Dilip T. Kakade vs The Chief Executive Officer And 2 ...
2023 Latest Caselaw 2571 Bom

                    Diksha Rane                                 27 & 28-wpl-30219-22.doc




                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                             ORDINARY ORIGINAL CIVIL JURISDICTION
       Digitally
       signed by
       DIKSHA
DIKSHA DINESH                 WRIT PETITION (L) NO. 30219 OF 2022
DINESH RANE
RANE   Date:
       2023.03.18
       11:27:54
       +0530
                    Dilip T. Kakade                            ..Petitioner
                          VS.
                    The Chief Executive Officer and 2 Ors.     ..Respondents

                                             WITH
                              WRIT PETITION (L) NO. 30220 OF 2022

                    Pandurang Shivalingappa Thenge              ..Petitioner
                         VS.
                    The Chief Executive Officer and 2 Ors.      ..Respondents
                                              ------------
                    Adv. Sanjiv Sawant a/w. Adv. Abhishek Matkar, Adv. Malhar
                    Bageshwar for the petitioners in both petitions.
                    Adv. Ashish Gabhale i/b. Jay & Co. for respondent nos.1 to 3
                    in WPL/30219/2022.
                    Adv. Akshay Karlekar i/b. Shreeyog Law Associates for
                    respondent no.1 to 3 in WPL/30220/2022.
                                              ------------

                                  CORAM: S. V. GANGAPURWALA, Act.CJ.&
                                         SANDEEP V. MARNE, J.

DATE: MARCH 16, 2023

P.C.:-

1. The departmental proceedings were initiated against

the petitioners. Before the punishment could be imposed

upon the petitioners, they retired from services on attaining

the age of superannuation.

2. The punishment of censure is imposed upon the

Diksha Rane 27 & 28-wpl-30219-22.doc

petitioners. The same is assailed. The contention of the

petitioners is that after retirement the departmental enquiry

cannot be proceeded further.

3. Reliance is placed on the decision of the Division

Bench of this Court in case of Dhairyasheel A. Jadhav vs.

Maharashtra Agro Industrial Development

Corporation Ltd., Mumbai reported in [2010 (2) Mh.L.J.

618].

4. Learned counsel for the petitioners submits that the

pension scheme is not applicable to the petitioners'

services.

5. Learned counsel for the respondents submit that in

fact enquiry concluded before retirement of the petitioners.

However, the punishment was imposed subsequent to the

retirement that would not affect the enquiry.

6. Upon enquiry, only the punishment is of censure.

Admittedly, the pension scheme is not applicable. The same

is also admitted by the respondents. In absence of a

pension scheme, provisions of Maharashtra Civil Services

(Pension) Rules would not apply. There is no other Rule in

respondent organization which permits enquiry to be

Diksha Rane 27 & 28-wpl-30219-22.doc

continued after retirement. The ratio of judgment in

Dhairyasheel A. Jadhav (supra) would apply. After

retirement of an employee, only punishment that can be

imposed is stoppage of pension/gratuity. Punishment of

censure cannot be imposed.

7. In the light of that, punishment imposed upon the

petitioners pursuant to the departmental enquiry is quashed

and set aside.

8. The learned counsel for the petitioners submits that it

is because of the departmental enquiry subsequent order on

26/8/2022 is passed for filing criminal case against the

petitioners and for recovery of the amount since

punishment imposed in pursuance of the enquiry is set

aside, the order dated 26/8/2022 also needs to be set aside.

9. As far as filing of the criminal case is concerned, the

criminal law can be set in motion and if any First Information

Report (FIR) is lodged, it is for the petitioners to defend the

same in accordance with law. Under the said order even the

decision is taken to form a Committee to arrive at a

conclusion to recover the amount from the petitioners. The

same is not part of the departmental enquiry.

Diksha Rane 27 & 28-wpl-30219-22.doc

10. Moreover, if the Committee is constituted to assess

loss cause by them on account of their conduct then in that

case the petitioners can defend any action taken pursuant

thereto in accordance with law.

11. With these observations, writ petitions are partly

allowed.

12. No costs.

(SANDEEP V. MARNE, J.) (ACTING CHIEF JUSTICE)