Private School Employee Terminated For Proven Misconduct Not Eligible For Compassionate Pension: Bombay High Court

A division bench of Justice Rohit B Deo and Justice Vrushali V Joshi dismissed a writ petition filed by a terminated private school employee, who sought compassionate pension claiming she was “removed” and not “dismissed” from service.

“Unlike the Discipline and Appeal Rules, the MEPS Rules do not envisage the removal, termination or dismissal as separate and independent penalties. There is no special significance to the expression removal or termination or dismissal in the context of the major penalty prescribed. In our considered view, an employee, who is terminated on proven charge constituting serious misconduct, is a dismissed employee, who is ineligible to compassionate pension under Rule 101(3) of the Pension Rules and the authority is absolutely right in the view taken”, the court held.

The petitioner Nalini Shende was dismissed from Janki Devi Jaiswal Prathmik Vidyalaya, Nagpur on July 10, 2006. Her dismissal was upheld by the School Tribunal as well as the High Court. The Deputy Director of Education, Nagpur rejected her claim for compassionate pension under Rule 101 of the Maharashtra Civil Services (Pension) Rules. Thus, she filed the present petition. The Pension Rules are applicable to private school employees as per Rule 19 of the Maharashtra Employees of Private Schools (Conditions of Service) Rules, 1981 (MEPS Rules).

The court cited Kulkarni Shashikant Bhavani v. Bombay Physical Culture Association and Ors. and said that pension is subject to good conduct, employer has the right to withhold pension and an employee who was removed on serious allegation is not entitled to pension as a matter of right.

Rule 29 of the MEPS Rules provides that any employee guilty of misconduct, moral turpitude, willful and persistent neglect of duty etc. shall be liable to termination of service. As per Rule 31, reduction in rank and termination of service are major penalties.

The court noted that Rule 31 does not use the expression ‘dismissal’ and rather uses the term ‘termination’. According to the Rules, the maximum punishment to an employee who is guilty of serious misconduct is termination. Therefore, there is no distinction between termination and dismissal or removal of service under the MEPS Rules, the court said. “dismissal of the petitioner must be construed as plain and simple termination which has the effect of snapping the employer-employee relationship”, the court opined.

As per Rule 19 of the Pension Rules, procedure given in Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 has to be if the employee is to be removed or compulsory retired on ground of misconduct.

Under Rule 5 of the Discipline and Appeal Rules, removal and dismissal are distinct. Removal of service is not a qualification from future government employment while dismissal from service ordinarily results in disqualification from future government employment.

Rule 101 of the Pension Rules provides that a removed government servant shall forfeit pension but in deserving cases, on special consideration compassionate appointment not exceeding two-thirds of the pension may be sanctioned. However, a dismissed employee is not eligible for compassionate pension under Rule 101.

The court said that the expression used by the employer does not matter as the MEPS Rules do not envisage removal, termination, or dismissal as separate and independent penalties unlike the Discipline and Appeal Rules.

The court refused to grant Shende compassionate pension because she is destitute as the statute does not give any right to compassionate pension to her. “In the absence of any right to compassionate pension under the statutory rules, in writ jurisdiction, we cannot, and will not, consider granting such relief on humanitarian or sympathetic considerations. Wide as writ jurisdiction is, the statutory provisions cannot be ignored, and in a sense diluted, if not nullified”, the court held.

Case no. – Writ Petition No. 3468 of 2022

Case Title – Nalini W/o Natthuji Shende v. State of Maharashtra