5.wp.2292-08 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITON NO.2292 OF 2008 Balkrishna Marutirao More, ] Hindu Adult, Indian Inhabitant, ] Aged 59 years, Occupation Retired ] R/o. C/2, Prathamesh Apartment, ] Tarun Bharat Society, Sahar Road, ] Chakala, Andheri [East], ] Mumbai - 400099. ] ..Petitioner. Versus 1. Maharashtra State Electricity ] Transmission Company Limited, ] having office at Prakash Ganga, ] Plot No.C-19, "E" Block, ] Bandra Kurla Complex, ] Bandra [East], Mumbai - 400051. ] 2. The Executive Director & ] Competent Authority, ] Maharashtra State Electricity ] Transmission Company Limited ] having office at Prakash Ganga, ] Plot No.C-19, "E" Block, ] Bandra Kurla Complex, ] Bandra [East], Mumbai - 400051. ] ..Respondents. ... Mr.N.V. Bandiwadekar, Advocate for the Petitioner. Mr.N. Engineer, Advocate i/b. DSK Legal for the Respondent. ... CORAM : F. I. REBELLO & A.R. JOSHI, JJ. 5.wp.2292-08 2 DATED : MARCH 05, 2010. ORAL JUDGMENT (PER F.I.REBELLO,J.) : 1. Rule. Heard forthwith. 2. The petitioner was in the service of MSEB and after the bifurcation of the MSEB in the service of respondent No.1. On 15.7.2003 the petitioner came to be suspended in contemplation of a departmental enquiry for misconduct. The petitioner on 12.11.2003 applied for revocation of suspension. However, no action was taken on the same. On 7.9.2006 the petitioner was called upon to submit his explanation in respect of the alleged misconduct. The petitioner submitted his explanation on 13.10.2006 denying that he had committed any misconduct. It appears that in between on 8.6.2005 the suspension of the petitioner had been revoked. 3. A chargesheet was served on the petitioner on 21.5.2007. The petitioner filed his reply. Various dates thereafter were fixed for enquiry. The enquiry was held on 18.1.2008 and concluded on the same day. It is the case of the petitioner that the Management did not produce any document in support of the charges nor were there any witnesses examined on behalf of 5.wp.2292-08 3 the Management. 4. On 26.3.2008 the petitioner was informed that he would stand relieved on 31.3.2008 on attaining age of superannuation. On 31.3.2008 he was relieved without any objection and without informing that he shall stand retired subject to the result of the disciplinary enquiry. According to the petitioner though he has retired, he had not been paid the retiremental dues and consequently he had to serve the legal notice. 5. On 24.7.2008 the respondent No.2 issued an order and imposed on the petitioner a punishment by way of recovery of the sum of Rs.12,318/- from the amount of gratuity payable and further held that since out of three charges, one charge was proved, to treat the period of suspension from 16.7.2003 to 7.6.2005 as punishment. The present petition is filed on that ground. 6. Various grounds have been raised in the Petition including that the imposition of the punishment without giving the report of the enquiry officer and an opportunity to the petitioner to show cause against proposed punishment is violative of the regulations and/or principles of natural justice and fair play and consequently must be set aside. Another contention raised 5.wp.2292-08 4 is that there was no power in the respondent to impose punishment after the petitioner stood superannuated, in the absence of any power in the respondents to continue with the enquiry and impose punishment after he was allowed to retire. 7. Reply has been filed on behalf of the respondents by Mr.Nitin Ghule. It is set out in the reply that the petitioner was working in the Accounts Division and was negligent in discharging his duties as he did not compare the original vouchers with the invoices raised by the MSEB employees and also that he had doctored the invoices raised by the employees and getting the same approved. Regarding the non giving of the enquiry report and an opportunity, it is submitted that at the highest the enquiry can be recommenced from that stage. The regulations, it is submitted, permit continuation of the enquiry even after retirement. 8. Factually the enquiry report was never made available to the petitioner and as such the petitioner could not give his say on the same nor an opportunity to show cause. The learned Counsel on behalf of the respondents has made available to us a rough translation of the enquiry report. There were three charges – (1) gross negligence resulting or likely to result in 5.wp.2292-08 5 loss to the Board (2) failure to exercise efficient control and supervision on the subordinate resulting in general inefficiency of the Branch or unit, (3) making a false statement or false complaint. The Enquiry Officer held that the charges Nos.2 & 3 were not proved, however held that charge No.1 has been proved. There is no specific finding recorded that on account of the negligence of the petitioner that the respondents suffered a loss in the sum of Rs.12318/- or any other amount. 9. At any rate, considering the facts that the enquiry report was not made available to the petitioner and further that the petitioner was not given any opportunity to show cause against the proposed punishment, the order imposing punishment is liable to be quashed and set aside. This Court normally then would have set aside the order and permitted the employer to continue with the enquiry from the stage of making available it copy of its enquiry report. 10. The question, however, is whether it is open to the respondents to continue with the enquiry or impose punishment after the petitioner was allowed to superannuate. In our opinion, the law is no longer integra. The Supreme Court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others, (1993) 3 5.wp.2292-08 6 Supreme Court Cases 666 has held that in the absence of any statutory provision to continue with the enquiry after an employee has retired, it is not open to the employer to proceed with the enquiry. A similar issue came up for consideration before this Court in Writ Petition No.1930 of 2005 in the case of Mr.Dhairyasheel A. Jadhav Vs. Maharashtra Agro Industrial Development Corporation Ltd., decided on 5th February, 2010, where we have taken a view that in the absence of authority, the judgment in Bhagirathi Jena (supra) would apply and in the absence of the power in the employer to continue with the enquiry after the retirement, no enquiry could have been continued and punishment based on the said enquiry. 11. We have perused the impugned regulation placed before us on behalf of the respondents by the learned Counsel. The regulations contains the following note which we may gainfully reproduce : "Note: 4. An employee, who has been charge-sheeted for misconduct, regarding commission of an act, wilful loss or destruction of Board's property, commission of an act of violence, while on duty or commission of an act for which he is convicted in a Criminal Court and which in the opinion of the competent authority, is considered appropriate for deciding any punishment including dismissal or removal from service, shall not be permitted to retire on his reaching the date of compulsory retirement, but should be retained in 5.wp.2292-08 7 service, until the enquiry is concluded and final orders passed thereon by the Competent Authority. When an employee referred to in the above mentioned clause, is however, exonerated or not, shall be continued to be on extension of service for the period from the date of compulsory retirement to the date of completion of the proceedings. The retiring benefits should not be granted to the employee unless he is exonerated of the charges against him." 12. A perusal of the above said note, would make it clear that there is a power in the employer/disciplinary authority in case where an employee has been chargesheeted not to permit such delinquent employee to retire on reaching the date of compulsory retirement but retain him in service until the enquiry is concluded and final orders passed thereon by the appropriate authority. Therefore, that is the course which the respondent could have resorted to. That was not done and the petitioner was allowed to superannuate. Once the petitioner was allowed to superannuate without invoking the power of continuing him in service, pending the completion of the enquiry, it was not open to the respondent to impose any penalty as there was no power to impose punishment after the petitioner was allowed to superannuate. In the light of that, the following order: :: O R D E R :: 5.wp.2292-08 8 [i] Rule made absolute in terms of prayer clause (b) & (c). [ii] In the circumstances of the case, there shall be no order as to costs. [iii] In the circumstances of the case, the retiral benefits and any other amount will not carry any interest. The amount will have to be paid within three months from today, failing which the amount to carry interest @ 9% from today till final payment. (A.R.JOSHI, J.) (F.I. REBELLO,J.)