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2012 DIGILAW 385 (BOM)

Shankar Shivling Swami v. State Of Maharashtra

2012-02-22

D.G.KARNIK, S.B.DESHMUKH

body2012
Judgment :- Oral Judgment: [D.G. Karnik, J.] 1. The learned counsel for the petitioner does not want to prosecute the petition against the respondent No.3. Petition against respondent No.3 is disposed of for non prosecution. 2. Rule. Rule returnable forthwith. Learned counsel for respondent nos. 1 and 2 waive service. By consent taken up for final hearing. 3. The petitioner was employed as a cashier in the Municipal Council, Beed [respondent no.2]. He was suspended from his services on 16.1.1991 on the charge of misappropriation. However, no departmental inquiry was initiated against him immediately thereafter. Petitioner was also prosecuted by instituting criminal cases i.e R.C.C. No.170/1994 and 171/1994. The petitioner was acquitted from both the criminal cases on May 2, 2005. 4. In the meanwhile, the petitioner retired from services on attaining age of superannuation on 31st March, 2002. No Departmental inquiry was initiated against the petitioner at any time before his retirement and the petitioner was allowed to retire without commencement of any Departmental inquiry against him on the alleged charge of misappropriation. For the first time, Departmental inquiry was initiated against the petitioner by an order dated 16.10.2008. By this petition, the petitioner challenges the order initiating departmental inquiry against him. 5. It is the contention of the petitioner that no departmental inquiry could be commenced against him after 31st March, 2002 as he was no longer a municipal employee. He was allowed to retire on 31st March, 2002. 6. Learned counsel for the respondent was unable to point out any Rule which permits initiation of a Departmental inquiry against a person, who is not its employee on the date of initiation of the inquiry, or against a person who was retired prior to the initiation of the inquiry. Counsel for the respondent No.2 states that Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 [for short the Act] are applicable to Municipal employees and that inquiry was initiated under Rule 8 thereof. Sub Rule 1 of Rule 8 of the Rules provides that no order of imposition of major penalty shall be made except after an inquiry held, in the manner provided under Rule 9. Sub Rule 1 of Rule 8 of the Rules provides that no order of imposition of major penalty shall be made except after an inquiry held, in the manner provided under Rule 9. Sub rule (2) of rule 8 of the Rules provides that ‘whenever the disciplinary authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehavior against a Government servant, it may itself inquire into, or appoint inquiry officer to hold inquiry.’ 7. Sub Rule 1 of Rule 8 of the Act contemplates dismissal of employee from services only after holding inquiry. Sub rule 2 contemplates inquiry against a person in employment of Government. There is no question of terminating the services of an employee, who is not in service at all. Similarly, there is no question of holding an inquiry in regard to the allegations of misconduct against a person who is not in the service at all. 8. In our view, departmental inquiry cannot be initiated against a person, who is lawfully allowed to retire from services, on superannuation. We express no opinion whether a departmental inquiry which has been initiated before the retirement can be continued after retirement. In the present case, departmental inquiry which is sought to be against the petitioner after requirement, obviously, is illegal and is required to be quashed and set aside. We, accordingly, allow the writ petition and quash and set aside the impugned order dated 16.10.2008 initiating departmental inquiry against the petitioner. 9. Rule is made absolute in terms of prayer clause [B].