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This Order is modified/corrected by Speaking to Minutes Order
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITON NO.1930 OF 2005
Mr.Dhairyasheel A. Jadhav, ]
Aged : 59 years, Indian ]
Inhabitant, residing at ]
E-504, Kalpita Enclave, ]
Swami Nityanand Marg, ]
Andheri (East), Mumbai ]
- 400 069. ] ..Petitioner.
Versus
Maharashtra Agro Industrial ]
Development Corporation Ltd., ig ]
A Government of Maharashtra ]
Undertaking, having its office ]
at Rajan House, Prabhadevi, ]
Mumbai - 400 025. ] ..Respondent.
...
Mr.Neel Helekar, Advocate for the Petitioner.
Mrs.Anjali Purav, Advocate for Respondent No.1.
...
CORAM : F. I. REBELLO &
A.R. JOSHI, JJ.
DATED : FEBRUARY 05, 2010.
ORAL JUDGMENT (PER F.I.REBELLO,J).:
1. Rule. By consent heard forthwith.
2. The petitioner superannuated in the services of the Maharashtra Agro
Industrial Development Corporation Ltd., (Respondent No.1) on
31.12.2003. At the relevant time, he was working as Manager
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This Order is modified/corrected by Speaking to Minutes Order(Project). The petitioner was relieved from the service by issuing
letter dated 31.12.2003 after close of office hours. The letter further
sets out that the petitioner had done valuable contribution in the
development and prosperity of the Corporation.
3. According to the petitioner, after the petitioner was served with the
relieving order, a memorandum came to be served upon him on the
very same day i.e. 31.12.2003 alleging misconduct when the
petitioner was working as Fertilized Manager (Fertilization) in the
Fertilizer Divn. of the Corporation in Head Office. According to the
petitioner, the chargesheet is false and fabricated. The petitioner has
filed a reply to the said chargesheet.
4. After being allowed to superannuate and as no enquiry was initiated
when the petitioner was in service, according to the petitioner, he is
entitled to gratuity and consequently he submitted an application
under Rule 7 of the Payment of Gratuity Act on 18.7.2004. The
respondents however have not paid the gratuity and hence an
application was made to the controlling authority. According to the
petitioner when the respondent came to know about it, an order of
enquiry was initiated by issuing order on 4.2.2005 and appointing an
enquiry officer to conduct the enquiry.
5. It is the case of the petitioner that the respondents have no power to
conduct enquiry against the petitioner after his
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This Order is modified/corrected by Speaking to Minutes Ordersuperannuation/retirement, from the service of the respondent.
Further there is no relationship of employer and employee. As
gratuity has not been paid and enquiry is being proceeded with the
present Petition.
6. The respondents have filed their reply. The major contention in the
reply is that the chargesheet issued on 31.12.2003 was in respect of
the lapses / misconduct during the year 2001-02 and 2002-03 and that
relieving was subject to the enquiry being conducted against the
petitioner in respect of the chargesheet dated 31.12.2003.
ig The
memorandum to initiate enquiry was initiated on 31.12.2003 when he
was allowed to retire. It is specifically set out that the petitioner is
governed by the Maharashtra Civil Services (Discipline and Appeal)
Rules and an enquiry under the said rules can be conducted even
after superannuation where such an enquiry has been initiated before
superannuation. It is further set out that Rule 27 of the Maharashtra
Civil Services (Pension) Rules, 1992 provides for conducting an
enquiry against the employee after superannuation and in view of the
said provisions and underlying principle and principle analogous
thereto an enquiry can be continued after superannuation.
7. At hearing of this Petition, on behalf of the petitioner it is submitted
that respondent No.1 has not adopted the Maharashtra Civil Services
(Pension) Rules, 1982 which permit an enquiry to conduct even after
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This Order is modified/corrected by Speaking to Minutes Ordersuperannuation and in these circumstances the question of continuing
the enquiry does not arise. The Maharashtra Civil Services
(Discipline & Appeal) Rules do not provide for continuing enquiry
which was initiated at the time when the employee was in service.
The learned Counsel relies on the judgment of the Supreme Court in
Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others
reported in (1999) 3 Supreme Court Cases 666 in support of his
contention that in absence of the provisions for continuing an enquiry
the enquiry cannot be continued.
8. On behalf of the respondent, the learned Counsel fairly concedes that
they have not adopted the Maharashtra Civil Services (Pension)
Rules, 1982. However, places reliance on the judgment of the
Supreme Court in U.P. State Sugar Corporation Ltd., & Ors. Vs.
Kamal Swaroop Tondon reported in 2008 II CLR 563. It is
submitted that the enquiry can be continued once it was initiated. It
is, therefore, submitted that the action of the respondent is legal.
9. We have heard the learned Counsel for the parties. We may gainfully
refer to sub rule 27 (2)(a) of the Maharashtra Civil Services (Pension)
Rules, 1982, which reads as under.
“27. Right of Government to withhold or withdraw pension.
(1) …..(2)(a) The departmental proceedings referred to in sub-rule (1), if
Instituted while the Government servant was in service whether
before his retirement or during his re-employment, shall, after the::: Downloaded on – 09/06/2013 15:34:55 :::
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This Order is modified/corrected by Speaking to Minutes Orderfinal retirement of the Government Servant, be deemed to be
proceedings under this rule and shall be continued and concluded by
the authority by which they were commenced in the same manner as
if the Government servant had continued in service.”It is thus clear that in the event departmental proceedings was
instituted it can be continued and concluded “as if the Government
servant has continued in service”. Thus, by a deemed fiction though
relationship of employer and employee has ceased, the rules continue
the relationship pursuant to which the departmental proceedings can
be proceeded with. There is no provision in the Maharashtra Civil
Services (Discipline & Appeal) Rules, which provide for
continuation of enquiry for major misconduct by issuing of
chargesheet. The penalties are set out under Section 5. If a
Government servant is not in service then none of those penalties can
be imposed. Thus, any enquiry initiated and in which there is no
provision for continuing enquiry must cease on the employee being
allowed to superannuate, in the absence of the provisions like rule 27
of the Maharashtra Civil Services (Pension) Rules, 1982.
10. Let us now examine the authorities cited at Bar to consider the
contentions urged on behalf of the petitioner herein.
In Bhagirathi Jena (supra), we may gainfully refer to paragraph
Nos.6 & 7 which read as under :
“6. It will be noticed from the abovesaid regulations
that no specific provision was made for deducting any::: Downloaded on – 09/06/2013 15:34:55 :::
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This Order is modified/corrected by Speaking to Minutes Orderamount from the provident fund consequent to any
misconduct determined in the departmental enquiry nor
was any provision made for continuance of the
departmental enquiry after superannuation.7. In view of the absence of such a provision in the
abovesaid regulations, it must be held that theCorporation had no legal authority to make any
reduction in the retiral benefits of the appellant. There is
also no provision for conducting a disciplinary enquiry
after retirement of the appellant and nor any provisionstating that in case misconduct is established, a
deduction could be made from retiral benefits. Once the
appellant had retired from service on 30-6-1995, there
was no authority vested in the Corporation forcontinuing the departmental enquiry even for the
purpose of imposing any reduction in the retiral benefitspayable to the appellant. In the absence of such an
authority, it must be held that the enquiry had lapsed and
the appellant was entitled to full retiral benefits onretirement.”
Thus, it is clear that only in the event that there is a
provision for continuing the enquiry, the enquiry can be
continued. The Supreme Court noted the judgment in the case
of Takhatray Shivadattray Mankad v. State of Gujarat
reported in 1989 Supp (2) SCC 110, but distinguished it on
the ground that there was specific provision in the form of Rule
241-A which enabled imposition of a reduction in the pension
or gratuity of a person after retirement.
11. The question is whether the judgment in the case of Kamal
Swaroop Tondon (supra) has taken a view which is different
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This Order is modified/corrected by Speaking to Minutes Orderthan the view taken in Bhagirathi Jena (supra). Both the
judgments are of co-ordinate Benches. The judgment in
Bhagirathi Jena (supra) has not been considered in Kamal
Swaroop Tondon’s case (supra). On the facts there, it will be
clear that the respondent had superannuated and show cause
notice was issued after retirement i.e. after office hours at 6:45
p.m. on January 31, 2000. The contention urged on behalf the
Corporation before the Supreme Court was firstly that if
relationship of employer and employee continues and the
proceedings can be continued and consequently under the U.P.
State Sugar Corporation Ltd. General Service Rules, 1988 such
proceedings could have been initiated even after an employee
has retired since they related to the recovery of losses caused to
the Corporation by the respondent – employee. The learned
Supreme Court observed that retiral benefits are earned by an
employee for long and meritorious services rendered by
him/her. They are not paid to the employee gratuitously or
merely as a matter of bounty. It is paid to an employee for
dedicated and devoted work. The Court then referred to the
principles of gratuity.
On behalf of the respondent herein it is contended that the
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This Order is modified/corrected by Speaking to Minutes Orderratio of the judgment in Kamal Swaroop Tondon’s case
(supra) is that there can be no rigid, inflexible or invariable
test as to when the enquiry should be continued and when they
should be allowed to be dropped. The Court then observed the
effect of delay in conducting the enquiry and observed that
there cannot be laid down a universal proposition that if there
be delay in initiation of proceedings for a particular period they
must necessarily be quashed. The Court went on to observe
from the case law considered that it is clear that the
proceedings could have been continued since they were
initiated for recovery of loss sustained by the Corporation due
to negligence on the part of the respondent employee.
It may be noted that it was not in dispute that the
proceedings could have been initiated even after the employee
had retired since relating to recovery of loss caused to the
Corporation as there were rules for that purpose.
12. In our opinion, it is no doubt true, that the gratuity is a
terminal benefit and is subject to the terms and conditions.
Withholding of the gratuity can therefore be only if there be the
provisions for withholding it in the Act or if there being any
service condition which so provide. A person cannot be
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This Order is modified/corrected by Speaking to Minutes Ordercharged for a misconduct if it does not constitute a misconduct
within the definition of misconduct either in terms of the
standing order or the service regulations. Similarly no enquiry
can be conducted for misconduct if there being no statutory
provisions. In the absence of any statutory provisions for
continuing the enquiry, in our opinion, the ratio of Bhagirathi
Jena’s case (supra) which has directly dealt with the issue
would be applicable. In the case of Bhagirathi Jena (supra)
the Court itself noted the effect of absence of a provision. In
our opinion, therefore, the ratio of Bharirathi Jena’s case
(supra) would squarely apply. The enquiry therefore against
the petitioner after his superannuation in the absence of a
provision to continue enquiry is without authority of law.
13. In view of the above, the following order :
:: O R D E R ::
[i] Rule is made absolute in terms of prayer clause (a), which
reads as under :
“(a) That this Hon’ble court be pleased to issue a writ of
certiorari or a writ in the nature of mandamus or any other
appropriate writ direction or order under Article 226 of the
Constitution of India and direct the action of the
respondent of conducting the enquiry against the::: Downloaded on – 09/06/2013 15:34:55 :::
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This Order is modified/corrected by Speaking to Minutes Orderpetitioner to be illegal and bad in law and further direct
the respondent to withdraw the action of the departmental
enquiry against the petitioner.”
[ii] In the facts and circumstances of the case, there shall be
no order as to costs.
(A.R.JOSHI, J.) (F.I. REBELLO,J.)
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