JUDGMENT : FIRDOSH P. POONIWALLA, J. 1. RULE. Rule made returnable forthwith and heard finally by consent of the parties. 2. By this Petition, the Petitioner challenges an Office Order dated 30th December, 2022 (Ex. ‘F’ to the Petition) to the extent that it contemplates initiation of enquiry against the Petitioner and also seeks an order for release of retiral benefits of the Petitioner. 3. By an Office Order dated 26th July, 1989, the Petitioner was appointed to the post of Assistant Engineer Grade-I with MIDC. 4. In 2002, the Petitioner was promoted to the post of Deputy Engineer. During his tenure, the Petitioner was also posted at MIDC, Sinnar, Sub-Division. Thereafter, vide Office Order dated 31st January, 2006, the Petitioner was transferred to the Dhule Sub-Division. 5. After having served for more than 33 years, the Petitioner was relieved from his duties on account of superannuation w.e.f. 30th December, 2022. This was communicated to the Petitioner by an Office Order dated 30th December, 2022 (Ex. ‘C’ to the Petition). At the time of superannuation, the Petitioner was working on the post of Executive Engineer in the office of the Chief Engineer, MIDC Headquarters, Pune. 6. Since he did not receive his retiral benefits even though more than two weeks had passed since his superannuation, the Petitioner, by his letter dated 11th January, 2023, requested Respondent Nos. 1 to 3 to issue appropriate directions to the concerned Officers to release his retiral benefits. 7. Thereafter, in response to an application made on 11th January, 2023 under the Right to Information (‘RTI’) Act, the Petitioner was served with a copy of an Office Order dated 30th December, 2022 (Ex. ‘F’ to the Petition) wherein it was stated that the erstwhile CEO of MIDC had ordered that responsibility was to be fixed in respect of the enquiry pertaining to the land acquisition at Sinnar (Malegaon), Phase-I, at village Malegaon, Taluka Sinnar. It was further stated therein that, as per letter dated 8th September, 2022 issued by the Regional Officer, MIDC, Nashik, the Petitioner was a member of the Land Selection Committee which carried out site inspection on 6th November, 2015 and that initiation of inquiry in respect thereof was pending. The said Office Order further stated that an independent decision would be taken as regards the retiral benefits payable to the Petitioner. 8. The said Office Order further stated that an independent decision would be taken as regards the retiral benefits payable to the Petitioner. 8. Thereafter, pursuant to an RTI application made by him, the Petitioner received a copy of the said letter dated 8th September, 2022, issued by the Respondent No. 4, which stated that the Land Selection Committee had submitted its Inspection Report dated 6th November, 2015 and gave the names of the members of the Land Selection Committee, which included the name of the Petitioner. The Petitioner also received, under RTI, the said Inspection Report dated 6th November, 2015. 9. Being aggrieved by the non-payment of his retiral benefits, the Petitioner addressed a letter dated 11th February, 2023 to the Chief Account Officer, MIDC, pointing out that the retiral benefits payable to him had been illegally withheld without any prior notice or intimation and further requested him to inform the Petitioner about the amount payable to him as on 30th December, 2022 towards Provident Fund (PF) and Gratuity. In response thereto, the Chief Account Officer, by two letters dated 17th January, 2023 and 20th February, 2023, informed the Petitioner that the amount of Gratuity calculated was Rs. 30,93,960/- limited to Rs. 20 lakhs, while the total amount of PF and interest thereon was to the tune of Rs. 73,31,635/-. 10. Despite repeated requests, the Petitioner was not paid his retiral benefits. The Petitioner, therefore, made another detailed representation dated 7th March, 2023 to the Respondents whereby he requested them to withdraw the Office Order dated 30th December, 2022 (Ex. ‘F’ to the Petition) and to release all the retiral benefits payable to him within 15 days from the receipt of the said representation. The Petitioner specifically pointed out that there was no provision in the MIDC Rules or in the Maharashtra Civil Services (Discipline and Appeal) Rules, 1989 for initiation or continuation of an enquiry against employees after their superannuation. 11. Despite the aforesaid representation, the Petitioner has, till date, not received retiral benefits. In fact, the Respondents have not at all responded to the Petitioner’s representation dated 7th March, 2023. 12. In these circumstances, the Petitioner filed the present Petition. The main submission of the Petitioner is that the actions of the Respondents are contrary to the law laid down by this Court in Dhairyasheel A. Jadhav vs. Maharashtra Agro Industrial Development Corporation Ltd. 2010 (2) Mah. 12. In these circumstances, the Petitioner filed the present Petition. The main submission of the Petitioner is that the actions of the Respondents are contrary to the law laid down by this Court in Dhairyasheel A. Jadhav vs. Maharashtra Agro Industrial Development Corporation Ltd. 2010 (2) Mah. L.J. 618. 13. Paragraphs 9 to 12 of the Judgement in Dharyasheel (supra) are relevant and are set out herein-below: “9. We have heard the learned Counsel for the parties. We may gainfully refer to sub rule 27 (2)(a) of the Maharashtra Civil Services (Pension) Rules, 1982, which reads as under: 27. Right of Government to withhold or withdraw pension: (1).......... “(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.” It is thus clear that in the event departmental proceedings was instituted it can be continued and conclude “as if the Government servant has continued in service.” Thus, by a deemed fiction though relationship of employer and employee has ceased, the rules continue the relationship pursuant to which the departmental proceedings can be proceeded with. There is no provision in the Maharashtra Civil Services (Discipline and Appeal) Rules, which provide for continuation of enquiry for major misconduct by issuing of charge-sheet. The penalties are set out under section 5. If a Government servant is not in service then none of those penalties can be imposed. Thus, any enquiry initiated and in which there is no provision for continuing enquiry must cease on the employee being allowed to superannuate, in the absence of the provisions like Rule 27 of the Maharashtra Civil Services (Pension) Rules, 1982. 10. Let us now examine the authorities cited at Bar to consider the contentions urged on behalf of the petitioner herein. In Bhagirathi Jena (supra), we may gainfully refer to paragraph Nos. 6 and 7 which read as under: “6. 10. Let us now examine the authorities cited at Bar to consider the contentions urged on behalf of the petitioner herein. In Bhagirathi Jena (supra), we may gainfully refer to paragraph Nos. 6 and 7 which read as under: “6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of the departmental enquiry after superannuation. 7. In view of the absence of such a provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retitral benefits. Once the appellant had retired from service on 30-6-1995, there was no authority vested in the Corporation for continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement.” Thus, it is clear that only in the event that there is a provision for continuing the enquiry, the enquiry can be continued. The Supreme Court noted the judgment in the case of Takhatray Shivadattray Mankad vs. State of Gujarat, 1989 Supp. (2) SCC 110, but distinguished it on the ground that there was specific provision in the form of Rule 241-A which enabled imposition of a reduction in the pension or gratuity of a person after retirement. 11. The question is whether the judgment in the case of Kamal Swaroop Tondon (supra) has taken a view which is different than the view taken in Bhagirathi Jena (supra). Both the judgments are of co-ordinate Benches. The judgment in Bhagirathi Jena (supra) has not been considered in Kamal Swaroop Tondon’s case (supra). On the facts there, it will be clear that the respondent had superannuated and show cause notice was issued after retirement i.e. after Office hours at 6.45 p.m. on January 31 2000. Both the judgments are of co-ordinate Benches. The judgment in Bhagirathi Jena (supra) has not been considered in Kamal Swaroop Tondon’s case (supra). On the facts there, it will be clear that the respondent had superannuated and show cause notice was issued after retirement i.e. after Office hours at 6.45 p.m. on January 31 2000. The contention urged on behalf of the Corporation before the Supreme Court was firstly that if relationship of employer and employee continues and the proceedings can be continued and consequently under the U.P. State Sugar Corporation Ltd. General Service Rules, 1988 such proceedings could have been initiated even after an employee has retired since they related to the recovery of losses caused to the Corporation by the respondent employee. The learned Supreme Court observed that retiral benefits are earned by an employee for long and meritorious services rendered by him/her. They are not paid to the employee gratuitously or merely as a matter of bounty. It is paid to an employee for dedicated and devoted work. The Court then referred to the principles of gratuity. On behalf of the respondent herein it is contended that the ratio of the judgment in Kamal Swaroop Tondon’s case (supra) is that there can be no rigid, inflexible or invariable test as to when the enquiry should be continued and when they should be allowed to be dropped. The Court then observed the effect of delay in conducting the enquiry and observed that there cannot be laid down a universal proposition that if there be delay in initiation of proceedings for a particular period they must necessarily be quashed. The Court went on to observe from the case law considered that it is clear that the proceedings could have been continued since they were initiated for recovery of loss sustained by the Corporation due to negligence on the part of the respondent employee. It may be noted that it was not in dispute that the proceedings could have been initiated even after the employee had retired since relating to recovery of loss caused to the Corporation as there were rules for that purpose. 12. In our opinion, it is no doubt true, that the gratuity is a terminal benefit and is subject to the terms and conditions. 12. In our opinion, it is no doubt true, that the gratuity is a terminal benefit and is subject to the terms and conditions. Withholding of the gratuity can therefore be only if there be the provisions for withholding it in the Act or if there being any service condition which so provide. A person cannot be charged for a misconduct if it does not constitute a misconduct within the definition of misconduct either in terms of the standing order or the service regulations. Similarly, no enquiry can be conducted for misconduct if there being no statutory provisions. In the absence of any statutory provisions for continuing the enquiry, in our opinion, the ratio of Bhagirathi Jena’s case (supra) which has directly dealt with the issue would be applicable. In the case of Bhagirathi Jena (supra) the Court itself noted the effect of absence of a provision. In our opinion, therefore, the ratio of Bhagirathi Jena’s case (supra) would squarely apply. The enquiry therefore against the petitioner after his superannuation in the absence of a provision to continue enquiry is without authority of law.” 14. From the aforesaid Judgment of this Court, two principles of law clearly emerge. First, that, after superannuation, an enquiry against an employee cannot be continued in the absence of any provision permitting the same. It is obvious that, if, after superannuation, an enquiry cannot be continued, then the same can definitely not be commenced unless there is a provision enabling the employer to do so. Second, that retiral benefits cannot be withheld unless the governing statutes or service conditions so provide. 15. In the present case, at the time of issuing the Office Order dated 30th December, 2022 (Ex. ‘C’ to the Petition), relieving the Petitioner from his duties on account of superannuation, no enquiry was commenced against the Petitioner. In fact, in paragraph 9 of the Affidavit-in-Reply, filed on behalf of Respondent Nos. 1 to 4, by one Aditi N. Manjarekar, it is stated that the enquiry initiated by the Chief Executive Officer of MIDC to determine the loss caused to MIDC due to the acquisition of valley land in Sinnar Industrial Area, Phase – I and to ascertain as to which officers were responsible for the said loss, was an independent enquiry and not a departmental enquiry. Therefore, even according to the Respondents, no departmental enquiry has been commenced or is pending against the Petitioner even at present. 16. The retiral benefits to be given to the Petitioner are governed by separate regulations issued by MIDC, in respect of gratuity and PF namely - the Maharashtra Industrial Development Corporation Employees Gratuity Regulations 1983 (“Gratuity Regulations”) and Maharashtra Industrial Development Corporation Employees Contributory Provident Fund Regulations, 1968 (“PF Regulations”). The Respondents have relied upon Regulation No. 9 of the Gratuity Regulations, which reads as under: “Any sum due and payable to the Corporation by an employee may be deducted from the amount of gratuity payable under these Regulations.” 17. The Respondents have also relied upon Regulation 23 (2) of the PF Regulations, which reads as under: “Notwithstanding anything contained in the Regulation 21, when the sum standing to the credit of any member with the fund becomes payable for any reason, the Board shall, if so directed by the Corporation, deduct any amount claimed by the Corporation as the amount due to the Corporation by the member of the Corporation; provided that the amount so deductible shall in no case exceed the total amount of the employer’s contribution and interest thereon standing to the credit of the member.” 18. It is the case of the Respondents that, in the light of the aforesaid Regulations, if any amount is recoverable by MIDC, for any reason whatsoever, from its employees, then it is within its power to deduct/ adjust the same from the amount of gratuity or PF payable to the said employee at the time of his retirement, subject to the conditions mentioned in the said Regulations. 19. We are unable to accept the said submission of the Respondents. Regulation 9 of the Gratuity Regulations permits deduction from the amount of gratuity payable under the said Regulations of “any sum due and payable to the Corporation.” Regulation 23 (2) of the PF Regulations provides for deduction from the PF payable to the Petitioner of any “amount due to the Corporation.” It is clear from a reading of these Regulations that what can be deducted from the gratuity and PF of an employee of MIDC is an amount which is due from the employee to MIDC. Therefore, it must be an amount which is presently due from that employee, and not any amount that may become, if at all, payable by an employee in future due to any purported loss suffered by MIDC due to any misconduct of that employee. 20. In the present case, admittedly, no such sum is due from the Petitioner to MIDC. The only claim of MIDC seems to be for some amount, if at all, in future, on account of any loss that may have been suffered by MIDC due to the Petitioner’s alleged role in the acquisition of valley land in Sinnar Industrial Area, Phase-I. In our view, any such claim of MIDC, which may arise in the future, cannot be considered as an amount due or payable to MIDC under the aforesaid Regulations. 21. In these circumstances, in our view, nothing can be recovered from the Petitioner’s retiral benefits and the Petitioner would be entitled to all his retiral benefits without any deduction. 22. In the aforesaid circumstances, and for all reasons stated hereinabove, we pass the following order: (a) The Petitioner is entitled to receive all retiral benefits pursuant to superannuation on 30th December 2022. The Office Order dated 30th December 2022 is modified to that effect. The Petitioner’s retiral benefits be released within a period of eight weeks of receiving a copy of this Judgment. (b) Needless to state that the Respondent-Corporation is free to take steps as are permissible in law if it desires to undertake independent enquiry as referred to in Paragraph 9 of the Affidavit in Reply. (c) It is made clear that this court has not authorized holding of such enquiry and if the same is held it is open for the Petitioner to contest the same in accordance with law. (d) Rule is made absolute with no order as to costs. (e) If the retiral benefits are not paid to the Petitioner within a period of eight weeks, the amount due would carry interest at the rate of 6% per annum from the date of the judgment till date.