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Rajasthan High Court · body

2005 DIGILAW 234 (RAJ)

Sudhir Kumar v. Rajasthan Agriculture University

2005-01-27

DINESH MAHESHWARI, RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-We have heard learned Counsel for the parties. 2. This case has a very chequered history and is third round of litigation. It concerns the effect of suspension order passed against the petitioner-appellant on 12.08.1974 in pursuance of the resolution of Executive Committee of the Mohan Lal Sukhariya University for holding the preliminary enquiry for examining certain allegations against the petitioner-appellant and Dr. B.P. Chakrawarti and during the period of enquiry it was proposed to suspend the petitioner and Dr. B.P. Chakrawati. Before the suspension order could actually be served upon the petitioner, the Writ Petition No. 2315 of 1974 was filed by the present petitioner before this Court seeking interim relief of restraining the respondent-university from putting the petitioner under suspension and alternatively if for any reason order of suspension is given effect to then the respondent-university be directed to pay to the petitioner his full salary. 3. An interim order was made in the said writ petition on 010.1974 as under:-"The order of suspension of the petitioner is stayed only in respect of payment of emoluments to him during the suspension period. The petitioner shall be paid his full pay and all other allowances on the condition that the petitioner shall furnish adequate security to the satisfaction of the Registrar, University of Udaipur, for the repayment of the difference between the normal emoluments payable to the petitioner and the subsistence allowance which would have been payable to him in accordance with the suspension order in case the writ petition fails. However, it is made clear that the excess amount over and above the subsistence allowance which shall thus be paid to the petitioner in pursuance of this order shall be liable to adjustment against the provident fund of the petitioner with the university in case the writ petition is dismissed." 4. Subsequent to this order, the University by its order dated 25.08.1977 revoked the suspension order with immediate effect without prejudice to all such disciplinary actions which might become necessary as a result of enquiry being conducted by the enquiry officer. The charge-sheet dated 3/5th December, 1974 is much prior to the issuance of this order. Thereafter, by resolution No. 25 dated 02.08.1980, the Board of Management of the University of Udaipur had decided to drop the enquiry. The charge-sheet dated 3/5th December, 1974 is much prior to the issuance of this order. Thereafter, by resolution No. 25 dated 02.08.1980, the Board of Management of the University of Udaipur had decided to drop the enquiry. Consequently, by order dated May 20/22nd, 1981 the charge-sheet against the petitioner was withdrawn alongwith certain other persons including Dr. B.P. Chakrawarti, who was also ordered to be suspended alongwith the petitioner-appellant vide resolution of the Executive Committee dated 9th August, 1974. 5. In pursuance of the aforesaid subsequent events, the Writ Petition No. 2315/74 has become infructuous and on the statement made on 011.1974, the Court held that since the petitioner has already been granted relief, the petition has become infructuous. Consequently, the writ petition was dismissed as such. 6. However, the matter did not rest there and by resolution dated 012.1981, the Board of Management proposed to review its earlier resolution No. 25. On 23.01.1982 again a notice was served by the University calling upon the petitioner to pay the difference between subsistence allowance during the period of suspension and the full emoluments actually paid to him for said period under the directions of the Court because the writ petition has been dismissed and the amount in pursuance thereof was recovered from the petitioner. 7. This led to filing of the Writ Petition No. 346/1983 challenging the notice dated 23.01.1982. A number of contentions raised by the petitioner against the said recovery noticed by the learned Single Judge as that the dismissal of the writ petition in the aforesaid circumstances does not amount of disposal of the writ petition on merits; that once the order of suspension has been revoked then it cannot be revived back as it is against the principles of equitable estoppal, that the order dated 25th August, 1977 whereby the petitioners order of suspension was revoked by the respondents and that the order dated 23.01.1982 is discriminatory because Mr. Chakrawarti who was similarly placed but in his case the recovery has been waived whereas in case of the petitioner the same treatment has not been given. 8. After repelling the preliminary objections raised on behalf of the University against the maintainability of the writ petition, the Court considered it appropriate to rest its decision only on the test of the contentions noticed by us above that the notice dated 23.01.1982 is discriminatory because Mr. 8. After repelling the preliminary objections raised on behalf of the University against the maintainability of the writ petition, the Court considered it appropriate to rest its decision only on the test of the contentions noticed by us above that the notice dated 23.01.1982 is discriminatory because Mr. Chakarawarti who was similarly placed as the petitioner but in his case recovery has been waived which found favour with the Court. The Court noticed that the resolution passed by the Board of Management on 011.1984 in pursuance of which the Chancellor cancelled the order relating to the recovery of salary paid to Dr. B.P. Chakrawarti, Ex-Professor, Rajasthan College of Agricultural University during the period of his suspension and exempt him from the recovery of the salary for the aforesaid period, and considering the explanation submitted by the University after the learned Counsel for the University was confronted with said order which was not replied to earlier, the Court recorded its finding as under:- "It is not disputed that so far as the case of the petitioner is concerned he is similarly situated. It is not pointed out that the gravity of the charge relating to Dr. Chakarbarti was less grave than that of the petitioner. Once two persons were similarly situated then they cannot be treated dissimilarly, in the present case when both Dr. Chakarbarti and the petitioner have been treated similarly in the matter of suspension and in the matter of payment of subsistence allowances and in the matter of reinstatement of payment of the wages during suspension period and now in order to justify the action of the University in giving a favourable treatment that he superannuated and the gravity of the charge against him is lesser than that of the petitioner is only after thought. There is no justification to justify the case of petitioner being distinguishable to that of Dr. Chakarbarti." 9. With aforesaid conclusion, the Court quashed the order dated 23.01.1982 and allowed the writ petition by the order dated 011.1985. There is no justification to justify the case of petitioner being distinguishable to that of Dr. Chakarbarti." 9. With aforesaid conclusion, the Court quashed the order dated 23.01.1982 and allowed the writ petition by the order dated 011.1985. However, before parting with the case, the Court further observed that the petitioner shall furnish adequate security to the satisfaction of the Registrar, University of Udaipur for repayment of difference between the normal emoluments payable to the petitioner and subsistence allowances which would have been payable to the petitioner in accordance with the suspension order, subject to the decision of the departmental enquiry if the authorities want to decide to pay him only subsistence allowances during the suspension period then the difference of the amount may be adjusted against the petitioners provident fund of gratuity as the case may be. 10. After the petition was decided on 011.1985 as aforesaid, as a result of enquiry on 17.07.1992 a sum of Rs. 17,342/-was ordered to be recovered from the petitioner appellant which pertained to loss caused to the university or the amounts given in advance which had not been properly accounted by him. Apart from the recovery of the amount from the petitioner appellant which as per the audit report had not properly been accounted, the other recovery was directed to be made in equal shares from Dr. Sudhir Kumar and aforementioned Dr. B.P. Chakarbarti. However, no order was made after the order dated 17.07.1992 about recover of any amount from the petitioner for the suspension period. 11. According to the learned Counsel for the petitioner, the amount which was to be recovered on account of recovery order vide Annexure 3 has already been deposited or paid by the petitioner and the controversy does not survive about that amount. 12. It appears that notwithstanding the resolution dated 3rd December, 1981 for staying the earlier resolution No. 25 dropping the charge-sheet against the petitioner and considering the fact that the charge-sheet dated 3/5th December, 1994 was only a preliminary enquiry, the enquiry was really set up against the delinquent vide charges dated 20th August, 1985 and which had not been completed and the committee was constituted to complete the enquiry only vide resolution No. 39 dated 29.02.1988. It also appears from the record that the petition was filed in 1996 and at that time the petitioner was 66 years of age. 13. It also appears from the record that the petition was filed in 1996 and at that time the petitioner was 66 years of age. 13. Be that as it may, as no order has been passed withholding the amount of full remuneration during the period of suspension and the amount of provident fund has not been returned, the petitioner entered into correspondence with the respondent University for return of the amount of his Provident Fund. The petitioner was first informed vide letter dated 23/25.01.1992 that Rs. 29,236.19 paisa, has been retained by the MLSU on account of the amount paid to the petitioner during the period of suspension as an excess payment of subsistence allowance during the suspension period and the petitioner was advised to contact the Comptroller, MLSU for final settlement of the amount which was retained. By letter dated 012.2002 the petitioner was informed by Vice Chancellor that he shall soon hear from the Comptroller, Rajasthan Agriculture University which during this period has succeeded Mohan Lal Sukhariya University in response to his letter for release of the provident fund amount. Ultimately, the petitioner was informed by the Comptroller, Rajasthan Agriculture University vide letter dated 11th Jan, 1995 Annexure-6, that aforesaid amount is deducted against recovery of amount of difference between subsistence allowance payable for period of suspension and the full remuneration already paid. The reason which shown for withholding the amount has been stated by the Comptroller as under:- However, as per the order passed by the Honble High Court, Jodhpur on 010.1974, Dr. Sudhir Kumar was allowed full salary during the suspension period with the condition that in the Writ Petition No. S.B. Civil Miscellaneous/2315/71 filed by Dr. Sudhir Kumar fails, he will repay the amount paid under the order of the Court that the excess amount over and above the subsistence allowance shall be liable to adjust against P.F. of Dr. Sudhir Kumar with the University, in case the writ petition is dismissed. Honble High Court dismissed the said writ petition on 011.1979. Therefore, the V.C. ordered the recovery of the excess amount paid during the period of suspension over and above the subsistence allowance from P.F. of Dr. Sudhir Kumar vide order No. F. 425 /Estt/UU/ARS/82/17838-49 dated 23/25.01.1992." 14. This led to filing of the present Writ Petition No. 1375/1996. 15. Honble High Court dismissed the said writ petition on 011.1979. Therefore, the V.C. ordered the recovery of the excess amount paid during the period of suspension over and above the subsistence allowance from P.F. of Dr. Sudhir Kumar vide order No. F. 425 /Estt/UU/ARS/82/17838-49 dated 23/25.01.1992." 14. This led to filing of the present Writ Petition No. 1375/1996. 15. The Writ Petition No. 1375/1996 has been dismissed by the learned Single Judge vide Judgment under appeal on the ground that petitioner can pursue the alternative remedy by way of filing a civil suit without examining the facts and merit of the case at all which we have noticed above and about which there is no dispute. 16. We are of the opinion that in the facts and circumstances of the case stated above, the petition ought not to have been dismissed for the purpose of pursuing remedy by civil suit at that juncture of time without noticing the fact that petitioner has earlier filed two writ petitions and it concerned giving effect to the orders passed by this Court which ordinarily would not have been examined by the Court subordinate to the High Court. Nor it was a case in which looking to the entire circumstances, the petitioner ought to have been relegated to the remedy of civil suit as no disputed question of fact was involved and keeping in view that the petitioner has already retired long back and was seeking remedy of receiving his own money if he was entitled to receive return of that money in the facts and circumstances on undisputed facts. Undoubtedly, the respondent is State within the meaning of Article 12 of the Constitution and if its action is not founded on reason or is arbitrary and capricious effecting the rights of the person contrary to the statute, it is subject to judicial review by invoking extra-ordinary jurisdiction of the Court. There was no statutory remedy ordinarily in such matters. Unless it relates to determination of disputed questions of fact, a litigant ought not to have been relegated to file a civil suit at that stage at which the petitioner has reached solely depending on the effect of the earlier orders passed by this Court. 17. There was no statutory remedy ordinarily in such matters. Unless it relates to determination of disputed questions of fact, a litigant ought not to have been relegated to file a civil suit at that stage at which the petitioner has reached solely depending on the effect of the earlier orders passed by this Court. 17. Firstly, if we examine the reason which has weighted with the Vice-Chancellor who is purported to have ordered for retention of the amount, we find it cannot be sustained on the undisputed facts. The petitioner was put under suspension vide order dated 9th August, 1974 and the interim order referred to above was passed by this Court in S.B. Civil Writ Petition No. 2315/1974 on 010.1974. After the order was passed and the petitioner was paid full salary during the period of suspension, suspension order was revoked by order dated 25.08.1977 subject to the result of disciplinary enquiry pending against him. By resolution dated 02.08.1980, the charges themselves were dropped unconditionally and no enquiry remained pending as such. Therefore, the effect of the suspension order resulting in entitlement to subsistence allowance only had come to an end and the petitioner became entitled to full emoluments on that date. Had the petitioner been paid only subsistence allowance, the petitioner was entitled to recover the amount as on 2nd August, 1980 and such amount could not have been withheld. Subsequent review of the decision to drop enquiry and continuing the enquiry, would not have resulted in revival of the suspension order retrospectively and the petitioner-appellant could not have been asked to refund all the amount to which he became entitled by order dated 02.08.1980 with dropping of the charges necessarily entailing the suspension order to be redundant and not resulting any adverse effect on his emoluments for that period. Said amount was already paid to the petitioner. Hence, the petitioners right to retain the said amount became absolute on that date. It is in these circumstances, the present controversy in the petition itself having come to an end, the petitioner was not suffering the decision of the Court to repay the amount at all and for that reason the petition was ultimately dismissed as having become infructuous. 18. It is in these circumstances, the present controversy in the petition itself having come to an end, the petitioner was not suffering the decision of the Court to repay the amount at all and for that reason the petition was ultimately dismissed as having become infructuous. 18. When the respondents issued an order on 23rd January, 1982 for recovering the amount for the very same reason, it has been challenged on multiple grounds including the ground which we have discussed above. Undoubtedly, the Court after noticing the ground raised by the petitioner that the dismissal of the writ petition cannot result in the recovery of the amount in terms of the order dated 010.1974, the Court declined to go on that question for the reason that it recorded categorical finding that in the matter of suspension the petitioners case stood at par with Dr. Chakravartis case, hence he could not have been treated differently for the purpose of recovery of any sum for that period after time that the petitioner was sailing in the same boat until the recovery notice had been given. This finding between the parties even today stands and in considering the question whether the respondent as a result of enquiry can recover the amount for the period during which he remained suspended had to be taken into consideration and any order resulting in discrimination could not have been passed by the respondents as it would be in violation of Article 14 of the Constitution. The finding being clear and unequivocal by this Court in Writ Petition No. 346/1983 in respect of the very same order which is subject matter of the present petition that such recovery was in violation of Article 14, there being no distinction between the case of Doctor B.P. Chakarvarti in whose case the recovery has been exempted and the case of the petitioner obviously, after taking into consideration aforesaid finding, it was not possible to pass an order of recovery unless and until major punishment was to be imposed resulting in withholding the retiral benefit. No such finding has been recorded. The order passed in Second Writ Petition No. 346/1983 envisaged recovery only subject to the decision taken in this behalf by the Vice-Chancellor after termination of enquiry by taking into consideration all relevant facts and circumstances. No such finding has been recorded. The order passed in Second Writ Petition No. 346/1983 envisaged recovery only subject to the decision taken in this behalf by the Vice-Chancellor after termination of enquiry by taking into consideration all relevant facts and circumstances. Obviously, at the time of passing of the order Annexure-3 on 17.07.1992, no order has been made vis a vis retention of amount relating to provident fund. The correspondence placed before us which has not been disputed refers to the matter to be decided by Comptroller by pointing out that it has been retained during the pendency of the enquiry while he has retired to be dealt with subsequent thereto and the petitioner was advised not once but twice to contact the Comptroller, MLSU for final settlement. However, instead of Comptroller, MLSU, the Rajasthan Agriculture University vide communication dated 11th January, 1995 informed that the amount has been retained in pursuance to the direction contained in order dated 010.1974 because the Writ Petition No. 2315/1974 has been dismissed. 19. In the aforesaid circumstances, we have already noticed above that the order dated 010.1974 passed in Writ Petition No. 2315/1974 could not entail in forfeiture of the provident fund amount as the writ petition had served its purpose and had become infructuous, in view of that order passed by the University, firstly revoking suspension order and thereafter dropping the charges altogether. Obviously, the reasoning adopted by the Vice Chancellor for passing the orders pursuant to the enquiry are in respect of the provident fund amount which has been retained by it on wholly untenable ground. In ordinary course, we would have remitted the case back to Vice Chancellor for passing fresh order but looking to the chequered history, the nature of the recovery ordered against the petitioner as well as Dr. B.P. Chakarvarti and the finding recorded by this Court in unequivocal terms that there is no distinction between the case of Dr. Chakarvarti and petitioner in the matter of suspension and revocation to treat their cases differently in the matter of granting exemption in the matter of recovery, we do not think that it is desirable to further prolong the proceedings and allow the fresh proceedings to be indulged into. It is time that the dispute meets its quietus. 20. Accordingly the appeal is allowed. The Judgment under appeal is set aside. It is time that the dispute meets its quietus. 20. Accordingly the appeal is allowed. The Judgment under appeal is set aside. As a result of discussion above, the writ petition is allowed. The impugned order Annexure-6 dated January 11, 1995 is quashed and the respondent is directed to release the amount of provident fund retained by it as aforesaid to the petitioner with interest at the rate of 9% w.e.f. the date, the petitioner retired by excluding the amount of interest which had already accrued while amount remained in provident fund account. 21. No order as to costs.