1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Writ Petition No.6036 of 2010 [Yeshwant Bhomaji Shambharkar Vs. Deputy Director of Education & others] Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mr. P.N. Shende, Adv., for the petitioner. Mr. V.A. Thakre, AGP for respondent no.1. Mr. R.M. Ahirrao, Adv., for respondent nos. 3 and 4. ----- CORAM : B.P. DHARMADHIKARI AND A.P. BHANGALE, JJ. DATE : 29th September, 2011. 1. Heard finally. 2. The punishment of withholding two increments imposed upon the petitioner vide order dated 9th August, 2002 was set aside in an appeal under Rule 29 of the Maharashtra Employees of Private Schools [Conditions of Service] Rules, 1981, by Deputy Director of Education on 16th November, 2002. The petitioner reached the age of superannuation on 30th June, 2004. After retirement, as those two increments are not released, petitioner is still getting provisional pension. Learned counsel states that a Writ petition was filed vide Writ 2 Petition No. 2514 of 2008 for implementation of orders dated 16th November, 2002, and on 23rd September, 2008, the Division Bench of this Court directed respondent nos. 1 and 2 [Management/employer] to implement those orders if there was no other legal impediment. He contends that though there is no such legal impediment, the order has not been complied with. On the contrary, the Management claims that subsequently they have again inflicted a similar punishment upon the petitioner. 3. It is urged that as petitioner has attained the age of superannuation in 2004 itself, no Departmental Enquiry could have been conducted against him thereafter. 4. Learned AGP appearing for respondent no.1 points out that the order again imposing punishment passed by the Management on 17th August, 2009 could have been assailed by the petitioner before Competent Authority and that has not been done. 5. Mr. Ahirrao appearing for respondent nos. 3 and 4 states that the situation needs to be viewed in the background of order dated 23rd September, 2008 in Writ Petition No. 2514 of 2008. He states that said order has attained finality and as per that order, the Management was free not to implement the order dated 16th November, 2002 if there was any legal 3 impediment. He contends that the Management thereafter has passed a Resolution in 2005 and proceeded against the petitioner and after giving him proper opportunity, a fresh order of punishment has been passed on 17th August, 2009. The earlier punishment of withholding two increments has been restored. It is urged that though earlier punishment was set aside, the misconduct survived and that misconduct, therefore, has been taken into account and thereafter punishment has been imposed. 6. After hearing respective counsel, we find that superannuation of petitioner on 30th June, 2004 is not in dispute. The perusal of punishment order dated 17th August, 2009 produced by Management reveals that some Enquiry Report was placed before Managing Committee of respondents on 17th June, 2005, and on 19th June, 2005 the wrong behaviour of petitioner was entered in his service book and it was decided to proceed further against him departmentally. Accordingly, a supplementary charge-sheet was issued on 27th July, 2005. 7. These facts clearly show that the supplementary charge-sheet is after superannuation of petitioner. The punishment order shows that earlier charge-sheet dated 16th October, 2004 was sent to petitioner. That charge-sheet is also after his retirement. In this view of the matter, it is clear that after 4 superannuation, no Departmental Enquiry could have been either initiated or conducted against the petitioner. The impediment point out by respondent nos. 3 and 4 is, therefore, not a legal impediment. The orders of this Court dated 23rd September, 2008 in Writ Petition No. 2514 of 2008 are very clear. The respondents ought to have implemented the said orders and the petitioner deserved to be fixed properly and his regular pension should have been released. The same has not been done, though a period of more than two years has expired after those directions. 8. We, therefore, direct respondent nos. 3 and 4 to release those increments, to prepare proper pension case and proposal and to forward it to respondent no.2 for its approval within a period of four weeks from today. The respondent no.2 shall thereafter process those papers within a further period of six weeks and see that petitioner gets his due pension in accordance with law, in any case, from 1st January, 2012. The arrears of pension shall be cleared by 31st March, 2012. The petition is, thus, allowed with cost of Rs.2,000-00 [rupees two thousand only] payable by respondent nos. 3 and 4 to petitioner. 9. In pursuance of our order dated 19th July, 2011, the respondents have deposited cost of Rs.5,000-00 with the Registry of this Court. 5 The petitioner is permitted to withdraw amount of Rs.2,000-00 [rupees two thousand only]. Balance amount be returned to respondent nos. 3 and 4 with interest accrued upon it. Judge Judge |Hedau|