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WP-3132-2008IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO. 3132 OF 20081.Shri Ramesh S/o Gangadhar PatilAge : 65 Years, Occu. : PensionerR/o 184, Nandanwan Colony,Cantonment, Aurangabad … PETITIONER VERSUS1.The Ex-Officio Chairman“Maharashtra Jeevan Pradhikaran”Express Tower Nariman Point, 4th Floor,Mumbai 21 i.e. The Ministerfor Water Supply & SanitationState of Maharashtra, Mantralaya, Mumbai 2.The Member SecretaryMaharashtra Jeevan PradhikaranExpress Tower, Nariman Point, 4th Floor, Mumbai 21 i.e. the Chief Secretary, State of Mah.,Mantralaya, Mumbai … RESPONDENTSWITHCIVIL APPLICATION NO. 3756 OF 2016 IN WP NO. 3132 OF 2008Shri V. D. Sapkal, Senior Counsel i/b Shri D. R. Bhadekar, Advocatea/w Shri Amit Gadekar, Advocate for the PetitionerShri Rajendrraa Deshmukh, Senior Advocate a/w Shri ShriramV. Deshmukh, Advocate i/b Shri Vinod Patil, Advocate for RespondentNos. 1 and 2CORUM :S. G. MEHARE AND SHAILESH P. BRAHME, JJ.RESERVED ON:3rd FEBRUARY, 2025PRONOUNCED ON :20th FEBRUARY, 20251 of 18 WP-3132-2008J U D G M E N T [Per Shailesh P. Brahme, J.] :1.With the consent of parties heard both sides.2.Petitioner is superannuated employee of therespondent, who is aggrieved by order dated 30.10.2006 passed bythe Respondent No. 2 as well as order dated 20.02.2008 passed bythe Respondent No.1/Appellate Authority dismissing his appeal.Due to the impugned orders petitioner is deprived of pensionarybenefits, as he was found guilty in the departmental enquiry.3.Petitioner was working as Superintending Engineer atLatur Circle since 05.10.1999 and was entrusted with rehabilitationwork of Earthquake Affected Persons from Osmanabad. He wasfound to have indulged in misconduct involving financialirregularities. During his tenure, he was issued with charge-sheetvide communication dated 06.11.2000, levelling three chargesagainst him. Reply to the charge-sheet was tendered by him,denying the charges. When the disciplinary action was pending,he attained age of superannuation on 30.11.2001. He was relievedvide order dated 21.11.2001 subject to the decision ofdepartmental enquiry pending against him. First Information2 of 18 WP-3132-2008Report was also lodged against him and the prosecution waspending till filing of the petition.4.Inquiring Authority submitted report. Before inflictingpunishment, show cause notice was issued to the petitioner on29.05.2006. The explanation was tendered by him on 07.07.2006.By the first impugned order 30.10.2006, punishment was imposedinvoking Rule 6, 9 and 10 of Maharashtra Civil Services (Disciplineand Appeal) Rules,1979 as well as Rule 27 of Maharashtra CivilServices (Pension) Rules, 1982, (for short “Pension Rules”)withdrawing superannuation pension permanently. Beingaggrieved, appeal was preferred before Respondent No.1. It wasdismissed by last impugned order dated 20.02.2008. Under thesefacts, petitioner is knocking on the doors of this Court.5.Learned senior counsel Mr. V. D. Sapkal, for thepetitioner submits that petitioner is innocent. He did not indulge inany misappropriation. Following submissions are also made.(a)Charges leveled against him are false and he is entitled to exoneration.(b)There is no material to indicate that petitioner was involved in grave misconduct, negligence causing huge financial loss to public exchequer.3 of 18 WP-3132-2008(c)The punishment imposed is totally disproportionate.There were other delinquents also to share the liability.Co-delinquent was issued with penalty of 50% of withdrawal of pension.(d)There is no sanctity of law to impose penalty of withdrawal of pension, after the superannuation of the petitioner. Independent inquiry should have been conducted as per Rule 27(1).(e)Without resorting to the procedure under Rule 27 penalty was imposed for the charges which were framed when he was in service. There is violation of principles of natural justice. 6.Reliance is placed on judgments of :(A) Chairman/Secretary of Institute of Shri Acharya Ratna Deshbhushan Shikshan Prasarak Mandal & Anr. Vs. Bhughonda B. Patil reported in Bom.C.R. 197 (B) State of Uttar Pradesh Vs. Brahm Datt Sharma and Another in Civil Appeal No. 481 of 1987 decided on25.02.1987.7.Learned senior counsel Mr. R. S. Deshmukh, repealsthe submission on the basis of affidavit-in-reply in followingmanner :4 of 18 WP-3132-2008(i)The punishment imposed by the authorities, which is under challenge is within purview of Rule 27(1) and with Rule 27(2)(a) of Pension Rules.(ii)The disciplinary action commenced before the superannuation. After superannuation, show cause notice was given to the petitioner. After extending opportunity to him, punishment was imposed.(iii)Petitioner is found guilty for serious charges causing loss to the tune of Rs. 2.62 Crores, which is public money. There is material to support misconductof the petitioner.(iv)Criminal case is still pending against him. The amount of gratuity and leave encashment are withheld.8.Having heard both sides, we propose to address threequestions: (I) Whether due procedure of law is followed ininflicting punishment of withdrawal of pension? (II) Whetherfinding of the disciplinary authority holding the petitioner guilty isliable to be interfered with? (III) Whether impugned punishment isreasonable and proportionate?9.When the disciplinary action started, petitioner was inservice. He was issued with charge-sheet containing three chargesvide communication dated 06.11.2000. He tendered reply to the5 of 18 WP-3132-2008charges. He was superannuated on 30.11.2001. He was dischargedby order dated 21.11.2001 w.e.f. 30.11.2001 subject to outcome ofdisciplinary inquiry. He was facing serious charges of misconduct,involving financial irregularities. The disciplinary actioncommenced to enquire into the charges for the major punishmentprovided by Rule 5 of M.C.S.R. (Disc. and Appeal) Rules.10.Whether due procedure is followed in inflicting thepunishment of withdrawal of pension?The disciplinary action was initiated against thepetitioner levelling charges of misconduct involving negligence andfinancial irregularities. Due to superannuation, it was notpermissible to impose punishment prescribed under rule 5 of(Discipline and Appeal) Rules of 1979. As per rule 27(1) ofPension Rules it was permissible to impose penalty to withhold orwithdraw a pension or any part thereof and also to order recoveryfrom the pension due to loss caused to the government. It is notthe purport of Rule 27 that the disciplinary action whichcommenced when delinquent was in service is to be aborted orterminated. Neither is it contemplated that by abandoning alreadycommenced inquiry a de novo inquiry is resorted to for thepunishment prescribed in Rule 27 (1). 6 of 18 WP-3132-200811.The departmental proceeding though commenced forimposing the penalty under Rule 5 of (Discipline and Appeal)Rules, due to superannuation can be continued or concluded forthe punishment under Rule 27(1) of Pension Rules. What isimperative is to extend opportunity to delinquent to meet theproposed penalty. We are unable to accept the submissions oflearned senior counsel Mr. Sapkal that after superannuation a denovo inquiry is contemplated for inflicting penalties prescribed inRule 27(1) of Pension Rules.12.Another facet of the matter is that inquiry for the gravemisconduct or negligence commenced when delinquent is in servicemust conclude with some finding on charges. The finding of theguilt is necessary for imposing punishment prescribed in Rule 27(1)of Pension Rules either for curtailing pension or to make good theloss caused to the Government. Therefore, at any rate, the alreadycommenced inquiry cannot be terminated without recordingfinding over the charges in either way. It is impossible to open denovo inquiry after superannuation for the misconduct alleged tohave occurred beyond the time prescribed under Rule 27(2)(b). 7 of 18 WP-3132-200813.Where the gross misconduct is found to have beencommitted by government servant while in service, allowing such aperson to earn full pension for rest of his life after retirement isinequitable as the pension is given for not only long service but forsincere and faithful discharge of duties. We may refer toobservations of Division Bench of Delhi High Court in the matter ofUnion of India and Another Vs. S. K. Mathur and Another in WritPetition (Civil) No. 17221-22 of 2004 of which paragraph No. 31 isas follows:“ 31.A government employee gets pension on hisretirement and continues to get the same for theremainder of his life. So much so, that the family of agovernment servant is entitled to family pension afterthe death of government servant. This benefit is givenfor rendering long and faithful service by thegovernment servant. However, if it is found thatduring his employment he had committed some act ofindiscipline or misconduct, it should naturally havesome bearing on these terminal dues like gratuity ofpension. For this reason, when the irregularitiescommitted by a government servant while in serviceare noticed and the disciplinary proceedings areinitiated, the Government has the right to continuethe same after retirement as well. In cases where thegross misconduct is found to have been committed bya government servant while in service, allowing such aperson to earn full pension for rest of his life afterretirement may not be proper as the pension is givenfor not only long service but for sincere and faithfuldischarge of duties. It is for this reason that evenwhen no inquiry was instituted when the Governmentservant was in service, provision is made to proceedagainst him departmentally even after his retirement.However, at the the same time, balance is struck by8 of 18 WP-3132-2008providing that the alleged irregularity should not be ofa period more than four years old from the date ofinstitution of departmental proceedings. Thisprovision obviates the possibility of harassing retiredGovernment servants by digging up old issues.”14.In the present case department proceedings culminatedin inquiry report dated 13.10.2003. The petitioner wassuperannuated and thereafter, recourse was taken to Rule 27. Hewas found guilty for the charges levelled against him. A showcause notice dated 29.05.2006 was served upon him calling uponthe explanation as the charges were proved why punishment underRule 27(1) should not be imposed. He replied the notice on07.07.2006. Thereafter, considering the inquiry report and theexplanation of the petitioner for the proposed punishment, detailedorder was passed on 30.10.2006 by the appointing authorityholding him liable of withdrawing pension permanently.15.Petitioner was given opportunity and his explanationwas considered before imposing the penalty in question. In ourview, this is sufficient compliance to Rule 27. We have alreadyrecorded that in the given facts and circumstances, it is notnecessary to terminate the departmental proceedings, which hadcommenced, when the petitioner was in service and to start with9 of 18 WP-3132-2008de novo procedure for the purpose of imposing penalty under Rule27(1).16.Learned Senior counsel Mr. V. D. Sapkal relied on thejudgment of learned single judge in the matter ofChairman/Secretary of Institute of Shri Acharya RatnaDeshbhushan Shikshan Prasarak Mandal & Anr. (supra). In thatcase respondent employee was suspended in the year 1992. He wasserved with charge-sheet in 1994. The findings of the inquirycommittee were challenged in High Court and they were quashed.The petitioner/Management was directed to complete preliminaryinquiry before proceeding with regular inquiry. Respondent wassuperannuated in 1996. Thereafter, disciplinary action proceeded.He was found guilty and thereafter he was dismissed from theservices in 1999. Being aggrieved, appeal was preferred and it wasallowed by the tribunal. Under the said factual matrix, theobservations were recorded in paragraph Nos. 10 to 15. TheManagement’s petition was dismissed. It is observed in paragraphNo. 13 that“13.….However, it does not specify to be thedepartmental proceedings for disciplinary action withthe intention to impose punishment if the employee isfound guilty, but it speaks of misconduct or negligencehaving been established and nothing beyond that.…….”10 of 18 WP-3132-200817.We do not concur with the observations, because wehave already recorded that findings on the misconduct or thenegligence is with a specific object and it is decisive for furthercourse of action to be taken against delinquent. We have alsoreferred to observations of Delhi High Court.18.In the matter before learned single judge, it was notmade known to the respondent delinquent after superannuationthat proceedings would be continued with reference to the issue ofpayment of pension. In the case at hand, there was specific showcause notice issued by the respondent and granting himopportunity. We are not persuaded by this judgment of the singlejudge.19.Reliance is placed on the matter of State of UttarPradesh (supra). In that case, the respondent employee wasterminated from the services after conducting departmental enquiryand after the charges were being proved. His dismissal waschallenged before tribunal unsuccessfully. Thereafter, he preferredwrit petition. Single Judge allowed his petition as he was by thensuperannuated. A liberty was given to the State to draw freshproceeding as permissible in law. The State issued show cause11 of 18 WP-3132-2008notice calling upon him as to why orders of forfeiture of his pensionand gratuity be not passed. By filing separate application showcause notice was challenged. It was quashed by single judge.Being aggrieved State was before apex Court.20.In the above context, the observations were made bythe apex Court in paragraph Nos. 5 and 7. It was held that if thedelinquent retires from service on attaining age of superannuationbefore completion of the proceeding, it would be open to the Stateto direct deduction in pension on the proof of allegation madeagainst him. If the charges are not established during thedisciplinary proceeding or if the disciplinary proceedings arequashed, it is not permissible for the State to direct deduction inpension. It is further held that if the charges of serious allegationsare established which may have bearing on the question ofrendering efficiency and satisfactory service it would be open to theGovernment to take proceeding against the delinquent inaccordance with the Rules for the reduction of pension and gratuity.Therefore, ultimately, it was held that the show cause notice issuedby the State was valid and the appeal was allowed.21.It is useful to refer to observation of paragraph No. 6.12 of 18 WP-3132-2008“6.Grant of pension to employees of the StateGovernment is regulated by the Civil ServiceRegulations which have statutory character. Article348-A provides that pension shall be granted subject tothe conditions contained in the Regulations. Article351-A empowers the Governor to withhold orwithdraw pension or any part of it, whetherpermanently or for a specified period and also to orderrecovery from pension of the whole or part of thepension for any pecuniary loss caused to theGovernment if the pensioner is found guilty indepartmental or in judicial proceedings for anymisconduct or negligence during his service. Article353 lays down that no pension shall be granted to anofficer dismissed or removed from service formisconduct, insolvency or inefficiency, butcompassionate allowance may be granted on specialconsideration. The claim of pens,on is determined bylength of service, as provided by Article 474 to 485.Full pension is admissible under the rules not as amatter of course but only if the service rendered by theGovernment employee is approved. The Regulationsempower the authority sanctioning the pension tomake such reduction in the amount of pension as itmay think proper. These provisions indicate that aGovernment servant is entitled to pension but the claimof pension is determined in accordance with thestatutory rules. No doubt pension is no more a bounty;instead it is a right earned by the Government servanton the basis of length of service, nonetheless grant offull pension depends on the approval of servicerendered by the employee. In other words if the servicerendered by the Government servant has not beensatisfactory he would not be entitled to full pensionand it would always to open to the Govt. to withholdor reduce the amount of pension in accordance withthe statutory rules. If the Government incurs pecuniaryloss on account of misconduct or negligence of a Govt.servant and if he retires from service before anydepartmental proceedings are taken against him, it isopen to the State Govt. to initiate departmentalproceedings, and if in those proceedings he is foundguilty of misconduct, negligence or any other such act13 of 18 WP-3132-2008or omission as a result of which Govt. is put topecuniary loss, the State Govt. is entitled to withhold,reduce or recover the loss suffered by it by forfeiture orreduction of pension. These provisions ordain the Govt.servant to perform his duties faithfully and honestly.Honest and devoted service rendered by a Govt.servant ensures efficiency in public administration. Thestatutory rules therefore contain provisions for theforfeiture and deduction in the pension of Govt.servant who have not rendered satisfactory service orwho have been found guilty of misconduct ornegligence resulting in pecuniary loss to the Govt.Merely because a Govt. servant retires from service onattaining the age of superannuation he cannot escapethe liability of misconduct and negligence or financialirregularities. ”22.In the case at hand also show cause notice was issuedto the petitioner. His explanation was solicited and thereafter, theimpugned penalty was imposed. The respondents are justified inimposing penalty after finding the petitioner guilty of the charges.23.Senior counsel Mr. Deshmukh, relied on the judgmentin the matter of Manohar B. Patil Vs. State of Maharashtra andOthers reported in 2013(6) Mh.L.J. In that case, petitioner wassuperannuated. Thereafter, the disciplinary proceedings startedagainst him then show cause notice was issued for the purpose ofwithholding or reducing the retiral benefits. Then a charge-sheetwas served on him. It is not a case that the departmentalproceedings commenced before superannuation as is done in the14 of 18 WP-3132-2008present matter. It is not a case covered by Rule 27(2)(a). We findthat ratio is not applicable to the present case.24.For the reasons assigned above, we hold that thepenalty imposed on the petitioner is in accordance with law. Thereis no violation of statutory procedure or principles of naturaljustice.25.Whether finding of the disciplinary authority holdingthe petitioner guilty is liable to be interfered with?It is a matter of record that three charges were levelledagainst petitioner which were denied by him. Those are serious innature pertaining to the financial loss caused to the department.Inquiry report was prepared on 13.10.2003 albeit the same is noton record. By impugned order reasons are recorded by therespondents holding the petitioner guilty. Those reasons wereassailed by him before the appellate authority. The appellateauthority by reasoned order dated 20.02.2008 confirmed thefindings. The concurrent findings of fact are recorded against him.The appreciation of material is not permissible while exercisingjurisdiction under Article 226 or 227 of the Constitution of India.We find that there was material against the petitioner to hold himguilty. Though learned senior counsel for the petitioner adverted15 of 18 WP-3132-2008our attention to reply to the charge-sheet, statement of Mr.Rajendra Madhavrao Sagne, approval letter dated 14.12.1999 andthe further record to make out a case of exoneration from thecharges, those are findings of facts. We cannot embark an inquiryinto that aspect of the matter. We do not find that there is anyperversity or patent illegality in holding the petitioner guilty. 26.Whether impugned punishment is reasonable andproportionate?It is informed that the disciplinary action was takenagainst three persons. The prosecution against the petitioner is stillpending. Considering the charges and explanation of thepetitioner, it transpires that he is not the only person responsiblefor causing loss to the department. It would be unreasonable tohold that he was solely responsible for loss of Rs. 2.62 Crores as hasbeen projected by the respondents.27.Our attention is invited to the judgment and orderdated 28.11.2018 passed in case of Digambar Ramrao Kulkarni Vs.The State of Maharashtra in Writ Petition No. 9224 of 2015. Hewas also co-delinquent. He was removed from the services. Boththe Courts below in that case held that he was not workman, as he16 of 18 WP-3132-2008was Assistant Engineer. His petition was entertained by theDivision Bench. The following order was passed.“10.(i)The punishment imposed upon thepetitioner of removal from service is quashed and setaside.(ii)The respondent shall proceed with the inquiry inthe disciplinary proceedings from the stage of evidenceafresh. The respondent shall conclude the disciplinaryproceedings within four months from the date ofappearance of the petitioner.(iii)The petitioner shall appear in the disciplinaryproceedings on 18.12.2018. The respondent may directits Presenting Officer to remain present in the inquiryproceedings on that date.(iv)The petitioner shall be under suspension, till heattained the age of superannuation. As stay was grantedby the Labour Court and the petitioner was in service till24.03.2008, the subsistence allowance may be paid from24.03.2008 till the date the petitioner attained the age ofsuperannuation, within one month.(v)The amount, if any, already paid from 24.03.2008,shall be adjusted accordingly.(vi)The superannuation of the petitioner and allretiral benefits would be subject to the decision that maybe taken by the disciplinary authority in the disciplinaryproceedings.”28.It is brought on record that vide order dated10.03.2021. Co-delinquent was inflicted the penalty of withdrawalof 50% of the pension permanently. The impugned order in thecase at hand do not spell out any reasons for imposing harsher17 of 18 WP-3132-2008penalty. It is overlooked that the petitioner was not onlydelinquent for causing loss to respondents. Penalty is aimed atmaking good the loss. Then it is unreasonable to saddle entireliability on petitioner.29.We are of the considered view, that punishmentimposed on the petitioner in the present matter is disproportionate.Ends of the justice would be subserved if the punishment is reducedto withdrawal of 50% of pension permanently. We hold that thisquestion needs to be answered in favour of the petitioner partly. Forthe reasons assigned above we pass following order.ORDER(i)The petition is partly allowed.(ii)The order dated 30.10.2006 passed by the respondent No. 2and order dated 20.02.2008 passed by the appellate authority aremodified by imposing the penalty of withdrawal of 50% of theretiral benefits with permanent effect. (iii)Petitioner shall be disbursed 50% of the pension.(iv)The respondents shall disburse the balance amount to thepetitioner for the period from 30.11.2001, which is withheld.(v)Rule is made absolute in above terms. (SHAILESH P. BRAHME, J.) (S. G. MEHARE, J.)Komal Kamble/18 of 18