Bombay High Court
Ramesh Gangadhar Patil vs The Ex Officiao Chairman Maharashtra ... on 20 February, 2025
2025:BHC-AUG:5101-DB
WP-3132-2008
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3132 OF 2008
1. Shri Ramesh S/o Gangadhar Patil
Age : 65 Years, Occu. : Pensioner
R/o 184, Nandanwan Colony,
Cantonment, Aurangabad ... PETITIONER
VERSUS
1. The Ex-Officio Chairman
"Maharashtra Jeevan Pradhikaran"
Express Tower Nariman Point, 4th Floor,
Mumbai 21 i.e. The Minister
for Water Supply & Sanitation
State of Maharashtra, Mantralaya, Mumbai
2. The Member Secretary
Maharashtra Jeevan Pradhikaran
Express Tower, Nariman Point,
4th Floor, Mumbai 21
i.e. the Chief Secretary, State of Mah.,
Mantralaya, Mumbai ... RESPONDENTS
WITH
CIVIL APPLICATION NO. 3756 OF 2016
IN WP NO. 3132 OF 2008
Shri V. D. Sapkal, Senior Counsel i/b Shri D. R. Bhadekar, Advocate
a/w Shri Amit Gadekar, Advocate for the Petitioner
Shri Rajendrraa Deshmukh, Senior Advocate a/w Shri Shriram
V. Deshmukh, Advocate i/b Shri Vinod Patil, Advocate for Respondent
Nos. 1 and 2
CORUM : S. G. MEHARE AND
SHAILESH P. BRAHME, JJ.
RESERVED ON : 3rd FEBRUARY, 2025
PRONOUNCED ON : 20th FEBRUARY, 2025
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J U D G M E N T [Per Shailesh P. Brahme, J.] :
1. With the consent of parties heard both sides.
2. Petitioner is superannuated employee of the
respondent, who is aggrieved by order dated 30.10.2006 passed by
the Respondent No. 2 as well as order dated 20.02.2008 passed by
the Respondent No.1/Appellate Authority dismissing his appeal.
Due to the impugned orders petitioner is deprived of pensionary
benefits, as he was found guilty in the departmental enquiry.
3. Petitioner was working as Superintending Engineer at
Latur Circle since 05.10.1999 and was entrusted with rehabilitation
work of Earthquake Affected Persons from Osmanabad. He was
found to have indulged in misconduct involving financial
irregularities. During his tenure, he was issued with charge-sheet
vide communication dated 06.11.2000, levelling three charges
against him. Reply to the charge-sheet was tendered by him,
denying the charges. When the disciplinary action was pending,
he attained age of superannuation on 30.11.2001. He was relieved
vide order dated 21.11.2001 subject to the decision of
departmental enquiry pending against him. First Information
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Report was also lodged against him and the prosecution was
pending till filing of the petition.
4. Inquiring Authority submitted report. Before inflicting
punishment, show cause notice was issued to the petitioner on
29.05.2006. The explanation was tendered by him on 07.07.2006.
By the first impugned order 30.10.2006, punishment was imposed
invoking Rule 6, 9 and 10 of Maharashtra Civil Services (Discipline
and Appeal) Rules,1979 as well as Rule 27 of Maharashtra Civil
Services (Pension) Rules, 1982, (for short "Pension Rules")
withdrawing superannuation pension permanently. Being
aggrieved, appeal was preferred before Respondent No.1. It was
dismissed by last impugned order dated 20.02.2008. Under these
facts, petitioner is knocking on the doors of this Court.
5. Learned senior counsel Mr. V. D. Sapkal, for the
petitioner submits that petitioner is innocent. He did not indulge in
any misappropriation. Following submissions are also made.
(a) Charges leveled against him are false and he is
entitled to exoneration.
(b) There is no material to indicate that petitioner was
involved in grave misconduct, negligence causing
huge financial loss to public exchequer.
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(c) The punishment imposed is totally disproportionate.
There were other delinquents also to share the liability.
Co-delinquent was issued with penalty of 50% of
withdrawal of pension.
(d) There is no sanctity of law to impose penalty of
withdrawal of pension, after the superannuation of
the petitioner. Independent inquiry should have been
conducted as per Rule 27(1).
(e) Without resorting to the procedure under Rule 27
penalty was imposed for the charges which were
framed when he was in service. There is violation
of principles of natural justice.
6. Reliance is placed on judgments of :
(A) Chairman/Secretary of Institute of Shri Acharya
Ratna Deshbhushan Shikshan Prasarak Mandal & Anr.
Vs. Bhughonda B. Patil reported in Bom.C.R. 197
(B) State of Uttar Pradesh Vs. Brahm Datt Sharma and
Another in Civil Appeal No. 481 of 1987 decided on
25.02.1987.
7. Learned senior counsel Mr. R. S. Deshmukh, repeals
the submission on the basis of affidavit-in-reply in following
manner :
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(i) The punishment imposed by the authorities, which
is under challenge is within purview of Rule 27(1)
and with Rule 27(2)(a) of Pension Rules.
(ii) The disciplinary action commenced before the
superannuation. After superannuation, show cause
notice was given to the petitioner. After extending
opportunity to him, punishment was imposed.
(iii) Petitioner is found guilty for serious charges
causing loss to the tune of Rs. 2.62 Crores, which is
public money. There is material to support misconduct
of the petitioner.
(iv) Criminal case is still pending against him. The
amount of gratuity and leave encashment are
withheld.
8. Having heard both sides, we propose to address three
questions: (I) Whether due procedure of law is followed in
inflicting punishment of withdrawal of pension? (II) Whether
finding of the disciplinary authority holding the petitioner guilty is
liable to be interfered with? (III) Whether impugned punishment is
reasonable and proportionate?
9. When the disciplinary action started, petitioner was in
service. He was issued with charge-sheet containing three charges
vide communication dated 06.11.2000. He tendered reply to the
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charges. He was superannuated on 30.11.2001. He was discharged
by order dated 21.11.2001 w.e.f. 30.11.2001 subject to outcome of
disciplinary inquiry. He was facing serious charges of misconduct,
involving financial irregularities. The disciplinary action
commenced to enquire into the charges for the major punishment
provided by Rule 5 of M.C.S.R. (Disc. and Appeal) Rules.
10. Whether due procedure is followed in inflicting the
punishment of withdrawal of pension?
The disciplinary action was initiated against the
petitioner levelling charges of misconduct involving negligence and
financial irregularities. Due to superannuation, it was not
permissible to impose punishment prescribed under rule 5 of
(Discipline and Appeal) Rules of 1979. As per rule 27(1) of
Pension Rules it was permissible to impose penalty to withhold or
withdraw a pension or any part thereof and also to order recovery
from the pension due to loss caused to the government. It is not
the purport of Rule 27 that the disciplinary action which
commenced when delinquent was in service is to be aborted or
terminated. Neither is it contemplated that by abandoning already
commenced inquiry a de novo inquiry is resorted to for the
punishment prescribed in Rule 27 (1).
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11. The departmental proceeding though commenced for
imposing the penalty under Rule 5 of (Discipline and Appeal)
Rules, due to superannuation can be continued or concluded for
the punishment under Rule 27(1) of Pension Rules. What is
imperative is to extend opportunity to delinquent to meet the
proposed penalty. We are unable to accept the submissions of
learned senior counsel Mr. Sapkal that after superannuation a de
novo inquiry is contemplated for inflicting penalties prescribed in
Rule 27(1) of Pension Rules.
12. Another facet of the matter is that inquiry for the grave
misconduct or negligence commenced when delinquent is in service
must conclude with some finding on charges. The finding of the
guilt is necessary for imposing punishment prescribed in Rule 27(1)
of Pension Rules either for curtailing pension or to make good the
loss caused to the Government. Therefore, at any rate, the already
commenced inquiry cannot be terminated without recording
finding over the charges in either way. It is impossible to open de
novo inquiry after superannuation for the misconduct alleged to
have occurred beyond the time prescribed under Rule 27(2)(b).
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13. Where the gross misconduct is found to have been
committed by government servant while in service, allowing such a
person to earn full pension for rest of his life after retirement is
inequitable as the pension is given for not only long service but for
sincere and faithful discharge of duties. We may refer to
observations of Division Bench of Delhi High Court in the matter of
Union of India and Another Vs. S. K. Mathur and Another in Writ
Petition (Civil) No. 17221-22 of 2004 of which paragraph No. 31 is
as follows:
" 31. A government employee gets pension on his
retirement and continues to get the same for the
remainder of his life. So much so, that the family of a
government servant is entitled to family pension after
the death of government servant. This benefit is given
for rendering long and faithful service by the
government servant. However, if it is found that
during his employment he had committed some act of
indiscipline or misconduct, it should naturally have
some bearing on these terminal dues like gratuity of
pension. For this reason, when the irregularities
committed by a government servant while in service
are noticed and the disciplinary proceedings are
initiated, the Government has the right to continue
the same after retirement as well. In cases where the
gross misconduct is found to have been committed by
a government servant while in service, allowing such a
person to earn full pension for rest of his life after
retirement may not be proper as the pension is given
for not only long service but for sincere and faithful
discharge of duties. It is for this reason that even
when no inquiry was instituted when the Government
servant was in service, provision is made to proceed
against him departmentally even after his retirement.
However, at the the same time, balance is struck by
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providing that the alleged irregularity should not be of
a period more than four years old from the date of
institution of departmental proceedings. This
provision obviates the possibility of harassing retired
Government servants by digging up old issues."
14. In the present case department proceedings culminated
in inquiry report dated 13.10.2003. The petitioner was
superannuated and thereafter, recourse was taken to Rule 27. He
was found guilty for the charges levelled against him. A show
cause notice dated 29.05.2006 was served upon him calling upon
the explanation as the charges were proved why punishment under
Rule 27(1) should not be imposed. He replied the notice on
07.07.2006. Thereafter, considering the inquiry report and the
explanation of the petitioner for the proposed punishment, detailed
order was passed on 30.10.2006 by the appointing authority
holding him liable of withdrawing pension permanently.
15. Petitioner was given opportunity and his explanation
was considered before imposing the penalty in question. In our
view, this is sufficient compliance to Rule 27. We have already
recorded that in the given facts and circumstances, it is not
necessary to terminate the departmental proceedings, which had
commenced, when the petitioner was in service and to start with
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de novo procedure for the purpose of imposing penalty under Rule
27(1).
16. Learned Senior counsel Mr. V. D. Sapkal relied on the
judgment of learned single judge in the matter of
Chairman/Secretary of Institute of Shri Acharya Ratna
Deshbhushan Shikshan Prasarak Mandal & Anr. (supra). In that
case respondent employee was suspended in the year 1992. He was
served with charge-sheet in 1994. The findings of the inquiry
committee were challenged in High Court and they were quashed.
The petitioner/Management was directed to complete preliminary
inquiry before proceeding with regular inquiry. Respondent was
superannuated in 1996. Thereafter, disciplinary action proceeded.
He was found guilty and thereafter he was dismissed from the
services in 1999. Being aggrieved, appeal was preferred and it was
allowed by the tribunal. Under the said factual matrix, the
observations were recorded in paragraph Nos. 10 to 15. The
Management's petition was dismissed. It is observed in paragraph
No. 13 that
"13. ....However, it does not specify to be the
departmental proceedings for disciplinary action with
the intention to impose punishment if the employee is
found guilty, but it speaks of misconduct or negligence
having been established and nothing beyond that.
......."
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17. We do not concur with the observations, because we
have already recorded that findings on the misconduct or the
negligence is with a specific object and it is decisive for further
course of action to be taken against delinquent. We have also
referred to observations of Delhi High Court.
18. In the matter before learned single judge, it was not
made known to the respondent delinquent after superannuation
that proceedings would be continued with reference to the issue of
payment of pension. In the case at hand, there was specific show
cause notice issued by the respondent and granting him
opportunity. We are not persuaded by this judgment of the single
judge.
19. Reliance is placed on the matter of State of Uttar
Pradesh (supra). In that case, the respondent employee was
terminated from the services after conducting departmental enquiry
and after the charges were being proved. His dismissal was
challenged before tribunal unsuccessfully. Thereafter, he preferred
writ petition. Single Judge allowed his petition as he was by then
superannuated. A liberty was given to the State to draw fresh
proceeding as permissible in law. The State issued show cause
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notice calling upon him as to why orders of forfeiture of his pension
and gratuity be not passed. By filing separate application show
cause notice was challenged. It was quashed by single judge.
Being aggrieved State was before apex Court.
20. In the above context, the observations were made by
the apex Court in paragraph Nos. 5 and 7. It was held that if the
delinquent retires from service on attaining age of superannuation
before completion of the proceeding, it would be open to the State
to direct deduction in pension on the proof of allegation made
against him. If the charges are not established during the
disciplinary proceeding or if the disciplinary proceedings are
quashed, it is not permissible for the State to direct deduction in
pension. It is further held that if the charges of serious allegations
are established which may have bearing on the question of
rendering efficiency and satisfactory service it would be open to the
Government to take proceeding against the delinquent in
accordance with the Rules for the reduction of pension and gratuity.
Therefore, ultimately, it was held that the show cause notice issued
by the State was valid and the appeal was allowed.
21. It is useful to refer to observation of paragraph No. 6.
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"6. Grant of pension to employees of the State
Government is regulated by the Civil Service
Regulations which have statutory character. Article
348-A provides that pension shall be granted subject to
the conditions contained in the Regulations. Article
351-A empowers the Governor to withhold or
withdraw pension or any part of it, whether
permanently or for a specified period and also to order
recovery from pension of the whole or part of the
pension for any pecuniary loss caused to the
Government if the pensioner is found guilty in
departmental or in judicial proceedings for any
misconduct or negligence during his service. Article
353 lays down that no pension shall be granted to an
officer dismissed or removed from service for
misconduct, insolvency or inefficiency, but
compassionate allowance may be granted on special
consideration. The claim of pens,on is determined by
length of service, as provided by Article 474 to 485.
Full pension is admissible under the rules not as a
matter of course but only if the service rendered by the
Government employee is approved. The Regulations
empower the authority sanctioning the pension to
make such reduction in the amount of pension as it
may think proper. These provisions indicate that a
Government servant is entitled to pension but the claim
of pension is determined in accordance with the
statutory rules. No doubt pension is no more a bounty;
instead it is a right earned by the Government servant
on the basis of length of service, nonetheless grant of
full pension depends on the approval of service
rendered by the employee. In other words if the service
rendered by the Government servant has not been
satisfactory he would not be entitled to full pension
and it would always to open to the Govt. to withhold
or reduce the amount of pension in accordance with
the statutory rules. If the Government incurs pecuniary
loss on account of misconduct or negligence of a Govt.
servant and if he retires from service before any
departmental proceedings are taken against him, it is
open to the State Govt. to initiate departmental
proceedings, and if in those proceedings he is found
guilty of misconduct, negligence or any other such act
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or omission as a result of which Govt. is put to
pecuniary loss, the State Govt. is entitled to withhold,
reduce or recover the loss suffered by it by forfeiture or
reduction of pension. These provisions ordain the Govt.
servant to perform his duties faithfully and honestly.
Honest and devoted service rendered by a Govt.
servant ensures efficiency in public administration. The
statutory rules therefore contain provisions for the
forfeiture and deduction in the pension of Govt.
servant who have not rendered satisfactory service or
who have been found guilty of misconduct or
negligence resulting in pecuniary loss to the Govt.
Merely because a Govt. servant retires from service on
attaining the age of superannuation he cannot escape
the liability of misconduct and negligence or financial
irregularities. "
22. In the case at hand also show cause notice was issued
to the petitioner. His explanation was solicited and thereafter, the
impugned penalty was imposed. The respondents are justified in
imposing penalty after finding the petitioner guilty of the charges.
23. Senior counsel Mr. Deshmukh, relied on the judgment
in the matter of Manohar B. Patil Vs. State of Maharashtra and
Others reported in 2013(6) Mh.L.J. In that case, petitioner was
superannuated. Thereafter, the disciplinary proceedings started
against him then show cause notice was issued for the purpose of
withholding or reducing the retiral benefits. Then a charge-sheet
was served on him. It is not a case that the departmental
proceedings commenced before superannuation as is done in the
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present matter. It is not a case covered by Rule 27(2)(a). We find
that ratio is not applicable to the present case.
24. For the reasons assigned above, we hold that the
penalty imposed on the petitioner is in accordance with law. There
is no violation of statutory procedure or principles of natural
justice.
25. Whether finding of the disciplinary authority holding
the petitioner guilty is liable to be interfered with?
It is a matter of record that three charges were levelled
against petitioner which were denied by him. Those are serious in
nature pertaining to the financial loss caused to the department.
Inquiry report was prepared on 13.10.2003 albeit the same is not
on record. By impugned order reasons are recorded by the
respondents holding the petitioner guilty. Those reasons were
assailed by him before the appellate authority. The appellate
authority by reasoned order dated 20.02.2008 confirmed the
findings. The concurrent findings of fact are recorded against him.
The appreciation of material is not permissible while exercising
jurisdiction under Article 226 or 227 of the Constitution of India.
We find that there was material against the petitioner to hold him
guilty. Though learned senior counsel for the petitioner adverted
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our attention to reply to the charge-sheet, statement of Mr.
Rajendra Madhavrao Sagne, approval letter dated 14.12.1999 and
the further record to make out a case of exoneration from the
charges, those are findings of facts. We cannot embark an inquiry
into that aspect of the matter. We do not find that there is any
perversity or patent illegality in holding the petitioner guilty.
26. Whether impugned punishment is reasonable and
proportionate?
It is informed that the disciplinary action was taken
against three persons. The prosecution against the petitioner is still
pending. Considering the charges and explanation of the
petitioner, it transpires that he is not the only person responsible
for causing loss to the department. It would be unreasonable to
hold that he was solely responsible for loss of Rs. 2.62 Crores as has
been projected by the respondents.
27. Our attention is invited to the judgment and order
dated 28.11.2018 passed in case of Digambar Ramrao Kulkarni Vs.
The State of Maharashtra in Writ Petition No. 9224 of 2015. He
was also co-delinquent. He was removed from the services. Both
the Courts below in that case held that he was not workman, as he
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was Assistant Engineer. His petition was entertained by the
Division Bench. The following order was passed.
"10. (i) The punishment imposed upon the
petitioner of removal from service is quashed and set
aside.
(ii) The respondent shall proceed with the inquiry in
the disciplinary proceedings from the stage of evidence
afresh. The respondent shall conclude the disciplinary
proceedings within four months from the date of
appearance of the petitioner.
(iii) The petitioner shall appear in the disciplinary
proceedings on 18.12.2018. The respondent may direct
its Presenting Officer to remain present in the inquiry
proceedings on that date.
(iv) The petitioner shall be under suspension, till he
attained the age of superannuation. As stay was granted
by the Labour Court and the petitioner was in service till
24.03.2008, the subsistence allowance may be paid from
24.03.2008 till the date the petitioner attained the age of
superannuation, within one month.
(v) The amount, if any, already paid from 24.03.2008,
shall be adjusted accordingly.
(vi) The superannuation of the petitioner and all
retiral benefits would be subject to the decision that may
be taken by the disciplinary authority in the disciplinary
proceedings."
28. It is brought on record that vide order dated
10.03.2021. Co-delinquent was inflicted the penalty of withdrawal
of 50% of the pension permanently. The impugned order in the
case at hand do not spell out any reasons for imposing harsher
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penalty. It is overlooked that the petitioner was not only
delinquent for causing loss to respondents. Penalty is aimed at
making good the loss. Then it is unreasonable to saddle entire
liability on petitioner.
29. We are of the considered view, that punishment
imposed on the petitioner in the present matter is disproportionate.
Ends of the justice would be subserved if the punishment is reduced
to withdrawal of 50% of pension permanently. We hold that this
question needs to be answered in favour of the petitioner partly. For
the reasons assigned above we pass following order.
ORDER
(i) The petition is partly allowed.
(ii) The order dated 30.10.2006 passed by the respondent No. 2
and order dated 20.02.2008 passed by the appellate authority are
modified by imposing the penalty of withdrawal of 50% of the
retiral benefits with permanent effect.
(iii) Petitioner shall be disbursed 50% of the pension.
(iv) The respondents shall disburse the balance amount to the
petitioner for the period from 30.11.2001, which is withheld.
(v) Rule is made absolute in above terms.
(SHAILESH P. BRAHME, J.) (S. G. MEHARE, J.)
Komal Kamble/
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