{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 51 OF 2009 1. The Chief Executive Officer, Zilla Parishad, Latur 2. The Block Development Officer, Panchayat Samitee, Latur APPELLANTS VERSUS 1. Maruti s/o Goroba Sarvade Age-59 years, Occ-Pensioner R/o Labour Colony, Latur 2. The Government of Maharashtra Through Secretary, Rural Development Department, Mantralaya, Mumbai RESPONDENTS ....... Mr. P.R.Tandale, Advocate for appellants Mr. S.A.G.Qureshi, Advocate for respondent No.1 Mr. B.V.Wagh, AGP for respondent No. 2 State ....... [CORAM : A.V.POTDAR, J.] DATE: 22nd April 2010 ORAL JUDGMENT : 1. By the present Appeal From Order, the appellants, who are defendants No.2 and 3 in Special Civil Suit No.174/2006, have {2} assailed the order dated 03.03.2009 passed below Exhibit-19 in Special Civil Suit No.174/2006. 2. It appears that this Appeal From Order was admitted on 29.09.2009. 3. Heard learned counsel for the appellant and respondent No.1 so also learned AGP. 4. At the outset, the facts, which gave rise to file the present Appeal From Order, can be given, which are enumerated as follows - i) Respondent No.1 has filed Special Civil Suit No. 174/2006 against the present appellants and respondent No.2 for declaration that the order issued by defendant No.2, dated 9th February 2005, to the extent of recovery of Rs.4,75,644/- be quashed and set aside with further prayer to direct the defendants to pay amount of gratuity of the plaintiff in the sum of Rs. 1,50,975/- with interest from 1st May 2005, as per the pension rules. ii) The first respondent was in the services of appellants, as Village Development Officer, Panchayat Samiti, Nilanga till 31.01.2005. During his service tenure, inquiry was conducted against him for alleged fraud and misappropriation of funds. In the {3} said inquiry, the first respondent, plaintiff, was held guilty and order to recover Rs.4,75,644/- from the 1st Respondent, plaintiff, was passed. This amount is the amount allegedly misappropriated by plaintiff. In the said order further directions were given that amount of Rs.2,31,664/- be deducted from the payment of gratuity payable to the first respondent and the balance amount be recovered from the pensionary benefits for which respondent No.1 is entitled to. iii) Admittedly, the result of the inquiry is not challenged by respondent No.1/ plaintiff before the competent authority. However, the plaintiff has only challenged the recovery of the amount ordered under the said inquiry. As the application was moved at Exhibit-19 before the trial court, for temporary injunction restraining the respondents from recovery of amount from the pensionary benefits, the said application was allowed by the Joint Civil Judge, Senior Division, Latur vide order dated 03.03.2009, which is impugned in the present Appeal From Order. 4. During the course of submissions, it is contended by learned counsel for the appellants that as respondent No.1/ plaintiff has not challenged the report of the inquiry officer in which he is held guilty and punished with the penalty of recovery of the amount in the sum of Rs.4,75,644/- before the competent authority, then unless and otherwise the report of the inquiry is set aside, respondent No.1/ plaintiff is not entitled to claim the {4} order of injunction in respect of recovery of the amount. 5. So far as the fact that there is no challenge to the report of the inquiry, is not disputed by the learned counsel for respondent No.1. On the contrary, learned counsel has fairly conceded that respondent No.1 / plaintiff has not challenged the order passed by the inquiry officer in which respondent No.1 was held guilty for misappropriation of funds. In the said report recommendations were made to recover an amount of Rs. 4,75,644/- from respondent No.1. 6. The question for determination before me is that whether the civil court is competent to stop this recovery by a decree of declaration and in the said suit he can pass an order of injunction to stop the recovery. If there is any grievance in respect of the inquiry conducted against respondent No.1, like no opportunity of hearing was given etc, respondent No.1 may agitate the said point before the competent authority to challenge the inquiry report in which he is held guilty of misappropriation. Without availing this remedy, suit simplicitor for declaration is filed that the recovery is illegal. Consequently, the exercise carried out by the lower court, to stay the recovery of amount, is not within the parameters of law. In substance, the order passed by the learned lower court below Exhibit-19 is required interference. 7. Accordingly, the appeal from order is allowed. The {5} order dated 03.03.2009 passed below Exhibit-19 in Special Civil Suit No.174/2006 by the Joint Civil Judge, Senior Division, Latur, is hereby quashed and set aside. 8. Rule is thus made absolute on the terms indicated above, with no order as to costs. The Record and Proceedings be sent back immediately. 9. If no date is given by the lower court, then the parties are directed to appear before the lower court on 8th June 2010. 10. It is hereby clarified that though this Appeal From Order is allowed by setting aside the impugned order, yet respondent No.1/ plaintiff is not precluded from approaching the competent authority to challenge the inquiry report, if so advised. sd/- [A.V.POTDAR, J.] drp/B10/ao51-09 {6} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.5553 OF 2009 IN APPEAL FROM ORDER NO. 51 OF 2009 1. The Chief Executive Officer, Zilla Parishad, Latur 2. The Block Development Officer, Panchayat Samitee, Latur APPELLANTS VERSUS 1. Maruti s/o Goroba Sarvade Age-59 years, Occ-Pensioner R/o Labour Colony, Latur 2. The Government of Maharashtra Through Secretary, Rural Development Department, Mantralaya, Mumbai RESPONDENTS ....... Mr. P.R.Tandale, Advocate for appellants Mr. S.A.G.Qureshi, Advocate for respondent No.1 Mr. B.V.Wagh, AGP for respondent No. 2 State ....... [CORAM : A.V.POTDAR, J.] DATE: 22nd April 2010 PER COURT : 1. As the Appeal From Order is allowed, the present civil application does not survive and hence disposed of accordingly. [A.V.POTDAR, J.] drp/B10/ao51-09