Bombay High Court
Bandu Bhikaji Bhalerao vs The Aurangabad Municipal Corporation ... on 28 February, 2025
2025:BHC-AUG:5802-DB
28.WP-2030-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 2030 Of 2020
Bandu s/o Bhikaji Bhalerao
Age : 62 years, Occupation-Retired,
R/o. N-12, D27/7, Swami Vivekanand Nagar,
Aurangabad, Dist. Aurangabad. .. Petitioner
Versus
1. The Aurangabad Municipal Corporation,
Aurangabad through its Commissioner,
Office of Municipal Corporation, Aurangabad,
Juna Bazar, Aurangabad, Dist. Aurangabad.
2. The State of Maharashtra,
through its Secretary,
Department of Urban Development,
Mantralaya, Mumbai. .. Respondents
*****
* Mr. B.L. Sagar Killarikar, Advocate for the Petitioner.
* Mrs. Anjali Bajpai Dube, Advocate for Respondent No.1.
* Mr. A.S. Shinde, Addl.GP for Respondent No. 2/State.
*****
CORAM : S.G. MEHARE AND
SHAILESH P. BRAHME, JJ..
RESERVED ON : 24th FEBRUARY 2025
PRONOUNCED ON : 28th FEBRUARY 2025
J U D G M E N T (Per Shailesh P. Brahme, J.) :
. Rule. Rule is made returnable forthwith. Heard
both sides finally.
28.WP-2030-2020.odt
2. By way of this petition, the Petitioner is
claiming retiral benefits which, he is deprived of by
the Respondent No.1/Corporation due to punishment of
withholding of two annual increments with permanent
effect.
3. Petitioner was working as Cashier. A disciplinary
action was taken against him by conducting inquiry. He
was found guilty and punishment of withholding of two
annual increments with permanent effect was imposed by
the Deputy Commissioner vide order dated 09.02.2007.
The punishment was assailed by him by preferring appeal
before the Standing Committee. Vide resolution no.235
dated 30.04.2013, Standing Committee restored the
annual increments by canceling order of punishment. He
was rendering services till his superannuation dated
31.05.2015. He was not disbursed regular pension and
other retiral benefits for which the representations
were made by him from time to time. Ultimately he was
constrained to approach this Court for direction to
release retiral benefits.
4. Learned Counsel for the Petitioner Mr. Sagar
Killarikar placed heavy reliance on the judgments of
coordinate bench in the matters of Dattatray s/o
Anandgir Giri Vs. The Aurangabad Municipal Corporation,
Aurangabad and Anr., in Writ Petition No.4146/2014;
Shrish s/o. Deodas Ramteke Vs. Chief Minister and
Minister for Urban Development and Others, in Writ
Petition No.5961/2016 and the Aurangabad Municipal
28.WP-2030-2020.odt
Corporation Vs. Shirish and Others in Special Leave
Petition (Civil) Diary No(s). 163/2019, to buttress the
submission that the decision of the Standing Committee
has not been assailed by the Corporation and therefore
that cannot be questioned for withholding the
legitimate retiral benefits.
5. He would submit that right to receive retiral
benefits is envisaged by Article 300(A) of the
Constitution of India and inaction on part of the
Respondents is unconstitutional. It is submitted that
after decision of the Standing Committee, the
Corporation did not challenge the decision till the
superannuation of the Petitioner and thereafter also.
The Corporation is bound to follow the decision of the
Standing Committee. It is further submitted that the
judgment in the matter of Shrish s/o. Deodas Ramteke
(supra) was confirmed by the Supreme Court vide order
dated 01.02.2019.
6. Learned Counsel Mrs. Anjali Bajpai Dube would
support the impugned action by referring to affidavit-
in-reply. It is submitted that appeal preferred by the
Petitioner against the penalty which was minor in
nature was not maintainable before the Standing
Committee as per Section 56(4) of the Maharashtra
Municipal Corporation Act (hereinafter referred to as
'Act'). Appeal was maintainable against major penalty.
Petitioner was informed vide letter dated 07.02.2017
that the decision of the Standing Committee could not
28.WP-2030-2020.odt
be implemented. She would submit that the appointing
authority of the Petitioner is the Commissioner and
therefore the Standing Committee had no power to quash
the penalty.
7. We have considered rival submissions of the
parties. Petitioner suffered penalty of withholding of
two increments with permanent effect. Section 56(2)(b)
contemplates penalty of withholding of increments. The
punishment imposed by the Deputy Commissioner on the
Petitioner is in a way not covered by sub-section (2).
There is provision of preferring appeal under Section
56(4) to immediate superior authority. But this appeal
is provided against penalty of reduction, removal or
dismissal. The Petitioner in the present case was not
inflicted with the said penalty. Despite that his
appeal was entertained by the Standing Committee and
was virtually allowed.
8. The Standing Committee by its resolution dated
30.04.2013 reversed order of penalty dated 09.02.2007.
It was possible for the Respondent No.1/Corporation to
challenge the resolution by resorting to Section 451
of the Act. If the order of appellate forum was without
jurisdiction, the remedy provided under the Statute was
not availed of by Respondent No.1/Corporation.
Petitioner was permitted to render the services till
his superannuation. Respondent No.1 remained dormant
from 2013 to 2020. Even the representation of the
Petitioner was rejected by the Corporation on
28.WP-2030-2020.odt
07.02.2017. Respondent No.1 is guilty of acquiescence.
Now when it comes to disbursement of retiral benefits,
it is coming with a stand that the penalty could not
have been quashed as the appeal was not maintainable.
This approach is afterthought and arbitrary.
9. Reliance is placed on the judgment of Dattatray
s/o Anandgir Giri (supra). In that case Petitioner was
Ward Officer who met with punishment of withholding of
promotion and recovery imposed by Commissioner which
was regarded to be major penalty. He had also preferred
appeal against it before the Standing Committee under
Section 56(4) of the Act. The Standing Committee had
quashed the penalty by its resolution. In that matter
also Petitioner was superannuated and he was not
awarded the retiral benefits. It was the defense of the
Corporation that the Standing Committee had no power
and no reasons were assigned.
10. It was held by the coordinate bench that the
decision of the Appellate Authority had attained
finality and it was not challenged by the Corporation
or the Commissioner. It was also observed that the
Standing Committee would stand on higher footing. In
that view of the matter, in paragraph no.11 of the
judgment, High Court disapproved the stand of the
Corporation recording it to be belated attempt. It was
further recorded that the decision of the Standing
Committee could have been assailed. The following
observations are made :
28.WP-2030-2020.odt
"As already observed, upon considering the scheme of the said Act, it is
only the Corporation, who is appointing authority of the petitioner, can
take appropriate decision either to upset/set aside/cancel the decision
taken by the Standing Committee. So far contention of Respondent No.1
that, appeal was not maintainable cannot be considered in the Writ
Petition, filed by the petitioner, to his disadvantage, when the decision of
the standing committee has attained finality and there is no challenge to
the said decision from the year 2009 till 2015."
11. Although the contentious issue as to the
maintainability of the appeal before the Standing
Committee against the penalty, otherwise than
reduction, removal or dismissal was not dealtwith by
the coordinate bench, it was specifically held that the
decision of the Standing Committee was never
challenged. Being belated attempt of the Corporation,
plea of maintainability of the appeal was discarded. We
also propose to follow the same course and action.
12. Reliance is placed on the judgment of Shrish s/o.
Deodas Ramteke (supra). In that case, the Petitioner
was imposed with major penalty of stoppage of
increments withholding of promotion and recovery. Being
aggrieved, appeal was preferred before the Standing
Committee and it was allowed. Corporation did not
challenge the decision of the Standing Committee in
time. After four years, the decision was taken to
challenge under Section 451 of the Act. Thereafter the
State of Government quashed the decision of the
Standing Committee. The Writ Petition was allowed by
the coordinate bench because no reasons were assigned
by the Respondent No.1/State Government for quashing
28.WP-2030-2020.odt
the resolution of the Standing Committee. It was also
held that the decision was challenged before the State
Government belatedly. We find that there is difference
in the facts and hence the said decision cannot be made
applicable to the present case. Though the Supreme
Court confirmed the decision of the High Court, it is
inconsequential for the present case.
13. For the reasons stated above, in the peculiar
facts, we find that Respondent No.1/Corporation is
bound to follow the decision of the Standing Committee
and disburse the retiral benefits to the Petitioner.
Hence we pass following order :
ORDER
(i) Respondent No.1/Corporation shall restore two
annual increments and accordingly calculate and revise
retiral benefits of the Petitioner and those shall be
disbursed within a month from today.
(ii) If the monetary benefits are not disbursed within
above referred period, it shall carry interest of 6%
per annum.
(iii) Rule is made absolute in above terms.
[ SHAILESH P. BRAHME ] [ S.G. MEHARE ]
JUDGE JUDGE
najeeb..
