Partly allowed

Harihar Shrirang Kulkarni v. the State of Mahrashtra and Ors.

Bombay HC16 Aug 2012WP/7529/2011

Case brief

AI extract

What is this about?

The Court held that a respondent authority lacks the power to continue or initiate departmental inquiry proceedings against an employee after they have superannuated. Quashing such proceedings, the petitioner was directed to seek release of pension benefits.

What did the court decide?

Petition partly allowed and rule made absolute. Direction to petitioner to make representation for release of pension and other benefits within six weeks; respondent to consider it within further six

Harihar Shrirang Kulkarni Vs the State of… — Pension and Retirement Benefits | Bombay HC (2012)

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1 W.P.7529.11

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 7529 OF 2011

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Dr. Harihar S/o Shrirang Kulkarni
Age 59 Years, Occup.Retd.
R/o Chaintanya Housing Society
Gajanan Mandir Road,Garkheda
Aurangabad.

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...PETITIONER.

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 VERSUS

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1. The State of Maharashtra Through its Secretary, School Education Department Mantralaya, Mumbai -32

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2. The Director of Audit Education Pune, Through its Chairman

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3.The Director,
The Maharashtra State Institute
of Adult Education, Near Govt
B.Ed. College Hostel,
Padampura, Railway Station
Road, Aurangabad.

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...RESPONDENTS.

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 ...
 Shri H.A.Joshi,Advocate for Petitioner.
 Shri K.S.Patil,AGP for Respondents No.1 &2
 Shri F.R.Tandale,Advocate for Respondent NO.3

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...

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 WITH

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 REVIEW APPLICATION NO. 227 OF 2012

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 The Director,
The Maharashtra State Institute
of Adult Education,Through
Vijay S/o Pomaji Jadhav,

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2 W.P.7529.11

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Assistant Director Holding
Additional Charge of Director,
Near Government B.Ed. College Hostel
Padampura, Railway Station
Road, Aurangabad. ...APPLICANT.

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 VERSUS

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1. The State of Maharashtra Through its Secretary, School Education Department Mantralaya, Mumbai.

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2. The Director of Audit Education Pune, Through its Chairman

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3.Dr. Harihar S/o Shrirang Kulkarni
Age 60 Years, Occup.Retd.
R/o Chaintanya Housing Society
Gajanan Mandir Road,Garkheda
Aurangabad. ...RESPONDENTS.

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...

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 Shri F.R.Tandale,Advocate for Applicant
 Shri K.S.Patil,AGP for Respondents No.1 &2
 Shri H.A.Joshi,Advocate for Respondent NO.3.

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 ....

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CORAM: B.P.DHARMADHIKARI AND
 SUNIL P.DESHMUKH,JJ.

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 DATE : 16.08.2012.

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P.C.:

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. Rule, returnable forthwith.

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2. Heard learned respective counsel.

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3 W.P.7529.11

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3. Only question before this Court is, whether
respondent possesses power to proceed further with
departmentalenquiryafteremployeehas

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superannuated. This Court has specifically noted
this question on 17.07.2012 and matter was
adjourned to today after imposing costs.

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4. The facts show that by order dated 27.02.2009
the respondent no.3 has permitted the petitioner
to retire on reaching age of superannuation i.e.
58 years with effect from 28.02.2009. The order
also refers to resolution of the Managing
Committee dated 12.02.2009, which takes note of

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serious lapses and irregularities by the
petitioner and recommended holding of preliminary
enquiry.

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5. The petitioner submits that though period
of three years has expired his terminal
benefits/retirement benefits have not been
released. It is further urged that respondent
cannot proceed further with any departmental

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4 W.P.7529.11 proceedings as petitioner has already

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superannuated.

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6. The learned counsel for respondent no.3 has

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strenuously demonstrated that misconduct was
noticed when the petitioner was in employment and
steps were already initiated then only. He submits
that therefore only order of superannuation dated
27.02.2009 is subject to result of departmental
proceedings.

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7. Our attention has been invited to Staff

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Regulation, which are adopted by respondent no. 3
in the light of Rules and Regulation the Society
particularly 39(3)(b), and the Resolution of
Governing Council dated 23.03.1978 which is filed
along with pursis by respondent no.3 on
02.08.2012.

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8. The learned counsel appearing for respondent

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no. 3 has submitted that reference in said
Governing Council Meeting to rules and regulation

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5 W.P.7529.11

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is to memorandum of Association of respondent

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no.3.

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9. In order to find out whether Staff Regulations permit respondent no. 3 to hold or to continue departmental inquiry after the superannuation, our attention has been invited to Section XIII. We find that regulation 78 therein is about applicability of the provisions of Employees Provident Funds Act. Regulation 79 states that the Bombay Civil Services (Conduct, Discipline and Appeal Rules) and Classification Control and Appeal Rules framed by the Government of Maharashtra, to the extent they are not repugnant to or inconsistent with the Staff Regulations framed by respondent No.3 apply to the employees mutatis mutandis . Regulation 80 is also on same lines but speaks of non industrial employees.

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10. The discipline and appeal procedure is laid
down in section XI which is titled as Discipline
and Conduct. Regulation No. 34 is about due

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6 W.P.7529.11

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diligent discharge of duties, while Regulation 35

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is about Administrative Head, Regulation 36
prescribes various punishments, which can be
inflicted, Regulation 36 is with regard to
procedure to be followed. Regulation 38 states
thatemployeewhoisdismissedfrom
employment/service in accordance with the
procedure outlined in regulation 36 shall not be
entitled to any leave earned by him by virtue of
services rendered under respondent no.3.

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11. Thus, section XI is complete Code in itself
insofar as aspects of discipline, conduct and
punishment are concerned. It does not speak of any
punishment upon superannuated employee. Thus, by
taking recourse to Regulations 79 or 80 supra
concept not recognized in said chapter/Section
cannot be imported.

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12. In other words, respondent no. 3 does not
have any power to continue departmental enquiry
after employee is superannuated and it cannot

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7 W.P.7529.11

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initiate any departmental proceedings after such
superannuation.

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13. Order dated 27.02.2009 at Exhibit A with
petition overlooks this situation. It permits
petitioner to retire on his superannuation. It
also does not recommend initiation of any
departmental proceedings and only preliminary
enquiry has been recommended.

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14. In view of these findings, it is apparent
that respondent no. 3 cannot proceed with
departmental enquiry against the petitioner, who
has allegedly superannuated on 27.02.2009.

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15. In this situation, we direct the petitioner

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to make proper representation to respondent no.3
for release of his pension and other benefits in
accordance with law within a period of six weeks
from today. If such representation is made
respondent no.3 is free to consider it in
accordance with law within further period of six

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8 W.P.7529.11

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weeks.

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16. Looking to the sincere efforts of the learned
counsel for respondent no.3, we recall the order
dated 17.07.2012 to the extent of imposition of
costs upon respondent no.3. Review application is
also partly allowed to that extent and disposed of
accordingly.

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17. The Petition is thus partly allowed. Rule
made absolute accordingly. No costs.

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 Sd/- Sd/-

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[SUNIL P.DESHMUKH,J.] [B.P.DHARMADHIKARI,J.]

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MTK

Harihar Shrirang Kulkarni v. the State of Mahrashtra and Ors.

Case brief

What is this about?

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Harihar Shrirang Kulkarni v. the State of Mahrashtra and Ors.

Case brief

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What the court decided

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