16.wp.1930-05 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITON NO.1930 OF 2005 Mr.Dhairyasheel A. Jadhav, ] Aged : 59 years, Indian ] Inhabitant, residing at ] E-504, Kalpita Enclave, ] Swami Nityanand Marg, ] Andheri (East), Mumbai ] - 400 069. ] ..Petitioner. Versus Maharashtra Agro Industrial ] Development Corporation Ltd., ] A Government of Maharashtra ] Undertaking, having its office ] at Rajan House, Prabhadevi, ] Mumbai - 400 025. ] ..Respondent. ... Mr.Neel Helekar, Advocate for the Petitioner. Mrs.Anjali Purav, Advocate for Respondent No.1. ... CORAM : F. I. REBELLO & A.R. JOSHI, JJ. DATED : FEBRUARY 05, 2010. ORAL JUDGMENT (PER F.I.REBELLO,J).: 1. Rule. By consent heard forthwith. 2. The petitioner superannuated in the services of the Maharashtra Agro Industrial Development Corporation Ltd., (Respondent No.1) on 31.12.2003. At the relevant time, he was working as Manager 16.wp.1930-05 2 (Project). The petitioner was relieved from the service by issuing letter dated 31.12.2003 after close of office hours. The letter further sets out that the petitioner had done valuable contribution in the development and prosperity of the Corporation. 3. According to the petitioner, after the petitioner was served with the relieving order, a memorandum came to be served upon him on the very same day i.e. 31.12.2003 alleging misconduct when the petitioner was working as Fertilized Manager (Fertilization) in the Fertilizer Divn. of the Corporation in Head Office. According to the petitioner, the chargesheet is false and fabricated. The petitioner has filed a reply to the said chargesheet. 4. After being allowed to superannuate and as no enquiry was initiated when the petitioner was in service, according to the petitioner, he is entitled to gratuity and consequently he submitted an application under Rule 7 of the Payment of Gratuity Act on 18.7.2004. The respondents however have not paid the gratuity and hence an application was made to the controlling authority. According to the petitioner when the respondent came to know about it, an order of enquiry was initiated by issuing order on 4.2.2005 and appointing an enquiry officer to conduct the enquiry. 5. It is the case of the petitioner that the respondents have no power to conduct enquiry against the petitioner after his 16.wp.1930-05 3 superannuation/retirement, from the service of the respondent. Further there is no relationship of employer and employee. As gratuity has not been paid and enquiry is being proceeded with the present Petition. 6. The respondents have filed their reply. The major contention in the reply is that the chargesheet issued on 31.12.2003 was in respect of the lapses / misconduct during the year 2001-02 and 2002-03 and that relieving was subject to the enquiry being conducted against the petitioner in respect of the chargesheet dated 31.12.2003. The memorandum to initiate enquiry was initiated on 31.12.2003 when he was allowed to retire. It is specifically set out that the petitioner is governed by the Maharashtra Civil Services (Discipline and Appeal) Rules and an enquiry under the said rules can be conducted even after superannuation where such an enquiry has been initiated before superannuation. It is further set out that Rule 27 of the Maharashtra Civil Services (Pension) Rules, 1992 provides for conducting an enquiry against the employee after superannuation and in view of the said provisions and underlying principle and principle analogous thereto an enquiry can be continued after superannuation. 7. At hearing of this Petition, on behalf of the petitioner it is submitted that respondent No.1 has not adopted the Maharashtra Civil Services (Pension) Rules, 1982 which permit an enquiry to conduct even after 16.wp.1930-05 4 superannuation and in these circumstances the question of continuing the enquiry does not arise. The Maharashtra Civil Services (Discipline & Appeal) Rules do not provide for continuing enquiry which was initiated at the time when the employee was in service. The learned Counsel relies on the judgment of the Supreme Court in Bhagirathi Jena Vs. Board of Directors, O.S.F.C. and others reported in (1999) 3 Supreme Court Cases 666 in support of his contention that in absence of the provisions for continuing an enquiry the enquiry cannot be continued. 8. On behalf of the respondent, the learned Counsel fairly concedes that they have not adopted the Maharashtra Civil Services (Pension) Rules, 1982. However, places reliance on the judgment of the Supreme Court in U.P. State Sugar Corporation Ltd., & Ors. Vs. Kamal Swaroop Tondon reported in 2008 II CLR 563. It is submitted that the enquiry can be continued once it was initiated. It is, therefore, submitted that the action of the respondent is legal. 9. We have heard the learned Counsel for the parties. We may gainfully refer to sub rule 27 (2)(a) of the Maharashtra Civil Services (Pension) Rules, 1982, which reads as under. "27. Right of Government to withhold or withdraw pension. (1) ..... (2)(a) The departmental proceedings referred to in sub-rule (1), if Instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the 16.wp.1930-05 5 final retirement of the Government Servant, 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 Government servant had continued in service." It is thus clear that in the event departmental proceedings was instituted it can be continued and concluded "as if the Government servant has continued in service". Thus, by a deemed fiction though relationship of employer and employee has ceased, the rules continue the relationship pursuant to which the departmental proceedings can be proceeded with. There is no provision in the Maharashtra Civil Services (Discipline & Appeal) Rules, which provide for continuation of enquiry for major misconduct by issuing of chargesheet. The penalties are set out under Section 5. If a Government servant is not in service then none of those penalties can be imposed. Thus, any enquiry initiated and in which there is no provision for continuing enquiry must cease on the employee being allowed to superannuate, in the absence of the provisions like rule 27 of the Maharashtra Civil Services (Pension) Rules, 1982. 10. Let us now examine the authorities cited at Bar to consider the contentions urged on behalf of the petitioner herein. In Bhagirathi Jena (supra), we may gainfully refer to paragraph Nos.6 & 7 which read as under : "6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any 16.wp.1930-05 6 amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation. 7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement." Thus, it is clear that only in the event that there is a provision for continuing the enquiry, the enquiry can be continued. The Supreme Court noted the judgment in the case of Takhatray Shivadattray Mankad v. State of Gujarat reported in 1989 Supp (2) SCC 110, but distinguished it on the ground that there was specific provision in the form of Rule 241-A which enabled imposition of a reduction in the pension or gratuity of a person after retirement. 11. The question is whether the judgment in the case of Kamal Swaroop Tondon (supra) has taken a view which is different 16.wp.1930-05 7 than the view taken in Bhagirathi Jena (supra). Both the judgments are of co-ordinate Benches. The judgment in Bhagirathi Jena (supra) has not been considered in Kamal Swaroop Tondon's case (supra). On the facts there, it will be clear that the respondent had superannuated and show cause notice was issued after retirement i.e. after office hours at 6:45 p.m. on January 31, 2000. The contention urged on behalf the Corporation before the Supreme Court was firstly that if relationship of employer and employee continues and the proceedings can be continued and consequently under the U.P. State Sugar Corporation Ltd. General Service Rules, 1988 such proceedings could have been initiated even after an employee has retired since they related to the recovery of losses caused to the Corporation by the respondent - employee. The learned Supreme Court observed that retiral benefits are earned by an employee for long and meritorious services rendered by him/her. They are not paid to the employee gratuitously or merely as a matter of bounty. It is paid to an employee for dedicated and devoted work. The Court then referred to the principles of gratuity. On behalf of the respondent herein it is contended that the 16.wp.1930-05 8 ratio of the judgment in Kamal Swaroop Tondon's case (supra) is that there can be no rigid, inflexible or invariable test as to when the enquiry should be continued and when they should be allowed to be dropped. The Court then observed the effect of delay in conducting the enquiry and observed that there cannot be laid down a universal proposition that if there be delay in initiation of proceedings for a particular period they must necessarily be quashed. The Court went on to observe from the case law considered that it is clear that the proceedings could have been continued since they were initiated for recovery of loss sustained by the Corporation due to negligence on the part of the respondent employee. It may be noted that it was not in dispute that the proceedings could have been initiated even after the employee had retired since relating to recovery of loss caused to the Corporation as there were rules for that purpose. 12. In our opinion, it is no doubt true, that the gratuity is a terminal benefit and is subject to the terms and conditions. Withholding of the gratuity can therefore be only if there be the provisions for withholding it in the Act or if there being any service condition which so provide. A person cannot be 16.wp.1930-05 9 charged for a misconduct if it does not constitute a misconduct within the definition of misconduct either in terms of the standing order or the service regulations. Similarly no enquiry can be conducted for misconduct if there being no statutory provisions. In the absence of any statutory provisions for continuing the enquiry, in our opinion, the ratio of Bhagirathi Jena's case (supra) which has directly dealt with the issue would be applicable. In the case of Bhagirathi Jena (supra) the Court itself noted the effect of absence of a provision. In our opinion, therefore, the ratio of Bharirathi Jena's case (supra) would squarely apply. The enquiry therefore against the petitioner after his superannuation in the absence of a provision to continue enquiry is without authority of law. 13. In view of the above, the following order : :: O R D E R :: [i] Rule is made absolute in terms of prayer clause (a), which reads as under : "(a) That this Hon'ble court be pleased to issue a writ of certiorari or a writ in the nature of mandamus or any other appropriate writ direction or order under Article 226 of the Constitution of India and direct the action of the respondent of conducting the enquiry against the 16.wp.1930-05 10 petitioner to be illegal and bad in law and further direct the respondent to withdraw the action of the departmental enquiry against the petitioner." [ii] In the facts and circumstances of the case, there shall be no order as to costs. (A.R.JOSHI, J.) (F.I. REBELLO,J.)