Full Judgment Text
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY :
NAGPUR BENCH : NAGPUR.
Writ Petition No. 2355 of 2014
Dattatreya Mahadev Pusalekar,
aged about 60 years, Occ.Retired,
resident of MII Vidnyar Nagar
MHADA Colony Manewada, Nagpur34. .... Petitioner.
Versus
1] State of Maharashtra,
Department of Industries,
Development and Labour,
through its Principal Secretary,
Mantralaya, Mumbai32.
2] Maharashtra Small Scale Industries Development
Corporation Limited, through its General Manager/
Managing Director, Krupa Nidhi, 9,
WalchandHirachand Marg, Ballard Estate,
Mumbai01.
3] Divisional Manager,
Maharashtra Small Scale Industries Development
Corporation Limited, Wardha Road,
Nagpur. .... Respondents.
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Shri A.R. Patil, Advocate for petitioner.
Shri D.N. Kukday, Advocate for resp. nos.2 and 3.
Ms Ritu Kaliya AGP for resp. no.1.
Writ Petition No. 4773 of 2014
Dattatraya Mahadev Puslekar,
aged about 60 years, Occ.Retired,
resident of M11, Vidnyan Nagar,
MHADA Colony, Manewada, Nagpur34. .... Petitioner.
Versus
1] State of Maharashtra,
Department of Industries,
Development and Labour,
through its Principal Secretary,
Mantralaya, Mumbai32.
2] Maharashtra Small Scale Industries Development
Corporation Limited, through its General Manager/
Managing Director, Krupa Nidhi, 9,
WalchandHirachand Marg, Ballard Estate,
Mumbai01.
3] Divisional Manager,
Maharashtra Small Scale Industries Development
Corporation Limited, Wardha Road, Nagpur.
(Amended as per Court’s
4] P.M. Malwadkar,
R/o.2/45, Teachers Colony order dated 23062015)
Bandra (East), Mumbai400 051.
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Amended as per Court’s
5] Purushottam Kamlakar Raut, (
Enquiry Officer, LQuarter No.35, order dated 16032016)
near Dr. Babasaheb Ambedkar Garden,
Vaishali Nagar, Nagpur440017. .... Respondents.
Shri A.R. Patil, Advocate for petitioner.
Shri D.N. Kukday, Advocate for resp. no.3.
Ms Ritu Kaliya AGP for resp. no.1.
Coram : B.P. Dharmadhikari &
Mrs. Swapna Joshi, JJ.
Dated : 12
th
January, 2017.
ORAL JUDGMENT (Per B.P. Dharmadhikari, J.)
The petitioner, who retired after attaining the age of
superannuation, as Assistant Manager, from the employment of
the Maharashtra Small Scale Industries Development
Corporation on 30112012, is before this Court in these two
petitions. The grievance in Writ Petition No.2355 of 2014 is about
not releasing the retirement/terminal dues. That petition has
been filed on 30042014 i.e. about two years after
superannuation. The employerCorporation filed its reply therein
and pointed out that a show cause notice dated 09122011 was
served upon the petitioner and thereafter memorandum along
with articles of charges was also served upon him on 27112012.
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As departmental enquiry was going on, the dues could not have
been paid.
2] In the light of this disclosure in replyaffidavit, the petitioner
filed later petition pointing out that the Service Rules do not
empower the employerCorporation to proceed against the
superannuated employee.
3] After hearing the respective Advocates, we find that the
petitioner in Writ Petition No.4773 of 2014 had placed reliance
upon a judgment dated 31012012 delivered at Principal Seat at
Bombay in Writ Petition No.322 of 2011 ( Prakash Krishnaji
Jambavdekar vrs Maharashtra Small Scale Industries
Development Corpn. Ltd. (MSSIDC) & Ors .), holding that there is
no such power with present respondents. That judgment has
attained finality.
4] The respondents have come up with defence that they have
amended the service rules after the said judgment and
specifically the power to proceed departmentally against such
employees has been acquired. In the light of that amendment,
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which has come into force from 21032012, the employer
Corporation has right to proceed against the petitioner who has
retired thereafter i.e on 30112012.
5] The only question debated before this Court in this situation
is : Whether said amendment has come into force on 21032012
or then on 26062013 when the Administrative Department
issued a memorandum about it.
6] Learned Advocate Shri Patil for the petitioner submits that
the date on which the memorandum has been issued by the
Administrative Department is the relevant date and therefore the
employees who retired either on 26062013 or thereafter only
can be subjected to amended rules.
7] According to learned Advocate Shri Kukday for the
respondent nos. 2 and 3, the rule gets amended on the date on
which the Board of Directors has passed resolution i.e. on
21032012 and hence prior to retirement of the petitioner the
employer had secured to itself the power to proceed against him.
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8] The perusal of resolution passed against the Item No:11
Subject No.323 shows the proposed amendment to the
Employees Service Rules for initiating departmental enquiry
against an employee upto period of five years after his
retirement/resignation. After discussion, the effective resolution
is :
“RESOLVED THAT “Approval be and is hereby
accorded for amending the ESR to provide for
initiating DE against the Employees upto a
period of four years after his/her retirement or
resignation where the situation so warrants on
the lines provided in MCSR”.
9] However, immediately after this, there is further resolution
and Managing Director is authorized to incorporate the said rule
in Service Rules of Corporation.
10] Thus, the power to add this amendment as part of the
Employees’ Service Rules was delegated to the Managing
Director by this later part. In exercise of this delegation, the
General Manager (Administration) has issued Office
Memorandum dt. 26062013 on the subject of amendment. This
Office Memorandum carries a preamble which very briefly gives
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history of passing of resolution and then actual fact of moving the
proposal in Subject No:323, Board meeting held on 23032012.
The Office Memorandum concludes by observing that :
“The Board approved the proposal and the ESR
stands amended as follows :
“In case of employees retired or resigned from
the services of the Corporation, a Departmental
Enquiry can be initiated against such employee
upto a period of four years after his/her
retirement or resignation where the situation so
warrants on the lines provided in MCS Rules.”
11] Thus, the General Manager has after pointing out the
approval of Board pointed out the amended ESR. It is, therefore,
apparent that the Board resolution has been implemented
through this Office Memorandum on 26062013. There is
nothing on record to show that the Board resolution needs tobe
given effect to before its implementation or execution by the
General Manager. The respondents have not pointed out any
provision which has the effect of amending the rules merely by
act of passing of resolution by the Board without its publication
for the general information of the employees. The Board itself
has not given any date for coming into force of such amendment.
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12] We, therefore, find substance in the contention of learned
Advocate Shri Patil for the petitioner that the rules are amended
for the first time on 26062013 and hence the petitioner who has
retired on 30112012 cannot be subjected to the amended
provision. Board itself finds “incorporation” of its resolution as
part of Service Rules essential & hence till so incorporated, the
amendment & Rules do not come into force.
13] Accordingly, we quash and set aside the chargesheet as
also departmental enquiry initiated against the petitioner by
respondent no.2Corporation.
14] We direct the respondent no.2Corporation, to release all
his terminal/retiral dues as prayed for in prayer after proper
calculation thereof, within period of four months from today.
15] If the Service Rules contain any stipulation for paying
interest on such delayed payment/ interest, accordingly, shall also
be paid to the petitioner. In absence of such provision, the
interest calculated at the rate of 7% per annum on the said
amount shall also be paid to him till the date of actual payment.
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16] Rule is made absolute accordingly in both the petitions. No
costs.
JUDGE JUDGE
Deshmukh
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