-1- IN IN IN THE THE THE HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE APPELLATE APPELLATE JURISDICTION JURISDICTION JURISDICTION WRIT WRIT WRIT PETITION PETITION PETITION NO.6464 OF 2000 NO.6464 OF 2000 NO.6464 OF 2000 Shri U.D. Bhoskar ...Petitioner v/s Maharashtra State Electricity Board and anr. ...Respondents Mr P.K. Dhakephgalkar i/b Mr Jagdish G. Reddy for Petitioner. Mr V.A. Sugdare i/b M/s M.V. Jaykar and Co. for Respondents. CORAM : D.K. DESHMUKH AND R.Y. GANOO JJ. DATE : 9TH JUNE 2008. -2- P.C. :- 1. By this petition, the petitioner challenges the order dated 3rd May 2000 discharging the petitioner from the services of the M.S.E.B. The relevant facts are that the petitioner, who was working as Deputy Executive Engineer with M.S.E.B., was transferred by order dated 24th October 1994 from Uran to Mahad. The petitioner did not join the place of transfer. Therefore, a charge-sheet was issued against the petitioner in the year 1999. The charge was disobedience of the transfer order and remaining absent without justification. In the departmental enquiry, punishment was imposed by order dated 30th May 1997 withholding increment of the petitioner for a period of one year. It appears that the period covered by the charge was from October 1994 to the year 1995, but even thereafter, the petitioner continued not to join at the place of transfer. Therefore, show-cause notice was issued to the petitioner dated 5th June 1997 wherein it was pointed out that the petitioner had not joined the place of transfer without there being any justification, he has also not got his leave sanctioned and he remained absent. He was asked to show cause why he should not be -3- discharged from service. The petitioner submitted his explanation. The explanation was that for the same misconduct punishment of withholding increment is imposed. The second explanation was that the letter asking him to join the services was not served on him. The employer not being satisfied with the explanation, directed discharge of the petitioner from services. It is this order which is challenged before us. 2. The learned counsel appearing for petitioner firstly urged that in view of the provisions of Article 20(2) of the Constitution of India, as the petitioner was already punished for the alleged misconduct of not obeying the transfer order, he could not again be punished. It was contended that the show cause notice was given under regulation 34 of the MSEB Employees’ Service Regulations and under regulation 34(b), a warning letter was required to be issued to the employee. Such a warning letter was not issued and therefore, the order of discharge is vitiated. We have heard learned counsel appearing for the respondents, who justified the order of discharge. He also submits that the amount of provident fund has ben paid to the petitioner on attaining the age of superannuation. It was pointed out that till the date of superannuation, the petitioner did not join duties. So far as the -4- amount of gratuity is concerned, according to the learned counsel, the petitioner being a discharged employee, he is not entitled to gratuity. According to the learned counsel, even if he is entitled to gratuity, because the petitioner continued to occupy the service quarters, certain amounts are to be recovered from him and therefore, the entire amount of gratuity can be adjusted towards the said recovery. We have perused the record. So far as the first challenge is concerned, it is clear from the charge-sheet that the period covered by the charge-sheet was from 26th October 1994 till the date of charge i.e. May 1995. The petitioner was held guilty and punishment was imposed. Despite charge-sheet being issued, the petitioner continued to defy the transfer order and therefore, the discharge order can be justified because even after the charge-sheet was issued, the petitioner did not comply with the transfer order and therefore, the discharge order could have been passed by the Competent Authority for the period subsequent to the period covered by the charge-sheet. So far as the submission made in relation to regulation 34(b) is concerned, in our opinion, the requirement of issuing warning letter cannot be termed as mandatory requirement. In our opinion, in this case, even after holding departmental enquiry, the petitioner did not join the service, therefore, no fault can be found with the discharge order merely on the ground that warning -5- letter has not ben issued. In any case, it is common ground that the petitioner in the meantime has attained the age of superannuation. The services of the petitioner is admittedly not pensionable, the amount of provident fund has already been paid to him. In our opinion, the petitioner would be entitled to the amount of gratuity, but we do not propose to examine the question whether the respondents are entitled to deduct any amount from the amount of gratuity payable to the petitioner. In our opinion, therefore, following order would meet the ends of justice. 3. The petition is dismissed. The order of discharge is held to be valid. It is also held that the petitioner would be entitled for payment of amount of gratuity to which he is entitled under the law. Within a period of eight weeks from today, the respondents shall issue show-cause notice to the petitioner asking him to show-cause why the amounts which according to the respondents are due to the petitioner, should not be deducted from the amount of gratuity payable to him. The respondents shall serve the show-cause notice on the petitioner and give him reasonable time to submit his explanation. The explanation submitted by the petitioner shall be considered by the respondents and thereafter the respondents shall make an order in accordance with law. If the order is adverse to the -6- interest of the petitioner, the petitioner shall be at liberty to challenge the same in accordance with law. No order as to costs. . Parties to act on the copy of this order duly authenticated by the Sheristedar / Private Secretary of the Court. . Certified copy expedited. ( D.K. DESHMUKH J.) ( R.Y. GANOO J.)