Hukumchand S/O Kejaji Batghare vs State Of Maharashtra, Through ...
2023 Latest Caselaw 1583 Bom

34-WP-3343-21(j)                                                                                      1/6




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

                             WRIT PETITION NO.3343 of 2021

        Hukumchand s/o Kejaji Batghare,
        Aged about 66 years, Occ. Retired,
        R/o. Susari, Post Both,
        Tah. Kelapur, District-Yavatmal..
                                                                      ....... PETITIONER

                         ...V E R S U S...

1.      State of Maharashtra,
        Through its Secretary,
        Ministry of Rural Development,
        Mantralaya, Mumbai-32.

2.      Zilla Parishad, Yavatmal,
        Through its Chief Executive Officer,
        Yavatmal, District Yavatmal.
                                                                       ....... RESPONDENTS
-----------------------------------------------------------------------------------------------------------
Shri G.N.Khanzode, Advocate for petitioner.
Ms S.S.Jachak, Assistant Government Pleader for respondent no. 1.
Shri V.K.Kulsange, Advocate for respondent no.2.
-----------------------------------------------------------------------------------------------------------

CORAM :-         SUNIL B. SHUKRE AND MRS. VRUSHALI V. JOSHI, JJ.

DATE :- 16th FEBRUARY, 2023

ORAL JUDGMENT (Per SUNIL B. SHUKRE, J.)

Rule. Rule made returnable forthwith. Heard finally by consent of

the learned counsel for the parties.

34-WP-3343-21(j) 2/6

2. It is not in dispute that by the order dated 03.04.2019, regular

pension payable to the petitioner has been fixed and it has been fixed to the

extent of one third of the regular pension payable to the petitioner as per the

Rules. The effect of such an order is nothing but reduction of the pension,

otherwise payable to the petitioner and therefore, as rightly submitted by

Shri G.N.Khanzode, learned counsel for the petitioner that the procedure

prescribed in Rule 27(1) of the Maharashtra Civil Services (Pension) Rules,

1982 (for short, the Rules of 1982) would come into picture. This rule reads

as under:

"27(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 of recovery, from such pension, the whole or part of any pecuniary loss caused to Government, if, in any departmental or judicial 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."

3. It is clear that Competent Authority can withhold or withdraw

pension or any part of it whether permanently or for a specified period and

can also order recovery, from such pension, unless the pensioner has been 34-WP-3343-21(j) 3/6

found guilty of grave misconduct or negligence during the period of his

service including service rendered upon re-employment after retirement, in

some Departmental Enquiry proceedings or judicial proceedings. The

fixation of the pension payable to the petitioner to the extent of one third

pension payable to him amounts to permanent withholding of the pension

otherwise payable to the petitioner and therefore, as per Rule 27(1) of the

Rules of 1982, this can be done only if the pensioner i.e. the petitioner has

been found guilty of grave misconduct or negligence during the period of his

service, in a Departmental Enquiry held against him or any judicial

proceeding. Admittedly, there is no Departmental Enquiry held against the

petitioner. There is also no judicial proceeding filed against him. There is

thus no finding of the petitioner being guilty of grave misconduct or

negligence during period of his service. It would then follow that the fixation

of pension payable to the petitioner only to the extent of one third of the

total pension payable to him is bad in law and as such, the impugned order

dated 03.04.2019 would have to be quashed and set aside.

4. Shri V.K.Kulsange, the learned counsel for respondent no.2

however submits that there was an undertaking given by the petitioner

whereby the petitioner had undertaken to allow the Competent Authority to

recover whatever dues were recoverable from him by the Department and 34-WP-3343-21(j) 4/6

since it was found that dues of Rs. 43,86,737/- were payable by the

petitioner to the Department, the impugned order was passed by respondent

no.2, which was in consonance with the undertaking given by the petitioner.

5. While it is true that the petitioner had given undertaking to permit

the employer to recover from him or from retiral dues payable to him

whatever amount found to be due and recoverable from him, the undertaking

does not dispense with the requirement of law, for the reason that there is no

waiver against the law. When Rule 27(1) of the Rules of 1982 mandatorily

prescribes that no pension or part of it can be withdrawn or withheld either

temporarily or permanently without the pensioner having been found guilty

of grave misconduct or negligence in a Departmental Enquiry proceeding or

any other judicial proceeding. It requires respondent no.2 in the present case

to hold Departmental Enquiry against the petitioner and fix the

accountability of the petitioner as regards his liability to pay the dues of

Rs.43,86,737/- to the Department. Unless the sum recoverable is determined

and unless the accountability for its recovery is fixed against an employee, no

employee can be subjected to any truncated pension as has been done in the

present case. Besides, the undertaking in the present case does not indicate

any particular amount which the petitioner has voluntarily agreed to be

allowed to be recovered from his retiral benefits The undertaking only says 34-WP-3343-21(j) 5/6

that whatever amount is found as due and recoverable from the petitioner

can be recovered by the employer from him. Such being the nature of the

undertaking, as rightly submitted by the learned counsel for the petitioner,

that it was necessary for the employer i.e. respondent no.2 to hold a

Departmental Enquiry at least for the purpose of determination of the exact

amount found to be due and recoverable from the petitioner. If it had been

done, it would have complied with the requirement of Rule 27(1) of the

Rules of 1982 and also requirement of principles of natural justice.

Therefore, we respectfully express our disagreement with the argument of

the learned counsel for respondent no.2 and reject it.

6. In the result, we find that the writ petition deserves to be allowed

and it is allowed accordingly.

We direct respondent no.2 to fix the pension payable to the

petitioner to its fullest extent in accordance with the Maharashtra Civil

Services (Pension) Rules, 1982 and start paying the same within a period of

four weeks from the date of this order. We further direct respondent no.2 to

pay the arrears of pension so fixed together with interest at the applicable

rate from the date on which the pension ought to have been paid to the

petitioner till the arrears of pension are fully paid to the petitioner in terms of 34-WP-3343-21(j) 6/6

Rule 129 (B) of the Maharashtra Civil Services (Pension) Rules, 1982 within

a period of four weeks from the date of the order. We further direct

respondent no.2 to pay the remaining retiral dues including Provident Fund,

Gratuity, Leave Encashment and others, if any, with interest at the applicable

rate as per the Rules of 1982, within a period of four weeks from the date of

the order.

Rule is absolute in aforesaid terms with no order as to costs.

(MRS. VRUSHALI V. JOSHI, J.) (SUNIL B. SHUKRE, J.)

Andurkar..

Digitally Signed byJAYANT S ANDURKAR Personal Assistant Signing Date:

16.02.2023 16:29