K.K. TATED, J.
1 Heard learned counsel for the parties.
3 By consent heard forthwith.
4 The Petitioner, by this Writ Petition under Article 226 of the Constitution of India, challenges the enquiry initiated against him by the Respondent – Corporation after tendering resignation from service.
5 A few facts of the matter are as under:
The Petitioner is the Ex-Regional Manager of the Maharashtra Agro Industrial Development Corporation Limited i.e. the Respondent. The Petitioner was working with the Respondent – Corporation since 1st July, 1982 and he was confirmed as permanent employee by the letter dated 11th August, 1983. The Petitioner was suffering from some health problems and was on medical leave from 21st March, 2008. Due to the health problem, the Petitioner could not continue to perform his duties and as such he decided to resign from the employment and he voluntarily resigned from the services of the Respondent by letter dated 20th June, 2008 and the said resignation was accepted by the Respondent-Corporation by letter dated 30th June, 2008 relieving the Petitioner from his services from 25th June, 2008. Thereafter, on 15th July, 2009, the Respondent-Corporation served memorandum of charge-sheet alleging misconduct when the Petitioner was working as the Regional Manager in the Respondent Corporation’s office at Pune Region. Hence, the present Petition.
6 The learned counsel appearing on behalf of the Petitioner submits that the Respondent – Corporation has no power to conduct the enquiry against the Petitioner after the superannuation or after relieving him from the service of the Respondent, there being no relation of employer and employee. He further submits that there is no rule or provision under the Maharashtra Civil Services (Discipline and Appeal) Rules, which provides for holding of an enquiry for major misconduct after retirement by issuing of charge-sheet. He submits that thus the enquiry initiated in the absence of provisions for holding such enquiry is ab-initio bad in law and as such the said enquiry must cease or must be discontinued on the employee being allowed to be relieved from service. He submits that in the present case, the Petitioner resigned by letter dated 20th June, 2008 and it was accepted by the Respondent – Corporation by their letter dated 30th June, 2008 with effect from 25th June, 2008 and thereafter, the Respondent-Corporation issued memorandum of enquiry for the alleged misconduct on 15th July, 2009. As there was no relationship of the employer and employee between the Petitioner and Respondent-Corporation, Respondent-Corporation has no right to initiate and continue the said enquiry. He further submits that there is no provision in the Respondent-Corporation’s rules, regulation and resolutions permitting the Respondent-Corporation to initiate and/or to continue the enquiry in respect of misconduct after the date of retirement and/or superannuation. In support of his submission, he relies on the oral judgment of this court (Coram: Justice F.I. Rebello, as he then was and Justice A.R.Joshi) dated 5th February, 2010 in Writ Petition No.1930 of 2005. In that case also, the Respondent i.e. the Maharashtra Agro Industrial Development Corporation Limited initiated action against the said Petitioner after the date of retirement. In that case, this court held that enquiry against the Petitioner after his superannuation in the absence of provisions, rules and regulations to continue enquiry is without authority of law and this court held that the enquiry started by the Respondent – Corporation against the Petitioner was bad in law and same was set aside. The paragraph 12 of the judgment reads thus:
'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.'
7 On the basis of these submissions, the learned counsel appearing on behalf of the Petitioner submits that the Departmental Enquiry initiated by the Respondent – Corporation against the Petitioner vide Memorandum dated 15th July, 2009 is liable to be set aside. He further submits that the Respondent – Corporation failed and neglected to provide retirement benefits to the Petitioner on the ground that Departmental Enquiry is pending. He submits that though the Petitioner applied before the Controlling Authority under the Payment of Gratuity Act, 1972 on 26th March, 2010, same is not decided by the said Controlling Authority because of pending Departmental Enquiry and without no objection from the Respondent-Corporation. He submits that in view of the oral judgment of this court dated 5th February, 2010 in Writ Petition No. 1930 of 2005 (supra), the Petitioner is entitled to all his retiremental benefits also.
8 On the other hand, learned counsel appearing on behalf of the Respondent – Corporation vehemently opposed the present Writ Petition. She submits that the Petitioner failed to make out any case for interference of this Hon’ble Court under Article 226 of the Constitution of India. She further submits that for the benefit of gratuity alternate remedy is available to the Petitioner and same is adopted by him, therefore, the Petitioner is not entitled for any relief in this Petition in respect of the gratuity amount. She further submits that because of the misconduct on the part of the Petitioner, the Respondent – Corporation suffered heavy losses and therefore, they are entitled to hold Departmental Enquiry against him.
9 When we called upon the learned counsel appearing on behalf of the Respondent to point out whether there is any provision in the rules and regulations which permit them to hold and/or continue the Departmental Enquiry for any misconduct against the person after the date of retirement and/or superannuation date, the learned counsel appearing on behalf of the Respondent-Corporation fairly made a statement before this court that there is no provision under the rules and regulations of the Respondent – Corporation which permits the Respondent – Corporation to continue and/or hold enquiry for misconduct against retired person and/or after the date of attaining superannuation. She further fairly admitted that the oral judgment of this court dated 5th February, 2010 in Writ Petition No.1930 of 2005 (supra) squarely covers the present dispute also.
10 It is admitted fact that in the present case, the Petitioner tendered his resignation on 20th June, 2008 to the Respondent-Corporation. The Respondent – Corporation accepted the same on 30th June, 2008 with effect from 25th June, 2008. After about one year, the Respondent – Corporation issued a memorandum dated 15th July,2009 alleging misconduct to the Petitioner when the Petitioner was working as Regional Manager in the Respondent-Corporation’s Pune Region. Therefore, it is crystal clear that the Respondent – Corporation initiated the enquiry for the alleged misconduct against the Petitioner after one year from the date of accepting the resignation. The enquiry, therefore, against the Petitioner after his superannuation in the absence of provisions to continue enquiry is without authority of law. Undisputedly the law involved in the present Petition is squarely covered by the oral judgment in Writ Petition No.1930 of 2005 (supra) and therefore, the Petitioner is entitled to the relief in terms of prayer clause (a) of this Petition. In respect of other prayers i.e. retirement benefits, gratuity, pension etc. the Petitioner is entitled to take appropriate steps according to law. In respect of gratuity payment, the Petitioner already filed an application for direction before the Controlling Authority under sub rule (i) of Rule 10 under the Payment of Gratuity Act, 1972 on 26th Ma
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rch, 2010 and the same is pending for hearing and final disposal. We hope that considering the facts and circumstances of the present case, the Controlling Authority under the Payment of Gratuity Act, 1972 will decide the Petitioner’s application as early as possible. As the alternative remedy is available to the Petitioner, we are not deciding the other prayers of the Petitioner. 11 We hope that the Controlling Authority under the Payment of Gratuity Act, 1972, will decide the Petitioner’s application dated 26th March, 2010 as early as possible. 12 In view of the above mentioned facts and circumstances, the Petition is partly allowed in terms of prayer clause (a) which reads thus: 'a) That this Hon’ble Court be pleased to quash and set aside the enquiry initiated against the Petitioner by the Respondent by passing appropriate writ and or order as this Hon’ble Court may deem fit and proper.' 13 No order as to costs.