Bombay High Court
Praful S/O Nahar Wagh vs Forest Development Corp. Of Maha. Ltd., ... on 19 January, 2024
Author: M. W. Chandwani
Bench: Avinash G. Gharote, M. W. Chandwani
2024:BHC-NAG:780-DB
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 968 OF 2022
Praful S/o. Nahar Wagh,
Aged about 59 years, Occ. Retired,
Plot No.8, Basoli Apartment,
Flat No. 201, Dharampeth Housing Society,
5th Labout, Jaiprakash Nagar, Nagpur-25
Presently lodged in Central Jail, Chandrapur. . . . PETITIONER
// V E R S U S //
1. Forest Development Corporation of
Maharashtra Ltd., A Government of
Maharashtra Enterprise, through its
Chairman, having its Registered office
at FDCM Bhavanm 359/B, Hingana Road,
Ambazari, Nagpur-440036.
2. Managing Director, Forest Development
Corporation of Maharashtra Ltd., A
Government of Maharashtra Enterprise,
having its Registered office at FDCM
Bhavan, 359/B, Hingana Road,
Ambazari, Nagpur- 440036. . . . RESPONDENTS
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Shri A. A. Naik a/w. Shri M. A. Deo, Advocate for petitioner.
Shri N. S. Khubalkar, Advocate for respondent no. 2.
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CORAM :- AVINASH G. GHAROTE &
M. W. CHANDWANI, JJ.
RESERVED ON :- 08.11.2023
PRONOUNCED ON :- 19.01.2024
JUDGMENT (PER: M. W. CHANDWANI, J.):
-
Heard.
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2. Rule. Rule made returnable forthwith. Heard finally by
consent of the parties.
3. The petition challenges the order dated 15.11.2021
passed by respondent no. 2 directing the petitioner- employee to
deposit an amount of ₹62,30,512/- with respondent no. 1- Company62,30,512/- with respondent no. 1- Company
against the losses incurred to it because of the petitioner.
4. Shorn of details, the petitioner's case can be summarized
as under:-
The petitioner was working as Nursery Foreman with
respondent no. 1-Company, which works under the guidance of the
Government of Maharashtra. Thereafter, the petitioner was promoted
from time to time and lastly, he was promoted as Assistant Manager-2
and posted at Ballarpur Division w.e.f. 13.10.2015. The petitioner was
also given additional charge of the post of Divisional Manager. While
discharging his duties as Assistant Manager-2 at Ballarpur Division, the
petitioner was having charge of four ranges i.e. Kanhalgaon, Zaran,
Tohgaon and Dhaba. He was supervising the work, which was being
undertaken in the said four ranges.
5. During his tenure as Divisional Manager of Ballarpur
Division, Kanhalgaon Range was found to be deficit in the forest
produce. Since, the deficit was huge, the General Manager (Northern),
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Chandrapur Region constituted a committee directing to conduct
thorough investigation in the matter. In its report, the Committee
found that in the year 2014-15, 2015-16 and 2016-17, the entire
quantity of forest produce, extracted in various working coupe, was
not transported to sales depot and even remaining produce was not
available in the coupe of different Circles. The Committee found
Forest Ranger, Forest Guard and the petitioner responsible for the
losses caused to the Company.
6. Pursuant to the said report, disciplinary proceedings were
initiated against the petitioner and a charge-sheet was served upon
him on 19.09.2019 for the alleged losses incurred by respondent no.1.
The petitioner retired from service on 30.06.2020. Even after the
retirement of the petitioner, respondent no.1 continued with the
enquiry and vide order dated 15.11.2021 held that the respondent no.
1- Company incurred losses, during the said 3 years due to gross
negligence and failure in discharging duties and directed the petitioner
to deposit ₹62,30,512/- with respondent no. 1- Company62,30,512/- with the Company. Feeling aggrieved with the
impugned order dated 15.11.2021, the present Writ Petition is filed.
7. Respondent no. 2 appeared and file its reply opposing the
petition inter alia contending that since minor penalty has been
imposed to recover the losses caused to respondent no. 1 therefore,
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there was no need to conduct full-fledged enquiry as per the Forest
Development Corporation Employees (Discipline and Appeal) Rules,
1988 (for short, "the said Rules") of respondent no. 1-Company. After
considering the reply submitted by the petitioner, the said Rules give
discretion to the Authority to conduct full-fledged enquiry in case of
necessity, otherwise after considering the representation submitted by
the delinquent, the Authority can impose minor penalty, which has
been done in this case by holding the petitioner responsible for the
losses to the tune of ₹62,30,512/- with respondent no. 1- Company62,30,512/- caused to the Company. It is
contended that since the enquiry was already initiated therefore,
retirement of the applicant will not have any bearing on enquiry and
therefore, the Company has rightly directed to recover the amount of
₹62,30,512/- with respondent no. 1- Company62,30,512/- from the petitioner. Contending that the petition is
devoid of merit, it is prayed that the petition be dismissed.
8. Though various grounds have been raised in the petition
but, Shri Akshay Naik, learned counsel for the petitioner, particularly
raised the ground that after retirement of an employee, much less
employee of respondent no. 2, which is a Corporation, ought not to
have continued with the enquiry after retirement of the petitioner. It is
contended that in absence of any provisions in the service rules of
respondent no. 2, by which the petitioner is governed, the
departmental inquiry after retirement is not permissible to be
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continued and pending departmental enquiry ought to have been
closed on retirement of the delinquent but, respondent no. 2 continued
with the departmental enquiry and illegally imposed penalty, which is
not even permissible under the service rules by which the petitioner is
governed. Therefore, directing the petitioner to pay an amount of
₹62,30,512/- with respondent no. 1- Company62,30,512/- is not permissible under the service rules by which the
petitioner is governed.
9. Per contra, Shri N.S. Khubalkar, learned counsel appearing
for respondent no. 2 would submit that since the enquiry had already
been initiated before the date of retirement of the petitioner therefore,
once enquiry is initiated, while the delinquent was in service, then it
would continue even after retirement of the delinquent. There is no
such bar for continuance of the departmental enquiry once it is
initiated before retirement of the delinquent. To buttress his
submission, he seeks to relied on the case of U. P. State Sugar
Corporation Ltd. Vs. Kamal Swaroop Tondon 1, wherein it has been held
that the relationship of employer and employee continues to remain so
long as all retiral benefit have not been paid to the employee.
10. Indisputably, the Disciplinary Rules and Retirement Rules framed
by the respondent do not provide continuation of inquiry after the
retirement of an employee. The reliance is placed on the Resolution
1 (2008) 2 SCC 41
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dated 18.09.1995 of the Board of the respondent no. 1 to support the
contention that the Maharashtra Civil Services (Discipline and Appeal)
Rules, 1979 (for short, "Discipline and Appeal Rules") and
Maharashtra Civil Services (Pension Rules)1982 (for short, "Pension
Rules") are adopted and therefore they are applicable to the employees
of the respondents. It is canvassed that in wake of Rule 27 of Pension
Rules, the inquiry against the petitioner can be continued even after
his attaining age of superannuation.
11. We have gone through the Resolution dated 18.09.1995
relied by the counsel for the respondents. Where no specific rules of
the respondent exists, the Resolution authorises the Managing
Director of the respondents, to implement/adopt the Resolutions/
Circulars/ Rules applicable to the employees of the State Government
except the matter involving general policy decisions, pension and
General Provident Fund and Gratuity. Thus, for implementation of any
of Government Resolutions/Rules, the Managing Director of the
respondent no. 1 was empowered to take decision in this regard. No
such decision /order of the Managing Director of the respondents has
been placed on record showing adopting of Discipline and Appeal
Rules and also Pension Rules.
12. Be that as it may, even Maharashtra Civil Services
(Disciplinary and Appeal) Rules, 1979 does not contain the provisions
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for continuation of departmental enquiry after retirement of an
employee. Thus, no penalty can be imposed in accordance with the
Discipline and Appeal Rules. It is only the Pension Rules which
provides continuation of a departmental enquiry for a limited purpose
of taking action as provided in sub-rule (1) of Section 27 of the
Pension Rules to withdraw or reduce the pension or to recover the
losses. Needless to mention that service of the petitioner was not
pensionable. Therefore, the Pension Rules, are not applicable to the
employee of the respondents. Even, the Resolution does not empower
the Director of respondents to implement the Pension Rules of the
State Government with regards to pension.
13. The upshot of the said discussion is that the Disciplinary
Rules and Retirement Rules framed by the respondents for applicability
to its employees do not contain any rule for continuation of
departmental enquiry after the retirement of an employee.
14. Contextually, it will be profitable to refer the decisions of
the apex court in case of an Anant Kulkarni Vs. Y. P. Education Society 2
and Mahanadi Coalfield Ltd Vs. Rabindranath Choubey3, wherein the
Supreme Court after discussing various other decisions of the Supreme
Court including the decision in Kamal Swaroop Tandon (supra) has
2 (2013) 6 SCC 515
3 (2020) 18 SCC 71
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observed that the relevant rules governing the service condition of an
employee are determining factor as to whether and in what manner
the domestic inquiry can be continued against an employee after
reaching age of superannuation.
15. We find substance in the argument of counsel for the
petitioner that there is no rule of the respondents governing service
condition of the petitioner providing continuation of enquiry of an
employee of the reaching the age of superannuation. We, thus, hold
that in absence of the rules, the continuation of enquiry against the
petitioner is not permissible. Therefore, the penalty imposed on the
petitioner is without any statutory backing and therefore, does not
stand. Accordingly, petition succeeds hence, the following order:-
i) The petition is allowed.
ii) The direction dated 15.11.2021 issued by respondent no. 2
directing the petitioner to deposit ₹62,30,512/- with respondent no. 1- Company62,30,512/- with respondent no.1-
Company is hereby quashed and set aside to that extent.
Rule is made absolute in the above terms.
(M. W. CHANDWANI, J.) (AVINASH G. GHAROTE, J.)
Signed by: Mr. Rajnesh Jaiswal
RR Jaiswal
Designation: PA To Honourable Judge
Date: 19/01/2024 17:05:30
