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2005 DIGILAW 1224 (RAJ)

Ranjit Mal v. State of Rajasthan

2005-04-26

RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-Heard learned Counsel for the parties. 2. The facts in brief are that the petitioner was appointed as a Vaidhya vide order dated 12.01.1960. Initially the petitioner was appointed for six months. However, the petitioner continued to serve until he retired on attaining the age of superannuation in the year 1992. 3. The petitioner has claimed himself to have obtained diploma of B.A.M.S. from Silver Jubilee Medical College, Calcutta and obtained a diploma certificate (Annexure-1) and the petitioner produced a copy of such certificate at the time of appointment. The said diploma certificate shows that it has Government Registration No. 2276 and it also shows that the institution was declared affiliated to Homeopathic Examiners Society of India. The petitioner was asked to submit the originals and verify the facts about his qualification. The petitioner was required to submit the proof about his eligibility qualification vide letter dated 212.1971. In that letter, it was intimated to the petitioner that it appears that the petitioner is not registered as a practitioner under the Rajasthan Indian Medicine Act, 1953. 4. The petitioner submitted his original documents from Silver Jubilee Medical College and also submitted the copy of his registration under the Rajasthan Medicine Act, 1953. Thereafter, by order dated 07.08.1981, the petitioner was informed that it appears that he does not hold the valid qualification for holding the post of Vaidhya and he has not produced the proof of his registration with the Registrar of Indian Medicine, Rajasthan. It was stated that if the requisite proof is not submitted, the proceedings under Rule 16 of the Rajasthan CCA Rules are likely to be commenced against him. 5. In furtherance of this intention to hold an enquiry, his salary was also detained vide order dated 111.1981. The said order was revoked by order dated 15.03.1982. By letter dated 20.07.1982, the petitioner was informed that he should appear alongwith original documents on 26.07.1982 otherwise decision would be taken ex-parte. Thereafter, the petitioner was served with charge sheet dated 10.11.1988 alleging that it is learnt that no institution like Silver Jubilee Medical College existed in Calcutta nor such college was ever recognized or offers any diploma/degree in Ayurvedic Science. Therefore, he has obtained service by presenting the false certificate. Thereafter, the petitioner was served with charge sheet dated 10.11.1988 alleging that it is learnt that no institution like Silver Jubilee Medical College existed in Calcutta nor such college was ever recognized or offers any diploma/degree in Ayurvedic Science. Therefore, he has obtained service by presenting the false certificate. Prior to this, the petitioner was informed vide Annexure-9 dated 26.03.1980 that the departmental enquiry against him has been dropped and under the scheme and registration certificate were returned in original. 6. The enquiry continued post-retirement. The Enquiry Officer submitted his report prior to his retirement that Silver Jubilee Medical College was operative in Calcutta until 1960s and was not recognized. The petitioner was given appointment in 1962 by considering the said certificate issued from the Silver Jubilee Medical College. The department has also made an enquiry in 1980 in the very same subject matter and dropped the proceedings. 7. However, before any action could be taken on the basis of the enquiry report, the petitioner had retired and consequently, the final decision was taken by the State Government in terms of Rule 170 of the Rajasthan Service Rules. The petitioner was asked to submit reply in respect of the enquiry and after receiving the petitioners reply second notice was issued on 18.08.1982 that provisionally, it has been decided to withhold 35% of pension for 10 years by way of punishment and he was given opportunity to show cause. After the petitioner submitted his reply, the order was passed on 18.05.1983 imposing the punishment as aforesaid by finding that the charges against him are fully proved. 8. From the narration of the facts, the things which are clear are that the petitioner was initially required to submit the proof about his eligibility qualification and departmental enquiry was conducted against him. On finding that he holds requisite qualification, said enquiry was dropped in the year 1980 vide Annexure-9. However, soon thereafter again an enquiry was in contemplation and finally after about 6 years in 1988 charge-sheet was issued. The enquiry was finally completed after the petitioners retirement and the aforesaid punishment was imposed. Apparently, no finding has been recorded that the petitioner has submitted the certificate from an institution knowingly that such institute is non-existent or non-recognized and that he has obtained the services by practising fraud. The enquiry was finally completed after the petitioners retirement and the aforesaid punishment was imposed. Apparently, no finding has been recorded that the petitioner has submitted the certificate from an institution knowingly that such institute is non-existent or non-recognized and that he has obtained the services by practising fraud. In fact, the finding is in favour of the petitioner to the extent it finds the institution was in existence until 1960. It was apparent on the face of record that it has registration certificate and that there is nothing to suggest that the petitioner has knowingly submitted a certificate which was not valid for the purpose of seeking employment. Rule 170 of the RSR reads as under:- “170. Recoveries of loss 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 specific 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 under re-employment after retirement:- (a) Provided that such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his reemployment, 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; 9. The Rule 170 makes two provisions; one for recovery from a pension of wholly or partly, any pecuniary loss caused to the Government. Obviously, the petitioner has not been found to have caused any pecuniary loss which is sought to be recovered from his pension wholly or partly. The another contingency in which the incumbent can be punished after retirement is that if he is found in departmental inquiry guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement. The another contingency in which the incumbent can be punished after retirement is that if he is found in departmental inquiry guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement. Apparently, the finding is that the petitioner was not eligible because the certificate obtained by him was not issued by the recognised institution but there is no finding about the complicity of the petitioner in obtaining a forged document and seeking the job on that basis. In absence of same, the petitioner cannot be said to be guilty of any grave misconduct or negligence during the period of service including the service rendered after retirement by the pensioner. 10. In view thereof , the petitioner being not guilty of grave misconduct of service, the question of operating Rule 170 for imposing any punishment thereunder does not arise. Therefore, accepting the finding which have been accepted by the Government, the case of invoking Rule 170 has not been made out. 11. Therefore, the punishment of post retiral withholding of pension in the absence of any finding about grave misconduct attributed to the petitioner cannot be sustained. 12. In this view of the matter, the order of punishment of withholding 35% of pension for 10 years cannot be sustained. 13. The petition is allowed. The impugned order is quashed. Full pension be released to the petitioner. There shall be no order as to costs.