P.B.MAJMUDAR - (1.) It is a matter of regret that in spite of the interim order passed by this Court (Coram : C.K. Buch, J.) as back as on 2 4/09/2001, the concerned Officer had the guts to defy the said order and the interim order, unfortunately, is not yet complied with. It is also required to be noted that this Court (Coram : A.R. Dave, J.) passed the following order on 29.11.2001 :- " ... ... ... Learned AGP Shri P.R. Abichandani has submitted that in pursuance of order dated 6.11.2001, Shri M.A. Shaikh, Deputy Section Officer, is present in the court and the said officer has been duly informed about the order passed by this Court dated 24.9.2001. By an order dated 24.9.2001, this Court had directed the respondents to pay 90% of the amount of gratuity payable to the petitioner. It is deplorable that in spite of the said order, respondent No.2 has addressed a letter to the District Treasury Officer on 19.10.2001 that no amount should be paid to the petitioner. Respondent No.2 shall forthwith withdraw the instructions given to the District Treasury Officer and if it is not done within a period of one week, from today, contempt proceedings shall be initiated against the said respondent. S.O. to 13.12.2001 to know the progress. ... ... ...." Ms.Harsha Devani, learned AGP, however, states that the Department could not comply with the order in question as the Department was contemplating filing of a Letters Patent Appeal. She further submitted that there is no deliberate intention to flout the order of this Court. It is also required to be noted that on 13.12.2001, the following order was passed by this Court (Coram : A.R. Dave, J.) :- " ... ... ... Learned A.G.P. Shri Abichandani has submitted that for some reason the order dated 24/09/2001 as well as order dated 29/11/2001 passed by this Court could not be complied with. In pursuance of the instructions received from Shri P.M. Christian, Deputy Secretary, Narmada and Water Resources Department, who is present in the Court, learned A.G.P. prays for a week's time, so that the directions referred to hereinabove can be complied with. S.O. to 21.12.2001. ... ... ...." It is not in dispute that the interim order passed by this Court (Coram : C.K. Buch, J.) on 24th September, 2001, is not stayed by the appellate court and, still, the concerned Officer continued to flout the order. The tendency on the part of certain Officers to defy the orders of the Court is required to be deprecated, as such tendency is increasing day by day. The magnanimity of the Court should not be taken as a weakness of the Court. In my view, C.R. Mody, respondent No.2, has acted in a most contemptuous manner. The Secretary of the concerned Department may look into the conduct of this Officer and Note to that effect must be made in his Service Record. The order passed by this Court is flouted by the said Officer. Once an interim order is passed by this Court, it is required to be complied with forthwith unless, in the meanwhile, the said order is stayed by the appellate court. It is hoped that, in future, appropriate care will be taken by the concerned Officer before taking the orders of this Court lightly and in a casual fashion, as has been exhibited in the instant case.
(2.) The petitioner was initially appointed in the Department from 2/02/1965 as a Supervisor. Subsequently, he was promoted as Deputy Engineer in 1980 and, ultimately, he retired from service on 30th June, 1997, while holding the post of Deputy Executive Engineer. A few days prior to his retirement, he was subjected to a charge-sheet dated 20/06/1997. The same is annexed as Annexure `A' at page 23 in the compilation. The aforesaid charge-sheet was issued in connection with the contract work which was undertaken between 1982 and 1985, and as per the charge-sheet, in connection with some contract work, the petitioner was negligent in discharging his duty and because of the same, there was financial loss to the Government of a sizable amount. As per the allegation, the concerned Contractor abandoned the work after 6.9.1985 and the petitioner was negligent in the matter of recovering the material, etc., from the Contractor. It was found that certain material was not available at the site and, ultimately, the Government suffered monetary loss. On that basis, departmental enquiry is initiated against the petitioner.
(3.) It is not in dispute that after receiving the said charge-sheet, the petitioner has already retired from service on attaining the age of superannuation on 30th June, 1997. The said departmental enquiry is pending against the petitioner since 1997 and as per the averment in the petition, the same has not proceeded further, even though reply to the charge-sheet has been filed by the petitioner as back as in the year 1997. This shows how causally these enquiry proceedings are going on against Government employees. In the meanwhile, the petitioner, by his letter dated 16.8.1999, requested the authority to release the gratuity amount as per the Government Resolution to that effect. As per the provisions contained in Rule 189-B of the Bombay Civil Services Rules, 1959, provision is made as regards payment of gratuity. The aforesaid provision is annexed with the petition as Annexure `H'. The portion of Rule 189-B of the BCSR, which is relevant for the purpose of deciding the present controversy, reads as under :- " ... ... ... Provided that_____ (a) if a charge-sheet is not issued or criminal prosecution is not launched, as the case may be, on or before the date of retirement, ninety percent death-cum-retirement gratuity shall be paid, retaining ten percent or rupees five thousand which ever is less : if the concerned department is of the opinion that some inquiry or prosecution is contemplated; (b) If the Departmental Inquiry or Prosecution is launched (i.e. charge-sheet issued or First Information Report filed, as the case may be) prior to retirement, but the departmental inquiry or prosecution, is not concluded (i.e. the competent authority's order on the inquiry officer's report not issued or judgment of trial court not delivered, as the case may be), within two years from the date of the retirement ninety percent death-cum-retirement gratuity shall be released, retaining ten percent or rupees five thousand which ever is less. ... ... ...." By a subsequent Resolution, the limit of Rs.5,000.00 is raised to Rs.15,000.00. Relying upon the aforesaid provision, the petitioner applied for releasing 90% of the gratuity amount as per the said provision. More than two years' period has elapsed after his retirement, and the enquiry is still not concluded. However, in spite of this clear-cut statutory provision, the said amount was not released in his favour and, therefore, the said action is challenged by the petitioner by filing this petition.;