1 wp-1013-05 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION jmi WRIT PETITION NO. 1013 OF 2005. Karbhari Dulaji Gandhat alias Uttam Laxman Sable.. ..Petitioner. v/s. Through the Commissioner, Municipal Corporation of Greater Mumbai. ..Respondent. .... Mr. R.D. Suryawanshi, a/w. Mr. S.U. Shukla, for Petitioner. Mr. S.S. Pakale, a/w. Ms. T.H. Puranik, for Respondent. .... CORAM : S.J. KATHAWALLA, J. DATE : 6TH OCTOBER 2010. P.C. The above Writ Petition is taken up for final hearing. 2. The Petitioner has in the above Writ Petition impugned the order dated 25th October 1999 passed by the Ward Officer, 'L' Ward of the Respondent- Corporation, whereby it is ordered that pursuant to the order passed by the Deputy Municipal Commissioner dated 25th October 1999, the Petitioner who has been held guilty of grave misconduct, except for his Provident Fund shall not be paid his retirement pension, retirement salary dues, interest dues and other retirement benefits. 3. The facts which have led to the filing of this Writ Petition are as under :- 4. The Petitioner joined the services of the Respondent - 2 wp-1013-05 Corporation in the year 1963 as Drainage/Labour, Fourth Class employee. The Petitioner is an illiterate person. The Petitioner had at the time of his employment given his name as Uttam Laxman Sable. In the year 1991, the Petitioner got his name changed from Uttam Laxman Sable to Karbhari Dulaji Gandhat. The Petitioner forwarded a letter dated 4th August 1994 to the Assistant Engineer (Inspection), Drainage Department, 'L' Ward, C.S.T. Road, Kurla, Mumbai-400 070, informing him that he has after producing adequate evidence got his name legally changed from Uttam Laxman Sable to Karbhari Dulaji Gandhat. The Petitioner has also forwarded a copy of the Maharashtra Government Gazette notifying the said change in the name of the Petitioner. 5. The Petitioner after serving the Corporation for 34 years retired on 1st April 1998. However, despite several requests made by the Petitioner, he was not paid his retirement dues by the Corporation. A show cause notice dated 27th July 1999 was issued to the Petitioner to show cause as to why he should not be deprived of his dues under Rule 14 of the Mumbai Municipal Corporation Pension Rules. In the show cause notice, it is alleged by the Corporation that the Petitioner has not disclosed his real name i.e. Karbhari Dulaji Gandhat and had taken employment with the Corporation in the Drainage Department from 8th October 1963 in 3 wp-1013-05 an incorrect name of Uttam Laxman Sable by cheating the Corporation and committing fraud on the Corporation. It is alleged that the Petitioner worked in the incorrect name with the Corporation for about 34 years and has taken advantage of the same by receiving salary, bhatta and other benefits from the Corporation. It is alleged that the Petitioner has from 1st April 1998 in accordance with the date of birth recorded in his service record, attained super-annuation. It is therefore alleged that the Petitioner is guilty of grave mis-conduct and he should within a period of 10 days from the receipt of the said show cause notice explain in writing why he should not be deprived of his retirement benefits under Rule 14 of the Mumbai Municipal Corporation Pension Rules. 6. The Petitioner gave his reply to the Corporation dated 2nd August 1999 wherein he has stated that he was doing the job of hawking and repairing chappals. During this period, he came into contact with one Laxman Sable. The financial condition of the said Laxman Sable was poor. He was also sick. The Petitioner therefore took care of the said Laxman Sable who accepted him as an adopted Son and helped him in getting the job with the Corporation. It is further stated that thereafter he worked for several years with the Corporation with utmost honesty and sincerity and throughout his tenure had an unblemished service record. He has expressed regret 4 wp-1013-05 for obtaining a job from the Corporation in the name of Laxman Sable. He has therefore submitted that a sympathetic view be taken and keeping in mind his poor financial condition, he be paid his dues. 7. According to the Petitioner, he being completely illiterate, the said reply to the show cause notice was prepared by his friends who were also the employees of the Respondent Corporation. However, he was shocked to receive the order dated 25th October 1999 from the Respondent-Corporation informing him that he is being deprived of his retirement dues on the basis of his admission of guilt. According to the Petitioner, the Corporation on 31st May 2004 issued its cheque to the Petitioner in the name of Karbhari Dulaji Gandhat alias Uttam Laxman Sable for Rs.48,401/- towards his Provident Fund dues but did not pay his retirement benefits despite several requests which compelled him to file the above Writ Petition. 8. The Writ Petition was admitted by an order of this Court dated 7th September 2006. An Affidavit in reply dated 12th March 2007 is filed on behalf of the Corporation opposing the above Writ Petition. In the said reply, it is stated that Mr. Kirit Badheka, Office Superintendent, at the time of processing the retirement dues of the Petitioner doubted the bonafides of the Petitioner since the particulars of his Account opened with the Bank showed his name as 5 wp-1013-05 Karbhari Dulaji Gandhat alias Uttam Laxman Sable. The said Office Superintendent therefore reported the matter to the Ward Officer, 'L' Ward and also issued a letter dated 24th March 1998 requesting the Petitioner to submit the documents such as marriage certificate, school leaving certificate of his children, etc. The Inquiry Officer visited the residence of the Petitioner and verified various documents produced by the Petitioner and recorded the statement of the Petitioner on 16th February 1999. It is submitted that after the said inquiry, the Inquiry Officer submitted his report to the Deputy Municipal Commissioner. Thereafter, show cause notice dated 27th July 1999 was issued to the Petitioner. The Petitioner replied to the said show cause notice on 2nd August 1999. It is submitted that after considering the documents on record and the Petitioner's reply, it was ordered that the Provident Fund of the Petitioner be released but his further retirement benefits such as pension, commutation of pension, gratuity, etc. will not be paid to the Petitioner. 9. The learned Advocate appearing for the Corporation has not disputed that on 4th August 1994, the Petitioner has forwarded a letter to the Assistant Engineer (Inspection), Drainage Department, 'L' Ward, informing him that he has after submitting the necessary evidence got his name changed from Uttam Laxman Sable to Karbhari Dulaji Gandhat and along with the said letter also 6 wp-1013-05 forwarded a copy of the relevant Government Gazette inter-alia showing that the name of the Petitioner is changed from Uttam Laxman Sable to Karbhari Dulaji Gandhat. However, the learned Advocate for the Corporation is not provided with any answer by the Corporation why the Corporation did not take any action against the Petitioner after receiving the said letter dated 4th August 1994 and why there was no reference to the said letter dated 4th August 1994 in the Show Cause Notice dated 27th July 1999 and why the Corporation itself issued a cheque dated 31st May 2004 to the Petitioner towards payment of his Provident Fund in the name of Mr. Karbhari Dulaji Gandhat alias Uttam Laxman Sable. However, the learned Advocate appearing for the Respondent has in response to a query raised by the Court, fairly informed the Court that he has gone through the entire service record of the Petitioner maintained by the Corporation and is satisfied that the Petitioner has not used the name of Uttam Laxman Sable for the purpose of gaining employment from the Corporation on compassionate ground, etc. or for obtaining any advantage from the Corporation. He, therefore, agrees that the Petitioner has not received any advantage from the Corporation by giving his name as Uttam Laxman Sable instead of Karbhari Dulaji Gandhat at the time of getting employment with the Corporation or thereafter. However, the learned Advocate for the 7 wp-1013-05 Corporation has submitted that the Petitioner is guilty of impersonating himself as Uttam Laxman Sable though his name is Karbhari Dulaji Gandhat and therefore, the Corporation has refused to the Petitioner his retirement benefits. The learned Advocate for the Corporation has submitted that it is well settled law that while exercising power of judicial review, the High Court or Tribunal cannot interfere with the discretion exercised by the Disciplinary Authority and/or on Appeal the Appellate Authority, with regard to the imposition of punishment, unless such discretion suffers from illegality or is such as would shock the conscience of the Court/ Tribunal and that ordinarily, the Court/ Tribunal would not substitute its opinion on reappraisal of facts. In support of this contention, the learned Advocate for the Corporation has relied on the decision of the Hon’ble Supreme Court in the case of the Administrator, Union Territory of Dadra and Nagar Haveli vs. Gulabhia M. Lad, 2010 II CLR 501. 10. I have perused the contents of the Petition and the Affidavit in Reply filed by the Corporation. I have considered the submissions advanced by the learned Advocate appearing for the Petitioner as well the learned Advocate appearing for the Municipal Corporation. 11. Rule 14 of the Pension Rules, 1953 as it originally stood 8 wp-1013-05 was in the following terms : “14. Good conduct is an implied condition of every grant of pension. The competent authority may withhold or withdraw a pension or any part of it if the pensioner be convicted of a serious crime or be found to have been guilty of grave misconduct either during or after the completion of his service provided that before any order to this effect is issued, the Municipal Servant shall be given adequate opportunities of showing cause to the, contrary.” 12. Rule 14 as it stood was deleted with effect from 1st August 1987 and came to be substituted by Rules 14-A and 14-B with effect from the same date. Rules 14-A and 14-B provide as follows : “New Rule 14-A. (1) Good conduct shall be an implied condition for every, grant of pension. Competent authority, may, by order in writing, withhold or withdraw a pension or part thereof whether permanently or for specified period, if the pensioner is convicted of a serious crime or is found guilty of grave misconduct. Provided that where a part of pension is withheld or withdrawn, the amount of remaining pension shall not be reduced below the minimum pension fixed. (2) Where a pensioner is convicted of a serious crime by Court of Law, action under sub-rule (1) shall be taken in the light of the judgment of the Court relating to such conviction. (3) In a case not falling under sub-rule (2), if the competent authority considers, that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order under sub-rule (1), follow the procedure laid down for conducting Departmental Enquiry for imposing punishment of reduction. “New Rule 14-B. 9 wp-1013-05 (1) Competent Authority may, by order in writing, withhold or withdraw a pension or any part of it whether permanently or for specified period and also order the recovery from such pension, the whole or part of any pecuniary loss cause to the corporation if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during a period of his service including service rendered upon re-employment after retirement. Provided that a part of pension is withheld or withdrawn the amount of remaining pension shall not be reduced below the minimum pension fixed. (2)(a) The departmental proceedings referred to in sub- rule(1) if instituted while the Municipal employee was in service whether before his retirement or during his re- employment, shall, after the final retirement of the Municipal employee, 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 Municipal employee had continued in service. (b) The departmental proceedings if not instituted while the Municipal employee was in service, whether before his retirement or during his re-employment - (i) shall not be instituted save with sanction of the Competent Authority. (ii) shall not be in respect of any event which took place more than 4 years before such institution, and (iii) shall be conducted by such authority and at such place as the Competent Authority may direct and in accordance with procedure applicable to the departmental proceedings in which an order of reduction could be made in relation to the Municipal employee during his service. (3) No judicial proceeding, if not instituted while the Municipal employee 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 4 years before such institution. (4) In the case of Municipal employee who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub- rule (2), a provisional pension as provided in Rule 45-A shall 10 wp-1013-05 be sanctioned. (5) Where Competent Authority decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not subject to the provision of sub- rule (1) of this rule, ordinarily be made at the rate exceeding one third of the pension admissible on the date of retirement of a Municipal employee. (6) For the purpose of the rule - (a) Departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Municipal employee or pensioner or if the Municipal employee has been placed under suspension from an earlier date, on such date, and (b) Judicial Proceedings shall be deemed to be instituted - (i) In the case of criminal proceedings, on the date on which the complaint or report of a Police Officer, of which the Magistrate takes cognizance is made, and (ii) In the case of civil proceedings, on the date of presenting the plaint in the Court (Effect of Rules 14-A and 14-B is given from 1-8-1987)". 13. From the old Rule 14 as well as the new Rules 14-A and 14-B, it is clear that the Corporation can withhold or withdraw the pension of the Petitioner only if he is found guilty of grave mis- conduct. Though mis-conduct is defined in the Municipal Servants Conduct and Discipline Rules (the said Rules) and it inter alia includes dishonesty, willful mis-statements or concealment of facts, the term “grave mis-conduct” is not defined in the Rules. The learned Advocate for the Corporation is not in a position to explain as to how the Petitioner can be punished under the old Rule 14 or the new 11 wp-1013-05 Rules 14-A or 14-B of the Pension Rules if the requirement of punishing the Petitioner under the said sections is “grave mis- conduct” and the said term is no where defined in the said Rules. In any event, clause (2)(b)(ii) of the new Rule 14-B categorically provides that the departmental proceedings if not instituted while the Municipal employee was in service, whether before his retirement or during his re-employment shall not be in respect of any event which took place more than 4 years before such institution. The Petitioner had represented himself as Uttam Laxman Sable when he took the job with the Corporation in the year 1963. However, by his letter dated 4th August 1994, he had informed the Corporation that after submitting all necessary evidence, he has got his name changed from Uttam Laxman Sable to Karbhari Dulaji Gandhat and along with the said letter, also forwarded a copy of the relevant Government Gazette inter alia showing that the name of the Petitioner is changed from Uttam Laxman Sable to Karbhari Dulaji Gandhat. The wrong if at all committed by the Petitioner, therefore, stood corrected in the year 1994 and the Corporation was put to notice thereof. The Corporation instead of commencing departmental proceedings or taking any action against the Petitioner upon receipt of the said letter dated 4th August 1994 issued a show cause notice to the Petitioner after his retirement only on 27th July 1999, i.e. about 12 wp-1013-05 five years from the date the alleged mis-conduct of the Petitioner had ceased. Clause (6)(a) of the new Rule 14-B provides that the departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Municipal employee or pensioner or if the Municipal employee is placed under suspension from an earlier date, on such date. In the instant case, the departmental proceedings can be said to have been instituted on the date of the issue of the show cause notice i.e. 27th July 1999. The show cause notice therefore, pertains to an event which had taken place more than 4 years before institution of the departmental proceedings and is therefore, clearly time barred. The impugned order dated 25th October 1999 deserves to be set aside on this ground alone. 14. Even otherwise, it is an admitted fact that the Petitioner is a totally illiterate man, who has an unblemished service record with the Corporation of 34 years. It is true that the original name of the Petitioner is Karbhari Dulaji Gandhat but he has used the name Uttam Laxman Sable for several years. In the show cause notice, it is alleged that the Petitioner has cheated the Corporation and fraudulently obtained the job from the Corporation. However, it is not the case of the Corporation that the Petitioner has used the name Uttam Laxman Sable with the intention of getting the job with 13 wp-1013-05 the Corporation. Instead, the Corporation has admitted before this Court that the Petitioner has by using the name Uttam Laxman Sable not taken any benefits/ advantages from the Corporation and it is not alleged that the Corporation would not have given the said job to the Petitioner had he used his original name Karbhari Dulaji Gandhat. Therefore, it is not shown by the Corporation as to in what manner, the Corporation has been cheated or a fraud has been perpetrated by the Petitioner on the Corporation. In fact, the Petitioner has in his reply to the show cause notice stated that one Laxman Sable has accepted him as a Son because of which he adopted the name Uttam Laxman Sable. The said Laxman Sable had also helped him in getting the job. He has therefore, in his reply to the show cause notice stated that he had not given his original name at the time of obtaining his job but had given his name as Uttam Laxman Sable and has apologized for the same. The Corporation has wrongly treated this explanation from the Petitioner as an admission of guilt and passed the impugned order depriving him of all his retirement benefits (except payment of Rs.48,401/- towards Provident Fund) after completion of 34 years of unblemished service by him. What is most glaring is the fact that the Corporation despite having received the letter from the Petitioner dated 4th August 1994 informing the Corporation that after submitting all evidence he has 14 wp-1013-05 got his name changed from Uttam Laxman Sable to Karbhari Dulaji Gandhat had not taken the trouble to see its records and without making any mention about this fact disclosed to the Corporation by the Petitioner, issued a show cause notice to the Petitioner on the ground that the Superintendent of the Corporation at the time of processing the retirement dues of the Petitioner doubted the bonafides of the Petitioner since the bank account of the Petitioner showed his name as Karbhari Dulaji Gandhat alias Uttam Laxman Sable. If the Corporation had taken the trouble of going through the service record of the Petitioner, it would have surely realized that the suspicion was ill-founded since the Petitioner had as far back on 4th August 1994 informed the Corporation that he has after submitting all the evidence changed his name from Uttam Laxman Sable to Karbhari Dulaji Gandhat and has also forwarded the necessary Gazette notification to the Corporation to that effect. In view thereof, the decision of the Hon’ble Apex Court in Administrator, Union Territory of Dadra and Nagar Haveli (supra) is of no assistance to the Corporation. 15. In the above circumstances, the impugned order of the Corporation is illegal and wrongly deprives the Class-IV employee of the Corporation of his retirement dues who has served the Corporation sincerely for about 34 years. In view thereof, rule is 15 wp-1013-05 made absolute and the impugned order dated 25th October 1999 passed by the Corporation is quashed and set aside. The Corporation is directed to pay to the Petitioner his retirement benefits on or before 18th January 2011 failing which the Corporation shall pay interest thereon to the Petitioner at the rate of 12% per annum. 16. The Writ Petition is accordingly, disposed of. [ S.J. KATHAWALLA, J. ]