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2002 DIGILAW 1827 (RAJ)

Vaidya Ganpat Lal Harit v. State

2002-11-13

ARUN MADAN

body2002
JUDGMENT 1. - The petitioner who was a senior most 'Zila Ayurved Adhikari' as per the seniority-list marked Annexure-1 on record and was due for promotion to the post of Deputy Director, Ayurved, was subjected to imposition of penalty under Rule 16 of the C.C.A. Rules by withholding of three grade increments with cumulative effect in terms of the order dated 26.7.1995 (Annexure - 2) impugned herein. The gravaman of the charge against the petitioner who was the Member of the Selection Committee and also against the then Chairman Shri Hanuman Prasad Nandwana (respondent No. 4 herein) was that the petitioner had allegedly caused the pecuniary loss to the department in making selection of the ward boys who were to be absorbed in the Ayurved Department. Meeting of the Committee was convened under the Chairmanship of respondent No.4 on 24/25.10.1985 in the office of the petitioner who at the relevant time was District Ayurved Officer, Jhunjhunu. The petitioner was placed under suspension following the departmental enquiry initiated against him and also against the Chairman, respondent No. 4. The enquiry was initiated against the petitioner on 29.12.1989 under the CC.A Rules. 2. Though, the candidates were recommended by the Selection Committee on the basis of interview and the list was prepared on it could not see the light of the day and in the meantime on the basis of the alleged pecuniary loses caused to the respondent, the petitioner and also the Chairman were suspended from services of the department. 3. It has been contended by the learned counsel for the petitioner that since the petitioner had at the relevant time not obliged the then Collector Jhunjhunu, one Ganpat Lal Yadav he not only cancelled the selection list but also passed the adverse remarks against the working of the petitioner for which he was constrained-to move this Court by filing a writ petition No. 409/89. 4. The petition was allowed by learned Single Judge who had by a detailed and reasoned order expunged the remarks against the petitioner vide order dated 21.1 1.1990 (Annexure-4). 5. Thereafter, with a view to wreak vengeance, the respondents initiated a departmental enquiry against the petitioner and lie was victimised for no fault and rather visited with consequence of major penalty as per Rule 16 of the CC.A Rules which ultimately resulted in exoneration of the then Chairman of Selection Committee Hanuman Prasad Nandwana. 6. 5. Thereafter, with a view to wreak vengeance, the respondents initiated a departmental enquiry against the petitioner and lie was victimised for no fault and rather visited with consequence of major penalty as per Rule 16 of the CC.A Rules which ultimately resulted in exoneration of the then Chairman of Selection Committee Hanuman Prasad Nandwana. 6. During the course of hearing, learned counsel for the petitioner has brought to the notice of this court a very glaring anomaly which had occurred in the impugned order and which the respondent failed to take note of that, how could the penalty of stoppage of three grade increments with cumulative effect he imposed on the petitioner retrospectively for the past three years particularly when he was no longer in service and had already retired from services of the respondents on 30.1 1.1995 on attaining superannuation while the impugned order of suspension was passed on 26.7.1995. 7. In reply to show cause notice, the respondents have tried to overcome the fact of anomaly by contending inter-alia that the enquiry officer had submitted a report after considering the entire material available on record and the order dated 26.7.1995 was passed by the State Govt. while considering the report of the enquiry officer and also by giving full opportunity to the petitioner. In my view, this approach would by itself not sufficient to absolve the respondent of their accountability for adopting adverse attitude against the petitioner particularly when two Similarly placed persons like the petitioner and also the the Chairman of the Selection Committee could not have been dis-similarly treated when the gravamen of the charges against both were one and the same. The manner in which the respondents adopted this approach in punishing the petitioner is condemnable in strongest terns when the respondents placed him under suspension by getting the approval of the then HE the Governor of the State by not apprising him of the correct position by saying that on the basis of the alleged adverse remarks "there were complaints about his work and his general reputation not good. Not yet fit for promotion". 8. The aforesaid adverse remarks were expunged by this Court vide order dated 21. 1 1.1 990 by observed, as under : "I find that this part of the remarks, as a matter of fact, amounts to usurping the function of the DP.C and appointing authority. Not yet fit for promotion". 8. The aforesaid adverse remarks were expunged by this Court vide order dated 21. 1 1.1 990 by observed, as under : "I find that this part of the remarks, as a matter of fact, amounts to usurping the function of the DP.C and appointing authority. The remarks not yet fit for promotion' are normally beyond the scope of Annual Performance Appraisal Report. Since I have came to the conclusion that there was no material to form the opinion for giving these adverse remarks against the petitioner, the impugned communication, Annexure/l, dated 9th January, 1987 and rejection of the representation of the petitioner, Annexure/8, dated 2nd June, 1987 are quashed and set aside, and the adverse remarks record against the petitioner in the Annual Performance Appraisal Report, 1985-86 are hereby expunged, as if the same were never recorded in the Annual Performance Appraisal Report." 9. In my view, the callous manner in which the respondent had disregarded the aforesaid judgment of this Court against which no appeal was preferred by the respondents which having attained finality, is not only condemnable but also in contempt of the orders of this Court for non compliance of directions. 10. It is in the context of the above scenario that the contentions advanced by the learned counsel for the petitioner have been examined and the logical conclusion which emerges as a result of the above discussion is that in all fairness the wane approach has to be adopted to the petitioner's case as in the case of Hanuman Prasad Nandwal (respondent No.4 herein) who retired as Deputy Director from the Ayurved Department. 11. It is also relevant to mention Rule 170 of the R.S.R, which stipulates, as under:- "170. Recoveries of losses from the pension: 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 the Government, if in a departmental of judicial proceedings the pensioner is found guilty of grave misconduct or negligence during the period of his service rendered upon re-employment after retirement. (a) Provided that such departmental proceeding, if instituted while the officer 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 proceeding in which an order of dismissal from service could be made in relation to the officer during his service; (c) No such judicial proceeding, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and (d) The Rajasthan Public Service Commission shall be consulted before final orders are passed." As per the requirements of Rule 170 of the Rules though, the enquiry was instituted while the petitioner was in services of the respondents but keeping in view the fact that he retired from services of Ayurved Department of the State Govt. on attaining superannuation on 30.11.1995, in my view, no purpose would be served by referring the matter back to that very enquiry officer where the enquiry is pending as that would unnecessarily put a anomalous burden particularly when charges have been quashed being not found sustainable by this Court in SBCWP No. 409/89. 12. Moreover, causing of alleged pecuniary loss to the State Govt. having not been proved and also not being found sustainable keeping in view the facts and circumstances of the present case and also the finding recorded by the Enquiry Officer particularly when it has not at all established that the Government suffered any pecuniary loss on account of the petitioner. In my view, there is no justifiable reason for directing the pending enquiry to continue any further. In my view, there is no justifiable reason for directing the pending enquiry to continue any further. That apart, the case is fully covered by the ratio of the decision in the matter of Shri Lal v. State of Raj., RLR 1991 (2) 700 & Gyan Singh v. State of Raj. WLR 1991 (S) Raj. 530. 13. As a result of the above discussion, the writ petition is allowed. The impugned order by which the penalty of stoppage of three grade increments with cumulative effect. (Ann.2) was imposed on the petitioner is quashed and set- aside. 14. Consequently, the benefits which were withheld on account of imposition of penalty will be released in favour of the petitioner forthwith. 15. The petitioner will be entitled to all pensionary benefits as per the rules with interest @9% from the due date till payment. The order is directed to be complied with positively within six weeks from the date of communication of certified copy of this order. A copy of this order be also sent to the Chief Secretary of the State of Rajasthan for necessary information and compliance.Petition allowed. *******