BALAJI TULSHIRAM KEDARE v. THE STATE OF MAHARASHTRA THROUGH ITS ADDL CHIEFSECRETARY AND OTHERS
Legal Reasoning
931-WP-10174-2024.odtIN THE HIGH COURT OF JUDICATURE OF BOMBAYBENCH AT AURANGABAD WRIT PETITION NO. 10174 OF 2024BALAJI TULSHIRAM KEDARE VERSUS THE STATE OF MAHARASHTRA THROUGH ITS ADDL CHIEFSECRETARY AND OTHERS.…Mr. A. S. Deshmukh, Advocate for the Petitioner Mr. S. P. Wakale, AGP for the Respondent – State .…CORAM: RAVINDRA V. GHUGE ANDY. G. KHOBRAGADE, JJ.DATE:19.09.2024PER COURT :- 1.The Petitioner is before this Court as against a limitedgrievance. The Petitioner had preferred Original ApplicationNo.584 of 2022, pertaining to his minor punishment, before thelearned Maharashtra Administrative Tribunal at Aurangabad. By adetailed judgment running into 36 pages dated 06.05.2024, thelearned Tribunal issued the following directions:-“ORDERThe Original Application is partly allowed in thefollowing terms:- 1 of 6 (( 2 ))931-WP-10174-2024(A)The impugned order dated 04.12.2018 is herebyquashed and set aside to the extent of failure on thepart of the respondent authorities to determine andgrant the pay and allowances to the applicant whichwould have been entitled, had he not been suspendedin terms of provisions of sub-rule (5) of Rule, 72 ofMaharashtra Civil Services (Joining Time, ForeignService and Payments during Suspension, Dismissaland Removal) Rules, 1981.(B)The respondent authorities shall pay the pay andallowances to the applicant which would have beenentitled, had he not been suspended in terms ofprovisions of sub-rule (5) of Rule 72 of MaharashtraCivil Services (Joining Time, Foreign Service andPayments during Suspension, Dismissal and Removal)Rules, 1981.(C) The respondent authorities shall also grant thesubsistence allowances to the applicant in accordancewith the provisions of Rule 68 of Maharashtra CivilServices (Joining Time, Foreign Service and Paymentsduring Suspension, Dismissal and Removal) Rules,1981. (D)The respondent authorities shall pay aforesaid amountsas per clause (B) and (C) as expeditiously as possiblepreferably within the period of three months from thedate of this order.(E)The rest of the impugned order dated 04.12.2018stands confirmed.(F)In the circumstances, there shall be no order as tocosts.(G)The Original Application is accordingly disposed of.” 2 of 6
Decision
(( 3 ))931-WP-10174-20242.The learned Tribunal, after Summer vacation, noticed anerror in it’s order and suo-moto took up the matter for review. Afterhearing all the litigating parties, the learned Tribunal deleteddirection (C) and modified the direction (D), as under:-“ORDER(i)The Suo Moto Review Application is hereby allowed.(ii)Clause (C) of the operative part of the order dated06.05.2024 in O.A. No.584/2022 stands deleted.(iii)In Clause (D) of the operative part of the order referenceto clause (C) stands deleted.(iv)So far as clause (D) of the operative part of the order isconcerned, the respondent authorities shall payaforesaid amounts as per clause (B) as expeditiously aspossible preferably within the period of three monthsfrom the date of its order.(v)The Suo Moto Review Application is accordinglydisposed of. No order as to costs.”3.The explanation tendered by the learned Tribunal forsuch suo-moto modification is visible in paragraph Nos. 4, 5, 6 and 7of it's order dated 19.06.2024, which read as under:-“4.In terms of clause (B) of the operative part of the order,the respondent authorities have been directed to pay “the payand allowances” to the applicant, which would have beenentitled, had he not been suspended in terms of provisions ofsub-rule (5) of Rule 72 of Maharashtra Civil Services (Joining 3 of 6 (( 4 ))931-WP-10174-2024Time, Foreign Service and Payments during Suspension,Dismissal and Removal) Rules, 1981. However, inadvertently,since the subsistence allowance was not granted to theapplicant, in terms of clause (C) of the operative part of theorder, the respondent authorities have also been directed togrant the subsistence allowances to the applicant in accordancewith the provisions of Rule 68 of Maharashtra Civil Services(Joining Time, Foreign Service and Payments duringSuspension, Dismissal and Removal) Rules, 1981. 5.In fact, in terms of Rule 74 of the Rules of 1981,adjustment of subsistence allowance against final payment isrequired to be made. Rule 74 of the Rules of 1981 reads asunder:- “74.Adjustment of subsistence allowance against finalpayment. - The amount of subsistence allowance, if any,already drawn is to be deducted from the pay andallowances or proportion of them which may be grantedunder Rule 70, 71 or 72 as the case may be.”6.In the instant case, by clause (B) of the operative part ofthe order since the respondent authorities have been directedto pay “the pay and allowances” to the applicant in terms ofsub-rule (5) of Rule 72 of Maharashtra Civil Services (JoiningTime, Foreign Service and Payments during Suspension,Dismissal and Removal) Rules, 1981, there need no directionsto grant subsistence allowance separately to the applicant inaccordance with the provisions of Rule 68 of the Rules of 1981.It has been discussed in detail in para No.30 of the body of thejudgment about the applicant’s entitlement for subsistenceallowance during the suspension in terms of the provisions ofRule 68 of the Rules of 1981. However, the same shall not berequired in terms of the observations made hereinabove.7.In view of above discussions and in terms of theprovisions of Rule 74 of the Rules of 1981 as reproduced 4 of 6 (( 5 ))931-WP-10174-2024hereinabove, clause (C) of the operative part of the order dated06.05.2024 is required to be deleted. So also in clause (D),there is a reference about clause (C) directing the respondentauthorities to pay the amounts as per clause (B) and (C) intime bound manner, the same shall now be restricted to theextent of clause (B) alone by deleting the Clause (C) also. ……”4.Having considered the extensive submissions of ShriDeshmukh, we find that the Tribunal has rightly noticed the error thathad inadvertently crept in, into the judgment delivered. Havingnoticed Rule 72 (5) and Rule 74 of the 1981 Rules, it has carried outthe modification keeping in view Rule 68. 5.We are exercising our supervisory jurisdiction. Theoriginal jurisdiction lies with the Tribunal. Merely because a differentview is possible, would not mean that this Court should brand ajudgment of the Tribunal, as been perverse or erroneous, in the lightof the law laid down by the Hon'ble Supreme Court in Syed YakoobVs. K. S. Radhakrishnan, AIR 1964 SC 477 and Surya Dev Rai Vs.Ram Chander Rai, AIR 2003 SC 3044 : 2003(6) SCC 682. 6.In view of the above, we do not find any merit on the saidissue in this Writ Petition. 5 of 6 (( 6 ))931-WP-10174-20247.Insofar as the suspension of the Petitioner and thesubsequent order of punishment is concerned, it is settled law that if aperson is completely exonerated of the charges levelled upon him, thesuspension may be converted into ‘on duty’. Once the charges areproved against a delinquent and an order of punishment is passed,the issue as to whether the suspension should be treated as ‘on duty’and whether full salary should be paid, is within the domain of theemployer. The decision of the employer dated 04.12.2018 and thesubsequent orders dated 08.03.2019 and 10.03.2022, have been dealtwith by the learned Tribunal in details in the impugned judgment. 8.For the reasons recorded above , we do not find that thereis any reason to further scrutinise the decision of the employer whohas inflicted minor punishment on the Petitioner. 9.For the above reasons, the Writ Petition stands dismissed. [ Y. G. KHOBRAGADE, J. ] [ RAVINDRA V. GHUGE, J. ]SMS 6 of 6