:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT WRIT WRIT PETITION NO.759 OF 1998 PETITION NO.759 OF 1998 PETITION NO.759 OF 1998 Shri R.H. Bhattad residing at India United Mills No.1 quarters, Dr. Ambedkar Road, Parel, Mumbai-400 012 ...Petitioner V/s 1. Union of India through the Ministry of Textiles having its office at Udyog Bhavan, New Delhi-11001 2. The National Textile Corporation Ltd. a statutory Corporation wholly owned by the Government of India having its Registered office at Sector IV, Scope Complex, Lodhi Road, New Delhi 110002 3. National Txtile Corporation (MN) Ltd. a Statutory Corportion and subsidiary of the 2nd Respondent abovenamed and a Government of India Undertaking having its office at NTC House, 15, Narottam Morarji Marg, Ballard Estate, Bombay 400 001 4. Shri D.R. Mehta, Chairman and Managing Director, NTC (MN) Ltd., having his office at NTC House, 15, Narottam Morarji Marg, Ballard Estate, Bombay 40001 ..Respondents. Ms Nayana Buch a/w Shri S.K. More for the petitioner Shri Rui Rodrigues a/w Shri N.R. Parajapati for respondent No.1. CORAM CORAM CORAM : : : SRI R.M.S. KHANDEPARKAR AND SRI R.M.S. KHANDEPARKAR AND SRI R.M.S. KHANDEPARKAR AND SRI SRI SRI A.A. SAYED, JJ. A.A. SAYED, JJ. A.A. SAYED, JJ. :2: DATE DATE DATE : 18TH JULY, 2008 : 18TH JULY, 2008 : 18TH JULY, 2008 ORAL ORAL ORAL JUDGMENT ( PER SRI R.M.S.KHANDEPARKAR, J) JUDGMENT ( PER SRI R.M.S.KHANDEPARKAR, J) JUDGMENT ( PER SRI R.M.S.KHANDEPARKAR, J) 1. Heard the learned advocate for the petitioner and the learned advocate for the respondent No.1. None present for the respondent Nos. 2 and 3, though served. 2. By the present petition, the petitioner is seeking to challenge the disciplinary proceeding sought to have been continued by the respondent Nos. 2 and 3 against the petitioner even after cessation of employer - employee relation between the respondents and the petitioner and further refusal to release pensionary benefits including gratuity, amount in relation to the balance of earned leave credit at the petitioner’s account, payment of arrears on account of revision of pay scale with effect from January, 1992 as per Government of India decision etc. 3. Few facts relevant for the decision are that the petitioner was employed as Additional Labour and Welfare officer by 3rd respondent Corporation on 12th :3: April, 1991. The petitioner with the intention of having better prospects joined another company namely Mukund Engineers Ltd. on 6th June,1996 and expressed his desire to resign from the post of Director (Personnel) with the 3rd respondent. Therefore, under letter dated 1st July, 1996 addressed to the 3rd respondent, the petitioner tendered his resignation with a request to accept the same with immediate effect and in alternative to allow the petitioner to set off the earned leave in lieu of the notice period against deposit of 3 months salary. The 4th respondent forwarded the said letter to the CMD of respondent No.3 with the recommendation that the resignation letter of petitioner be accepted. On 1st July, 1996 the 3rd respondent intimated to the 2nd respondent that there was no vigilance case pending against the petitioner. Under letter dated 26th September, 1996 the petitioner was informed that he would not be relieved from the service and that his resignation was not accepted and further under letter dated 8th October, 1996 he was directed to report to the duty. The petitioner however insisted under his reply dated 12th October, 1996 that in view of his resignation, relationship of Master and :4: servant between the parties had come to an end. Under letter dated 11th October, 1996 3rd respondent informed the petitioner that he had failed to report to his duty in spite of earlier letter directing him to report to the duty. The 3rd respondent under letter dated 23rd October, 1996 again directed the petitioner to join services forthwith as his resignation was not accepted. Pursuant to the resignation earlier tendered the petitioner had already joined another company. In view of insistence on the part of the respondent, however, petitioner by his letter dated 7th December, 1996 informed the respondent that he was willing to join services of the 3rd respondent and accordingly reported to the duties. 4. On 10th December, 1996 the petitioner was served with the letter from respondent No.3 stating that the petitioner had remained absent without leave and therefore, disciplinary action was being initiated against him. The petitioner under letter dated 10th December,1996, as well as 12th December, 1996 sought to explain his position in the matter. The petitioner was allowed to join his duties of the :5: 3rd respondent but was not given the charge of the post of Director (personnel which he was holding till 23rd September, 1996. On 23rd December, 1996 the petitioner sent a fax message to the respondent requesting to hand over charge of the Director (Personnel) which he was holding till 23rd September, 1996. 5. On 3rd January,1997 the petitioner was served with a suspension order. The petitioner appealed against the said order. On 10th March, 1997 memorandum of charges were served upon the petitioner. On 19th March, 1997 the departmental enquiry was sought to be instituted against the petitioner and the petitioner was served with the memorandum of charges on 10th April,1998. The petitioner submitted his reply on 15th May, 1997 to the said charges. On 15th April, 1997 inquiry officer came to be appointed for the enquiry against the petitioner. Thereafter on 30th May,1997 the petitioner was served with a letter and was informed that the competent authority was not interested in extending the tenure beyond 31st May, 1997 and therefore he would stand relieved from 31st May, :6: 1997. 6. After the petitioner was relieved from the service, the petitioner wrote a letter dated 16th June, 1997 reminding the respondent about the legal dues which had remained to be paid to the petitioner by the respondent Nos. 2 and 3. The letter in that regard clearly stated that since the competent authority was not desirous of extending the tenure of the petitioner beyond 31st May, 1997 and had accordingly relieved the petitioner from the service in terms of order dated 30th May, 1997, the respondent should release the legal dues to the petitioner including the payment of gratuity as per rules, payment towards balance of earned leave credit to his account on 31st May 1997, the payment of arrears on account of revision of pay scale with effect from January, 1992 as per Government of India decision and other dues, if any. There was no response to the said letter except that his disciplinary enquiry was in progress. Hence the petition 7. The point which arises in the matter is :7: whether on termination of relationship of Master and Servant between the parties, in the absence of statutory provisions or the contractual terms in relation to the service conditions of such employee, can the disciplinary proceedings continue against such person even after the cessation of such relationship, and on that count whether the employer can withhold the legal dues which are payable to employee on such relations and services having come to an end. 8. As regards the law on the point of discontinuation of the disciplinary proceedings subsequent of the retirement of an employee is well settled by the various decisions of the Apex Court and this Court, and as rightly pointed out by the learned advocate for the petitioner, the decisions of the Apex Court in the matter of B.J. Shelat V. B.J. Shelat V. B.J. Shelat V. State State State of Gujrat and others of Gujrat and others of Gujrat and others, reported in AIR 1978 SC 1109, State of Maharashtra V. M.H. Mazumdar, State of Maharashtra V. M.H. Mazumdar, State of Maharashtra V. M.H. Mazumdar, reported in AIR 1988 SC 842, Bhagirathi Jena V. Bhagirathi Jena V. Bhagirathi Jena V. Board Board Board of Directors, S.S.F.C. & Ors. of Directors, S.S.F.C. & Ors. of Directors, S.S.F.C. & Ors., reported in 1999 I CLR 1074 are very clear on the said point. :8: 9. In B.J. Shelat case, B.J. Shelat case, B.J. Shelat case, while dealing with the issue as to whether the authority can take disciplinary action against the employee after his retirement, it was held that the disciplinary action cannot be taken after the date of retirement of the employee. 10. In M.H.Mazmudar’s M.H.Mazmudar’s M.H.Mazmudar’s case while considering the provisions of Rule 33 of Bombay Civil Services (Conduct Discipline and Appeal) as well as, Rule 188 and 189 thereof it was observed that the power to reduce or withhold the pension payable to Government Servant even after his retirement is expressly provided under the aforesaid Rules and therefore, the Government servant merely because having retired from service on attaining superannuation, would not escape from the liability of misconduct or offence of financial irregularities which he might have committed during the period of his service. 11. In Bhagirathi Jena’s Bhagirathi Jena’s Bhagirathi Jena’s case it was held that in the absence of statutory provisions the respondent- corporation therein had no legal authority to make any reduction in the retiral benefits of the :9: ex-employee and there was no provision for conducting a disciplinary enquiry after retirement of such employee nor any provision stating that in case misconduct is established a deduction could be made from retiral benefits and once that employee is retired from the service, there was no authority vested in the Corporation to continue the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the retired employee. 12. The matter in question is squarely covered by the law laid down in the above referred decisions. It has not been pointed out on behalf of the respondents that there is any provision of law which could empower the respondent Nos. 2 and 3 to continue with the disciplinary proceeding against the petitioner after he was relieved nor we have been pointed out any contractual terms in relation to the service condition of the petitioner to exercise any such power. Once it is clear that respondent Nos. 2 and 3 could not continue with the disciplinary proceedings neither any statutory provision which could empower such continuance of disciplinary :10: proceedings against the petitioner nor there is any provision which could curtail the entitlement of the petitioner in relation to retiral benefits, the petitioner is justified in seeking direction to the respondents to refrain from continuing with the disciplinary proceedings as also for direction for payment of pension, more particularly in terms of demand in letter dated 16th June, 1997 by the petitioner. 13. The petition therefore for the reasons stated above succeeds and rule is made absolute in above terms, whereby the respondent No.3 is directed to refrain from taking or continuing any disciplinary proceedings against the petitioner and further to pay retiral benefits as per the rules applicable to the parties. There shall be no order as to costs. (R.M.S. (R.M.S. (R.M.S. KHANDEPARKAR, J.) KHANDEPARKAR, J.) KHANDEPARKAR, J.) ( A.A. SAYED, J.) A.A. SAYED, J.) A.A. SAYED, J.)