Dr. Dipak Vishwnathrao Muley vs State Of Maharashtra And Others

Abhay Ahuja, J

Rule. Learned Counsel for the parties waive service of notice. With the consent of the counsel for the parties, rule made returnable forthwith and

heard finally.

By this petition, filed under Article 226 of the Constitution of India, Petitioner is challenging the chargesheet dated 28th August, 2018 issued by

Respondent no.2-university as well as the departmental enquiry proceedings and also seeking directions for release of post retirement benefits

including pension and gratuity with effect from 1st January, 2018.

Brief facts leading upto the petition are as under:-

a) Petitioner having acquired M. Sc. and Ph. D (Zoology) qualification was appointed by Shivaji University, Kolhapur, to the post of lecturer with

effect from 3rd December, 1987. He was promoted to the post of Reader in the year 1997 and then to the post of Professor with effect from 3rd

December 2007.

b) Thereafter, Dr. Babasaheb Ambedkar Marathwada University at Aurangabad appointed Petitioner to the post of Registrar with effect from 25th

March, 2008.

c) In the month of March, 2010 after completion of two years as Registrar, Petitioner was repatriated to his original post of Professor at the

Respondent no. 2- Shivaji University.

d) He was appointed as Registrar of Shivaji University for a period of five years with effect from 15th June 2010.

e) After completing the five year tenure as Registrar of Shivaji University, Petitioner was reverted back to his original post of Professor with effect

from 15th June, 2015.

It is the case of the Petitioner that soon after he came back to his original post of professor, due to some grudges of certain association or persons,

when he was Registrar, false complaints with malafide intention, to harass the Petitioner were made to Respondent no.2. It is submitted that

thereafter, letter dated 19th December 2015 was issued by the Registrar of Shivaji University to Petitioner calling for explanation about the allegations

made therein.

Thereafter, by letter dated 22nd February, 2016, Petitioner replied to the aforesaid letter.

In the month of April, 2017, the Shivaji University appointed a one man committee of Shri J. N. Shanbhag, retired District Judge, to inquire and

submit report with respect to Petitioner, which report Petitioner submits as not been supplied to the Petitioner purportedly on the pretext that the same

was confidential. Thereafter, vide letter dated 24th October 2017, the university issued a show cause notice calling upon Petitioner to submit

explanation about the allegations made in the said letter against the Petitioner. Petitioner was put to notice that if reply was not furnished within 15

days, the university would take appropriate action. By letter dated 14th November 2017, Petitioner submitted a reply to the university denying the

allegations against the Petitioner.

It is submitted that the university had appointed one more one man committee of Divisional Joint Director of Higher Education, Solapur Division.

Petitioner submits that the said committee never called upon Petitioner even on single occasion for the purpose of enquiry or otherwise and the said

committee submitted its report to the university without supplying a copy to the Petitioner on the pretext that the same was confidential.

Petitioner submits that on the last date of Petitioner’s service viz. on 30th December 2017, based on the report of the Deshpande Committee as

appointed above, university issued a letter and called upon Petitioner to submit his explanation to the allegations made in the said letter. Vide letter

dated 1st March 2018, Petitioner replied to the said letter denying the allegations made against him.

In the meanwhile, Petitioner submits that, upon attaining superannuation, he retired from the service of Shivaji University with effect from 31st

December 2017.

Petitioner submits that all of a sudden on 29th August 2018 he received letter with a copy of the chargesheet dated 28th August, 2018 issued by

the said university calling for his explanation, which Petitioner submits, was replied to vide letter dated 20th September, 2018, which was submitted on

21st September 2018 to the university, denying the allegations made against him and objecting to the enquiry proceedings on the ground that the same

had been initiated after Petitioner’s retirement and therefore, the same were without power and authority of law.

Petitioner refers to a letter dated 10th May 2018 issued by Respondent no.3 and submits that earlier Respondent no.2-university had forwarded

incomplete and defective proposal to the third Respondent. Petitioner further states that he received letter dated 29th August, 2018 issued by the

Shivaji University to Respondent No.3- Divisional Joint Director of Higher Education whereby the university had made compliance of the objections

raised in respect of Petitioner’s pension proposal.

It is submitted that however vide letter dated 26th September, 2018, Respondent no.3 once again called upon the Respondent no.2-university to

comply with the objections and defects in Petitioner’s pension proposal.

Petitioner further submits that after receipt of Petitioner’s reply to the chargesheet, the university issued a letter dated 1st October 2018 to

Petitioner stating that after perusing Petitioner’s reply to the chargesheet, it was decided to conduct the departmental enquiry against Petitioner in

accordance with Maharashtra Service Rules in respect of the charges/allegations made in the university’s chargesheet dated 28th August, 2018.

It is submitted on behalf of Petitioner that the first show cause notice dated 24th October 2017 pursuant to the report of retired judge Shri J. N.

Shanbhag, was issued by Respondent no.2-university, two months prior to Petitioner’s retirement. That one day prior to Petitioner’s

superannuation i.e. on 30th December, 2017 based on the report of the Deshpande Committee, another letter dated 30th December, 2017 was issued

to Petitioner to submit his explanation on the allegations made in the said letter. Petitioner submits that though disgruntled elements were making

allegations and complaints against Petitioner since 2016, however, the Respondent no.2-university never initiated any proceedings against Petitioner. It

is submitted that despite the above, Petitioner was allowed to retire validly and lawfully from the services of Shivaji University with effect from 31st

December, 2017. Petitioner submits that the chargesheet dated 28th August, 2018 was issued to him more than six months after Petitioner’s

retirement and therefore the same was without power and authority of law. Petitioner is also aggrieved that the Respondent no.2-university has not

taken bonafide steps for grant of pensionary benefits to Petitioner even though the necessary pension formalities and documents were completed by

Petitioner before his retirement and even though he was allowed to retire lawfully only with a view to harass the Petitioner.

Mr. Deshmukh, learned counsel for Petitioner, further submits that bare perusal of the notice dated 28th August, 2018, issued by Respondents

indicates that Respondent no.2 has initiated the impugned departmental proceedings against the Petitioner under the provisions of the Maharashtra

Civil Services (Discipline and Appeals) Rules, 1979 and the Maharashtra Civil Services (Pension)Rules, 1982. He submits that under the Rule of 1979,

the Government or employer can initiate departmental proceedings against servant and also impose minor and/or major penalties for proved

misconducts. In the Discipline and Appeal Rules, 1979, there are no provisions which permit the Respondent no.2 or the employer to initiate and/or to

continue with the departmental proceedings post retirement. In view thereof, he submits that in the absence of such rules, the present departmental

proceeding initiated against the Petitioner is unauthorised and bad in law and liable to be quashed and set aside.

It is further submitted that Petitioner having superannuated with effect from 31st December, 2017, Respondent no.2-university cannot impose any

major punishment of termination, removal from services, dismissal, reversion nor can it impose any minor punishment of warning, stoppage of

increments, withholding of promotion, etc. It is submitted that, therefore, the initiation of present departmental proceeding is nothing but misuse of

powers and abuse of law and liable to be quashed and set aside. Without prejudice he submits that infact the Maharashtra Civil Services

(Pension)Rules, 1982 would apply to the case of Petitioner.

It is submitted that since Petitioner has retired from service after having rendered qualifying service, he is entitled for pension and other retirement

benefits under the provisions of the said Pension Rules of 1982 and any withholding or withdrawal of pension can be under Rule 27(1) of the Pension

Rules for recovery of any pecuniary loss caused to the Government, if in any departmental/judicial proceedings the pensioner is found to be guilty of

misconduct or negligence during the period of his service. In the absence of any pecuniary loss caused to Respondent no.2 by the alleged misconduct

or negligence, Respondent no.2 could not have initiated the impugned departmental proceeding.

Under Rule 27(2)(a) of the Pension Rules, the departmental proceedings if instituted during the service or before retirement are to be continued

and concluded even after retirement as if the servant had been in service. However, the present proceedings have commenced after Petitioner’s

superannuation and the said legal fiction is not available to the case of the Petitioner. Under rule 27 (2) (b) of the Pension Rules, if the proceedings

have not been instituted during the service, the same shall not be instituted save and accept with the sanction of the Government and shall not be in

respect of any event which took place more than four years before such institution. 19. With respect to the provisions of Rule 27(2)(b) regarding the

prior sanction of the Government for initiation of departmental proceedings post retirement, it is submitted on behalf of the Petitioner that the letter

dated 29th February, 2016 is not sanction of the Governor/Chancellor. It is submitted that there is no material to disclose that the sanction of the

Governor has been obtained as required under the Pension Rules. Therefore, impugned departmental proceedings are vitiated by noncompliance of the

provisions of Rule 27(2)(b)(i) of the Pension Rules and liable to be quashed and set aside. It is submitted on behalf of the Petitioner that the want of

Governor sanction has also not been denying by the Respondent no.3 competent authority tho has issued sanction order in favour of the Petitioner.

It is further submitted that Rule 27 (2)(b)(ii) prohibits the disciplinary authority to make enquiry which is alleged to have taken took place more

than four years before institution of the departmental proceeding, but the facts of the case on a perusal of the statement of allegations alongwith the

Article of charges indicates that the proceedings have been initiated to inquire into the incidents which have taken place or alleged to have taken place

more than four years from the institution of the impugned proceedings. It is also submitted that the allegations of the alleged incidents pertain to the

year 2010 and 2014. Therefore, the departmental proceedings are without authority of law and jurisdiction and liable to be quashed and set aside. Also

therefore, the Respondent no. 2 or Government has no power to withhold or withdraw the Petitioner’s pension.

Learned Counsel for Petitioner relied upon the following decisions in support of his contentions:-

(i) State of U. P. Vs. Shri Krishna Pandey, (1996) 9 SCC 395.

(ii) Punjab State Power Vs. Atma Singh Grewal, (2014) 13 SCC 666

(iii) State of Bihar Vs. Mohd. Idris, (1995) Supp 3 SCC 56

(iv) V. S. Jadhav Vs. Municipal Corporation, (2005) Mh. L. J. 1039.

(v) Gopal S/o Digamberrao Vs. The Municipal Corporation, (2015) 4 All M.R.14

(vi) Dr. Krishna Chand Pandey Vs. State of UP, (2014) SCC Online All 11474.

Learned counsel for Petitioner submits that as per sub-Rule 6 of Rule 27 of the Pension Rules, 1982, the departmental proceedings and or enquiry

can be said to have been initiated only after service of Article of charges or statement /memo of charges, which in the present case was served upon

Petitioner on 28th August, 2018, almost eight months after Petitioner’s retirement on 31st December, 2017 and on this ground alone the petition

deserves to be allowed. It is submitted that since the charges were issued by Respondent no. 2 on 28th August, 2018, the departmental proceedings

are deemed to have commenced only from 28th August, 2018 and cannot be said to have been initiated on the date of issuance of show cause notice

or while Petitioner was in service. It is therefore submitted that the show cause notice and the entire proceedings are non-est and bad in law as

Petitioner has superannuated with effect from 31st December, 2017, whereas the chargesheet has been issued on 28th August, 2018 and sub-Rule

2(a) of Rule 27 would not apply in the facts of the case as Petitioner was not in service when the chargesheet was issued.

Learned counsel for Petitioner has relied upon the following decisions in support of his above contention:-

(i) Union of India Vs. Jankiraman, (1991) 4 SCC 109

(ii) Union of India Vs. Rajinder Lal, (2007) 6 SCC 494

(iii) Union of India Vs. Anil Kumar, (2013) 4 SCC 161

(iv)Vijay Kewaramji Vs. Chairman and Competent Authority (2016) 6 Mh. L. J. 863 Y2.

In this view of the matter, it is submitted that this Court quash and set aside the chargesheet dated 28th October, 2018 and the impugned

departmental proceedings initiated by Respondent no.2 against Petitioner post retirement and this Court be pleased to direct Respondent no.3 to

release and pay regular pension to Petitioner.

Petitioner is also aggrieved that even though Petitioner retired with effect from 31st December, 2017 and the chargesheet was issued in the month

of August, 2018 only i.e. after the date of Petitioner’s retirement and despite there being no finding that Petitioner has committed any misconduct

let alone grave misconduct, Respondent no.2 university has not released Petitioner’s pension nor provisional pension till date, which he is entitled to

even if departmental enquiry is initiated. It is submitted that the said inaction/omission is in complete violation of Rule 27 (4) of the 1982 Rules.

On the other hand, Respondent no.3 has filed affidavit in reply dated 11th February, 2019. Mr. N. C. Walimbe, learned AGP on behalf of

Respondent no.3 submits that on the basis of complaints against Petitioner for which Petitioner was called to give an explanation on the allegations

made against him, the second Respondent-university appointed a one man committee. Pursuant to the findings of the one man committee, the

university has issued a show cause notice dated 24th October 2017. That Petitioner thereafter retired on superannuation with effect from 31st

December 2017. He would submit that the university has issued a chargesheet against the Petitioner on 29th August 2018. The Joint Director states

that the university is empowered to carry out the enquiry against its employees. He would further submit that in accordance with the orders passed by

this Court and as per the provisions of Maharashtra Civil Services (Pension) Rules, 1982, the office of Regional Joint Director Higher Education,

Kolhapur has post facto sanctioned the provisional pension for Petitioner from 1st January 2018 to 30th June 2018 and therefore Petitioner’s

grievance of non payment of provisional pension in accordance with the Pension Rules is not tenable.

On behalf of the Respondent no.2-university, affidavit in reply dated 6th August, 2021 has been filed.

It is submitted that in compliance with order dated 20th July 2021, reply has been filed to address the following queries raised by this Court in its

order:-

(i) whether the Respondents could have initiated departmental enquiry against the Petitioner after 31st December 2017 when the Petitioner retired

from the service by superannuation, and

(ii) whether enquiry would stand commenced only upon issuance of the chargesheet dated 29th August, 2018 or was commenced on 24th October,

2017 when Respondent had issued a show cause notice upon the Petitioner calling upon to explain various allegations.\

It is submitted in the said reply that Petitioner was appointed as lecturer in the Respondent no.2-university on 3rd December 1987 and became

Registrar of the Shivaji University in 2010 till June 2015 and then started working as professor since 15th June 2015 till his retirement with effect from

31st December 2017 in the department of Zoology at Shivaji University..

It is stated that several students’ organizations, groups, people, alleged irregularities, misconduct, malpractices, dereliction of duty/illegal

exercise of authority by Petitioner during his tenure as Registrar with the university, which complaints were made to the Chancellor’s office.

It is submitted that the Governor/Chancellor being vested with powers under Section 9 of the Maharashtra Universities Act, 1994 as well as the

Section 9 of the new Maharashtra Universities Act, 2016 confers powers on the Governor to call for the report or explanation or information with

respect to any matter or affairs of the university and after considering the same to issue directions as deemed fit in the interest of the university,

student, public, which are to be complied by the university. It is submitted that the Governor / Chancellor exercised the powers and issued letter/

sanction dated 29th February, 2016 to the Respondent no.2-university, directing conduct of detailed enquiry against Petitioner into various

issues/allegations made by ABVP Kolhapur and to take appropriate action in the light of findings of the enquiry in a time bound manner and submit

‘Action Taken Report’ for information of Chancellor.

Thereafter, it is stated that the Respondent no.2-university appointed a one man committee of Shri J. N. Shanbhag, retired District Judge to make

initial inquiries and to submit report, which committee submitted its report holding that the allegations levelled against Petitioner had prima facie

substance and further enquiry was required to unearth the truth. It is stated that a show cause notice dated 24th October, 2017 came to be issued

thereafter to Petitioner.

It is stated that prior to the enquiry committee set up by Respondent no.2, Respondent no.1-State had appointed another enquiry committee

consisting of Divisional Joint Director of Higher Education, Solapur and after the receipt of the enquiry report, prior to the retirement of Petitioner, a

letter dated 30th December 2017 detailing charges evolving from both the enquiry committees was issued by Respondent no.2-university to Petitioner.

It is the case of the Respondent-university that the first show cause notice was issued on 24th October 2017 after receiving Shanbag Committee

report, to which an explanation was given by Petitioner on 14th November 2017 corrected by reply dated 2nd December 2017. That after receiving

copy of the Dr. Deshpande committee report on 21st December 2017, the same was placed before retired Judge Shanbhag who submitted his second

report on 21st December, 2017, where after a second show cause notice was issued to Petitioner on 30th December 2017 to which Petitioner gave his

explanation/clarification on 1st March 2018. It is submitted that therefore the initial process of enquiry had begun prior to the retirement of Petitioner.

It is also submitted that the seriousness and the gravity of the charges can be seen from the chargesheet issued to Petitioner on 28 th August 2018

which enlists appointments allegedly made in an unscrupulous manner without following norms along with other charges of vindictiveness, malafides,

actions taken in arbitrary manner, highhandedness, grave misconduct, etc. some of which would result in pecuniary loss to the Government as well as

to the university which can be ascertained only after due enquiry and that if enquiry is scuttled then the pecuniary loss wouldn’t be recoverable at

all.

In paragraph 12 of the said affidavit in reply, it is stated that certain instances purportedly illegal/slipshod conduct and leading to pecuniary loss to

the State/university, have been stated in the show cause notice and chargesheet. It is also submitted that by order dated 31st October, 2018, this Court

had directed the enquiry to be proceeded with. Since then the enquiry has been concluded after hearing the parties and the final order needs to be

passed with the leave of this Court.

According to the Respondent some of the charges mentioned in the chargesheet are of 2014, 2015 and are well within the time span of four years

from 31st December, 2017 and therefore, the protection contemplated by Petitioner under Rule 27(2)(b) and Section 27(3) of the Maharashtra Civil

Services (Pension) Rules, 1982 would not be available to Petitioner. Learned counsel for the Respondent would therefore submit that Petitioner’s

submission on the applicability of Rule 27(2)(b)(i) would not be tenable in view of these facts. It is submitted that if Petitioner is given benefit of the

said rule as interpreted by Petitioner, the Respondent as well as State would suffer irreparable pecuniary loss as Petitioner would be out of the enquiry

proceedings already completed.

It is submitted that the contentions of Petitioner about non applicability of Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 as well

as Maharashtra Civil Services (Pension) Rules, 1982 to the case of Petitioner as Petitioner has retired on 31st December 2017 and the chargesheet

was issued only on 28th August 2018 would not hold good as the pension rules do provide for an enquiry even after retirement of Government servant

is wrong and erroneous.

Learned Counsel for Respondent submits that the said rules would be rendered unusable, inoperable and otiose, if it is held that those are not

applicable to retired or superannuated employees. The legislative intent in passing these rules seems to be for keeping a check on the behavior of the

Government Servants/employees not only while in service but also after the retirement for their acts and deeds committed while in service. He further

submits that therefore retired employees, as in case of the Petitioner, are not completely immune to enquiry.

It is submitted that in view of the statutory provisions in the Maharashtra Civil Services (Pension) Rules, 1982, the departmental proceedings have

became imperative to enable the Respondents to recover from Petitioner’s pension, any pecuniary loss caused if he is found guilty in any

departmental proceeding of grave misconduct or negligence during the period of his service. It is submitted that as per Rule 27 (1), departmental

proceedings can be instituted after retirement to enable the Government to recover from pension any pecuniary loss.

Respondent no.2- university has relied upon the following decisions in support of its contentions:-

(i) Union of India Vs. S. K. Mathur & Anr. (WP (Civil) Nos. 17221-22 of 2004), Delhi High Court

(ii) Manohar B. Patil Vs. State of Maharashtra & Ors, 2014 LAB I. C. 22

(iii) Ratnakar Bhagwanrao Mahajan Vs. District and Sessions Judge Jalna and Anr. 2009 LAB I. C. (NOC) 235 (BOM)

Learned counsel for university would submit that the show cause notice has been issued to Petitioner well before his retirement and the process of

inquiry has commenced with the sanction of the Governor that pursuant to the order dated 31st October 2018 of this Court, whereby the enquiry was

allowed to be proceeded with the Inquiry officer has heard the parties and only the Final Order is to be passed with the leave of this Court. In this

view of the matter, it is submitted that petition should be dismissed and this Court direct that the final order be passed in the matter and the further

process allowed to be completed against Petitioner. It is also submitted that in any event Petitioner has all the right to challenge the final order in

accordance with law. It is submitted that therefore the petition be dismissed.

We have heard learned counsel Mr. Deshmukh for Petitioner, Mr. N. C. Walimbe, learned Addl. GP for Respondents No. 1 and 3 and Mr.

Vikram Walawalkar, learned counsel for Respondent No. 2 and with their able assistance we have perused the papers and proceedings in the matter.

Petitioner’s case is that the departmental enquiry has been instituted on 28th August, 2018 being the date on which the charges have been

issued to Petitioner whereas the case of Respondent no.2 university is that the proceedings have commenced from the issuance of the first show

cause notice dated 24th October 2017 and even if the date of the second show cause notice was taken to be 30 th December, 2017 even then the

same would be prior to the retirement of Petitioner which was with effect from 31st December, 2017.

After a consideration of the above discussion, the following questions arise for our consideration (i) whether in Petitioner’s case departmental

proceedings shall be deemed to be initiated to the date on which the statement of charges have been issued to Petitioner viz. Dr. Dipak

Vishwanathrao Muley or from the issuance of show cause notices on 24th October 2017 or 30th December 2017 (ii) whether the Respondents could

have initiated departmental proceedings against the Petitioner after 31st December 2017 by which date the Petitioner retired from the service by

superannuation.

It is undisputed that Petitioner was appointed as a Lecturer in the Respondent No. 2-Shivaji University with effect from 3rd February 1987. He

then got promoted to the post of Professor. In 2010, he became Registrar of Shivaji University and held the said post till June 2015. Thereafter, from

15th June 2015 onwards, he started working as a Professor till his superannuation on 31st December 2017 in the Department of Zoology of the said

University. Around 22nd February 2006, a delegation of Akhil Bhartiya Vidhyarathi Parishad (ABVP), Kolhapur, handed over a memorandum to the

Governor of Maharashtra containing alleged complaints against Petitioner about various irregularities made in the University during his tenure as

Registrar from 2010 to 2015 requesting the Hon’ble Governor to make an inquiry. On 29th February 2016, the Office of the Governor in his

capacity as a Chancellor requested the respondent no. 2-University to make a detailed inquiry into various issues raised /allegations made by ABVP,

Kolhapur, vide its memorandum dated 22nd February 2016 and to take proper action in the light of the findings of the inquiry in a time bound manner

and also requested Respondent No. 2 to submit the action taken report for the information of the Chancellor. The Respondent No. 1/ State

Government appointed an Inquiry Committee consisting of Shri Deshpande, the Divisional Joint Director of Higher Education, Solapur Division.

Thereafter, Respondent No. 2 appointed a one man Committee of Shri J.N. Shanbhag, retired District Judge, to make initial inquiries and to submit

his report to the University. The Committee submitted its report holding that prima facie there was substance in the allegations against Petitioner and

further inquiry was required to unearth the truth. Pursuant to Shri Shanbhag Committee report, a Show Cause Notice dated 24th October 2017 came

to be issued to Petitioner while he was in service of the University. Petitioner gave his explanation to the said Show Cause notice on 14th November

2017 and 2nd December 2017. The Desphande Committee Report was placed before the retired District Judge Shri Shanbhag, who submitted his

second report on 21st December 2017. Pursuant thereto a letter dated 30th December 2017 detailing the charges was issued by the respondent No. 2-

University. To the second Show Cause Notice Petitioner gave his explanation vide letter dated 1st March 2018.

The charge-sheet was issued to Petitioner on 28th August 2018 to which the Petitioner gave his reply on 28th September 2018.

It is not in dispute that the Pension Rules of 1982 are applicable to the Petitioner’s case.

For the sake of convenience the relevant Rule 27 is reproduced as under:-

“27. Right of Government to withhold or withdraw pension

(1) Government may, by order in writing, withhold or withdraw a pension or any part of it, whether permanently or for a specified period,

and also order the recovery from such pension, the whole or part of any pecuniary loss caused to Government, if, in any departmental or

judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service

rendered upon re-employment after retirement :

Provided that the Maharashtra Public Service Commission shall be consulted before any final orders are passed in respect of officers

holding posts within their purview :

Provided further that where a part of pension is withheld or withdrawn, the amount of remaining pension shall not be reduced below the

minimum fixed by Government.

(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.

(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his

re-employment,-

(i) Shall not be instituted save with the sanction of the Government,

(ii) shall not be in respect of any event which took place more than four years before such institution, and

(iii) shall be conducted by such authority and at such place as the Government may direct and in accordance with the procedure applicable

to the departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his

service.

(3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-

employment, shall be instituted in respect of a cause of action which arose or in respect of an event which took place, more than four years

before such institution.

(4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any

departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub-rule (2), a provisional

pension as provided in rule 130 shall be sanctioned.

(5) Where Government decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall

not, subject to the provision of sub-rule (1) of this rule, ordinarily be made at a rate exceeding one-third of the pension admissible on the

date of retirement of a Government servant.

(6) For the purpose of this rule -(a)departmental proceedings shall be deemed to be instituted on the date on which the statement of charges

is issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on

such date; and

(b) judicial proceedings shall be deemed to be instituted- (i) in the case of criminal proceedings, on the date on which the complaint or

report of a police officer of which the Magistrate takes cognizance is made, and (ii) in the case of civil proceedings, on the date of

presenting the plaint in the Court.â€​

Rule 9(21) of the aforesaid Rules defines Government as under:

“ Government, unless there is anything repugnant in the subject or context, as respect anything done or to be done after the

commencement of the Constitution, shall mean the Governor of Maharashtraâ€​

Rule 27(6) as set out above unequivocally states that for the purpose of Rule 27, the departmental proceedings shall be deemed to be instituted on

the date on which the Statement of Charges is issued to the pensioner. In this case, the Articles of Charges dated 28 th August 2018 were issued to

the Petitioner on 29th August, 2018 which is after the date with effect from which Petitioner had superannuated. Once it is held that the departmental

enquiry was initiated after the Petitioner’s retirement, then it is not material or relevant if the two show cause notices were issued prior to

Petitioner’s retirement.

The decision in the case of Janakiraman and others (supra) relied upon by Petitioner lends credibility to this view. In the case of Jankiraman and

Others (supra) the Hon’ble Supreme Court was called upon to answer the question as to the date from which it could be said that disciplinary /

criminal proceedings are pending against an employee. The Hon’ble Supreme Court affirmed the view of the full bench of the tribunal that it is

only when a charge memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee that it can be said that the

departmental proceedings/criminal prosecution is initiated against the employee. Paragraph-16 of the said decision is relevant and is quoted as under:-

“16. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be

said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a

charge-sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/ criminal prosecution

is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The

pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure.

We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when

there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be

in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance

of this contention would result in injustice to the employees in many cases. As has been the experience so far, the preliminary investigations

take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending

deliberately. Many times they never result in the issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities

are keen in investigating them, ordinarily it slould not take much time to collect the relevant evidence and finalise the charges. What is

further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension

by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of

the authorities that conclusions nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as

follows:

(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the

ground of pendency of a disciplinary or criminal proceedings against an official; (2) ................................................

(3)................................................

(4) the sealed cover procedure can be resorted to only after a charge memo is served on the concerned official or the charge-sheet filed

before the criminal court and not before; â€​

The decision of the Hon’ble Supreme Court in the case of Rajinder Lal Capoor (Supra) also supports the aforesaid view. Not only that it also

lays down that departmental proceeding is not initiated merely by issuance of a show cause notice, it is initiated only when a chargesheet is issued.

Paragraphs 21 and 22 of the said decision are relevant and are quoted as under:-

“21. The aforementioned Regulation, however, could be invoked only when the disciplinary proceedings had clearly been initiated prior

to the respondent's ceases to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding

has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be

allowed on the basis of the legal fiction created thereunder, i.e., continue ""as if he was in service"". Thus, only when a valid departmental

proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in

service although he has reached his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance

of a show-cause notice. It is initiated only when a charge-sheet is issued (See Union of India etc. etc. v. K.V. Jankiraman, etc.). This aspect

of the matter has also been considered by this Court recently in Coal India Ltd. & others v. Saroj Kumar Mishra wherein it was held that

date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof a charge-sheet is

issued would be the date on which the disciplinary proceedings are said to have been initiated and not prior thereto. Pendency of a

preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact situation

but involving a similar question of law in Coal India Ltd. (supra) this Court held :

12[13]. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the Vigilance Department, the

competent authority had arrived at a satisfaction as is required in terms of the said circulars that a charge-sheet was likely to be issued on

the basis of a preliminary enquiry held in that behalf or otherwise.

13[14]. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be

construed strictly. So construed, there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied

before any action can be taken in that regard.

It was further more observed that :

18[20]. A departmental proceeding is ordinarily said to be initiated only when a chargesheet is issued.

(See also Union of India v. Sangram Keshari Nayak 2007 (6) SCALE 348 )

The Respondent, therefore, having been allowed to superannuate, only a proceeding, inter alia, for withholding of his pension under

the Pension Regulations could have been initiated against the respondent. Discipline and Appeal Regulations were, thus not attracted.

Consequently the charge-sheet, the enquiry report and the orders of punishment passed by the disciplinary authority and the appellate

authority must be held to be illegal and without jurisdictionâ€​.

The decision of the Hon’ble Supreme Court in the case of Anilkumar Sarkar (supra) also reaffirms the aforesaid views.

This Court in the case of Vijay Kewalramji Randive (supra) in the decision (authored by Hon’ble Shri Justice B. R. Gavai as his Lordship then

was) has relying upon the decision of the Hon’ble Supreme Court in the case of Jankiraman and Others (supra) observed that drawing up of a

chargesheet is a condition precedent for initiation of a disciplinary proceedings and in the absence of the statutory rules operating in the field, resorting

to a preliminary enquiry would not by itself be enough to hold that a departmental proceeding has been initiated. Paragraph 14 of the said decision is

relevant and is quoted as under:-

“14. As per Para 2 of the said memorandum, at the time of consideration of the government servants for promotion, the following details

of government servants in the consideration zone for promotion falling in the categories mentioned should be specifically brought to the

notice of the DPC viz. (I) Government servant is under suspension; (ii) Government serant has been served with a charge-sheet and the

disciplinary proceedings are pending; and (iii) Government servant is facing prosecution for a criminal charge and the said proceedings

are pending. As rightly observed by the High Court, if the above conditions are available, even one of them, then the DPC has to apply the

“sealed cover processâ€. In the case on hand, it is not in dispute that the relevant date is 21-4-2003, when the respondents batchmates

were promoted, admittedly on that date the respondent was not under suspension, no charge-sheet was served upon him nor was he facing

any criminal prosecution. In such circumstances, in terms of Para 2 referred to above, the recommendation of the DPC has to be honoured

and there is no question of applying “sealed cover processâ€​.

As far as the other decisions relied upon by Petitioner, we note that same emphasies the need for Government Sanction for any departmental

proceedings to be instituted post retirement and that the same should be for events within four years and are deemed to be instituted from the date of

issuance of the chargesheet.

In fact, in the case at hand the chargesheet / Article of charges has been issued to Petitioner on 28th /29th August, 2018 and as per the statutory

rules viz. Rule 27 (6) (a), departmental proceedings are deemed to be initiated on the date of which the statement of charges is issued. Therefore, in

this case the departmental proceedings have been instituted on 29th August, 2018.

For the same reason, Rule 27(2)(a) would not be applicable. The provision of Rule 27(2)(b) would need to be satisfied. There are 3 conditions to

be satisfied. Two are negative conditions and one is a positive condition. From a plain reading it is clear that even if out of the two conditions, one

condition is not satisfied, the departmental proceedings cannot be instituted. Let us look at the first condition of Government sanction. Post retirement

departmental proceedings shall not be instituted save within the sanction of Government. From the plain language of this provision it is clear that prior

sanction would be necessary. The Respondents are claiming that the letter dated 29th February, 2016 is Government’s sanction, whereas the

same has been disputed by Petitioner.

Let us examine the communication dated 29th February, 2016 from the office of the Chancellor which is purported to be the sanction of the

Governor to institute the departmental proceedings. Perusal of the said communication suggests that a delegation of ABVP, Kolhapur met the then

Governor in his capacity as Chancellor of Respondent no.2-university on 22nd February, 2016 and handed over to him a memorandum of complaints

against Petitioner in his capacity as Registrar of Respondent No.2-university about alleged irregularities during his tenure from 2010-2015. The

Secretary to the Governor of Maharashtra in his His Excellency’s capacity as Chancellor forwarded a copy of the said memorandum alongwith

enclosures and requested the vice-Chancellor of Respondent no.2-university to make the detailed enquiry into various issues raised/allegations made

by the ABVP, Kolhapur and to take appropriate action in the light of the enquiry in a time bound manner. It was also requested that the Action Taken

Report in the matter be submitted for information of the Chancellor. Though it is true that Government is defined in the Rule 9(21) of the said Pension

Rules to mean the Governor of Maharashtra, the said communication was to conduct an enquiry and submit an action taken report.

In our view, the said communication from the office of the Governor as Chancellor of the Respondent No.2-university does not accord any

sanction but merely directs conduct of time bound enquiry into the allegations pursuant to the memorandum handed over by ABVP, Kolhapur on 22nd

February, 2016 and to submit Action Taken Report. For a sanction, in our respectful opinion, there has to be a request first for such sanction, which is

conspicuously absent. Moreover, there is a general direction to look into the allegations. Thereafter, State Government appointed Deshpande

Committee. Respondent No.2 appointed Shanbhag Committee. After Shanbhag Committee’s first report, first show cause notice dated 24.10.2017

was issued and pursuant to the Deshpande report and Shanbhag report dated 21/12/2017, second show cause notice dated 30/12/2017 was issued to

Petitioner but the Charge Sheet came to be issued only on 28/29 August 2018 and for which no sanction appears to have been taken. It would,

therefore, have been appropriate if an action taken report should have been submitted to the Hon’ble Governor after the enquiry (ies) conducted

before issuing the Article of Charges dated 28th August, 2018 upon Petitioner. In our view, exercise of powers by the Hon’ble Governor under

Section 9 of the Universities Act to seek explanation/information with respect to any matter or affairs of the university and to call for report is not the

same as accord of sanction by Government to institute departmental proceedings against a retired employee.

But as we have held that the departmental proceedings are instituted only from the date on which that statement / Article of charges is issued to

Petitioner viz. on 28/29 August 2018, then for issuance of statement of Charge, there should have been a proper sanction of the Government which

we are afraid is not there.

In the absence of Government sanction, in accordance with Rule 27(2)(b)(i) no departmental proceedings can be instituted. Therefore, the entire

proceedings in our view stand vitiated for want of Government sanction/jurisdiction.

Once we have held as above, it would not be necessary for us to go into the question whether the incidents leading to the institution of

departmental proceedings were within a period of 4 years or beyond. We therefore, express no opinion on the conflicting claims of the parties on this

issue.

Coming to the decisions relied upon by the Respondents, we note that in the decision of the Delhi High Court in the case of Union of India Vs. S.

K. Mathur (supra), it was held with respect to Rule 9 of the Central Civil Services Pension Rules that departmental proceedings shall be deemed to be

instituted on the date on which the statement of charges is issued to the Government servant or pensioner. The Hon’ble Delhi High Court

observed that upon superannuation, the relationship of master and servant between Government and Government servant comes to an end and

therefore, the said pensioner cannot be placed under suspension but the chargesheet can be issued to a pensioner in terms of Rule 9(2) (b), which is

pari materia to Rule 27(2)(b) of the Maharashtra Pension Rules. Therefore, this decision does not much assist the case of the Respondent but

supports Petitioner’s case.

In the case of Manohar B. Patil (supra), this Court in the decision (authored by Hon’ble Shri Justice A. S. Oka as his Lordship then was) had

the occasion to consider the Maharashtra Civil Services Rules, 1979 as well as Rule 27 of the Pension Rules, 1982, where it has been held after a

detailed analysis of the said Rules that departmental enquiry can be initiated only for the purposes of withholding the whole or part of the pension, only

if it is found that the pensioner is guilty of misconduct or negligence. However, the proceedings shall not be in respect of any event which took place

more than four years before such institution. There can be no dispute with the said principle. However, since we have not found it necessary delve

into the question whether the events leading to the institution of enquiry were within a period of four years or not in as much as we have held that no

Government sanction was obtained for issuance of chargesheet, therefore, this decision also would not assist the case of the Respondents.

Coming to the case of Ratnakar Bhagwanrao Mahajan (supra), this was a case where the controversy was whether the departmental proceedings

could have been instituted without the sanction of the State Government and this Court observed that departmental proceedings would commence

from the date of issuance of regular show cause notice by the disciplinary authority holding that the sanction of the State Government was a

mandatory requirement without which the proceedings would be without jurisdiction. In the facts of the present case, we have observed that the

communication dated 29th February, 2016 from the office of the Chancellor is not a sanction as contemplated under the Rules. Moreover, in view of

the clear principles laid down by the Hon’ble Supreme Court in the case of Janakiraman and others (supra) as well as the clear provisions of Rule

27(6)(a) that the departmental enquiry is deemed to have been instituted from the date of issuance of chargesheet, the said decision would not lend

much assistance to the case of the Respondents.

We, therefore, answer the question that we had formulated for our consideration by holding that (i) the departmental proceedings in this case are

deemed to have been instituted from the date of issuance chargesheet /Article of charges to the Petitioner viz. On 28 th /29th August, 2018 and not

from the date of issuance of show cause notice; (ii) Since we have held that the departmental proceedings have been initiated from the date of

issuance of charge- sheet viz. from 28th / 29th August, 2018 and after Petitioner’s retirement from service, then under Rule 27(2)(b)(i) of the

1982 Rules, prior sanction of the Government ought to have been taken before the issuance of the Article of Charges which, as we have held was not

taken and therefore, the said proceedings have been vitiated and are bad in law.

This Court has also by way of ad-interim order directed the enquiry to proceed further but with a rider that no final order should be passed without

leave of this Court.

Learned counsel submits that though the enquiry has been completed but in view of the order of this Court no final order has been passed as the

challenge in the petition is whether Respondents could have initiated departmental proceedings against Petitioner after 31st December 2017 with

effect from which date Petitioner retired from the service by superannuation.

Having held that there was no sanction of the Government before commencement of departmental proceeding which would deemed to have

commenced upon the date of issuance of the chargesheet to Petitioner, in our view, neither the chargesheet nor the departmental proceedings can be

sustained and the entire proceedings deserve to be quashed and set aside as non-est and not in accordance with law and without jurisdiction.

We, therefore, quash and set aside the chargesheet dated 28th August 2018 issued by Respondent no.2- Shivaji University against the Petitioner.

Consequently the enquiry allowed to be conducted pursuant to the direction of this Court, stands quashed and set aside. Therefore, there would be no

necessity to pass the final order.

Respondents no. 2 and 3 are directed to release Petitioner’s post retirement pension and other benefits admissible to him with effect from 1st

January 2018 within a period of four weeks from today. As far as Petitioner’s grievance that he has not been paid provisional pension as required

under Rule 27(4) of the Pension Rules, 1982, on a perusal of Exhibit-1 to the reply on behalf of Respondent no. 3, it appears that the said grievance of

Petitioner does not survive in as much as by letter dated 27th December, 2018 from the 3rd Respondent’s office, the said provisional pension has

been sanctioned in respect of Petitioner from 1st January, 2018 to 30th June, 2018, which has not been disputed by Petitioner.

Rule is made absolute in the above terms. Writ petition is accordingly allowed. There shall however be no order as to costs.

Parties to act upon an authenticated copy of this order.