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2002 DIGILAW 245 (RAJ)

Sita Ram Chouhan v. The State of Rajasthan

2002-01-30

O.P.BISHNOI, RAJESH BALIA

body2002
JUDGMENT 1. - This appeal is directed against the Order and Judgment dated 16.8.2000 passed by the learned single Judge of this Court in S.B. Civil Write Petition No. 1004 of 2000 whereby the writ petition filed by the petitioner-appellant was disposed of with certain directions. 2. The brief facts leading to this appeal are: that the petitioner-appellant retired from service while holding the post of Principal, Govt. College, Ajmer on 31.8.1999 on completion of 33 years of service. However, after his retirement, he was not granted his retiral benefit i.e. Gratuity and the provisional pension. It is not in dispute that as on the date of his retirement, no enquiry was pending against the petitioner-appellant. However, the contention of the respondent was that an enquiry against the conduct of the petitioner-appellant was in contemplation and such an enquiry could be initiated even after retirement and, therefore, the retiral benefits can not be released to the petitioner-appellant unless final decision is taken to hold an enquiry into the alleged charges. It was also brought to the notice of the court that after the filing of the writ petition, provisional pension has been released to the petitioner in August 2000 and the amount of arrears will be released shortly. Keeping in view the aforesaid facts and circumstances of this case, the court disposed of the writ petition with the following directions: "After considering the rival contentions, the petition is disposed of finally with direction that in case the respondents are willing to hold the enquiry against the petitioner even after his retirement, they must take a final decision in this regard within a period of two months from today, in case the approval is sought from His Excellency and His Excellency the Governor, the file may be put up before His Excellency and His Excellency the Governor is requested to pass final orders expeditiously preferably within a period of four weeks from the date of putting the file before His Excellency. It is further clarified that in case, His Excellency does not accord approval, the respondents shall pass the final orders for granting the retiral benefits strictly in accordance with law." 3. It is further clarified that in case, His Excellency does not accord approval, the respondents shall pass the final orders for granting the retiral benefits strictly in accordance with law." 3. From the aforesaid order, it is clear that by giving due weight to the contention raised by the learned counsel for the respondents about contemplated enquiry without going into the merits of the conduct for which the enquiry was contemplated to be held, the Court granted two months' time to initiate the enquiry and if the enquiry was initiated then it was to be completed within a period of four weeks. It was further clarified that in case, His Excellency does not accord approval, the. respondents shall pass the final orders for granting the retiral benefits strictly in accordance with the law. Aggrieved with this order, the petitioner-appellant has filed this appeal. 4. We find that the respondents have failed to initiate the contemplated disciplinary proceedings against the petitioner-appellant even until now. From time to time, the respondents have been asking for extension of time for initiating contemplated disciplinary proceedings against the petitioner-appellant. On 15.12.2000, on an oral request made by the learned counsel for the respondents, the Court extended .the period for completing the proposed enquiry by six months from the date of the order. However, the respondents failed to comply with the directions given by the learned single Judge as well as Division Bench for completing the process of proposed enquiry within the time allowed. Again an application was made on 15.6.2001 requesting for extension of time for initiating the enquiry by alleging that initiation of the enquiry against the appellant has been set in motion and the same is in progress. However, a detailed procedure meant for disciplinary enquiry has to be followed, therefore, a further reasonable period will be required for completing the enquiry. On that application, by order dated 11.9.2001, period for completion of enquiry was extended upto 31.12.2001. 5. We may notice that during this period, the Court directed on 15.12.2000 to release 50% of the Gratuity amount to the petitioner-appellant during pendency and final disposal of the special appeal on appellant furnishing proper security to the respondent Govt. for the said amount within one month. By order dated 11.9.2001, the Court directed to provisionally release the gratuity amount to the petitioner-appellant if the enquiry is not completed by 31.12.2001. for the said amount within one month. By order dated 11.9.2001, the Court directed to provisionally release the gratuity amount to the petitioner-appellant if the enquiry is not completed by 31.12.2001. Thus, under the orders of this Court, the petitioner has already become entitled to get the full gratuity amount provisionally. 6. Another application has been moved on behalf of the respondents for extending time once again on the ground that though the enquiry is continuing, however it will take some more considerable period and hence, the time granted by the Hon'ble Court deserves to be extended. On enquiry, it has been brought to our notice that enquiry has not yet been initiated against the petitioner- appellant. 7. It is well settled that enquiry can be said to have been initiated only on service of chargesheet. In the instant case, admittedly no chargesheet has yet been served on the petitioner-appellant. On further probing, the learned counsel for the respondents has placed before the court the proposed chargesheet, which is to be served on the petitioner-appellant. We find that the proposed chargesheet is dated 21.8.1999, almost two and half years before the date of making the application. We further find that proposed chargesheet was drafted only about a week before the date of retirement. Even in the forwarding letter for obtaining sanction of His Excellency the Governor of Rajasthan, it has been stated that Schedules A and B will take some time to be prepared and it is not possible to prepare the same before the date of retirement. Therefore, without furnishing necessary information in Schedules A and B, sanction was sought. Even from the perusal of the chargesheet, which is the, only document stated to be served on the petitioner- appellant, it was prepared even before filing of the writ petition before the date of superannuation. From said document, it is clear that in respect of number of events mentioned therein, no enquiry can now be conducted in terms of R. 171 of the Rajasthan Service Rules under which alone an enquiry after retirement of an incumbent is permissible. Moreover, the proposed charges relate to some procedural irregularities in the purchases or working of the industries or lethargy in initiating proceedings for recovery amount due from other employees of the Department. 8. Rule 171 of the Rajasthan Service Rules authorises the recoveries of losses from the pension. Moreover, the proposed charges relate to some procedural irregularities in the purchases or working of the industries or lethargy in initiating proceedings for recovery amount due from other employees of the Department. 8. Rule 171 of the Rajasthan Service Rules authorises the recoveries of losses from the pension. It lays down that the Governor further reserves to himself the right of withholding or withdrawing a pensioner 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 Govt., 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 after retirement provided that such departmental proceedings, 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. 9. Clause [b] of section 170 of the Rules further provides that such departmental proceedings, 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 to the officer during his service. Clause [c] further provides that 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. 10. As stated above, the enquiry has not yet been initiated against the petitioner-appellant though time and again, time was granted to the respondents. Therefore, there is no reason to extend further time for the i purpose of completion of the enquiry against the petitioner-appellant. 10. As stated above, the enquiry has not yet been initiated against the petitioner-appellant though time and again, time was granted to the respondents. Therefore, there is no reason to extend further time for the i purpose of completion of the enquiry against the petitioner-appellant. Accordingly we refuse the application for further extension of time for the purpose of completion of enquiry. It will not prejudice the rights of the respondents to take any action which is permissible under Rule 170 in 5 respect of events which might have taken within four years of the date of initiation of the enquiry in accordance with the law. However, no enquiry can now been instituted in respect of events which have taken place prior to four years from the date of initiation of enquiry, and we notice that most of the charges levelled relate to period much before four years. 10 11. With the aforesaid observations, this special appeal stands disposed of. There shall be no orders as to costs. The finalisation of retiral benefits in respect of the petitioner as on the date of retirement shall be completed within 2 months from today irrespective of the decision of the respondents to take any action under Rule 170 of the Rules and no such retiral benefits shall 15 be withheld except as permissible under Rule 170 of the Rules in case any enquiry in respect of any conduct alleged to have taken within 4 years of the date of initiating enquiry, is held and finding is recorded against the petitioner.Special Appeal Disposed of as above. *******