Retirement Does Not Protect Employee From Action For Misconduct During Service : Bombay HC [Read Judgment]

The Bombay High Court on Friday held that retirement of an employee does not completely preclude the appointing authority from initiating action for dealing with the misconduct of the employee during currency of the service.

Division bench of Justice RM Borde and Justice NJ Jamadar refused relief to a retired judicial officer in the rank of District Judge who filed a petition challenging the continuation of disciplinary proceedings against her, post-acceptance of her request for voluntary retirement.

Case Background

The petitioner joined Maharashtra State Judicial Service in the cadre of Civil Judge, Junior Division and Judicial Magistrate, First Class, on September 7, 1992. Eventually, she came to be promoted as District Judge in the 2011. In October 2016 the petitioner came to be selected for the post of Presiding Officer, National Highway Tribunal. On October 25, 2016, she the Bombay High Court through the Registrar General to relieve her from the post of District Judge to join the said post of Presiding Officer, National Highway Tribunal, with permission to keep lien on the post of the District Judge.

According to the petitioner, since no response was received from the Registrar General, she sought voluntary retirement by addressing communication dated December 3, 2016. In the meanwhile, on December 7, 2016, the High Court, on the administrative side, took a decision to institute disciplinary proceedings against the petitioner and accordingly a memorandum with articles of charges came to be served upon the her, under Rule 8 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979.

On January 13, 2017, through a Government Resolution, the petitioner's request for grant of voluntary retirement was accepted by the appointing authority, subject to the condition of continuation of disciplinary proceedings against her. In terms of the said Government Resolution, High Court through the Registrar General, in turn, issued a communication on January 13, 2017 and the petitioner stood voluntarily retired.

Petitioner challenged the said condition of continuation of the disciplinary proceedings against her in a writ petition before the high Court. A division bench of High Court, by order dated September 11, 2017 refused to sustain the challenge to the continuation of the said disciplinary proceedings. The bench was of the view that the petitioner had voluntarily accepted the order dated January 13, 2017 and acted upon it by handing over charge of the post held by her. Therefore, in writ jurisdiction, the petitioner could not have challenged the condition imposed in the Government Resolution, Court ruled.

The said order was challenged by the petitioner in a special leave petition before the Supreme court. Apex Court dismissed the petition with a direction to conclude the pending enquiry expeditiously and, as far as possible, within six months from the date of the said order i.e. February 23, 2018. A review petition preferred by the petitioner also came to be dismissed by the Supreme Court on July 31, 2018.

Finally, the petitioner challenged the proceedings against her before the Enquiry Officer who rejected it on the same grounds as the High Court. Petitioner then came back to the High Court challenging the continuation of said proceedings.

Judgement

Senior Advocate RS Apte appeared on behalf of the petitioner and Advocate Amit Borkar appeared on behalf of the High Court and AGP KR Kulkarni appeared for the State.

Apte argued that the High Court, in the first instance, had not decided the legality of the disciplinary proceedings and granted petitioner the liberty to challenged it at an appropriate stage, thus the present proceedings were filed. The notice of retirement was accepted subject to the condition of continuation of the disciplinary proceedings, is legally untenable, Apte said.

Apte also submitted that there is no provision which permits the conversion of an enquiry initiated under the Discipline and Appeal Rules, 1979 into proceedings under the Maharashtra Civil Services (Pension) Rules, 1982.

Court examined the High Court's order dated September 11, 2017 and noted the reason for conversion of the said enquiry-

"The aforesaid observations, in our view, lead to a legitimate inference that the Division Bench was alive to the situation that the petitioner had since retired and the disciplinary proceedings would, at best, entail the consequence of withholding of pension as contemplated by Rule 27 of the Pension Rules, 1982. The Division Bench thus dealt with the aspect of the consequence of severance of employer­-employee relationship between the Petitioner and Respondent no.2.

In our view, the Petitioner could not have agitated the self-same ground before the learned Enquiry Officer and even reagitated the same before this Court in the instant writ petition. In the backdrop of the observations in paragraph 9, extracted above, in any event, the Petitioner cannot be permitted to contest the fact that the Petitioner voluntarily acted upon the order of acceptance of the notice of voluntary retirement subject to the condition of continuation of the disciplinary proceedings."

Finally, referring to rule 27 under the Maharashtra Civil Services (Pension) Rules, the bench noted-

"Good conduct of the pensioner is an implied condition for the receipt of pension and if subsequently the pensioner is found guilty of misconduct or negligence in relation to the acts or omissions during the services rendered by the pensioner, the pension can be withheld or withdrawn. The retirement of an employee does not, therefore, completely preclude the appointing authority from initiating action for dealing with the misconduct of the employee during currency of the service. The retirement does not confer complete immunity from the action for the misconduct during period of employment. The nature of the action is, however, restricted to withdrawal or withholding of pension."

Thus, the petition was dismissed.

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