Dinesh Pandurangpant Totewar vs Chief Executive Officer, ...
2022 Latest Caselaw 6075 Bom

        J-wp5347.19.odt                                                          1/17


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


                               WRIT PETITION No.5347 OF 2019


        Dinesh Pandurangpant Totewar,
        Aged 58 years,
        Occupation : Retired Govt. Servant,
        R/o. Sai Nagar, Amravati.                           :      PETITIONER

                       ...VERSUS...

        Chief Executive Officer,
        Maharashtra Industrial Development Corporation,
        'Udyog Sarathi', Marol Industrial Area,
        Mahakali Caves, Andheri East,
        Mumbai-93.                              :    RESPONDENT

        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
        Shri R.V. Shiralkar, Advocate for Petitioner.
        Shri J.B. Kasat, Advocate for Respondent.
        =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=

                                      CORAM : A.S.Chandurkar And
                                              Urmila Joshi-Phalke, JJ.

DATE : 30th June, 2022.

ORAL JUDGMENT : (Per : Urmila Joshi-Phalke, J.)

1. Heard. Rule. Rule made returnable forthwith.

2. By way of this writ petition petitioner sought a

declaration that the action of the respondent in not releasing

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pensionary benefits of the petitioner in absence of

departmental enquiry or criminal case even after retirement

on 31.8.2018 is illegal and arbitrary and also prayed for a

direction to the respondent to release his pensionary benefits

like gratuity, leave encashment, medical leaves and provident

fund etc.

3. The petitioner was working as Assistant Area

Manager at Amravati. The respondent is the appointing

authority of the petitioner. The respondent has put petitioner

under suspension for alleged misconduct by an order dated

14.8.2017 on an allegation that he has not deposited demand

drafts which he was under obligation to deposit in the Court

towards the compensation of acquisition. As per the order

dated 14.8.2017 the petitioner is placed under suspension in

contemplation of departmental enquiry under Section 4(1)(a)

of the Maharashtra Civil Services (Discipline and Appeal)

Rules, 1979. Being aggrieved by the order of suspension

petitioner has preferred representation to the respondent on

28.8.2017 for revocation of suspension. The respondent has

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not decided his representation. It is the contention of the

petitioner that the respondent neither decided his

representation nor issued him charge-sheet, hence he

preferred Writ Petition No.7783/2017 in which directions are

given to the respondent to decide the representation within six

weeks from the date of receipt of the order. The said order

was served on 26.2.2018. The respondent has not obeyed the

order and no subsistence allowance is paid to the petitioner.

The order of the respondent is arbitrary and illegal. The

petitioner retired from service on 31.8.2018. Though no

charge-sheet is served, all the pensionary benefits are

withheld.

4. It is further contention of the petitioner that during

suspension his headquarter was at Aurangabad. He stayed at

Aurangabad till 31.8.2018. Thereafter he was at Amravati till

March 2019. Thereafter, he shifted to Mumbai as his son was

suffering from Cancer. During this period no charge-sheet

was served on him. As per Civil Services Rules and in view of

the decision of the Apex Court in Civil Appeal No.948/2010 in

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the case of Prem Nath Bali vs. Registrar, High Court of Delhi

and another, the time limit for conducting enquiry is six

months and outer limit is one year. The charge-sheet was

finally served on him on 7.12.2021 which is after two years.

The charges levelled against him are vague in nature. As no

charge-sheet is served on him in time, the respondent has no

right to withheld retiral benefits. Thus, the action of the

respondent is arbitrary and illegal. Hence, this petition.

5. The respondent has taken the stand that the

petitioner being Class-III employee has alternative and

efficacious remedy to raise industrial dispute. He has

committed serious dereliction in duties in handling court

related matters. He is charged with serious allegations that he

has not deposited huge amounts in the Court etc. Therefore,

he was put under suspension. Most of the retiral benefits like

gratuity, difference of gratuity, provident fund amount is

already paid. The petitioner was not found at the address

given by him, therefore, charge-sheet was not served. When

the petitioner filed affidavit, for the first time respondent

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came know about his address of Mumbai. As stated in the

petition finally the charge-sheet was served on petitioner on

7.12.2021.

6. Heard Shri R.V. Shiralkar, learned counsel for the

petitioner. He submitted that the petitioner has approached

this Court against the action on the part of the respondent for

withholding his retiral benefits. Though the petitioner retired

from service on 31.8.2018, the enquiry which is contemplated

against the petitioner commenced thereafter and as no charge-

sheet was served on him, the retiral benefits cannot be

withheld indefinitely. The respondent has waived its right to

conduct departmental enquiry against the petitioner and,

therefore, directions are required to be given to the

respondent to release the retiral benefits immediately. He

further submitted that the petitioner was suspended on

14.8.2017 in contemplation of departmental enquiry. The

suspension continued till date of retirement of the petitioner.

During this period the headquarter of the petitioner was

Aurangabad thereafter he came to Amravati and thereafter

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shifted to Mumbai. No departmental enquiry was conducted

and concluded within six months. It is clear from the conduct

of the respondent that it had waived the right of conducting

departmental enquiry as period of more than four years had

lapsed and now there was no employer and employee

relationship. Thus, the action of the respondent is arbitrary

and illegal.

7. In support of his contention he relied upon

suspension order Annexure-A dated 14th August, 2017,

Representation Annexure-B dated 28.8.2017, order passed in

Writ Petition No.7783/2017 Annexure-C, notice to the

respondent Annexure-D and charge-sheet Annexure-E.

8. Learned counsel also relied upon Madanlal Sharma

vs. State of Maharashtra, reported in 2004(1) Mh.L.J. 581,

wherein it is observed that suspension order did not indicate

that a departmental enquiry was contemplated against the

petitioner into the alleged act of becoming a nuisance to the

training centre. This order was purportedly passed under Rule

156 of the Bombay Civil Services Rules, 1959 (for short,

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hereinafter referred to as "B.C.S.R"). However, the said Rule

deals with suspension of a Government servant under arrest or

against whom proceedings have been taken either for his

arrest for debt, or on a criminal charge, or who is detained

under any law providing for preventive detention. Thus, it is

clear that the provisions of Rule 156 of the B.C.S.R. were not

applicable. Moreover, when the suspension order did not

indicate that either a criminal case was registered against him

or he was detained by the Police. No departmental

proceedings were initiated against the petitioner. Thus, the

suspension order was issued by an Officer, who was not

disciplinary authority. The order of the suspension cannot be

issued as a matter of routine and an order of suspension can

be issued when a disciplinary enquiry is pending or is

contemplated. He also relied upon Transport Commissioner,

Madras-5 vs. A. Radha Krishna Moorthy, reported in (1995) 1

SCC 332, wherein it is observed that the charges

communicated to the respondents are vague. The Disciplinary

Authority or the Authority which framed the charges have to

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be specific to proceed with the enquiry. He further relied

upon Surath Chandra Chakrabarty vs. State of West Bengal,

reported in (1970) 3 SCC 548, wherein it is held that the

entire proceedings show a complete disregard of Fundamental

Rule 55 insofar as it lays down in almost mandatory terms

that the charges must be accompanied by a statement of

allegations.

9. On the basis of his oral submissions and the

judgment on which he relied upon he submitted that the

respondent be directed to release the pensionary benefits of

the petitioner and the action taken by the respondent be

declared as arbitrary and illegal.

10. On the other hand, learned counsel Shri J.B. Kasat,

for the respondent submitted that the present petitioner has

filed the petition seeking to hold and declare that the action of

the respondent is illegal and arbitrary. The allegations

levelled against the petitioner in departmental enquiry are

serious. The petitioner came to be suspended as disciplinary

enquiry was contemplated against him. He has committed

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serious misconduct like dereliction in duties in handing court

related matters like non-deposit of huge amounts in the Court

till the demand drafts expired repeatedly. It was decided to

conduct the departmental enquiry against the petitioner and,

therefore, by order dated 14.8.2017 he was suspended during

pending enquiry. The petitioner stood retired from service

during the continuation of his suspension on 31.8.2018. Most

of the retirement benefits of the petitioner are already paid.

He submitted that the gratuity amount of Rs.7,00,000/- was

already paid to the petitioner on 29.8.2018 and the difference

of gratuity as per the 7 th Pay of Rs.3,00,000/- was paid to him

on 31.1.2020. The contribution to the provident fund of the

petitioner of Rs.3,95,213/- is also paid to the petitioner on

6.9.2018 and only partial benefits i.e. Corporation Funds of

Rs.14,49,777/- and leave encashments are remaining to be

paid. Now charge-sheet is also served. The enquiry was not

conducted as petitioner had not given his address while

shifting to Mumbai. The respondent had attempted to serve

the charge-sheet on his given address but he was not found at

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a given address. The postal envelop showed that the

intimation was given. The petitioner has admitted that the

charge-sheet was served on him on 7.12.2021. Thus, it is the

petitioner who has avoided the service of charge-sheet and,

therefore departmental enquiry was not initiated. Hence, writ

petition deserves to be dismissed.

11. Heard both sides. Perused the record.

12. The petitioner, who was working as Assistant Area

Manager at Amravati. It is not disputed that the respondent is

the appointing authority of the petitioner. By passing order

dated 14.8.2017 the petitioner was suspended. The

suspension order clearly refers to alleged misconduct like

dereliction in duties such as not depositing the demand draft

in Court in time, not handed over the documents in respect of

court litigations, not communicated the Court orders to the

respondent in time, not filed the appeal in time. In the said

suspension order it is clearly indicated that the departmental

enquiry was to be initiated against him and accordingly he

was suspended from 14.8.2017. The petitioner then made a

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representation. He had also filed Writ Petition No.7783/2017

in which the directions were given to consider his

representation. It also revealed from the record that several

attempts were made to serve the charge-sheet on the

petitioner but he had not furnished his address to the

respondent while shifting to Mumbai. The petitioner has also

admitted that his suspension continued till the date of his

retirement i.e. 31.8.2018. During this period his headquarter

was at Aurangabnad. Thereafter, he was shifted to Amravati

and stayed at Amravati till March 2019. He nowhere stated

that while shifting from Amravati to Mumbai he had

communicated his address to the respondent and then also

charge-sheet was not served upon him. Thus, contention of

the respondent that as petitioner had not furnished his address

and, therefore, charge-sheet was not served upon him has

substance. It is contended by the respondent that when

petitioner filed his affidavit in the proceedings that the

respondent came to know about his address of Mumbai and

thereafter charge-sheet was attempted to be served upon him.

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13. Learned counsel Shri R.V. Shiralkar relied upon the

decision of this Court in the case of Madanlal Sharma vs. State

of Maharashtra (supra) the facts of the cited case shows that

suspension order nowhere indicated that the departmental

enquiry was contemplated against the petitioner. No

departmental proceeding was initiated against the petitioner.

Moreover, the disciplinary authority had not issued the

suspension order. Thus, the facts of the cited case are not

identical with the present case. Other two decisions on which

the petitioner relied upon are regarding vagueness of the

charges. Said contention of the petitioner can be considered

by the Inquiry Officer if he raises such an issue before him.

This will be a premature stage to consider the said issue.

14. Learned counsel for the petitioner also referred Rule

27, sub-rule (1) and (2) and states as follows :

27(1) "[Appointing Authority may], by order in writing, withhold or withdraw a pension or any part of it whether permanently or for 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

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proceedings, the petitioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement."

He also referred sub-rule (2)(a) and (b) and states as follows :

27(2)(a) denotes 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 this rule 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."

27(2)(b) denotes that, "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 4 years before such institution, and

(iii) shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be

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made in relation to the Government servant during his service."

Sub-rule (1) of Rule 27 empowers the Government

to pass an order withholding or withdrawing a pension, if any,

departmental or judicial proceedings the pensioner is found

guilty of grave misconduct or negligence either during the

period of his service or during the period of his

re-employment. Thus, Rule 27(1) comprises of two parts.

First part speaks of power of Government to pass an order

regarding reduction or withdrawal of pension, second part

deals with circumstances in which such an order can be

passed. Rule nowhere empowers the Government to initiate

or continue the disciplinary proceeding 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 proved

grave misconduct or negligence of such pensioner while he

was in service. The departmental proceeding mentioned in

Rule 27 of the Pension Rules are wholly and solely in relation

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to the issue pertaining to the payment of pension.

15. Whether the departmental proceeding is

commenced or not also depends on when it is deemed to be

instituted. For that purpose Rule 27, sub-rule (6) is material.

Sub-rule (6) of Rule 27 states as follows :

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

Thus, sub-rule (6) of Rule 27 clarifies that the

commencement of departmental proceeding will start 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. In the present case petitioner is suspended on

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14th August, 2017 i.e. before he retired from service. The

suspension order clearly mentions that the departmental

enquiry is proposed to be initiated against him. Thus, in view

of Rule 27 sub-rule 6(a) the departmental proceeding in the

present case is instituted on the date when suspension order

was passed against the petitioner and petitioner was placed

under suspension on the said date. Therefore, contention of

the petitioner that no departmental enquiry is initiated against

him when he was in service and after his retirement no action

could be taken against him is not acceptable. Sub-rule (6) is

very clear and in view of sub-rule (6)(a), departmental

proceedings are already instituted against him on the date on

which he has been placed under suspension.

16. Another issue raised by the petitioner is that the

charges levelled against him are vague. This issue cannot be

considered in the present petition as it will be at a pre-mature

stage. The petitioner is at liberty to raise such issue before the

Enquiry Officer. Now charge-sheet is already served upon

him. He is having every opportunity to raise the said issue

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before the Enquiry Officer.

17. In the above facts and circumstances the initiation

of the departmental proceedings against the petitioner is from

the date when he was placed under suspension. The same is

in accordance with law. The petitioner is at liberty to raise the

aspect of vagueness of the charges before the Enquiry Officer

in accordance with law. With these observations, the writ

petition deserves to be dismissed. Hence, we proceed to pass

following order :

ORDER

(i) Writ Petition is dismissed.

(ii) Rule is discharged. No order as to costs.

(Urmila Joshi-Phalke, J.) (A.S.Chandurkar, J.)

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