2019 Supreme(Bom) 270

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
S.C. DHARMADHIKARI, M.S. KARNIK, JJ.
KULKARNI SHASHIKANT BHAVANI - Appellant
Versus
BOMBAY PHYSICAL CULTURE ASSOCIATION REGISTERED SOCIETY, MUMBAI - Respondent
Writ Petition No. 1576 of 2014
Decided on : 13-02-2019

Headnote:

Maharashtra Civil Services Rules, 1982 - Indian Penal Code - Section 354 - Constitution of India, 1950 - Article 226 – Employment and service - Termination from service – Anticipatory bail - Whether petitioner is entitled to pensionary benefits claimed by him even though he has been removed from service for a proved misconduct of serious nature - Whether permanently or for a specified period if is convicted of a serious crime or is found guilty of grave misconduct - Whether before his retirement or during his re-employment - Petitioner was appointed as a lecturer in Physical Education with the respondent No.2 – College - Petitioner was earlier working as a lecturer in Physical Education - Appointment with the respondent No.2 - College was in continuation of previous service without any break - Petitioner was granted the placement benefit in Senior Scale on completion of years of service after taking into consideration his service rendered with the earlier Colleges - Respondent - Management alleged that the petitioner molested a girl student - Petitioner was taken in custody and released on bail - Petitioner was placed under suspension with effect by the respondent No.1 – Management - By judgment and order petitioner was acquitted - Petitioner wrote a letter to the respondent No.1 pointing out that since he stands acquitted from criminal charges leveled against him he should be permitted to join duty at the College - Even challenge to order of acquittal of petitioner before this Court failed - In the meantime a charge-sheet came to be issued to the petitioner by the Management - Petitioner avers that without examining any witnesses Inquiry Officer conducted Inquiry in just one sitting on a single date - On the basis of the report submitted by Inquiry Officer petitioner was issued a show cause notice for termination of his service - Said notice was challenged before this Court – Held, Petitioner is removed from service on a proved charge of grave misconduct involving moral turpitude - This being the position, if respondent No.2 has rejected the claim of the petitioner for pension on the ground that the petitioner is removed from service on account of proved charge of grave misconduct court do not find the action of the respondents is contrary to the rules or in any manner arbitrary - No doubt pension is a right of the petitioner but the same is governed by the said Rules - A plain reading of Rules 26 and 27 makes it amply clear that the government has a power to withhold permanently a pension if pensioner is found guilty of grave misconduct - Petitioner was removed from the service before he attained the age of superannuation - Removal from the service before he reaches age of superannuation will hardly be of any consequence for when claim for pension is made upon cessation of service same would be governed by the provisions of the Rules 26 and 27 of the said Rules - Conduct of the petitioner and grave nature of the proved misconduct involving moral turpitude for which the petitioner is removed from service would dis-entitle the petitioner to claim pensionary benefits - It is not possible to fathom a situation where an employee is held eligible for pension though he is removed from service upon a proved misconduct of a serious nature before attaining age of superannuation or on completion of pensionable service whereas in respect of an employee who has retired, his right to receive pension is made subject to good conduct in future. Subject to the provisions of Rules 26 and 27 departmental proceedings can be held even against a retired employee and if held guilty of grave misconduct his pension can be forfeited - Petitioner has hardly rendered months of actual service and all along was under suspension till his removal - In these circumstances respondent - Management has taken a stand with regard to gratuity that the question of payment of gratuity did not arise as there was a shortfall in minimum qualifying service for the said purpose – Court see no reason to interfere with stand of Management in the facts of the present case - Insofar as settlement of provident fund which is deducted from his salary petitioner may approach College authority for settlement of claims if not already done – Petition dismissed