1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY O. O. C. J. WRIT PETITION NO.2009 OF 2009 Mulchand Ramnaresh Mishra. ...Petitioner. Vs. The Municipal Corporation of Greater Mumbai & Ors. ...Respondents. .... Mr. C.K. Tripathi for the Petitioner. Ms.T.H. Puranik for the Respondents. ..... CORAM : DR.D.Y.CHANDRACHUD, J. November 23, 2009. P.C. The Petitioner was a Headmaster in Sanjay Nagar Municipal Hindi School at Govandi. He was allegedly trapped by the Anti Corruption Bureau while taking a bribe of Rs.200/- on 17th June 2002 from one Rajeshkumar Patel for issuing a duplicate school leaving certificate in the name of his brother, Dinesh Kumar Patel, a former student of the School. By an order dated 27th June 2002, the Petitioner was suspended from service. 2. A chargesheet was filed against the Petitioner in the Special Court at Mumbai vide Special Case No.32 of 2003 on 9th June 2003. In the meantime, the Petitioner was retired compulsorily from service 2 on 23rd April 2003, subject to action under Rule 14A and 14B of the BMC Pension Rules. On 9th January 2002, the Petitioner was convicted for an offence under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to suffer rigorous imprisonment for three months and to pay a fine of Rs.1,000/- and in default to suffer rigorous imprisonment for fifteen days. The Petitioner was also convicted of an offence under Section 13(1)(a) read with Section 13(2) and was sentenced to suffer rigorous imprisonment for three months and to a fine of Rs.1,000/-and in default to suffer rigorous imprisonment for fifteen days. 3. A notice to show cause was issued to the Petitioner on 6th April 2009 calling upon him to explain as to why his pensionary benefits should not be withdrawn and the period of suspension from 12th June 2002 to 17th June 2003 be treated as such and left uncondoned. The Petitioner submitted a reply on 4th May 2009. A final order was passed by the Deputy Municipal Commissioner (Education) on 8th July 2009 withdrawing the pensionary benefits with effect from the date of service of the order upon the Petitioner 3 and leaving the period of suspension from 17th June 2002 until 23rd April 2003 when he was retired compulsorily as uncondoned. 4. The Municipal Corporation has filed an affidavit in reply in these proceedings in which the action that has been taken against the Petitioner is traced to the source of power conferred by Rules 14A and 14B of the Bombay Municipal Corporation Pension Rules, 1953 as amended. 5. Rules 14A and 14B of the B.M.C. Pension Rules contemplate the withdrawal of pensionary benefits in the event that a pensioner has been convicted of a grave offence or if he has been held guilty of grave misconduct. Rule 14A clearly contemplates withdrawal of pensionary benefits or a part thereof where a pensioner has been convicted of a grave offence. In the present case, the notice to show cause relied upon the Municipal Circular dated 10th May 2006. There is a lawful source of authority for the Municipal Corporation to withdraw pensionary benefits in the event that a Pensioner is convicted of a serious offence. In the present case, it has been 4 submitted on behalf of the Municipal Corporation that the act of the Petitioner constituted a grave misconduct involving moral turpitude and had a nexus with the duty of the Petitioner as a Municipal servant. There is merit in the submission which has been urged on behalf of the Municipal Corporation that the action that has been taken is in accordance with law and falls within the purview of the Pension Rules. The Petitioner has filed an appeal against his conviction which has been admitted by the Court on 11th February 2009. The Petitioner has been enlarged on bail. In the event that the appeal filed by the Petitioner results in the reversal of the judgment of the Special Court which forms the subject matter of the action taken by the Municipal Corporation, it would be open to the Petitioner to make a representation before the Municipal Commissioner again for the restoration of the pensionary benefits with retrospective effect. Subject to this clarification and at the present stage since the order of conviction continues to hold the field, no case for interference has been made out. The Petition shall stand dismissed, subject to the aforesaid clarification. .....