:1: IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 8698 OF 2007 Bhiwandi Nizampur City Muicipal Corporation and ors. ..Petitioners Vs. Sadaf Sikander Kashilkar ..Respondent Mr. R.S. Apte for petitioners. Mr. S.D. Patil for respondent. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. CORAM: B.H. MARLAPALLE, J. Date : March 04, 2008. Date : March 04, 2008. Date : March 04, 2008. P.C.: P.C.: P.C.: 1. Heard Mr. Apte the learned counsel for the petitioners. 2. Rule. 3. Mr. S.D. Patil waives service for the respondent. 4. The petition is directed against the :2: interlocutory order passed by the learned Member of the Industrial Court, Thane on 1/10/2007 below Exh.U-2 filed in Complaint (ULP) No.212 of 2007 by the present respondent. By the said order the petitioners have been directed to pay 75% of the amount of his last drawn salary per month from 1/3/2007 till the disposal of the complaint or completion of the enquiry, whichever is earlier. 5. The respondent came to be appointed as an Octroi Clerk from 8/6/1989 under the petitioner no.1 i.e. Bhiwandi Municipal Council and he was posted as Market In-charge since October, 2006, when his monthly salary was at Rs.11,700/-. He had tendered his resignation on 24/1/2007. The same was placed before the General Body of the Corporation on 29/3/2007 and by a specific resolution passed, it was accepted. By an order dated 13/4/2007 he was relieved from the service of the Corporation. However, in the meanwhile, on 23/2/2007 he was issued a chargesheet and one of the charges was causing financial loss to the petitioner no.1. On or about 18/8/2007 the respondent approached the Industrial Court and filed :3: Complaint (ULP) No. 212 of 2007 under Section 28 read with Item 9 of Schedule IV of the M.R.T.U. & P.U.L.P. Act, 1971 (for short the Act). He challenged the chargesheet dated 23/2/2007 and also the resolution dated 29/3/2007. As per the said resolution the resignation submitted by the respondent was accepted by the petitioner no.1-corporation subject to the outcome in the departmental proceedings emanating from the chargesheet dated 23/2/2007. He also prayed for directions to allow him to report for duty and to pay him full backwages with effect from 29/3/2007 till the departmental enquiry is completed or in the alternative to stop the ongoing departmental enquiry against him. 6. The respondent-corporation opposed the complaint as well as the application for interim relief. Mr. Apte the learned counsel for the petitioners submitted that so far the Discipline and Appeal Rules are concerned, the Corporation is following the Maharashtra Civil Services Rules and it has not yet framed its own Service Rules under Section 465 or 467 of the Bombay Provincial Municipal :4: Corporation Act, 1949. It is well settled that even after the employee has retired or resigned and relieved from service, the State has the power to continue or initiate a departmental enquiry into the charges causing a financial loss to the State. 7. In the impugned order, the Industrial Court noted that the complainant submitted his resignation on 24/1/2007 and the same was accepted on 29/3/2007 and in the meanwhile the chargesheet dated 23/2/2007 was issued and the enquiry is in progress. The resignation is accepted conditionally and no terminal benefits granted to the complainant after he was relieved from service. The Industrial Court held that if the resignation was not accepted conditionally he could have received all his terminal benefits and if he were to be in service, he would be entitled for suspension allowance and on this presumption the Industrial Court thought it appropriate that subsistence allowance at the rate of 75% of the last drawn salary should be given to the complainant. This reasoning is grossly erroneous. The acceptance of the resignation is not at all conditional but it only says :5: that it would be subject to the outcome in the disciplinary proceedings and disciplinary proceedings cannot result into the reinstatement of the employee. The departmental enquiry based on the chargesheet dated 23/2/2007 has nothing to do with the resignation which has been accepted. In the enquiry the complainant may be exonerated or he may be found guilty. If he is exonerated in the enquiry, there is no reason to believe that he will come back in service. Acceptance of resignation is not a dismissal from service and, therefore, there is no question of reinstatement in the facts of this case. If the charges are proved, the Corporation has the powers to withhold or appropriate the pensionary benefits to the extent it suffered financial loss. Where the employer - employee relationship has come to an end by relieving the complainant, the Industrial Court committed a manifest error in directing to pay 75% of the salary last drawn. Hence the impugned order is unsustainable and the same deserves to be quashed and set aside. 8. In the premises, this petition succeeds and :6: the same is hereby allowed. The impugned order is quashed and set aside. The complainant’s right to approach the Corporation for release of terminal benefits shall be subject to the service Rules. 9. Rule is made absolute accordingly with no order as to costs. (B.H. Marlapalle,J.) (B.H. Marlapalle,J.) (B.H. Marlapalle,J.)