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2002 DIGILAW 1246 (RAJ)

K. S. Garg v. State Of Rajasthan

2002-07-18

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - The petitioner seeks to quash the memo of allegation (Annex.3) as well as the punishment order dated 5.5.2000 (Annex.5) whereby the petitioner was punished in an enquiry initiated under Rule 16 of Rajasthan Civil Services (Classification, Control and Appeals) Rules, 1958 (for short 1958, Rules') and his 10% pension for period of 3 years was ordered to be withheld. 2. It is not disputed that on the date of superannuation of petitioner i.e. 30.9.1993. an enquiry under Rule 17 of 1958 Rules was pending. The only question which requires consideration is whether on the eve of retirement of petitioner the Disciplinary Authority was competent to convert the enquiry from Rule 17 to Rule 16 of 1958, Rules. 3. It will be useful at this juncture to refer to Rule 170 of Rajasthan Service Rules (for short 'RSR'), which reads thus: "The governor further reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension' of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment: (a) provided that such departmental proceeding, if instituted while the office was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service. (b) such departmental proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment: (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation the officer during his service. 4. 4. A look at the proviso (a) appended to Rule 170 of RSR demonstrates that on the eve of retirement of employee if departmental proceeding is pending, it will be continued and concluded by the Disciplinary Authority in the manner as if the employee had continued in service. The proviso (b) appended to Rule 170 of RSR provides that such departmental proceeding, if not instituted while the employee was in service, whether before his retirement or during his re-employment, it shall not be instituted save with the sanction of the Governor and it shall not be in respect of any event which took place more than 4 years before such institution. 5. In the case in hand, it appears from the documents appended with the reply to writ petition by the respondents that a decision was taken to convert the enquiry against the petitioner from Rule 17 to Rule 16 of 1958, Rules on 30.9.1993, i.e. on the eve of retirement of the petitioner. A memo of allegation dated 30.9.1993 was sent to the petitioner by registered post, but acknowledgment receipt was not received. Therefore, it was decided that the notice be published in daily news papers viz. Young Leader/Rastradoot and thereafter it was published in Young Leader on 6.5.1997. 6. Mr. S.P. Mathur, learned counsel appearing for the petitioner contends that in order to convert the enquiry from Rule 17 to Rule 16 of 1958, Rules it was incumbent upon the respondents to serve a notice on the petitioner. In support of his contention Mr. Mathur has placed reliance on D.B. judgment Dr. Kishan Singh v. State of Rajasthan, AIR 1966 Rajasthan 55 , wherein this Court indicated that the procedure for changing the enquiry from Rule 17 to Rule 16 of 1958, Rules cannot be adopted unless prior notice in this regard is served upon him. It is further contended by Mr. Mathur that on the eve of retirement of petitioner the enquiry under Rule 16 of 1958, Rules could not have been initiated in view of the proviso (b) of Rule 170 of RSR. 7. Per contra, Mr. G.S. Bapna, learned counsel appearing for respondents canvassed that as the decision to initiate the enquiry was taken on 30.9.1993, the case of the petitioner is covered under proviso (a) of Rule 170 of RSR. 8. 7. Per contra, Mr. G.S. Bapna, learned counsel appearing for respondents canvassed that as the decision to initiate the enquiry was taken on 30.9.1993, the case of the petitioner is covered under proviso (a) of Rule 170 of RSR. 8. I have reflected over the rival submissions and carefully scanned the material on record. 9. To my mind if the enquiry under Rule 17 is converted to Rule 16 of 1958, Rules it will be deemed to have been initiated when the notice of such change is served on the employee. In the instant case it will be deemed to have been changed on 6.5.1997 when the notice of such change was published in daily news paper Young Leader. In such situation when the petitioner got superannuated on 30.9.1993, the case shall be governed by proviso (b) appended to Rule 170 of RSR and it was incumbent upon the respondent to obtain the sanction of the Governor before initiating the enquiry. In view of the Sub-Clause (ii) of proviso (b) of Rule 170 of RSR it could not be initiated in regard to the event which took place more than 4 years before such institution. 10. I am of the considered opinion that proviso (b) appended to Rule 170 of RSR has not been followed by respondents in the instant case and in this view of the matter, the punishment order dated 5.5.2000 (Annex. 5) deserves to be set aside. 11. Resultantly, I allow the writ petition and set aside the order dated 5.5.2000 (Annex.5). However, I hold that the enquiry under Rule 17 of 1958, Rules, which was pending on the date of retirement of petitioner, may be deemed to have been continued and the respondents shall be at liberty to pass appropriate orders under Rule 17 of 1958, Rules, in accordance with law. The respondents are directed to conclude the enquiry under Rule 17 of 1958, Rules within 60 days and after conclusion of the enquiry proper order in regard to pension etc. with consequential reliefs shall be passed.Petition allowed. *******