Samadhan S/O. Krishnarao Ingle, ... vs State Of Maharashtra, Dept Of ...
2022 Latest Caselaw 6939 Bom

J.WP722.2016.odt                                            1


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                NAGPUR BENCH, NAGPUR.

               WRIT PETITION NO.722 OF 2016

      Samadhan s/o Kisanrao Ingle,
      Aged about 67 years,
      Occupation - Retired Municipal Employee,
      R/o. "Shree Krupa" Bodde Colony,
      Khamgaon, District Buldhana
                                                 ...PETITIONER

                           VERSUS


1.    State of Maharashtra,
      Department of Urban Development,
      Through its Principal Secretary,
      Mantralaya, Mumbai - 32

2.    Director of Municipal Administration,
      State of Maharashtra,
      Government Transport Service Building,
      3rd Floor, Sir Pochkhanwala Marg,
      Worli, Mumbai - 30

3.    Regional Director of Municipal Administration,
      C/o Office of Divisional Commissioner,
      By-pass Road,
      Camp, Amravati

4.    Collector,
      Collectorate Compound,
      Urban Development Branch,
      Buldhana
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5.    Municipal Council,
      Khamgaon, through its Chief Officer,
      At/PO : Khamgaon,
      District Buldhana

6.    Standing Committee of
      Municipal Council,
      through its Chairman,
      Municipal Council, Khamgaon,
      At/PO - Khamgaon,
      District Buldhana

7.    Shri Prashant Sharad Khandkekar,
      Ex-Chief Officer of Municipal Council,
      Khamgaon, presently working as
      Zonal Officer - "A",
      Office of the Municipal Corporation of
      Pimpri-Chinchwad,
      Bhed Chowk, Nigadi,
      Pune - 411 044 and
      R/o. A-202, Yashodhan Society,
      Hagwane Nagar,
      Londhava, Pune - 48
                                        ...RESPONDENTS
_______________________________________________________

     Shri A.R. Patil, Advocate for the petitioner.
     Ms. N.P. Mehta, A.G.P. for respondent Nos.1 to 4/State.
     Shri D.M. Kale, Advocate for respondent No.5.
     Shri N.S. Khubalkar, Advocate for respondent No.7.
_______________________________________________________

                   CORAM : A.S. CHANDURKAR AND
                            URMILA JOSHI-PHALKE, JJ.
          DATE OF RESERVE : JULY 07, 2022.
 DATE OF PRONOUNCEMENT : JULY 20, 2022
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JUDGMENT (Per Urmila Joshi-Phalke, J.)

Heard learned counsel for the parties.

2. The petitioner has challenged the order of respondent

No.5-Chief Officer, Municipal Council dated 31/12/2015 imposing

recovery of Rs.25,00,010/- (Rs. Twenty five lacs and ten).

3. The petitioner was working as a Tax Superintendent

with the respondent No.5-Chief Officer, Municipal Council. He was

appointed on 16/04/1968 and retired on 30/06/2007. As per the

contention of the petitioner, he had rendered blemish-less service

throughout his career. He was also appreciated for his work.

Despite inadequate staff being deputed in his department, he had

performed his duty with utmost honesty and integrity.

4. On 30/06/2007, he retired from service due to

superannuation. After eight years of his retirement i.e. on

31/12/2015, a notice was issued to him by respondent No.5-Chief

Officer, Municipal Council calling the petitioner to deposit

Rs.25,00,010/-. Before this notice show cause notice was also

issued to him on 17/06/2011. He replied the said notice on

20/06/2011. The respondent No.5-Chief Officer, Municipal Council

had held that the explanation given by the petitioner was not

satisfactory and hence charge-sheet was issued to him on

29/06/2011 under the provisions of the Maharashtra Civil Services

(Discipline and Appeal) Rules, 1979 (hereinafter referred to as "the

said Rules" for short).

5. It is alleged against the petitioner in the charge-sheet

that he had not recovered taxes in respect of open plots within

municipal council limits. It is further alleged that he had not

brought the said fact to the notice of the higher authority regarding

recovery of taxes and caused loss to the Municipal Council. As per

the contention of the petitioner alleged notice and show cause

notice was issued on 17/06/2011, after four years of retirement

from service. The enquiry which was initiated against him was

invalid and bad in law in absence of valid sanction. Charges

leveled against him were vague in nature and baseless. As the

enquiry was initiated against him his partial pensionary benefits

were withheld. The petitioner further came with the case that the

charges leveled against him were baseless as the information

collected by him under the Right to Information Act, 2005 vide

letters dated 25/06/2012 and 01/08/2012 showed that recovery of

taxes had been made from the layout of Charanjeet Singh Juneja

and Purushottam Cotton and Ginning Press which clearly indicated

that the taxes had been recovered. The petitioner contended that

respondent No.7 had issued show cause notice to him due to

previous dispute between him and one councillor. The Enquiry

Officer had conducted the enquiry without affording him fair

opportunity. An opportunity of cross-examination of witnesses, oral

hearing was not given to him thus the enquiry was completed

without giving him fair opportunity which is against natural justice.

6. By filing this writ petition, the petitioner has prayed

that show cause notice and the enquiry initiated against him be set

aside and the directions be issued to the respondents to release his

pensionary benefits. He has also prayed that the order of imposing

recovery of Rs.25,00,010/- be quashed and set aside.

7. In response to the notice, respondent No.7 has taken

the stand that the action has been taken as per the legal provisions.

There was no malafide intention. He denied action was due to

political pressure. Similar stand was taken by respondent Nos.5, 6

and 7. It is the contention of respondent Nos.5, 6 and 7 that as

there was no recovery of tax by the petitioner and he had not

brought the said fact to the notice of the superior officer, action was

taken against him. Due to the inaction on the part of the petitioner

monetary loss was caused to respondent No.5-Municipal Council to

the tune of Rs.25,00,010/-. Respondent No.4 stated that no relief

is claimed against respondent No.4, hence he has nothing to say

about it.

8. Heard Shri A.R. Patil, learned Counsel for the petitioner.

He submitted that the action of respondent No.5-Chief Officer,

Municipal Council itself is invalid and liable to be set aside. He

further submitted that the show cause notice was given after four

years of his retirement and enquiry was conducted without valid

sanction. In the light of the provisions of Rule 27(2)(b)(i) and (ii)

of the Maharashtra Civil Services (Pension) Rules, 1982

(hereinafter referred to as the "Pension Rules" for short) in absence

of the sanction, enquiry was invalid and liable to be set aside. He

further submitted that the charges leveled against the petitioner are

vague one. In support of his contention he placed reliance on

Gopal s/o Digambarrao Baride Vs. The Municipal Council, Beed

2015 (4) ALL MR 14 wherein this Court had held that the sanction

of the Government is a mandatory requirement for a Disciplinary

Authority to initiate the proceedings in view of Rule 27. Without

that sanction the proceedings would be without jurisdiction as the

petitioner was no longer in service having retired.

9. Learned Counsel for the petitioner further submitted

that admittedly in the present case, the requirement of Rule 27(2)

(b)(i) of the Pension Rules i.e. prior sanction from the Government

to proceed against the petitioner is absent. He further submitted

that the show cause notice was served upon the petitioner after

four years of service and, therefore, Rule 27(2)(b)(ii) applies. He

submitted that the requirements of Rule 27(2)(b)(i) and (ii) of the

Pension Rules are not complied with. The enquiry is invalid, illegal

and liable to be set aside.

10. On the other hand, Shri D.M. Kale, learned Counsel for

respondent No.5-Chief Officer, Municipal Council submitted that

before initiating the enquiry on 29/06/2011 it was informed to the

petitioner that respondent No.5-Chief Officer, Municipal Council

was initiating the enquiry which itself is sufficient to show that

there was a compliance in view of Rule 27(2)(b)(i) and (ii) of the

Pension Rules. He further submitted that action taken against the

petitioner is as per the legal provisions and due to the inaction on

the part of the petitioner, the Municipal Council suffered loss, hence

writ petition deserves to be dismissed.

11. Heard Ms. N.P. Mehta, learned Assistant Government

Pleader for respondent Nos.1 to 4/State and Shri N.S. Khubalkar,

learned Counsel for respondent No.7.

12. After hearing both the sides, question raised is whether

the action initiated against the petitioner by respondent No.5-Chief

Officer, Municipal Council is justified and legal? Admittedly, the

petitioner was appointed on 16/04/1968 and retired on

02/06/2007 as Tax Superintendent. It is also an admitted position

that on the allegation that as he had not recovered the tax amount

from various land owners and had not informed the Superior

Officers, action was initiated against him.

13. Learned Counsel for the petitioner has canvassed that

after four years of retirement show cause notice was issued which is

illegal and not as per the provisions of the said Rules. It is

submitted that the Chief Officer, Municipal Council illegally

withheld partial pensionary benefits. Action was taken in absence

of valid sanction. The enquiry was conducted without fair

opportunity to the petitioner. Thus the order of withholding the

pensionary benefits and imposing recovery of Rs.25,00,010/- is

arbitrary and unjust. Whereas Shri D.M. Kale, learned Counsel for

the Chief Officer, Municipal Council vehemently submitted that the

said action is as per the provisions of the said Rules. The order

dated 29/06/2011 itself is a sanction. The writ petition is devoid

of merits.

14. The case of the petitioner is that the entire proceedings

are vitiated as there was no valid sanction. It is apparent from the

record that the petitioner was appointed on 16/04/1968 and

retired on 02/06/2007. It is also a part of record that during his

service career he was appreciated for his work by issuing the

Appreciation Certificate dated 06/05/2003. There were no

previous complaints against the petitioner. First show cause notice

was issued to the petitioner on 17/06/2011 and the charge-sheet

was issued on 29/06/2011. As per the Chief Officer, Municipal

Council a letter was addressed to the petitioner on 29/06/2011

informing him that the action would be initiated against him and

this itself was the sanction. Thus the action was taken as per the

provisions of the said Rules. In the light of the action taken partly

pensionary benefits of the petitioner are withheld as well as the

recovery of Rs.25,00,010/- is imposed on the petitioner. The real

controversy revolved is whether the action of the departmental

proceedings could have been initiated without sanction. Another

question that arises is whether such action could be taken after four

years of retirement in the light of the provisions laid down under

Rule 27(2)(b)(i) and (ii) of the Pension Rules which reads as

under:

"27. Right of Government to withhold or withdraw pension. (1) ......

(2) (a).......

(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,-

(i) shall not be instituted save with the sanction of [Appointing Authority],

(ii) shall not be in respect of any event which took place more than four years before such institution."

15. Admittedly, in the present case, the petitioner retired

from service on 02/06/2007 and show cause notice was issued to

him on 17/06/2011. Rule 27 of the Pension Rules confers the

Power on the Government to withhold the pensionary benefits.

Procedure is laid down under the Pension Rules indicating as to

when such orders can be passed.

16. The relevant Rule 27(6) of the Pension Rules states

about commencement of departmental proceeding.

Rule 27(6) of the Pension Rules which reads thus -

"27. (6) For the purpose of this rule, -

(a) departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to be instituted-

(i) in the case of criminal proceedings, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance is made, and

(ii) in the case of civil proceedings, on the date of presenting the plaint in the Court."

Thus initiation of the departmental proceedings would

commence from the date of issuance of a show cause notice to the

delinquent. This aspect is dealt by this Court in the case of

Ratnakar Bhagwanrao Mahajan Vs. District and Sessions Judge,

Jalna and anr. 2009 (2) Mh.L.J. 312 wherein it is observed that it

would be clear that initiation of the departmental proceedings

would commence from the date of issuance of regular show cause

notice by the Disciplinary Authority.

17. In the instant case, the petitioner retired from service

on 02/06/2007 and show cause notice was issued on 17/06/2011

which is after four years of his retirement. Under Rule 27(2)(b)(ii)

of the Pension Rules there exists a statutory power to the institution

of any departmental proceedings against Government servant in

respect of an event which took place more than four years before

such institution. In the present case admittedly the show cause

notice was issued after four years of retirement. Even the

charge-sheet nowhere shows actual period of incident. The

institution of proceedings was more than four years after the

retirement. This action initiated against the petitioner in the light

of the provisions of Rule 27(2)(b)(ii) of the Pension Rules is

contrary to the provisions.

18. The petitioner has also challenged the departmental

proceedings on the ground that it was initiated in absence of

sanction. Learned Counsel for the petitioner submitted that there

was no sanction at all. He placed reliance on Gopal s/o

Digambarrao Baride (supra) wherein it is held that in the case of an

employee who retires, proceeding could still be initiated as set out

in Rule 27(2)(b) if the predicates are satisfied. One of the

predicates, as pointed out earlier is that the departmental

proceedings cannot be initiated without the sanction of the

Government. The expression "save with the sanction of the

Government" must be read to mean a mandatory requirement for a

Disciplinary Authority to initiate the proceedings. Without that

sanction the proceedings would be without jurisdiction considering

that the employee is no longer in service. It is further held that

admittedly the requirement of Rule 27(2)(b)(i) of the Pension

Rules that prior sanction from the Government to proceed against

the petitioner is absent and hence the enquiry proceedings initiated

against the petitioner is without any lawful authority and contrary

to the very scheme of Rule 27 of the Pension Rules.

19. Learned counsel for respondent No.5-Chief Officer,

Municipal Council submitted that the letter informing the petitioner

dated 29/06/2011 about the initiation of the proceedings itself is

sanction. Admittedly, there is no written order showing that the

sanction was accorded. Departmental enquiry was initiated without

sanction. Whether the said letter can be said to be sanction. Valid

sanction should be given in respect of facts constituting the

offence/misconduct charged. It is not that sanction order should be

elaborate. An order of sanction should precede the charge-sheet

indicating application of mind to the aspect that an enquiry was

proposed to be held after retirement of the delinquent.

Ultimately, the object of grant of sanction is that the authority

giving the sanction should be able to consider material before it

comes to the conclusion that necessary action in the circumstances

is warranted. Rule 27(2)(b)(i) states that there should be a valid

sanction before initiating the action. Rule 27(6) stipulates that

departmental proceedings are deemed to have been instituted on

the date when statement of charges is issued to the pensioner. It is

thus clear that the order of sanction should be prior to issuance of

the charge-sheet. As the petitioner is not in service, absence of

sanction would vitiate the proceedings.

20. Thus in the present case, admittedly there was no

previous sanction. In view thereof and law laid down by this Court

in the case of Gopal s/o Digambarrao Baride (supra) the

departmental proceedings initiated against the petitioner are not

legal.

21. The petitioner has also challenged the proceedings on

the ground that the charges leveled against him are vague in

nature. On perusal of charge it reveals that period and particulars

of the charges are not mentioned. It is generally stated that the

petitioner had not performed his duty, not recovered tax and hence

he had committed misconduct. It is vaguely stated that there is a

dereliction in duty. It is well settled that if a person is not apprised

of the charges upon which it is proposed to take action, he would

not be in a position to defend himself. The first thing necessary in

the departmental enquiry is that the ground on which it is proposed

to take action against the officers/employee has to be stated in the

charge. It is mandatory that the charges must be accompanied by

the statement of an allegation. The ground on which proposed

action is to be taken have to be reduced in the form of a definite

charge or charges which have to be communicated to the person

charged together with a statement of allegations on which each

charge is based and other circumstances which are proposed to be

taken into consideration in passing orders have also to be stated. It

is rested on a principle that reasonable or adequate opportunity for

defending oneself is to be given. If a person is not told clearly and

definitely what the allegations are on which the charges preferred

against him are founded he cannot possibly defend himself. The

whole object of furnishing the statement of allegation is to give

necessary particulars and details which would satisfy the

requirements of giving a reasonable opportunity to put up a

defence. It is held by the Hon'ble Apex Court in the case of Sawai

Singh Vs. State of Rajasthan, AIR 1986 SC 995 that if the charges

are vague and it is very difficult for any accused to meet the

charges fairly, the evidence adduced per-functionary and did not at

all bring home the guilt of the accused is entitled to be exonerated

of the offence charged with. Non-allegation by the delinquent

either before the enquiry officer or before the High Court that the

charges were vague does not by itself exonerate the department to

bring home the charges. It is further held by the Hon'ble Apex

Court that the application of those principles of natural justice must

always be in conformity with the scheme of the Act and the subject

matter of the case. It is not possible to lay down any rigid rules as

to which principles of natural justice is to be applied. There is no

such thing as technical natural justice. The requirements of natural

justice depend upon the facts and circumstances of the case, the

nature of the enquiry, the rules under which the Tribunal is acting,

the subject matter to be dealt with and so on.

22. Thus the charges involving the consequences must be

specific. Admittedly, a departmental enquiry is not like a criminal

trial as was noted in catena of decisions by the Apex Court. There

is no such rule that misconduct has to be proved beyond reasonable

doubt. But in the departmental enquiry, the consequences like loss

of job, loss of benefits, loss of promotional benefits, there must be

fair opportunity to the delinquent in respect of an order involving

the action against an employee. There must be clear charges

consistent with the requirements of the situation.

23. Admittedly, in the charge-sheet which was served upon

the petitioner there are no particulars with regard to the date and

time of alleged misconduct. The requirements of Rule 27(2)(b)(i)

of the Pension Rules as regards prior sanction of the Government to

proceed against the petitioner is also absent. The action taken

against the petitioner by issuing show cause notice which amounts

to initiation of the departmental enquiry was after four years after

retirement in contravention of Rule 27(2)(b)(ii) of the Pension

Rules. The charges on which enquiry was conducted were vague

and caused prejudice to the petitioner. In view thereof and also in

the light of the law laid down by this Court in the cases of Gopal s/

o Digambarrao Baride (supra) and Ratnakar Bhagwanrao Mahajan

(Supra), the departmental proceedings against the petitioner are

not tenable. In the result the enquiry proceedings initiated against

the petitioner are held to be illegal and contrary to the provisions of

the Pension Rules, hence the writ petition deserves to be allowed.

24. We, therefore, pass the following order :

                                          (a)      The writ petition is allowed.


                                          (b)      The show cause notice dated 17/06/2011 and the

inquiry report dated 30/12/2011 is hereby quashed and

set aside.

(c) Respondent No.5-Chief Officer, Municipal Council

is directed to release the remaining pensionary benefits

of the petitioner within a period of eight weeks from

today.

(d) The order passed by respondent No.5-Chief Officer,

Municipal Council, Khamgaon dated 31/12/2015

imposing recovery of Rs.25,00,010/- is hereby quashed

and set aside.

25. Rule is accordingly made absolute. There will be no

order as to costs.

(URMILA JOSHI-PHALKE, J.) (A.S. CHANDURKAR, J.) Signed By:DIVYA SONU BALDWA

*Divya Signing Date:20.07.2022 14:45