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Judgment
Heard.
Rule.
Mr. D. V. Mahajan, learned counsel waives notice for respondent no. 1 and Mr. T. M. Zaheer, learned counsel waives notice for respondent no. 2.
On 11-7-2022, following order was passed.
“It is the case of the petitioner that though he was initially appointed with respondent No.1, his services were deputed at Zilla Parishad, Amravati on 25/7/2001. While on deputation, the petitioner retired on superannuation on 1/10/2018. The Zilla Parishad had sought to initiate disciplinary proceedings against the petitioner which were challenged in Writ Petition No. 7074/2019. This Court held that the said proceedings ought to have been initiated under the Maharashtra Zilla Parishad District Services (Discipline and Appeal) Rules, 1964 and not under the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979. That action was set aside in the said Writ Petition. Thereafter, respondent No.1 on 29/3/2022 has sought to initiate fresh disciplinary proceedings against the petitioner despite the fact that the petitioner has superannuated on 1/10/2018.
Issue notice to the respondents, returnable in four weeks.
In light of the earlier adjudication in Writ Petition No. 7074/2019 and as the petitioner has already superannuated, there shall be ad interim relief in terms of prayer clause (iii).”
As could be seen, the departmental enquiry has been initiated after about four years of the retirement of the petitioner. The Government Servant as defined under the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (for short ‘Rules of 1979’) does not include retired employee. That being so, the respondents shall justify initiating action under Rule 8 of the Rules of 1979.
The reply has been not filed till today. That being so, the contention raised in the petition remained unchallenged.
Learned counsel for the respondents shall take instructions and apprise us as to how the departmental enquiry is maintainable.
Kept back at 2.30 p.m.
Later on, learned counsel for respondent no. 1 submits that post retirement, the departmental proceedings could be initiated in terms of Rule 27 of the Maharashtra Civil Services (Pension) Rules, 1982. We have gone through the provision, the relevant portion of which reads as under :
“27. Right of Government to withhold or withdraw pension.
(1)[Appointing Authority may], by order in writing, withhold or withdraw a pension or any part of it whether permanently or for a specified period, and also order the recovery, from such pension, the whole or part of any pecuniary loss caused to Government, if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement.
Provided that the Maharashtra Public Service Commission shall be consulted before any final orders are passed in respect of officers holding posts within their purview:
Provided further that where a part of pension is withheld or withdrawn, the amount of remaining pension shall not be reduced below the minimum fixed by Government.
(2)(a) The departmental proceedings referred to in sub-rule (1), if Instituted while the Government servant was in service whether before his retirement or during his re-employment, shall, after the final retirement of the Government Servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service.
(b)The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,-
(i)shall not be instituted save with the sanction of [Appointing Authority],
(ii)shall not be in respect of any event which took place more than four years before such institution, and
(iii)shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.
(3)…..
(4)…..
(5)…..
(6)…..”
As could could be seen, clause (b) of sub-rule (2) of Rule 27 provides that the departmental proceedings, if not instituted while the Government Servant was in service, it shall not be instituted, save with the sanction of the appointing authority. Such sanction is not produced by the respondents. The rule further provides that post retirement, the departmental proceedings cannot be instituted in respect of any event which took place more than four years before the institution of departmental proceedings.
In the present case, the departmental proceedings have been initiated on 29-3-2022. The event for which departmental proceedings are initiated, occurred in the year 2017. That being so, the event occurred more than four years before the institution of departmental proceedings. In that sense, the action of respondent is faulted for two reasons, one is that, the departmental proceedings have been initiated without the sanction of appointing authority and, second is that, the event for which enquiry is initiated took place more than four years before the institution of enquiry. The respondent thus failed to justify initiation of enquiry. Accordingly, the petition is allowed. Charge-sheet dated 22-3-2022 issued to the petitioner is quashed and set aside. The respondents shall release post retiral benefits to the petitioner as permissible in law.
Rule is made absolute in terms of above.