Ramesh Kashinath Pawar v. Nashik Municipal Corporation

Judgment

#1. The Petitioner who retires from service on 31st January 2016 from the service of Nashik Municipal Corporation as Superintendent Engineer was imposed with a penalty of permanent deduction of 10 % amount from the Osk WP-5122-2019.odt pension has filed this writ petition. This order is passed by the Commissioner Nashik Municipal Corporation on 6th August 2018. The correctness of the said order is challenged on various grounds including the departmental inquiry being initiated after the expiry of statutory period of four months and also on the ground that the General Body of the Corporation is proper disciplinary authority and not Municipal Commissioner. There are also other grounds taken in this writ petition.

#2. So the main issue involved in this petition is whether the Nashik Municipal Corporation has initiated the departmental inquiry within the mandatory period of four months as contemplated under the Maharashtra Civil Services (Pension) Rules, 1982. So also it is required to be seen whether the order is passed by the proper disciplinary authority.

#3. Apart from the merits of the matter, the prayer is opposed on behalf of the Nashik Municipal Corporation on the ground of maintainability of this writ petition. So this Court within limited purview of the powers under Article 226 of the Constitution of India is expected to look into these issues.

On this background we have heard learned Advocate Shri Kiran S. Bapat for the Petitioner and the learned Advocate Shri Sandip Marne, for the Nashik Municipal Corporation. With their assistance we have perused the record and Osk WP-5122-2019.odt the judgments cited.

#4. In the year 2006 Nashik Municipal Corporation has undertaken the project of Solid Waste Management under Jawaharlal Nehru National Urban Renewal Mission (J.N.N.U.R.M.) launched by Government of India. The Corporation has appointed Eco Save Systems (P) Limited, a consultant in December 2006 for preparing Detailed Project Report (D.P.R.).

#5. Then the project was implemented and it was completed in January 2010. The Commissioner, Municipal Corporation has also issued Physical Completion Certificate (page 18). Even he has issued Utilization Certificate in the prescribed format (page 19), which certifies about spending of Rs.59.91 lakhs on that project.

#6. Though the reason for review of the project is not informed to the Court, there is a report given by Shrikhande Consultants Private Limited dated 11th June 2010 (page 277 of the compilation filed by the Petitioner on 30th November 2021). He has certified that the project solid waste management is in order. Our attention is also invited to a photocopy from the compilation titled as Executive Summary prepared by Shrikhande Consultants Private Limited (page 266). They have certified quality of the work as satisfactory and overall performance is satisfactory. Osk WP-5122-2019.odt

#7. Amongst 28 different charges faced by the Petitioner in the departmental inquiry one charge pertains to not making provision for electrification in the Detailed Project Report. Our attention is invited to a photocopy at page 22 of the Petition. It mentions about provision of Rs.152 lakhs for ‘Electricals, Power connection, DG Set’. In that view, the Petitioner has denied the allegation of not making provision for electricals, power connection.

#8. Nothing happened till 15th December 2015. Committee consisting of Deputy Municipal Commissioner (Administration), Chief Accountant and Medical Health Officer was constituted to inquire into the allegations of mismanagement and misappropriation made in respect of that project. The Petitioner was instructed not to deal with the work as Executive Engineer (Mechanical). After that Committee submitted the report on 28th January 2016 thereby putting a blame on the Petitioner and his explanation was called one day earlier to his retirement. He retired on 31st January 2016 and the explanation was called (page 20) by a letter dated 30th January 2016.

#9. The Petitioner gave explanation as per his letter dated 8th April 2016 (page 21). It does not find favour with the Commissioner and accordingly departmental inquiry was ordered. One Shri Bajirao Ganpat Mali, Osk WP-5122-2019.odt Deputy Engineer and one Shri Kishor Hirji Borde, Additional Commissioner-2, were appointed as Inquiry Officer and Presenting Officer respectively as per the Order dated 5th October 2016 (page 25). The Petitioner was supplied with Memo of Charges and supporting documents. Thereafter Dr.Madhukar Giri was appointed as Inquiry Officer and he finally conducted inquiry. He came to the conclusion that none of the charges were proved. Dr.Giri submitted his report on 23rd January 2018.

#10. The Municipal Commissioner did not agree with the conclusion drawn by the Inquiry Officer and accordingly he placed the subject before the General Body of the Corporation. The proposal dated 13th April 2018 is at page 54. The General Body passed a Resolution on 19th July 2018 (page 56). The General Body has approved the action of freezing 10% amount from the pension belonging to the Petitioner. The Order is at page 59 and the calculation is at page 60.

#11. There is a initial objection on behalf of the Respondent about maintainability of this Petition for the reason that the Petitioner has already filed earlier Writ Petition No. 14367 of 2016. According to the learned counsel for the Petitioner the said Petition was filed when the Departmental inquiry was pending. In the present Petition following are the reliefs claimed :- Osk WP-5122-2019.odt (a) Issuing direction to the Respondent to withdraw the Charge-sheet dated 15th June 2016 and Order dated 6th August 2018 (Order thereby freezing 10% pension amount). (b) A declaration that the Charge-sheet and the Order freezing pension is illegal. (c) Ancillary reliefs.

#12. In view of the fact that, this Petition is filed after the Order freezing pension was passed, present Petition is certainly maintainable. Even though one of the reliefs in both the Petitions is common, it does not bar the Petitioner from prosecuting this Petition. Reason is earlier Petition is yet not decided. That objection is turned down. Departmental Inquiry after Retirement

#13. It is admitted fact that the Petitioner superannuated on 31st January 2016. Rule 27 (2) (a) of the Maharashtra Civil Services (Pension) Rules, 1982 (herein after referred to as ‘Pension Rules’) mentions about continuance of the departmental proceedings after retirement. It is to be continued in the same manner as if the Government servant had continued in service. However, such departmental inquiry ought to have been instituted before his retirement. Osk WP-5122-2019.odt

#14. In this case, Petitioner’s explanation was called on 30th January

#2016. Charge-sheet was issued to him on 5th October 2016. While letter dated 30th January 2016, it was made clear that the Corporation wants to initiate departmental inquiry and that is why his explanation was called. There is a mention that it was called as per the provisions of Maharashtra Municipal Corporations Act and the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. As per Rule 27(6) of Pension Rules, departmental proceeding is deemed to have been instituted when statement of charge is issued to him. In this case, charge is issued after retirement i.e. on 5th October 2016. So the proceeding was not initiated prior to his retirement.

#15. Whereas Rule 27(2)(b)(i) permits institution of departmental inquiry after retirement only after sanction is obtained from the appointing authority. In this case, the General Body vide Resolution dated 1st June 2016 has sanctioned initiation of departmental inquiry against the Petitioner.

#16. Rule 27(1) of the Pension Rules lays down the action to be taken if the employee is found guilty of grave misconduct or negligence. Maharashtra Civil Services (Conduct) Rules 1979 lays down what are the duties of Government servant, whereas Rule 5 of Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 lays down the Penalties. Osk WP-5122-2019.odt

#17. “When the Government servant has retired, who is subjected to disciplinary inquiry, whether he can be penalized as per the provisions of Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 or whether he can be penalized as per the Pension Rules” has been decided by the Division Bench of this Court in case of Manohar B. Patil Vs. State of Maharashtra1. It has been categorically held that, such an employee cannot be penalized in accordance with Discipline and Appeal Rules but only under Rule 27 of Pension Rules. The law of this point is settled.

#18. The instances of misconduct and negligence are governed a per the provisions of the Conduct Rules and the procedure laid down as per Discipline and Appeal Rules will be applicable. That is why Rule 27(2)(b)(iii) lays down the procedure to be followed in such departmental inquiry. It further says “the procedure to be followed while imposing penalty of dismissal of service” is to be followed. Only difference is that a retired Government servant if found guilty cannot be subjected to the penalties laid down under Rule 5 of Discipline and Appeal Rules but only as per the Pension Rules. Conducting Departmental inquiry within four months

#19. The main thrust of the argument by learned Advocate Shri Bapat 1 2013 (6) Mh.L.J. 311 Osk WP-5122-2019.odt for the Petitioner is on not initiating the inquiry within time limit. According to him, the project was completed in the year 2010 and the Petitioner superannuated on 31st January 2016, whereas Charge-sheet was issued to him on 5th October 2016. According to him, this is belated Charge-sheet and it violates the provisions of Rule 27 (2) (b) (ii) of the Pension Rules. For ready reference that clause is reproduced below. Rule 27 (2) (b) (ii) :- Shall not be in respect of any event which took place more than four years before such institution.

#20. In support of his contention, learned counsel Shri Bapat relied on following Judgments. (a) State of U.P. & Another2 (b) Rajendra Singh Yambem Vs. Union of India & Another3

#21. By way of reply, learned counsel Shri Marne for Respondent vehemently opposed the said contention. He invited our attention to the averments of para No.2 of the Additional Affidavit-in-Reply sworn in by Assistant Municipal Commissioner (Administration). According to him, the Solid Waste Management Project was not commissioned even till 31st January 2016 with full capacity. He invited our attention to the averments pertaining to the Order dated 15th December 2015 thereby constituting a Committee to O R D E R (i) Writ Petition is partly allowed. (ii) Resolution dated 19th July 2018 passed by the General Body of the Corporation and the Orders dated 6th August 2018 and 15th October 2018 passed by the Municipal Commissioner are set-aside. (iii) Matter is remanded back to the Corporation for taking a fresh decision. Respondents-Corporation is directed to again issue notice to the Petitioner on the report of Inquiry Officer and give him 15 days to give reply. (iv) Respondent-Corporation further directed to take appropriate decision (after taking into account issues decided by us), as per law within two months from the expiry of the time limit for giving a reply. [S. M. MODAK, J.] [PRASANNA B. VARALE, J.] OMKAR SHIVAHAR KUMBHAKARN SHIVAHAR KUMBHAKARN