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1990 DIGILAW 646 (RAJ)

Prabhudan Charan v. State of Rajasthan

1990-11-07

G.S.SINGHVI

body1990
Judgment G.S. Singhvi, J.-The petitioner, who was Forester, has filed this writ petition with the allegation that he had submitted an application for voluntary retirement under Rule 244 of the Rajasthan Service Rules, 1951 with effect from May 26, 1988. This application was accepted and he was retired with effect from May 26, 1988, by order, Annexure-1 of the same date. A few days before his voluntary retirement, a notice under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 was issued to the petitioner as well as Shri Shanker Singh, by the Conservator of Forests, Social Forestry, Ajmer. This notice contained the allegation that the petitioner had kept 16 Cattle Guards without any justification for a period from December 1986 to 1988 and thereby caused unnecessary monetary loss to the Government amounting to Rs. 73,216/-. The petitioner has submitted reply to this charge- sheet on May 26, 1988, in which he stated that he had taken charge from Shri Shanker Singh on April 15, 1987 and gave details of 40 Cattle Gaurds, who were working at that time and he had requested the Forest Extension Officer, Bandanware to reduce the number of the Cattle Guards, who said that he was not in a position to remove any Cattle Guard without the order of the Deputy Conservator of Forests, Forestry Department, Ajmer. On May 26, 1988 itself , the Conservator of Forests issued an order holding the petitioner guilty of misusing the Government money and ordered recovery of a sum of Rs. 2 1,355/-. The petitioner preferred an appeal on August 22, 1988 against the order of punishment dated May 26, 1988. This appeal has not been decided for a period of more than one year and the petitioner has not been paid the amount of gratuity, State Insurance and other emoluments. The petitioner has stated that reminders have been given to the authorities, but without any result. According to the petitioner under Rule 305-A of the Rajasthan Service Rules, 1951, the gratuity became payable to the petitioner on the date of his retirement and the petitioner is entitled to interest after a period of 3 months. 2. A show-cause notice was issued to the respondents calling upon them to show cause as to why this writ petition should not be admitted. In response to the show-cause notice, a reply has been filed by the respondents. 2. A show-cause notice was issued to the respondents calling upon them to show cause as to why this writ petition should not be admitted. In response to the show-cause notice, a reply has been filed by the respondents. The respondents have stated that charge-sheet was given to the petitioner and Shri Shanker Singh. After considering the reply, order of punishment was passed because the charge had been found established against the petitioner. The respondents have admitted the pendency of appeal, but have submitted that the petitioner has approached this Court in hot-haste. He has been paid his pension vide order dated December 30, 1989 and after deduction of a sum of Rs. 3 1,355/-the gratuity amount of Rs. 7720/-is payable to the petitioner. The amount of State Insurance has already been paid to the petitioner vide order dated November 17, 1989. 3. I haveheard Shri B.L. Samdariya, learned Counsel for the petitioner, and Shri K.N. Sharma, learned Deputy Government Advocate. 4. ShriSamdariya, learned Counsel for the petitioner argued that failure of the respondents to decide the appeal for more than one year by itself is sufficient to presume that the appeal will not be entertained by the respondents and therefore the Court may decide the matter ignoring the pendency of the appeal. 5. The argument of Shri Samdariya deserves to be accepeted. In M.R. Arjunaram vs. State of Raj (1971 RLW 177), a Bench of this Court has clearly held that if appeal filed in the disciplinary matter is not decided for a long time, the pendency of appeal cannot operate as an obstacle in deciding the controversy relating to the order of punishment. 6. ShriSamdariya then argued that the order dated May 26, 1988 has been passed arbitrarily. A reply to the notice dated May 5, 1988 was submitted on May 26, 1988 and on that very day the disciplinary authority passed the order. Shri Samdariya submitted that the notice given to the petitioner was quite vague. The only allegation contained in the notice was, about the development of excess Cattle Guards had been kept on account of orders passed by the Deputy Conservator of Forests, Social Forestry Department. He submitted that there is no allegation against the petitioner for not taking the work and yet he has been found guilty. The only allegation contained in the notice was, about the development of excess Cattle Guards had been kept on account of orders passed by the Deputy Conservator of Forests, Social Forestry Department. He submitted that there is no allegation against the petitioner for not taking the work and yet he has been found guilty. Shri Samdariya further submitted that when the allegation was jointly levelled against the petitioner and Shri Shanker Singh, there was no justification for passing the order against the petitioner alone. He submitted that the whole matter has been decided with a pre-judged mind. 7. Shri K.N. Sharma, learned Dy. Government Advocate, on the other hand submitted that the order of the punishment passed against the petitioner is justified and that the order of punishment does not suffer from any legal infirmity. 8. I have considered the arguments. I find that the petiitoner had submitted a detailed reply to the notice dated May 5, 1988. In the reply, he had categorically stated that the he had taken over charge from Shri Shanker Singh only on April 15, 1987 and before his taking over Charge, 40 Cattle Guards were working. He had brought to the notice of the higher authorities about the excess Cattle Guards and had requested for removal of half of the Cattle Guards, but no action was taken. He had sent written communications for this purpose, but still no action was taken and, therefore, he could hardly be blamed for employment of excess Cattle Guards. I also find that in such matters when a joint charge sheet is given to the petitioner and Shri Shanker Singh, there is no justification for passing the order only against the petitioner. This has certainly caused serious prejudice to the petitioner. The respondent No. 2 had not applied his mind to this aspect of the matter while passing the order dated May 5, 1988, in this view of the matter, the order dated May 5, 1988 cannot be sustained and is liable to be quashed. The respondents will however be free to pass fresh orders on the basis of notice dated May 5, 1988 after giving an opportunity of hearing to the petitioner. 9. As far as questions of payment of gratuity and retirement benefits are concercnd, the respondents have filed documents showing that the petitioner has already been paid pension. The respondents will however be free to pass fresh orders on the basis of notice dated May 5, 1988 after giving an opportunity of hearing to the petitioner. 9. As far as questions of payment of gratuity and retirement benefits are concercnd, the respondents have filed documents showing that the petitioner has already been paid pension. Even regarding the amount of gratuity, they have said that the petitioner is entitled to draw the amount of gratuity minus the amount already recovered from him. The amount of Insurance has already been paid to him. Shri Samdariya has placed reliance on (1988-II-LLJ-292) Delhi (Ramwat vs. Krishnan Gopal) in support of his submission that the amount of gratuity cannot be with held. I find that this argument advanced by Shri Samdariya cannot be accepted. The amount of gratuity is certainly payable to the employee at the time of retirement, but pendency of dis-ciplinay proceedings is also a ground for nonpayment of gratuity either in full or in part in view of the provisions contained in Rule 170-A of the Rajasthan Service Rules, 1951. There is no challenge to the validity of this provisions. The judgment of Delhi High Court, to which a reference has been made by Shri Samdariya, has no application to the facts of the present case. In that case, the amount of gratuity was sought to be withheld in execution of some money decree and it was held that the employees’ gratuity cannot be attached in view of the provisions contained in Section 60(g) of CPC The facts of that case have no relevance with the facts of the present case. 10. In theresult, the writ petition is allowed in part. The order dated May 26, 1988 is quashed and set-aside. The respondents shall be free to pass fresh order in pursuance of the notice dated May 5, 1988 after giving opportunity of hearing to the petitioner. This exercise must be completed within a period of three months from the date of presentation of the copy of this order. The payment of the amount of gratuity would depend upon the result of the proceedings, which may be taken by the respondents in pursuance of the notice dated May 5, 19S8. In case the proceedings arc not completed within 3 months, the amount of gratuity shall be released to the petitioner. 11. Nor order as to cost.