Writ petition No. 1223 of 2010 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD WRIT PETITION NO.1223 of 2010 Nemichand Hanumantrao Kanote Age 69 years, Occ. Pensioner R/o. Himpalnari Post, Barheli Tq. Mukhed, Dist. Nanded through Special Power of Attorney Holder Shahu Nemichand Patil @ Kanote Age 34 yeras, Occ. Legal Practitioner R/o. Himpalnari Post, Barheli Tq. Mukhed, Dist, Nanded. Petitioner Versus 1] The State Of Maharashtra Through Its Secretary School Education Department Mantralaya, Mumbai 2] The Dy. Director Of Education Latur Region, Latur 3] The Education Officer (secondary) Zilla Parishad, Nanded 4] Nitiniketan Shikshan Sanstha Through Secretary Jamb (bk), Tq. Mukhed, Dist. Nanded 5] Accountant General (A And E) Maharashtra State, Nagpur Respondents Writ petition No. 1223 of 2010 2 Mr. N.B. Suryawanshi, Advocate for the petitioner. Mr. S.K. Tambe, AgP for the respondent No.1 Mr. V.D. Gunale, Advocate for the respondent No.4. CORAM : B.R. GAVAI & R.M. BORDE,JJ. DATE : 7TH DECEMBER, 2010. ORAL JUDGMENT [ PER B.R. GAVAI, J] : 1] Rule. Rule made returnable forthwith. Heard finally by consent of the parties. 2] The petitioner has approached this court, praying for a Writ of Mandamus, directing the respondents to forthwith pay the Death-cum-Retirement Gratuity amounting to Rs.1,84,906/-, alongwith interest @ 15% p.a. From 1st December, 1999. 3] It is the case of the petitioner that he joined the services of the respondent No.4 on 30th June, 1969. He came to be promoted as Head Master on 1st July, 1975. A police complaint was lodged against him on 21st September, 1993, for the offence punishable under Section 406, 408 and 420 of the IPC, wherein, after completion of the investigation, “A summary” report was submitted, which came to be granted by the learned Magistrate. The petitioner retired from services on superannuation on 30th November, 1999. 4] The respondent No.4 objected to grant of pension to the petitioner. On 3rd December, 2002, the respondent No.3, after hearing the respondent No.4 and the petitioner sanctioned pension Writ petition No. 1223 of 2010 3 to the petitioner. Vide order dated 22nd April, 1005, the Education Officer had constituted a committee comprising of 7 members. The said committee came to the conclusion that it was necessary to recover an amount of Rs. 5,50,687.90/- from the petitioner. The said finding of the committee had been challenged by the petitioner by way of an appeal before the respondent No.2. A writ petition was filed by the respondent No.4 before this court bearing W.P. No. 3422/2007, for a direction to the authorities to recover an amount of Rs.5,50,687/- from the petitioner. The said petition came to be dismissed by this court. 4] Though the petitioner made a demand for grant of gratuity, the same was denied to him. Hence, this petition. 5] In the mean time, the respondent No.4 has also filed a Special Civil Suit bearing No. 21/2009 for recovery of the aforesaid amount from the petitioner. 6] Shri Suryawanshi, learned counsel appearing on behalf of the petitioner submits that in view of Rule 27(2) and 27(3) of the Maharashtra Civil Services Pension Rules, the respondent is not entitled to initiate any judicial proceeding against the petitioner, nor could any disciplinary enquiry be initiated, the cause of action for which has accrued more than 4 years before the intending enquiry. 7] Shri Gunale, learned counsel appearing on behalf of the respondent No.4, on the contrary, submits that in the enquiry, which was conducted by the committee appointed by the Education Officer, Writ petition No. 1223 of 2010 4 it has been categorically found that the petitioner was liable to pa the aforesaid amount of Rs.5,50,687.90 ps.. It is, therefore, submitted that the petitioner is not entitled to any relief. It is further submitted that atleast till the suit of the present petitioner is decided, the petitioner is not entitled to payment of gratuity, as prayed. 8] Rule 27(2)(b) and Rule 27(3) of the Maharashtra Civil Services (Pension) Rules, reads thus : “27(2) (a) xxxx (b) The departmental proceedings if not instituted while the Government servant was in service, whether before his retirement or during his re- employment :- [i] shall not be instituted save with the sanction of the Government, [ii] shall not be in respect of any event which took place more than four years before such institution; and [iii] shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. Writ petition No. 1223 of 2010 5 (3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place more than four years before such institution. It can thus clearly be seen that since the petitioner has retired from service in the year 1999, no departmental proceeding, could be initiated against him after a period of 4 years, i.e. after 2003. In that view of the matter,we find that the action of the respondents, in withholding payment of gratuity to the petitioner, is not sustainable in law. 9] In so far as the contention of the respondent regarding the pendency of the suit is concerned, the suit is yet to be decided. In the event, the suit filed by the respondent No.4 is decreed, the said respondent would always be at liberty to take such steps for recovery of the amount as are permissible in law. The amount which has become due to the petitioner in the year 1999 on his retirement cannot be withheld merely because the suit is pending. 10] The writ petition is, therefore, allowed. The respondent No.4 is directed to forthwith submit a proposal to the respondent for payment of gratuity of the petitioner amounting to Rs.1,84,961/- within a period of 2 weeks from today. The respondent No.3, on Writ petition No. 1223 of 2010 6 receipt of the said proposal, would forward the same to the respondent No.5, through the competent authority, within a period of 4 weeks from the date of receipt thereof. On receipt thereof, the respondent No.5 shall disburse the payment to the petitioner within a period of 3 months. In so far as the amount of interest is concerned, the petitioner would be at liberty to make an application to the State Government in accordance with Rule 129A of the Maharashtra Civil Services Pension Rules. If such a representation is made, the State Government would consider the same in accordance with law. 2] Needless to state that whatever observed by us hereinabove would not have any bearing on the suit filed by the present respondent No.4 against the petitioner. The petitioner as well as the respondent No.4 would be at liberty to raise all the grounds available to them in the suit and the said suit would be decided by the learned Civil Judge, before whom it is pending, in accordance with law, by considering all the submissions made before it by the petitioner and the respondent No.4. [R.M. BORDE,J.] [B.R. GAVAI,J.] grt/wp