{"id":104153,"date":"2010-02-05T00:00:00","date_gmt":"2010-02-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/unknown-vs-maharashtra-agro-industrial-on-5-february-2010"},"modified":"2016-12-31T19:02:39","modified_gmt":"2016-12-31T13:32:39","slug":"unknown-vs-maharashtra-agro-industrial-on-5-february-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/unknown-vs-maharashtra-agro-industrial-on-5-february-2010","title":{"rendered":"Unknown vs Maharashtra Agro Industrial on 5 February, 2010"},"content":{"rendered":"
Bombay High Court<\/div>\n
Unknown vs Maharashtra Agro Industrial on 5 February, 2010<\/div>\n
Bench: F.I. Rebello, A. R. Joshi<\/div>\n
                                                                    16.wp.1930-05                    1\n             This Order is modified\/corrected by Speaking to Minutes Order\n\n\n\n\n                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY\n                                ORDINARY ORIGINAL CIVIL JURISDICTION\n\n\n\n\n                                                                                            \n                               WRIT PETITON NO.1930 OF 2005 \n\n\n\n\n                                                                    \n    Mr.Dhairyasheel A. Jadhav,                               ]\n    Aged : 59 years, Indian                                  ]\n    Inhabitant, residing at                                  ]\n    E-504, Kalpita Enclave,                                  ]\n\n\n\n\n                                                                   \n    Swami Nityanand Marg,                                    ]\n    Andheri (East), Mumbai                                   ]\n    - 400 069.                                               ]       ..Petitioner.\n          Versus\n\n\n\n\n                                                     \n    Maharashtra Agro Industrial                              ]\n    Development Corporation Ltd.,   ig                       ]\n    A Government of Maharashtra                              ]\n    Undertaking, having its office                           ]\n    at Rajan House, Prabhadevi,                              ]\n                                  \n    Mumbai - 400 025.                                        ]       ..Respondent.\n\n\n                                      ...\n          \n\n\n    Mr.Neel Helekar, Advocate for the Petitioner.\n    Mrs.Anjali Purav, Advocate for Respondent No.1.\n       \n\n\n\n                                      ...\n\n                                      CORAM :  F. I. REBELLO & \n\n\n\n\n\n                                               A.R. JOSHI,  JJ. \n<\/pre>\n
                                      DATED   :  FEBRUARY 05, 2010.\n<\/p>\n
    ORAL JUDGMENT (PER F.I.REBELLO,J).:\n<\/p>\n
        1.      Rule. By consent heard forthwith.<\/p>\n
        2.      The petitioner superannuated in the services of the Maharashtra Agro<\/p>\n
                Industrial Development Corporation Ltd., (Respondent No.1) on<\/p>\n
                31.12.2003. At the relevant time, he was working as                          Manager<\/p>\n
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\n                                                                 16.wp.1930-05                    2<\/span>
\n         This Order is modified\/corrected by Speaking to Minutes Order<\/p>\n
            (Project). The petitioner was relieved from the service by issuing<\/p>\n
            letter dated 31.12.2003 after close of office hours. The letter further<\/p>\n
            sets out that the petitioner had done valuable contribution in the<\/p>\n
            development and prosperity of the Corporation.\n<\/p><\/blockquote>\n
    3.      According to the petitioner, after the petitioner was served with the<\/p>\n
            relieving order, a memorandum came to be served upon him on the<\/p>\n
            very same day i.e. 31.12.2003 alleging misconduct when the<\/p>\n
            petitioner was working as Fertilized Manager (Fertilization) in the<\/p>\n
            Fertilizer Divn. of the Corporation in Head Office. According to the<\/p>\n
            petitioner, the chargesheet is false and fabricated. The petitioner has<\/p>\n
            filed a reply to the said chargesheet.\n<\/p>\n
    4.      After being allowed to superannuate and as no enquiry was initiated<\/p>\n
            when the petitioner was in service, according to the petitioner, he is<\/p>\n
            entitled to gratuity and consequently he submitted an application<\/p>\n
            under Rule 7 of the Payment of Gratuity Act on 18.7.2004. The<\/p>\n
            respondents however have not paid the gratuity and hence an<\/p>\n
            application was made to the controlling authority. According to the<\/p>\n
            petitioner when the respondent came to know about it, an order of<\/p>\n
            enquiry was initiated by issuing order on 4.2.2005 and appointing an<\/p>\n
            enquiry officer to conduct the enquiry.\n<\/p>\n
    5.      It is the case of the petitioner that the respondents have no power to<\/p>\n
            conduct        enquiry        against        the      petitioner         after        his<\/p>\n
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\n                                                                 16.wp.1930-05                    3<\/span>
\n         This Order is modified\/corrected by Speaking to Minutes Order<\/p>\n
            superannuation\/retirement, from              the service of the respondent.\n<\/p>\n
            Further there is no relationship of employer and employee.                            As<\/p>\n
            gratuity has not been paid and enquiry is being proceeded with the<\/p>\n
            present Petition.\n<\/p>\n
    6.      The respondents have filed their reply. The major contention in the<\/p>\n
            reply is that the chargesheet issued on 31.12.2003 was in respect of<\/p>\n
            the lapses \/ misconduct during the year 2001-02 and 2002-03 and that<\/p>\n
            relieving was subject to the enquiry being conducted against the<\/p>\n
            petitioner in respect of the chargesheet dated 31.12.2003.\n<\/p>\n
                                ig                                                              The<\/p>\n
            memorandum to initiate enquiry was initiated on 31.12.2003 when he<\/p>\n
            was allowed to retire. It is specifically set out that the petitioner is<\/p>\n
            governed by the Maharashtra Civil Services (Discipline and Appeal)<\/p>\n
            Rules and an enquiry under the said rules can be conducted even<\/p>\n
            after superannuation where such an enquiry has been initiated before<\/p>\n
            superannuation. It is further set out that Rule 27 of the Maharashtra<\/p>\n
            Civil Services (Pension) Rules, 1992 provides for conducting an<\/p>\n
            enquiry against the employee after superannuation and in view of the<\/p>\n
            said provisions and underlying principle and principle analogous<\/p>\n
            thereto an enquiry can be continued after superannuation.\n<\/p>\n
    7.      At hearing of this Petition, on behalf of the petitioner it is submitted<\/p>\n
            that respondent No.1 has not adopted the Maharashtra Civil Services<\/p>\n
            (Pension) Rules, 1982 which permit an enquiry to conduct even after<\/p>\n
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\n                                                                 16.wp.1930-05                    4<\/span>
\n         This Order is modified\/corrected by Speaking to Minutes Order<\/p>\n
            superannuation and in these circumstances the question of continuing<\/p>\n
            the enquiry does not arise.                The Maharashtra Civil Services<\/p>\n
            (Discipline & Appeal) Rules do not provide for continuing enquiry<\/p>\n
            which was initiated at the time when the employee was in service.\n<\/p>\n
            The learned Counsel relies on the judgment of the Supreme Court in<\/p>\n
            Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others<\/p>\n
            reported in (1999) 3 Supreme Court Cases 666 in support of his<\/p>\n
            contention that in absence of the provisions for continuing an enquiry<\/p>\n
            the enquiry cannot be continued.\n<\/p>\n
    8.      On behalf of the respondent, the learned Counsel fairly concedes that<\/p>\n
            they have not adopted the Maharashtra Civil Services (Pension)<\/p>\n
            Rules, 1982. However, places reliance on the judgment of the<\/p>\n
            Supreme Court in U.P. State Sugar Corporation Ltd., & Ors. Vs.<\/p>\n
            Kamal Swaroop Tondon reported in 2008 II CLR 563. It is<\/p>\n
            submitted that the enquiry can be continued once it was initiated. It<\/p>\n
            is, therefore, submitted that the action of the respondent is legal.\n<\/p>\n
    9.      We have heard the learned Counsel for the parties. We may gainfully<\/p>\n
            refer to sub rule 27 (2)(a) of the Maharashtra Civil Services (Pension)<\/p>\n
            Rules, 1982, which reads as under.\n<\/p>\n
            “27. Right of Government to withhold or withdraw pension.
\n             (1) …..\n<\/p>\n
             (2)(a) The departmental proceedings referred to in sub-rule (1), if
\n            Instituted while the Government servant was in service whether
\n            before his retirement or during his re-employment, shall, after the<\/p>\n
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\n                                                                  16.wp.1930-05                    5<\/span>
\n          This Order is modified\/corrected by Speaking to Minutes Order<\/p>\n
             final retirement of the Government Servant, be deemed to be
\n             proceedings under this rule and shall be continued and concluded by
\n             the authority by which they were commenced in the same manner as
\n             if the Government servant had continued in service.”\n<\/p>\n
                   It is thus clear that in the event departmental proceedings was<\/p>\n
             instituted it can be continued and concluded “as if the Government<\/p>\n
             servant has continued in service”. Thus, by a deemed fiction though<\/p>\n
             relationship of employer and employee has ceased, the rules continue<\/p>\n
             the relationship pursuant to which the departmental proceedings can<\/p>\n
             be proceeded with. There is no provision in the Maharashtra Civil<\/p>\n
             Services (Discipline & Appeal) Rules, which provide for<\/p>\n
             continuation of enquiry for major misconduct by issuing of<\/p>\n
             chargesheet. The penalties are set out under Section 5.                             If a<\/p>\n
             Government servant is not in service then none of those penalties can<\/p>\n
             be imposed. Thus, any enquiry initiated and in which there is no<\/p>\n
             provision for continuing enquiry must cease on the employee being<\/p>\n
             allowed to superannuate, in the absence of the provisions like rule 27<\/p>\n
             of the Maharashtra Civil Services (Pension) Rules, 1982.\n<\/p>\n
    10.      Let us now examine the authorities cited at Bar to consider the<\/p>\n
             contentions urged on behalf of the petitioner herein.\n<\/p>\n
                 In Bhagirathi Jena (supra), we may gainfully refer to paragraph<\/p>\n
             Nos.6 & 7 which read as under :\n<\/p>\n
             “6. It   will   be   noticed   from   the   abovesaid   regulations
\n             that   no  specific  provision   was  made  for  deducting  any <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:34:55 :::<\/span>
\n                                                                  16.wp.1930-05                     6<\/span>
\n          This Order is modified\/corrected by Speaking to Minutes Order<\/p>\n
             amount   from   the   provident   fund   consequent   to   any
\n             misconduct determined in the departmental enquiry nor
\n             was   any   provision   made   for   continuance   of   the
\n             departmental enquiry after superannuation.\n<\/p>\n
             7. In   view   of   the   absence   of   such   a   provision   in   the
\n             abovesaid   regulations,   it   must   be   held   that   the <\/p>\n
             Corporation   had   no   legal   authority   to   make   any
\n             reduction in the retiral benefits of the appellant.  There is
\n             also  no  provision   for  conducting  a  disciplinary  enquiry
\n             after retirement of the appellant and nor any provision <\/p>\n
             stating   that   in   case   misconduct   is   established,   a
\n             deduction could be made from retiral benefits. Once the
\n             appellant had retired from service on 30-6-1995, there
\n             was   no   authority   vested   in   the   Corporation   for <\/p>\n
             continuing   the   departmental   enquiry   even   for   the
\n             purpose of imposing any reduction in the retiral benefits <\/p>\n
             payable   to   the   appellant.     In   the   absence   of   such   an
\n             authority, it must be held that the enquiry had lapsed and
\n             the   appellant   was   entitled   to   full   retiral   benefits   on <\/p>\n
             retirement.”\n<\/p>\n
                     Thus,   it   is   clear   that   only   in   the   event   that   there   is   a <\/p>\n
             provision   for   continuing   the   enquiry,   the   enquiry   can   be <\/p>\n
             continued.  The Supreme Court noted the judgment in the case <\/p>\n
             of  Takhatray   Shivadattray   Mankad   v.   State   of   Gujarat<\/a> <\/p>\n
             reported in  1989 Supp (2) SCC 110,  but distinguished it on <\/p>\n
             the ground that there was specific provision in the form of Rule <\/p>\n
             241-A which enabled  imposition of a reduction in the pension <\/p>\n
             or gratuity of a person after retirement.\n<\/p>\n
    11.      The  question  is  whether the  judgment  in the  case  of  Kamal  <\/p>\n
             Swaroop Tondon (supra)  has taken  a view which is different <\/p>\n
                                                                  ::: Downloaded on – 09\/06\/2013 15:34:55 :::<\/span>
\n                                                            16.wp.1930-05                    7<\/span>
\n    This Order is modified\/corrected by Speaking to Minutes Order<\/p>\n
       than   the   view   taken   in  Bhagirathi   Jena   (supra).    Both   the <\/p>\n
       judgments   are   of   co-ordinate   Benches.     The   judgment   in <\/p>\n
       Bhagirathi  Jena (supra)  has not  been  considered in  Kamal  <\/p>\n
       Swaroop Tondon’s case (supra).  On the facts there, it will be <\/p>\n
       clear that the respondent had superannuated and show cause <\/p>\n
       notice was  issued after retirement i.e. after office hours at 6:45 <\/p>\n
       p.m. on January 31, 2000.  The contention urged on behalf the <\/p>\n
       Corporation   before   the   Supreme   Court   was   firstly   that   if <\/p>\n
       relationship   of   employer   and   employee   continues   and   the <\/p>\n
       proceedings can be continued and consequently under the U.P.\n<\/p>\n
       State Sugar Corporation Ltd. General Service Rules, 1988 such <\/p>\n
       proceedings could have been initiated even after an employee <\/p>\n
       has retired since they related to the recovery of losses caused to <\/p>\n
       the   Corporation   by   the   respondent   –   employee.   The   learned <\/p>\n
       Supreme Court observed that retiral benefits are  earned by an <\/p>\n
       employee   for   long   and   meritorious   services   rendered   by <\/p>\n
       him\/her.    They are  not  paid  to the employee gratuitously  or <\/p>\n
       merely as a matter of bounty.   It is paid to an employee for <\/p>\n
       dedicated  and devoted work.  The  Court   then referred to the <\/p>\n
       principles of gratuity.\n<\/p>\n
            On behalf of the respondent herein it is contended that the <\/p>\n
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\n                                                                  16.wp.1930-05                    8<\/span>
\n          This Order is modified\/corrected by Speaking to Minutes Order<\/p>\n
             ratio   of   the   judgment   in  Kamal   Swaroop   Tondon’s   case  <\/p>\n
             (supra)  is that   there  can be no rigid, inflexible or invariable <\/p>\n
             test as to when the enquiry should be continued and when they <\/p>\n
             should be allowed to be dropped.  The Court then observed the <\/p>\n
             effect   of   delay   in   conducting   the   enquiry   and   observed   that <\/p>\n
             there cannot be  laid down a universal proposition that if there <\/p>\n
             be delay in initiation of proceedings for a particular period they <\/p>\n
             must necessarily be quashed.   The Court went on to observe <\/p>\n
             from   the   case   law   considered   that     it   is   clear   that     the <\/p>\n
             proceedings   could   have   been   continued   since   they   were <\/p>\n
             initiated for recovery of loss sustained by the Corporation due <\/p>\n
             to negligence on the part of the respondent employee.\n<\/p>\n
                       It   may   be   noted   that   it   was   not   in   dispute   that   the <\/p>\n
             proceedings could have been initiated even after the employee <\/p>\n
             had   retired   since   relating   to   recovery   of   loss   caused   to   the <\/p>\n
             Corporation as there were rules for that purpose.\n<\/p>\n
    12.      In   our   opinion,   it   is   no   doubt   true,   that   the   gratuity   is   a <\/p>\n
             terminal   benefit   and   is   subject   to   the   terms   and   conditions.\n<\/p>\n
             Withholding of the gratuity can therefore be only if there be the <\/p>\n
             provisions for withholding it in the Act or if there being any <\/p>\n
             service   condition   which   so   provide.     A   person   cannot   be <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:34:55 :::<\/span>
\n                                                                  16.wp.1930-05                    9<\/span>
\n          This Order is modified\/corrected by Speaking to Minutes Order<\/p>\n
             charged for a misconduct if it does not constitute a misconduct <\/p>\n
             within   the   definition   of   misconduct   either   in   terms   of   the <\/p>\n
             standing order or the service regulations.  Similarly no enquiry <\/p>\n
             can   be   conducted  for  misconduct   if  there   being  no  statutory <\/p>\n
             provisions.     In   the   absence   of   any   statutory   provisions   for <\/p>\n
             continuing the enquiry, in our opinion, the ratio of Bhagirathi  <\/p>\n
             Jena’s   case   (supra)  which   has   directly   dealt   with   the   issue <\/p>\n
             would be applicable.   In the case of  Bhagirathi Jena (supra)  <\/p>\n
             the Court itself noted the effect of absence of a provision.   In <\/p>\n
             our   opinion,   therefore,   the   ratio   of  Bharirathi   Jena’s   case  <\/p>\n
             (supra)  would   squarely   apply.   The   enquiry   therefore   against <\/p>\n
             the   petitioner   after   his   superannuation   in   the   absence   of   a <\/p>\n
             provision to continue enquiry is without authority of law.\n<\/p>\n
    13.      In view of the above, the following order :\n<\/p>\n
                                               :: O R D E R ::\n<\/p><\/blockquote>\n
             [i] Rule is made absolute in terms of prayer clause (a), which <\/p>\n
             reads as under :\n<\/p><\/blockquote>\n
                   “(a) That this Hon’ble court be pleased to issue a writ of
\n                   certiorari or a writ in the nature of mandamus or any other
\n                   appropriate writ direction or order under Article 226 of the
\n                   Constitution   of   India   and   direct   the   action   of   the
\n                   respondent   of   conducting   the   enquiry   against   the <\/p>\n
                                                                 ::: Downloaded on – 09\/06\/2013 15:34:55 :::<\/span>
\n                                                          16.wp.1930-05                     10<\/span>
\n    This Order is modified\/corrected by Speaking to Minutes Order<\/p>\n
             petitioner to be illegal and bad in law and further direct
\n             the respondent to withdraw the action of the departmental
\n             enquiry against the petitioner.”\n<\/p><\/blockquote>\n<\/blockquote>\n
     [ii]    In the facts and circumstances of the case, there  shall be <\/p>\n
             no order as to costs.\n<\/p><\/blockquote>\n
     (A.R.JOSHI, J.)                                        (F.I. REBELLO,J.)\n\n\n\n\n                                            \n                          \n                         \n      \n   \n\n\n\n\n\n\n                                                           ::: Downloaded on - 09\/06\/2013 15:34:55 :::<\/span>\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court Unknown vs Maharashtra Agro Industrial on 5 February, 2010 Bench: F.I. Rebello, A. R. Joshi 16.wp.1930-05 1 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-104153","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nUnknown vs Maharashtra Agro Industrial on 5 February, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/unknown-vs-maharashtra-agro-industrial-on-5-february-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Unknown vs Maharashtra Agro Industrial on 5 February, 2010 - 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