In The High Court of Judicature at Bombay Civil Appelate Jurisdiction

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELATE JURISDICTION
WRIT PETITION No. ______________of 2010
DISTRICT: NASHIK
IN THE MATTER OF
Smt. Sarita Digambar Shende Petitioner
MF-34, Sundarban Colony
Near Lekha Nagar, CIDCO Nashik-9
VERSUS
1) Executive Engineer (B&C) Respondent No.1
Zillha Parishad Nashik-1
2) Executive Engineer, Respondent No.2
Minor Irrigation (Local Sector)

Behind Yerwada Post Office
Pune-411 006
3) Dy. Chief Executive Officer Respondent No.3
Zillha Parishad, Nashik-422001
To
Hon'ble the Chief Justice of High Court of Judicature at Bombay and His
Lordship's Companion Justices of the High Court of Judicature at
Bombay of India. The humble petition of the Petitioner abovenamed.
That the present petitioner has not filed any other petition in any Court
or the High Court on the subject matter of the present petition.
1. FACTS OF THE CASE
A) The spouse of petitioner late Shri D. A. Shende was in

employment of Government of Maharashtra’s Minor Irrigation
Department at Pune from 1972 and retired on 31-10-2003.
B) During this period from 14-01-1981 to 16-05-1982 he has

worked on deputation in Nandgaon sub division of Zillha
Parishad Nashik as Section Engineer.
C) In 1983 Zillha Parishad Nashik authorities had received

complaint from one resident Shri Shivcharan Pande regarding
the work done under Employment Guarantee Scheme that there
were irregularities in work done in 1978 to 1982 and for this
period some committee was formed in 1998 to enquire into
complaint and to take the measurement of work done before 18
to 20 years ago. Then Executive Engineer had taken some
measurements and arrived on conclusion that there were some
irregularity in work done and decided an amount of Rs.3,97,828
excess paid during the period of 1978 to 1982 and collectively
held 7 employees responsible including the spouse of the
petitioner without following proper enquiry. When most of them
decline to accept the punishment imposed without being heard a
proposal to conduct enquiry was recommended to State
Government in year 1998.
D) Divisional Commissioner has issued him memorandum which
was received to him 2 days prior to date of his scheduled
retirement i.e.’ on 29-10-2003. Divisional Commissioner EGS
was appointed as Enquiry Officer to hold the enquiry, but till
death of petitioners spouse the enquiry was not completed.
E) The spouse of the petitioner was retired on 31-10-2003
F) Government of Maharashtra has approved proposal to hold Joint

Departmental Enquiry including the spouse of petitioner and
others on 03-02-2004.
G) Meanwhile due to pendency of Departmental Enquiry a

provisional pension was sanctioned to petitioner’s spouse
deferring the amount of recovery amount as informed by Zillha
Parishad Nashik vide their No dues No objection certificate
annexed as “A”
H) The spouse of petitioner passed away on 24-04-2009. The

petitioner approached to the Respondent No.2 for getting family
pension and other financial amounts vide letter dated 09-06-
2009. The letter is annexed as “B”. In this regards the
Respondent No.2 orally asked to submit request supported with
affidavit accordingly the petitioner sent application supported by
affidavit on 16-06-2009 which is annexed as “C”. After
submission of required documents the Respondent No.2 has not
taken any action on the subject matter. Petitioner made time to
time follow up for getting her family pension and other benefits
but Respondent No.1 and Respondent No.2 only was tossing from
one department to another. She pointed out this fact to
Respondent No.2 vide her letter 02-12-2009 stating the facts
that there is no concrete action on her family pension proposal
and requested again to look into the pending proposal of her
family pension which is annexed as “D”. Till today there is no
action was taken except the official correspondence between
Zillha Parishad, Nashik and the Minor Irrigation Dept. Pune.
I) In the meanwhile the Divisional Commissioner Nashik on receipt

of information from Deputy Collector (E.G.S.) regarding the death
of Shri D. A. Shende sent proposal to state Government to end the
Departmental Enquiry vide his letter dated 08-01-2010 the letter
is annexed as “E” and after due scrutiny the Government of
Maharashtra has ordered to end the Departmental Enquiry
against late Shri D.A. Shende the order is annexed as “E 1”. after
the enquiry ended by the Government, petitioner approached to
Respondent No. 1 and 2 to finalise the pending family pension
proposal and other dues which was deferred by them
collectively. After making follow up regularly only vague answers
were given that your proposal is under consideration
Respondent No.1 told that Government order is vague we require
clear order what to do regarding the recovery amount for this
purpose some clarification is required from their higher
authorities.
J) In the no dues No objection certificate dated 10-11-2004 the

Respondent No.1 has intimated to Respondent No.2 the recovery
amount of Rs. 2, 08,170 to Respondent No.2 which is annexed as
“A” and the same authority Respondent No.1 communicated to
the petitioner the recovery amount is Rs.45, 781 through letter
dated 13-08-2009 which is annexed as “F”. Petitioner pointed
out the same to Respondent No.2. A letter for clarification was
sent to the Respondent No.1 by the Respondent No.2 on 19-11-
2009 which is annexed as “G”. In reply to the said letter the
same authority Respondent No.1 stated that No exact amount is
decided. This is contrary to annexure “F” & “G”.
K) Respondent No.2 insisted on No dues and No Objection

certificate from Respondent No.1. When approached to him at
various instances personally and through letters it was told that
although enquiry is ended by Government it is not mentioned in
its order regarding what to do with the recovery amount.
Regarding this Petitioner approached to Chief Executive Officer,
Zillha Parishad Nashik through letter dated 21-06-2010 which is
annexed as “H” till today there is no single reply to that letter.
L) On 03-08-2010 the petitioner received a copy of letter sent to
Respondent No.2 to make recovery of Rs. 2, 12,270 from late Shri
D.A. Shende the spouse of petitioner which is annexed as “I-1, I-
2 & I-3”.
2. QUESTION OF LAW
i) When the Departmental Enquiry is ended by state

Government can the Respondent No.1 and Respondent
No.3 issue the order of recovery without any conclusion
and completion of Departmental Enquiry?
ii) The petitioner should have paid her legal family pension
from the date of death of her husband from which the
Respondent No.2 deprived. Is his action to hold family
pension valid?
iii) Do the Respondents No.1 and 3 exceed their right when

State Government ordered to end the Departmental
Enquiry and even then recovery from delinquent
employees spouse?
iv) Does the action of Respondent No.2 to hold family pension

legal?
v) Can payment of Gratuity be held even after end of

Departmental Enquiry without completion and any
conclusion?
3. GROUNDS
a. Petitioner’s family pension held illegally. The act of
Respondent No.2 is arbitrary and illegal.

b. When the State Government make order to end the
Departmental Enquiry at un-conclusion stage even then
The Respondent No.3 pass an order to recover the amount
from the spouse of the delinquent employee without any
provision of law and without being heard there has been
gross violation of the principles of NATURAL JUSTICE and
the maxim ‘AUDI ALTERAM PARTEM’
c. The PETITIONER cannot be permitted to suffer such a

Heavy loss due to the error and negligence on the part of
Respondents for misreading the Government Order.
d. The Respondents No.2 have misused his rights and
deprived the petitioner from getting legal family pension
and other benefits.
PRAYER
It is prayed that this Hon'ble Court may be pleased:
(i) Respondents be directed to pay to the petitioner the

applicable Family Pension which was held illegally.
(ii) It is prayed that the Respondent No.1’s letter dated

28-07-2010 annexure I1 be declared as null and void.
(iii) It is further prayed that Gratuity amount with interest,

which is held illegally from 2003 be paid to Petitioner
(iv) To pass such other orders and further orders as may be

deemed necessary on the facts and in the
circumstances of the case.
FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL
AS IN DUTY BOUND, EVER PRAY.
Place: Nashik PETITIONER-IN-PERSON
Date: 26/10/2010
VERIFICATION
I, Smt. Sarita Digambar Shende do hereby verify that the contents in the
foregoing paragraphs are true to the best of my knowledge and belief.
Place: Nashik Smt. Sarita Digambar Shende
Date: 26/10/2010 PETITIONER-IN-PERSON

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELATE JURISDICTION

WRIT PETITION No. ______________of 2010

Smt. Sarita Digambar Shende Petitioner

MF-34, Sundarban Colony

Near Lekha Nagar, CIDCO Nashik-9

1) Executive Engineer (B&C) Respondent No.1

Zillha Parishad Nashik-1

2) Executive Engineer, Respondent No.2

Minor Irrigation (Local Sector)

3) Dy. Chief Executive Officer Respondent No.3

Zillha Parishad, Nashik-422001

1. FACTS OF THE CASE

A) The spouse of petitioner late Shri D. A. Shende was in

B) During this period from 14-01-1981 to 16-05-1982 he has

C) In 1983 Zillha Parishad Nashik authorities had received

E) The spouse of the petitioner was retired on 31-10-2003

F) Government of Maharashtra has approved proposal to hold Joint

G) Meanwhile due to pendency of Departmental Enquiry a

H) The spouse of petitioner passed away on 24-04-2009. The

I) In the meanwhile the Divisional Commissioner Nashik on receipt

J) In the no dues No objection certificate dated 10-11-2004 the

K) Respondent No.2 insisted on No dues and No Objection

i) When the Departmental Enquiry is ended by state

iii) Do the Respondents No.1 and 3 exceed their right when

iv) Does the action of Respondent No.2 to hold family pension

v) Can payment of Gratuity be held even after end of

a. Petitioner’s family pension held illegally. The act of

Respondent No.2 is arbitrary and illegal.

c. The PETITIONER cannot be permitted to suffer such a

It is prayed that this Hon'ble Court may be pleased:

(i) Respondents be directed to pay to the petitioner the

(ii) It is prayed that the Respondent No.1’s letter dated

(iii) It is further prayed that Gratuity amount with interest,

(iv) To pass such other orders and further orders as may be

Place: Nashik PETITIONER-IN-PERSON

Place: Nashik Smt. Sarita Digambar Shende

Date: 26/10/2010 PETITIONER-IN-PERSON

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