07 May 2121

Departmental enquiry can be initiated against the Government Servant only after the superannuation for the purpose of the withholding the whole or part of the pension - Bombay High Court

Case : Nagesh S/o of Jagdishrao Deshpande (Original Petitioner) Died through LR’s , Namita Nagesh Deshpande (His wife), Nilesh Nagesh Deshpande, Nitesh Nagesh Deshpande v. State of Maharashtra Writ Petition No. 6077 of 2016

Court : Bombay High Court

Bench : Justice Ujjal Bhuyan and Justice M. G. Sewlikar

Decided on : 07 May 2121

Relevant Statutes

Article 22 of the Indian Constitution

Section 4(6) (1) (a), 4 (6) (1) (b) (ii) and Section 7(3A) of Payment of Gratuity Act, 1972

Rule 27 (1) and (2) of Maharashtra Civil services (Discipline and Appeal) Rules 1979

Brief Facts and Procedural History

1. A Writ Petition was filed by the petitioner against the order dated 17th February 2016 and also to seek the direction to respondent no.2 to pay gratuity and earned leave encashment Writ Petition was allowed then further review application was filed. A show-cause notice was issued to the petition under which Some allegations were made against the petitioner related to the disbursement of loans to fictitious beneficiaries or ineligible beneficiaries which leads to non-recovery of the disbursed loan amounts. Afterwards, another show cause notice was issued which he replied back.

2. On 7th August, he received a charge sheet from respondent No.2. The respondent was not satisfied with the reply then he appointed an enquiry officer to conduction an enquiry against the petitioner. Petitioner had approached the labour courts and the Industrial Court had obtained a stay which was vacated by the Industrial court. Another Writ Petitions filed by the petitioner were disposed of by the court as infructuous.

The Issue of the Case

Whether the petitioner is liable to pay the gratuity and leave encashment under the Payment of Gratuity Act, 1972?

The Observations of the Court

1. The Honourable Bombay High Court observed that as per the inquiry report by the inquiry officer serious charges are proved against the petitioner and held that department pending was not pending against the petitioner and superannuation was subject to the outcome of the departmental proceedings or also there was no condition that the service of the petitioner stood extended to give effect to the departmental proceedings which were drawn up against him.  The Honourable Supreme Court also held that the dismissal order of the petition after superannuation that too giving retrospective effect from the date of superannuation is not maintainable in law.

2. The Honourable Bombay High Court referred one of the Judgment i.e. Manohar B. Patil vs. State of Maharashtra (2013 (6) Mh. L.J. 311), It was held that as per the Rule 27 (1) and (2) of Maharashtra Civil services (Discipline and Appeal) Rules 1979, no penalty can be imposed after retirement on government servant and also departmental enquiry can be initiated after the superannuation for the purpose of the withholding the whole or part of the pension.

3. Therefore, The Honourable Bombay High Court set aside the order of dismissing the petitioner from service retrospectively from 13th December 2013.

4. In Jaswant Singh Gill vs. Bharat Cooking Coal Ltd. (2007) 1 SCC 663, It was held that the amount which is liable to be forfeited will be to the extent of damage occurred. The Honourable Supreme Court held that imposition of penalty of dismissal from service would not lead to forfeiture of the gratuity of the employee. 

5. The Honourable Bombay High Court observed that there was no serious deliberation on the misconduct of the petitioner under the category of moral turpitude under Section 4(6) (1) (b) (ii) of Payment of Gratuity Act, 1972.

The Decision Held by the Court

1. Writ Petition allowed and held that the judgment dated 17th February 2016 is wholly unsustainable in India.

2. Respondent No. 2 is directed to release the gratuity and due leave encashment under Section 7(3-A) of Payment Gratuity Act, 1972 within 8 weeks from the date of copy of the order. 

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