1 CORRECTED 27-wp 5136.2024.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR WRIT PETITION NO. 5136 OF 2024 ( Gulab Pandhari Kolhe vs. Accountant General, Indian Audit and Accounts Department, Pension Wing, Nagpur and others ) Office Notes, Office Memorandum of Coram, appearances, Court's orders of directions Court's or Judge's order and Registrar's orders. Mr. P.N.Shende, Advocate for petitioner. Mr. N.R.Patil, AGP for respondent Nos.1 and 2. Mr. Gopal Sharma, Advocate for respondent No.3. CORAM : AVINASH G. GHAROTE AND ABHAY J. MANTRI , JJ. D ATE : FEBRUARY 07, 2025 1) Heard Mr. Shende, learned counsel for the petitioner. 2) The petition questions the Charge-sheet dated 06/11/2024 issued by the respondent No.3, by which an enquiry has been commenced against the present petitioner, consequent to the superannuation of the petitioner on 31/08/2024 on the ground that such an action is not permissible in law and is contrary to the mandate of Section 36(1) and (2) of the MEPS Rules. 3) The basic fact leading to the petition, are as under :- The petitioner who was to superannuate on 31/08/2024, in pursuance to the Resolution dated 25/08/2024 (page 101) was issued a statement of allegations on 26/08/2024, asking him to show-cause as against the imputations made therein against Advocate name for respondent No.3 is corrected as per Order dated 06/03/2025 2 CORRECTED 27-wp 5136.2024.doc him. The petitioner filed a reply on 03/09/2024, consequent to which Charge-sheet has been issued on 06/11/2024. 4) Though Mr.Sharma, learned counsel for respondent No.3 tried to justify this action, on the ground that the petitioner has committed a grave misconduct, which is also supported by Mr.Patil learned Assistant Government Pleader for respondent Nos.1 and 2, we however, find that the action of initiation of the enquiry against the petitioner, is contrary to the provisions of Rule 36(1) and (2) of the MEPS Rules. This is so for the reason that Rule 36(1) of the MEPS Rules requires, since the petitioner was Principal and therefore the Head, to be given a statement of allegations demanding a written explanation from him within 7 days of the receipt of the statement. The statement of allegation was admittedly given to the petitioner on 26/08/2024, however, even before the expiry of the period of 7 days, therefrom, the petitioner superannuated on 31/08/2024. In view of the mandate of Rule 36(2) it is only after the explanation submitted, by the Head is found not to be satisfactory, then the matter is to be placed before the management within 15 days from the date of the explanation, who in turn has to decide within 15 days thereafter, whether an enquiry was required to be conducted against an employee, and in case it so decides to conduct the enquiry, direct constitution of an enquiry committee. 5) In the instant matter admittedly Mr.Sharma, learned counsel for respondent No.3 is unable to point out that any such decision by the management as contemplated under Rule 36(2) is taken by the management, after receipt of the explanation by the petitioner on 03/09/2024, to commence an enquiry. That would indicate, the mandate of Rule 36 (2) has been violated. Advocate name for respondent No.3 is corrected as per Order dated 06/03/2025 Advocate name for respondent No.3 is corrected as per Order dated 06/03/2025 3 CORRECTED 27-wp 5136.2024.doc The necessity of taking such decision is to indicate an application of mind to the explanation given by the employee to the management and the management can choose not to initiate the enquiry, if it is satisfied with the explanation given by the employee. It is therefore, this decision under Rule 36(2) which can be said to be the date on which the enquiry has commenced against an employee. 6) It is also necessary to note that though reliance is placed by the learned counsel for respondent No.3 upon resolution dated 25/08/2024 (page 101) the same is clearly invalid for the reason, that it takes a decision to constitute the enquiry committee, which is even without following the mandate of Rule 36(1) and (2) and indicates a predisposed mind to conduct the enquiry any how. However, such a decision cannot displace the requirement of following the mandate of Rule36(1) and (2) of the MEPS Rules. 7) That apart in the instant case admittedly, the time for submitting an explanation of 7 days, in consonance with Rule 36(1), stood expired after the superannuation of the petitioner on 31/08/2024 on account of which the mandate of Section 34(3)of the MEPS Rules, would clearly not be attracted, and therefore it would not be permissible for the management to continue with the enquiry. For the above reasons, the initiation and continuation of the enquiry by the management, post retirement of the petitioner, would clearly be contrary to the mandate of Rules 34(3) r/w 36(1) and (2) of the MEPS Rules, on account of which the enquiry stands vitiated and cannot be sustained. The same is accordingly quashed and set aside. Since the enquiry itself stands vitiated, the order of suspension, 4 CORRECTED 27-wp 5136.2024.doc dated 16/08/2024, would not stand, and the same is also hereby quashed and set aside. There being no other impediment, the petitioner therefore, will have to be held to be entitled to the retiral benefits and other incidences of superannuation. 8) The petition is accordingly allowed in the above terms. No costs. ( ABHAY J. MANTRI, J. ) (AVINASH G. GHAROTE, J.) KOLHE