2016(5) ALL MR 343
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

S. S. SHINDE AND SANGITRAO S. PATIL, JJ.

Shri. Trimbak s/o. Ramchandra Sontakke Vs. The State of Maharashtra & Ors.

Writ Petition No.11324 of 2015

2nd August, 2016.

Petitioner Counsel: Mr. AMIT A. MUKHEDKAR
Respondent Counsel: Mr. V.S. BADAKH, Mr. K.M. SURYAWANSHI

Maharashtra Civil Services (Pension) Rules (1982), Rr.27(3), 129A, 129B - Withholding of pensionary benefits - On ground that petitioner was prosecuted for some criminal cases - Legality - Petitioner has already been acquitted in said cases - Nothing on record to show that acquittal order was challenged at any point of time - Initiation of departmental proceedings after 8 years of retirement of petitioner, in respect of events occurring prior to retirement, not justified - Respondents in fact, withheld pensionary benefits without passing order under R.27(1) - Petitioner held entitled to said benefits with interest. (Para 8)

JUDGMENT

SANGITRAO S. PATIL, J. :- Rule. Rule made returnable forthwith. With the consent of the learned counsel for the parties, the petition is heard finally.

2. The petitioner has approached this Court under Article 226 of the Constitution of India, seeking directions against respondent nos. 2 to 4 to release his pensionery benefits with interest at the rate of 18% per annum from the date of his retirement i.e. 31st July, 2008 till the actual payment thereof.

3. The petitioner was appointed as a Professor in the subject of Electronics with Shri Guru Gobindsinghji College of Engineering and Technology at Nanded in the year 1984. The approval to his appointment was granted by the then Marathwada University vide order dated 30th September, 1984. The said college became an Autonomous Institute in the year 2005. Accordingly, its name came to be changed as "Shri Guru Gobindsinghji Institute of Engineering and Technology". The petitioner came to be designated as the Director of the said college. The petitioner retired on attaining the age of superannuation on 31st July, 2008. The petitioner was prosecuted for the offences punishable under sections 406, 408, 409 and 420 of the Indian Penal Code, in the Court of the learned Chief Judicial Magistrate at Nanded. He came to be acquitted by the said Court vide order dated 3rd May, 2013 passed in Regular Criminal Case No.116 of 2009.

4. The learned counsel for the petitioner submits that the pensionery benefits of the petitioner are withheld by respondent nos. 2 to 4 i.e. the Director of Technical Education, State of Maharashtra, the Director of Shri Guru Gobindsinghji Institute of Engineering and Technology, Nanded and the Chairman, Board of Management of Shri Guru Gobind Singhji Institute of Engineering and Technology, Nanded, respectively, merely because the above-mentioned criminal case was pending against him. The petitioner has been paid provisional pension after his retirement. He was never communicated the reasons for withholding of his pensionery benefits. The learned counsel submits that there is no departmental enquiry initiated against the petitioner on any count. He further submits that there is absolutely no reason for withholding the pensionery benefits of the petitioner. No written order as contemplated under Rule 27(3) of the Maharashtra Civil Services (Pension) Rules, 1982, (for short, "the Pension Rules"), has been passed at any point of time. He, therefore, prays that respondent nos. 2 to 4 may be directed to pay pensionery benefits to the petitioner. He further states that there has been delay on the part of respondent nos. 2 to 4 in paying the pensionery benefits of the petitioner. Therefore, the petitioner is entitled to get interest at the rate of 18% per annum vide Rules 129-A and 129-B of the Pension Rules and the Government Resolution dated 6th May, 1991 on account of delayed payment of the pensionery benefits.

5. The learned A.G.P. relying on the contents of the affidavit-in-reply of one Vijay Laxman Bhangare, Assistant Director (Non-Technical), attached to the Office of the Joint Director, Technical Education, Regional Office, Aurangabad, filed on behalf of respondent nos. 1 and 2, submits that the petitioner had committed serious financial irregularities, when he was serving with respondent nos. 3 and 4. Therefore, a preliminary enquiry was conducted and a proposal was submitted to respondent no. 2 for initiation of department enquiry against the petitioner. However, respondent no.1 - Secretary, Department of Higher and Technical Education, informed that since the matter was pertaining to Shri Guru GobindSinghji College of Engineering and Technology, Nanded, which is a private institute receiving grant-in-aid from the State of Maharashtra, the Board of Governors (B.O.G.) would be the Competent Authority to take appropriate decision in the matter of initiating the departmental enquiry against the petitioner. He submits that the said proposal is still pending at the level of the Board of Governors (B.O.G.). He further submits that the departmental enquiry has been proposed against the petitioner. Therefore, he is not entitled to get pensionery benefits, as sought in the present writ petition. He, therefore, prays that the writ petition may be dismissed.

6. Respondent no. 3 appeared but did not file reply. Respondent no. 4 was duly served with the notice of the writ petition, but none appeared for him.

7. Indisputably, the petitioner has retired on attaining the age of superannuation on 31st July, 2008. No departmental enquiry has been initiated against him on any ground. Here, it would be useful to reproduce the relevant portion of Rule - 27 of the Pension Rules, which reads as under.

"27. Right of Government to withhold or withdraw pension.

(1) Government may, by order in writing, withhold or withdraw a pension or any part of it whether permanently or for a specified period, and also order the recovery, from such pension, the whole or part of any pecuniary loss caused to Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement:

Provided that the Maharashtra Public Service Commission shall be consulted before any final orders are passed in respect of officers holding posts within their purview:

Provided further that where a part of pension is withheld or withdrawn, the amount of remaining pension shall not be reduced below the minimum fixed by Government.

(2) (a) ..............

(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,-

(i) shall not be instituted save with the sanction of the Government,

(ii) shall not be in respect of any event which took place more than four years before such institution, and

(iii)........"

8. As seen from the judgment dated 3rd May, 2013, delivered in Regular Criminal Case No. 116 of 2009 instituted against the petitioner for the offences punishable under sections 406, 408, 409 and 420 of the Indian Penal Code, the petitioner has been acquitted of the said offences. The learned Chief Judicial Magistrate, Nanded, has observed that the prosecution has miserably failed to establish the offences, with which the petitioner was charged. There is nothing on record to show that respondent nos. 2 to 4 have challenged the said judgment of acquittal at any point of time. Moreover, no departmental enquiry has been initiated against the petitioner. Admittedly, the period of about eight years has been elapsed after retirement of the petitioner. Consequently, in view of sub-clause (ii), Clause (b), Sub-Rule (2) of Rule 27 of the Pension Rules, no departmental proceedings can be instituted against him in respect of the events those took place prior to his retirement. No order has been passed withholding the pensionery benefits of the petitioner as contemplated under Sub-Rule (1) of Rule 27 of the Pension Rules. If that be so, respondent nos. 2 to 4 are not at all justified in withholding the pensionery benefits of the petitioner on any ground, much less under the provisions of Rule 27 of the Pension Rules.

9. The petitioner is entitled to get full pensionery benefits as admissible under the provisions of the Pension Rules. His pensionery benefits have been withheld by respondent nos. 2 to 4 without any justifiable reasons. Consequently, in view of the provisions of Rule 129-B of the Pension Rules, they are liable to pay interest at the rates applicable to the General Provident Fund deposits on the amount of pension payable to the petitioner, in respect of period beyond six months after his retirement i.e. from 1st February, 2009 onwards till the actual payment thereof. In case the retirement gratuity amount also has not been paid to the petitioner, respondent nos. 2 to 4 would be liable to pay the same to the petitioner at the rates applicable to the General Provident Fund deposits with effect from three months after the date of retirement of the petitioner i.e. from 1st November, 2008 onwards till the date of payment thereof. In the result, we allow the Writ Petition with the following order.

(i) The Writ Petition is allowed.

(ii) Respondent nos. 2 to 4 shall take necessary steps to pay to the petitioner all the pensionery benefits as admissible to him as per the Maharashtra Civil Services (Pension) Rules, 1982.

(iii) Respondent no. 2 to 4 shall pay interest on the amount of pension, from 1st February, 2009 and on the amount of gratuity, if not paid earlier, from 1st November, 2008 onwards till the actual payment thereof to him at the rates made applicable to General Provident Fund (GPF) deposits from time to time during the abovestated period.

(iv) Respondent nos. 2 to 4 shall pay costs of the petition to the petitioner and shall bear their own.

(v) Rule made absolute in the above terms.

(vi) The Writ Petition is accordingly disposed of.

Petition allowed.