Navigating Suspension: Rights, Entitlements and Liabilities of Maharashtra Civil Servants

Suspension is one of the most distressing phases in a public servant’s career. It is technically a temporary administrative measure, not a final penalty, yet the sudden loss of active duty, reduced income and social stigma are very real.

For Government employees in Maharashtra, suspension is governed mainly by Rule 4 of the Maharashtra Civil Services (Discipline and Appeal) Rules, 1979 (“MCS (D&A) Rules”), read with the Maharashtra Civil Services (Joining Time, Foreign Service and Payments during Suspension, Dismissal and Removal) Rules, 1981 (“MCS Payments Rules”) and the Maharashtra Civil Services (Conduct) Rules, 1979.

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Whether departmental enquiry can be continued against Judicial officer even after retirement?

 A conjoint reading of the aforesaid subrules
of Rule 27
indicates that the appointing authority is invested with the
power to withhold or withdraw the pension, if in any
departmental or judicial proceedings, the pensioner is found
guilty of grave misconduct or negligence during the period of his
service. 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pension can be withheld or withdrawn.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.
19. Clause (a) of Subrule
(2) in express terms provides that
the departmental proceedings referred to in subRule
(1), if
instituted while the Government servant was in service whether
before his retirement or during his reemployment,
shall, after
the final retirement of the Government servant, be deemed to be
proceedings under this rule and shall be continued by the
authority in the same manner as if the Government servant had
continued in service. The initiation or continuation of the
disciplinary proceedings, against a retired employee is, however,
subject to certain safeguards to protect the interest of the
employee. Clause (b) of subrule
(2) stipulates conditions for
continuation of the disciplinary proceedings if not instituted
while the Government servant was in service. Subrule
(3)

provides a timelimit
of four years so that the pensioner is not
under a threat of action for eternity. In all the cases, where the
departmental enquiry is instituted either before or after
retirement, subrule
(4) mandates sanction of provisional
pension as provided in Rule 130.
20. If we consider the fascicles of the provisions in Rule 27 of
the Pension Rules, 1982, it becomes evident that the rules do
envisage initiation of the disciplinary action even after
retirement of a Government servant, on superannuation or
otherwise, in addition to the continuation of the disciplinary
proceedings, which was instituted before the retirement of the
Government servant. The broad submission canvassed on
behalf of the Petitioner that after retirement of a Government
servant no disciplinary proceedings can be instituted/continued
runs counter to the express mandate of clause (a) of subrule
(2) of Section 27, extracted above, which incorporates a deeming
provision and, by a legal fiction, mandates that the disciplinary
proceedings instituted before the retirement shall be deemed to
be a proceedings under Rule 27 and continued and concluded
in the same manner as if the Government servant had
continued in service. The broad submission therefore cannot be
countenanced.

21. The legal position as regards the institution /
continuation of disciplinary proceedings after the retirement of
an employee, seems to have been crystallised to the effect that
the employer can institute/continue the disciplinary
proceedings against an employee who has retired, provided the
rules which govern the services of the employee permit such a
course of action.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 2820 OF 2019

 Mrs. Padmini Nandakumar Nair  Vs The Honourable High Court of Judicature at Bombay, through its
Registrar General, Mumbai

CORAM: R. M. BORDE & N. J. JAMADAR, JJ

PRONOUNCED ON; 14th JUNE, 2019

(Per N. J. JAMADAR, J.)

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Whether it is mandatory to hear delinquent if disciplinary authority disagrees with finding of enquiry officer?

 In J.A. Naikasatam vs. Prothonotary and Senior Master, Bombay High Court Bombay reported in MANU/SC/0894/2004 : 2004 (8) SCC 653, it was held that, when finding of Inquiry Officer was in favour of delinquent and the disciplinary authority takes a contrary view, giving of opportunity of hearing to delinquent is necessary even if the requirement may not have been contemplated by the Rules. However, the opportunity of personal hearing is not essential. Where the delinquents were given a copy of tentative decision of disciplinary authority and they furnished detailed explanation, the principles of natural justice were fully complied with. There was no infraction of rules or infirmity in the said decision.

 As per Rule 9(2) of Discipline & Appeal Rules, if the Disciplinary Authority does not agree with the finding of Inquiry Officer and holds him guilty, it shall record its reasons for such disagreement and as held in J.A. Naikasatam (supra), it should give opportunity of hearing to the delinquent. The order of disciplinary authority does not show the compliance of the above procedure, in tune with the principles of natural justice.

16. In the light of these facts, the impugned order is not sustainable. Hence, the petition is allowed. The impugned order is set aside. 

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 5094 of 2002

Decided On: 30.01.2019

 Hanumant  Vs.  The Disciplinary Authority and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala and A.M. Dhavale, JJ.

Citation: 2019(3) MHLJ 320

A.M. Dhavale, J.

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Whether departmental enquiry can be initiated against court staff for not calling record?

 Even if it is assumed that he did not Call R&P, still it is not material defect or dereliction of duty which can attract a departmental enquiry. The resultant destruction of 'C' file is the main cause and the Disciplinary Authority failed to consider that, mere act of not calling the R&P cannot be the cause for destruction of 'C' file. It is rightly argued that, the record keeper and the staff from the Record Office did not follow the provisions of law as per 544 (1) (2) of Civil Manual before destruction of 'C' file. They were really guilty for destruction of 'C' file before time. They have been spared and only because the R&P was not called, the petitioner was subjected to departmental enquiry. As per para 544(2), the period of 12 years for destruction of 'C' file is to be calculated from the date of final decree or order. Even if any application for setting aside ex-parte decree or restoration of suit is pending, the time has to be calculated from the final order in such application.

11. In the present case, the appeal was decided on 21.04.1995 and thereafter application for restoration of appeal was also filed. The same was decided on 01.07.1998 and the appeal was restored, still the record was destroyed on 07.10.1998. It was clearly contrary to the provisions of Para 544 of Civil Manual. It was duty of the Record Keeper to verify whether any appeal or any proceeding is pending or not in respect of the suit, which was not complied.

12. The observations of the District Judge that though Record Keeper should have maintained file for 12 years from the date of the order of the appellate court but the said fact alone would not exonerate the present delinquents is not the correct approach. If the 'C' file would not have been destroyed, there was no occasion for holding departmental enquiry. Mere failure or delay to comply the order of calling R&P cannot be a subject matter of departmental enquiry.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 5094 of 2002

Decided On: 30.01.2019

 Hanumant  Vs.  The Disciplinary Authority and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala and A.M. Dhavale, JJ.

Citation: 2019(3) MHLJ 320

A.M. Dhavale, J.

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Whether minor penalty imposed on government servant can be quashed if show cause notice issued to him was vague?

We find that the Petition deserves to be allowed on two grounds. Firstly, perusal of the show cause notice would reveal that allegations made against the Petitioner in the show cause notice are totally vague in nature. It is settled law that if the allegations in the show cause notice are vague, it would not be possible for delinquent to effectively submit his reply and therefore the same would violate the principles of natural justice. Secondly, Petition deserves to be allowed on the ground that the impugned order does not give any reasons.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 1852 of 2014

Decided On: 16.01.2019

Manik Abaso Jadhav  Vs. Mira Bhayandar Municipal Corporation and Ors.

Hon'ble Judges/Coram:

B.R. Gavai and N.J. Jamadar, JJ.

Citation: 2019(2) MHLJ 693

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Whether High court can impose minor penalty of censure on Judge of subordinate Judiciary?

The Disciplinary Committee considered the report of the Inquiry Officer and the reply to the show cause notice submitted by the petitioner and decided to award the minor penalty of censure. We do not find any reason to hold that the minor penalty of censure was not warranted. In our considered opinion, the decision of the disciplinary committee is fully justified in the facts of this case. We have also noted that the Inquiry Officer considered the allegations made in the complaint and has recorded her findings on most of the allegations.

7. Now coming to the powers of the Disciplinary Committee, Article 235 of the Constitution sets out that the control over District Courts and Courts subordinate thereto shall be vested in the High Court. In the case of Samsher Singh v. State of Punjab MANU/SC/0073/1974 : (1974) 2 SCC 831. a Bench of seven Judges, considering the scope of Article 235 of the Constitution, held that the High Court is invested with, under the said Article control of subordinate judiciary. In the case of High Court of Judicature at Bombay v. Shirishkumar Rangrao Patil and Anr. MANU/SC/0692/1997 : (1997) 6 SCC 339 the Supreme Court held that after the appointment of a judicial officer by the Governor, the power to transfer, maintain discipline and keep control over them vests in the High Court. The Chief Justice of the High Court is first among the Judges of the High Court and the action taken is by the High Court and not by the Chief Justice in his individual capacity, nor by the Committee of Judges. For the convenient transaction of administrative business in the Court, the Full Court of the Judges of the High Court generally passes a resolution authorizing the Chief Justice to constitute various committees including the committee to deal with disciplinary matters pertaining to the subordinate judiciary.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 5203 of 2010

Decided On: 23.09.2010

Shiwanand Bhagwanrao Kulkarni Vs. The State of Maharashtra

Hon'ble Judges/Coram:

B.H. Marlapalle and A.A. Sayed, JJ.

Citation: 2010(6) MHLJ 827

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Whether departmental enquiry can be initiated against judicial officer in absence of complaint on affidavit?

In the context of the challenge raised in the above Petitions, the issue that
arises is as regards the power of the Disciplinary Authority in the instant case
being the Hon'ble the Chief Justice, the Hon'ble Judges of this Court to
institute the disciplinary proceedings against the Petitioner. There can be no

dispute about the fact that the Maharashtra Civil Services Rules are applicable.
A useful reference could be made to Rule 8(1) and (2) of the said Rules which
are relevant for the purpose of the present Petition:
8. Procedure for imposing major penalties:(
1)
No order imposing any of the major penalties
shall be made except after an inquiry held, as far
as may be, in the manner provided in this rule
and Rule 9, or where such inquiry is held under
the Public Servants (Inquiries) Act, 1850 (37 of
1850) in the manner provided in that Act.
(2) Whenever the disciplinary authority is of the
opinion that there are grounds for inquiring into
the truth of any imputation of misconduct or
misbehaviour against a Government servant, it
may itself inquire into, or appoint under this rule
or under the provisions of the Public Servants
(Inquiries) Act, 1850, as the case may be, an
authority to inquire into the truth thereof.
Provided that, where there is a complaint of
sexual harassment within the meaning of Rule 22A
of Maharashtra Civil Services (Conduct) Rules
1979, the Complaints Committee established in
each Department or Office for inquiring into such
complaints, shall be deemed to be the inquiring
authority appointed by the disciplinary authority
for the purpose of these rules and the Complaints
Committee shall hold, if separate procedure has
not been prescribed for the Complaints
Committee for holding the inquiry into the
complaints for sexual harassments, the inquiry as
for as practicable in accordance with the
procedure laid down in these rules.
ExplanationWhere
a disciplinary authority
itself holds an inquiry under this rule, any
reference to an inquiring authority in this rule
shall, unless the context otherwise requires, be
construed as reference to the disciplinary
authority.

A reading of the said Rule 8(2) therefore discloses that the
discretion is of the Disciplinary Authority if it is of the opinion that there are
grounds for inquiring into the truth of any imputation of misconduct or
misbehaviour against a Government servant. Hence the said Rule (2) can be
said to confer a wide discretion in the Disciplinary Authority in the matter of
inquiring into the truth of any misconduct or misbehaviour against the
Government servant.
12 Now coming to the guide lines which have been formulated by the
Hon'ble The Chief Justice of India which are comprised in the letter dated 3102014
they read thus:A.
The complaint making allegations against
members of the Subordinate Judiciary in the
States should not be entertained and no action
should be taken thereon, unless it is accompanies
by a duly sworn Affidavit and verifiable material
to substantiate the allegations made therein.
B. If action on such complaint meeting the
above requirement is deemed necessary,
authenticity of complaint should be duly
ascertained and further steps thereon should be
taken only after satisfaction of the competent
authority designated by the Chief Justice of the
High Court.
C. If the above requirements are not complied
with, the complaint should be filed/lodged
without taking any steps thereon.

The said guidelines were modified and communicated vide letter
dated 1632017
issued by the Hon'ble The Chief Justice Of India. The
modification carried out which is relevant for the purposes of the present
Petition is in clause (A). The modified clause (A) reads thus:
A. The complaint making allegations against
members of the Subordinate Judiciary in the
States should not be entertained and no action
should be taken thereon, unless it is accompanied
by a duly sworn Affidavit and/or verifiable
material to substantiate the allegations made
therein.
(emphasis supplied)
13 Hence by modification the requirement is that a complaint should
be accompanied by duly sworn affidavit and/or verifiable material to
substantiate the allegations made therein. Hence a complaint can be
entertained in two contingencies one is when a complaint is accompanied by a
duly sworn affidavit and second is when the complaint contains verifiable
material. It is in the light of the said modification that the instant case would
have to be considered. The said modification being in the matter of the
procedure which is required to be followed prior to holding a Departmental
Enquiry, the same would obviously relate back to the date of issuance of the
show cause notice, even if the notice is prior to the issuance of the
modification.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO.643 OF 2017

Asif Badremunir Tahasildar Vs. State of Maharashtra 

CORAM :R. M. SAVANT, &
SARANG V KOTWAL, JJ

PRONOUNCED ON : 4th MAY, 2018
Citation: 2018(6) MHLJ 850
JUDGMENT (PER R.M.SAVANT J.)

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