
Ashfakali Khan Abdulali Khan vs The State Of Maharashtra And ... on 25 October, 2021
Bench: Ravindra V. Ghuge, S. G. Mehare
-1-
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.6650 OF 2020
ASHFAKALI KHAN ABDULALI KHAN
VERSUS
THE STATE OF MAHARASHTRA AND OTHERS
Mr.V.G.Salgare, Advocate for the petitioner.
Mr.P.S.Patil, AGP for respondent No.1.
Mr.R.K.Ingole Patil, Advocate for respondent Nos. 2 and 3.
( CORAM : RAVINDRA V. GHUGE &
S.G. MEHARE, JJ)
DATE : OCTOBER 25, 2021
PER COURT :
1. We have considered the strenuous submissions of the learned
Advocates for the respective sides. The learned Advocate for
respondent Nos.2 and 3 and the learned AGP have vehemently opposed
this petition and pray for it's dismissal. It is pointed out that though
the petitioner has been acquitted for committing offences punishable
under sections 7 and 13(1)(d) r/w 13(2) of the Prevention of
Corruption Act, 1988 vide judgment dated 19/07/2019 in Special Case
(ACB) No.07/2007, a criminal appeal challenging such acquittal is
pending in this Court.
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2. The petitioner has put forth prayer clause B, C and D as under :-
"B. By Writ, order or directions the respondent No.2 and 3 may
kindly be directed to fix final pensionable pay and to grant
regular pension, gratuity and commutation of pension to the
petitioner as per 7th Pay Commission as provided under the
Maharashtra Civil Services (Pension) Rules, 1982 in the interest
of justice.
C. By writ, order or directions the respondent No.2 and 3 may
kindly be directed to pay the difference of final regular pension
deducting the amount paid to the petitioner by way of
provisional pension from 01.07.2017 till the actual grant of
regular pension as per 7th Pay Commission and to pay interest
@ 12% on regular pension from 20.07.2019 till the grant and
payment of actual regular pension and for the payment of
interest on the amount payable to the petitioner of gratuity from
01.07.2017 till the actual payment of gratuity in the interest of
justice.
D. Pending hearing and final disposal of this Writ Petition the
respondent No.2 and 3 may kindly be directed to fix the final
pensionable pay and to grant regular pension, gratuity and
commutation of pension to the petitioner as per 7th Pay
Commission as provided under the Maharashtra Civil Services
(Pension) Rules, 1982 in the interest of Justice."
3. It is settled Law that gratuity cannot be forfeited unless the
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offence amounting to moral turpitude is proved to have been
committed by the petitioner, u/s 4, 6(d)(2) of the Payment of Gratuity
Act, 1972 and in the light of the judgment delivered by the Hon'ble
Apex Court in the matter of Union Bank of India and others Vs.C.G.Ajay
Babu and another [(2018) 9 SCC 529].
4. The learned Advocate for the Corporation submits that the
provisional pension is being granted to the petitioner. He, however,
cannot point out any provision under the MCS (Pension) Rules, 1982
that an appeal pending against acquittal would empower the employer
to hold back regular pension.
5. In the light of the facts as recorded above and keeping in view
that an appeal against the acquittal is pending adjudication, the
petitioner need not be made to suffer the rigours of litigation, though,
we intend to pass an equitable order.
6. In view of the above, this petition is partly allowed in terms of
prayer clause "B" with the following rider :-
[a] The petitioner shall tender an affidavit/undertaking to
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respondent No.3 Municipal Commissioner stating therein that if he
suffers an adverse order in the pending proceedings for challenging the
acquittal and his acquittal is converted into conviction, he shall return
the entire gratuity amount within 8 weeks from such adverse judgment,
subject to his right to challenge the said judgment. All consequences
flowing from such conversion of acquittal into conviction would bind
the petitioner to the extent of the monetary reliefs that he would be
getting in view of this order.
[b] After such affidavit is filed satisfying the above stated ingredients,
the Corporation shall initiate steps for compliance of prayer clause "B"
and ensure that such compliance is made within 12 (twelve) weeks
from the date of the filing of such affidavit by the petitioner.
( S.G. MEHARE, J. ) ( RAVINDRA V. GHUGE, J. )
khs/Oct. 2021/6650
