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Rajasthan High Court · body

2006 DIGILAW 2640 (RAJ)

Akhtar Hussain v. State of Rajasthan

2006-09-05

MOHAMMAD RAFIQ

body2006
Judgment Mohammad Rafiq, J.-The petitioner has filed the present writ petition with the prayer that the order dated 13.06.2001, 16.08.2001 and 18.08.2001 (Annexure 3, 4 and 6) may be quashed and set aside and the respondent be directed to make payment a sum of Rs. 38082/-together with interest @ 18% per annum and be further directed to make payment of interest over the payment of Rs. 1,82,804/-since 15.04.2001 to 17.08.2001 @ Rs. 18% per annum. 2. The petitioner was appointed in the service of the respondents on the post of Junior Engineer on 13.09.1965. He was thereafter promoted on the post of Asstt. Engineer on 211.1979 and was transferred to several places. He submitted an application on 111.2000 seeking voluntary retirement from service, which was accepted by the respondent, petitioner was allowed to retire voluntarily from the post of Asstt. Engineer w.e.f. 15.04.2001 and accordingly he was relieved of his duties in the afternoon of 14.04.2001. Neither any departmental inquiry was pending against him nor was in contemplation when he so retired. The payment of various retiral dues such as pension, gratuity, provident fund etc. was sanctioned to the petitioner in the sum of Rs. 1,85,805/-on 15.06.2001. On receiving telephonic message from the headquarters, the Executive Engineer passed an order dated 13.06.2001 for withholding the said payment till a clarification was received from the Chief Engineer, Rajasthan, Jaipur. Finally, the Chief Engineer on 16.08.2001 passed an order with reference to letter dated 01.08.2001 written to him by Superintending Engineer, PHED, Nagaur. According to this letter, the petitioner was held responsible for wrong pay fixation of one Shri Modu Ram, Helper-II for the period from 01.08.1990 to 210.1992 and, therefore, it was directed that a sum of Rs. 34088/-may be recovered from retiral dues of the petitioner. The payment of this much amount was withheld by the respondents from the retiral dues of the petitioner. .3. The respondents have contested the writ petition and have argued that the aforesaid amount was recoverable from the petitioner because while serving as Asstt. Engineer, PHED, Sub-Division, Degana, the petitioner made wrong pay fixation of Shri Modu Ram, Helper-II on 23.03.1996 on account of which an excess amount of Rs. 34088/-was paid to him. Although they have admitted that they have sanctioned the final payment of GPF and sent the authorization letter for such payment to the petitioner. Engineer, PHED, Sub-Division, Degana, the petitioner made wrong pay fixation of Shri Modu Ram, Helper-II on 23.03.1996 on account of which an excess amount of Rs. 34088/-was paid to him. Although they have admitted that they have sanctioned the final payment of GPF and sent the authorization letter for such payment to the petitioner. However, in the meantime, they discovered the illegal payment made to one Modu Ram and, therefore, out of two bills, payment of one of Rs. 1,82,804/-was disbursed to the petitioner on 18.08.2001 but the payment of another bill of Rs. 38082/-was withheld on account of financial irregularities committed by the petitioner. It has been stated that Modu Ram was transferred from Water Supply Scheme, Sub-division, Parbatsar to Water Supply Scheme, Sub-division, Makarana vide order dated 26.07.1990. He was relieved pursuant thereto on 30.07.1990, be he did not join the duty at Makarana and instead, filed civil suit in the Court of C.J.M. Parbatsar on 01.08.1990 asserting that he had not been relieved so far. The learned Civil Court in its interim order dated 04.08.1990 ordered that Modu Ram has not been relieved so far, he should not be relieved till further orders. His temporary injunction application filed with the suit was finally rejected on 210.1992. Accordingly, the said Modu Ram joined his duties at Makarana on 210.1992. It was the petitioner who had prepared his salary bill from August, 1990 to October, 1992 amounting to Rs. 34088/-giving false certificates under GF and AR rules whereas Shri Modu Ram, Helper-II had neither worked under the petitioner nor anywhere in the department and yet the petitioner unauthorizedly made payment of Rs. 34088/-to him. It has, therefore, been prayed that the writ petition filed by the petitioner may be dismissed. .4. I have heard the arguments advanced by learned Counsel for the parties and perused the record. .5. Shri Ranjeet Joshi, learned Counsel for the petitioner has heavily relied on the letter dated 17.07.1995. This letter was addressed by the Executive Engineer, PHED, Merta to Asstt. Engineer PHED, Sub-division, Degana the post held by the petitioner at the mutual time. In this letter, the Asstt. Engineer was directed to ensure payment of outstanding salary of Modu Ram Helper-II on the basis of .enclosed certificate for the purpose from 01.08.1990 to 210.1992. It was specifically directed that since the said Shri Modu Ram was working under the Asstt. In this letter, the Asstt. Engineer was directed to ensure payment of outstanding salary of Modu Ram Helper-II on the basis of .enclosed certificate for the purpose from 01.08.1990 to 210.1992. It was specifically directed that since the said Shri Modu Ram was working under the Asstt. Engineer, Sub-Division Degana, payment of his salary should be paid treating him to be present on duty. The certificates referred this letter have also been filed by the petitioner before this Court. First certificate has been issued by one Junior Engineer, PHED, Nagaur on 09.09.1991 (Annexure-8) verifying the fact with regard to discharge of duties by Shri Modu Ram for the relevant period i.e., 01.08.1990 to 09.09.1991. Another certificates is Annexure-9 dated 19.09.1992 again issued by the Junior Engineer verifying the discharge of duties by the said Shri Modu Ram for the period from 10.09.1991 to 19.09.1992. Yet another certificate is dated 210.1992 which is Annexure-10 in which again the Junior Engineer has given a similar certificate with regard to duty actually discharged by said Shri Modu Ram from 20.09.1992 to 210.1992. Shri Ranjeet Joshi, learned Counsel for the petitioner cited an order dated 19.03.1996 passed by the Superintending Engineer for withholding of payment of Rs. 31,335/-payable towards the outstanding salary of Modu Ram for the relevant period. Subsequently, however the Superintending Engineer, PHED Zone Nagaur passed an order dated 19.08.1998 whereby the amount of Rs. 34088/-was ordered to be recovered from the said Modu Ram, but the Additional Chief Engineer, PHED, vide its order dated 03.05.2001 stayed the recovery till completion of inquiry in the matter. According to Shri Ranjeet Joshi, learned Counsel for the petitioner neither the petitioner was posted at Parbatsar during the disputed period from 01.08.1990 to 210.1992 nor did he on his own made payment of the aforesaid amount to Modu Ram. He however simply made compliance of the direction given to him by the Executive Engineer on 17.05.1995 on the basis of certificates of attendance given in respect of Shri Modu Ram by the Junior Engineer of the relevant time. 6. On the other hand, Shri Rameshwar Dave, learned Deputy Government Advocate submitted that the petitioner was responsible for sanctioning payment of Rs. 34088/-to Shri Modu Ram, which was not admissible to him. 6. On the other hand, Shri Rameshwar Dave, learned Deputy Government Advocate submitted that the petitioner was responsible for sanctioning payment of Rs. 34088/-to Shri Modu Ram, which was not admissible to him. He argued that Modu Ram had already been relieved prior to passing of injunction order by the Civil Court on 01.08.1990 and the injunction order was limited to the extent that if he had not be relieved so far, he should not be relieved till further orders. He, therefore, argued that the writ petition may be dismissed. 7. I have given my earnest consideration to the arguments advanced by the learned Counsel for the parties and perused the record. 8. The respondents have not been able to deny the fact that the petitioner was not posted as Asstt. Engineer at Parbatsar during the period from 01.08.1990 to 210.1992 to which this dispute pertains. They have also not been able to dispute that from the basis of certificates of attendance in three spaces covering the entire aforesaid period, the Executive Engineer, PHED Division Merta City directed the petitioner who was then posted as Asstt Engineer Sub-Division. Degana to ensure payment of salary to said Shri Modu Ram for the period from 01.08.1990 to 210.1992. In the reply to the writ petition, the respondents have all through maintained that payment of Rs. 3,40,88/-was unauthorizedly made to Shri Modu Ram but conspicuously remained silent about the fact whether Modu Ram actually worked at Parbatsar during the aforesaid period or he was willfully absent. It is not clear from their reply that if it was a case of willful absence then what action was taken by them against Shri Modu Ram. What appears from the tone and tenure of reply of the respondents, that the respondents allowed Modu Ram to work continuously at Parbatsar interpreting the injunction order as if the order of transfer was absolutely stated. If this were not so, they should come out with a definite plea that Modu Ram was willfully absent for the long period of two years and two months. Even if it is accepted that he was not rendering duties anywhere, the fact remains that the Executive Engineer directed the petitioner by his order dated 17.07.1995 to make payment of the salary of Modu Ram for the period from 01.08.1990 to 210.1992. Even if it is accepted that he was not rendering duties anywhere, the fact remains that the Executive Engineer directed the petitioner by his order dated 17.07.1995 to make payment of the salary of Modu Ram for the period from 01.08.1990 to 210.1992. His direction was in turn based of the certificates of attendance produced by Modu Ram which appears to have been issued by the Junior Engineer. The respondents have completely remained silent as to what action they have been taken against the Executive Engineer and the Asstt. Engineer. They have not given any explanation of the fact as to why recovery for a sum of Rs. 34,088/-ordered to be made from the said Modu Ram was stayed. In the order of staying recovery reference has been made to some inquiry and the only inquiry report which the respondents have placed on record as Annexure-R-1, appears to have been prepared by Junior Engineer, PHED, Merta City. This two and half pages report also appears to have been prepared without associating either Modu Ram or the petitioner. Surprising enough, this inquiry report does not at all make any reference to the order of the Executive Engineer dated 17.07.1995. Although it does not refer to the certificates of attendance on the basis of which such order was received by the Executive Engineer. Such an inquiry report is nothing but a clear attempt to shield the concerned Executive Engineer, who directed the petitioner to make payment to Shri Modu Ram. In view of the above discussion, action of the respondents in withholding amount of Rs. 34,088/-from the GPF of the petitioner suffers from vice of arbitrariness and is a colourable exercise of power. 9. The Government of Rajasthan vide notification dated 07.06.2004 in exercise of its powers conferred by Sub-rule (1) of the Rules of 1989 of the Rajasthan Civil Service (Pension) Rules, 1996 by substitution earlier Sub-rule (1) provided that in the event of delay in payment of retiral benefits after 60 days from the date such payments become due and if it was established that delay was not caused on account of failure on the part of the Government servant then interest @ 9% per annum from the date retiral benefits become due, would be payable till the end of the month preceding the month in which payment of such dues are authorized. For the purpose of facility of reference Sub-rule (1) of Rules of 1989 of Rajasthan Civil Services (Pension) Rules, 1996 is extracted as under:- “If the payment of retiral benefits has been authorised after 60 days from the date when its payment became due and it is established that the delay in payment was not on account of failure on the part of the Government servant in compliance of the procedure laid down in this chapter or elsewhere in these rules, interest @ 9% per annum from the date retiral benefits become due would be payable till the end of the month preceding the month in which the retiral benefits are authorised.” 10. Earlier Sub-rule (1) of the Rules of 1989 provided for payment of interest @ 12% per annum but substituted rule referred to above provides for interest @ 9% per annum in my considered view, when action of the respondents in withholding the retiral dues of the petitioner has been held to be illegal, the petitioner certainly becomes entitled to payment of interest. When delay has been caused on the account of fault of the respondents alone and the same cannot in any manner be attributed to the petitioner, the respondents cannot escape from their liability to make payment of interest as prescribed by Rule 89(1) (Supra). 11. In the result the writ petition is allowed. The impugned orders Annexures 2, 4 and 6 are quashed and set aside and the respondents are directed to make payment of Rs. 34,088/-to the petitioner with interest @ 9% per annum for the period of delay in making payment of retiral benefits. This interest should be paid from the date of retirement till the actual date of making payment of retiral dues. Compliance of the order be made within a period of three months from the date of receipt of copy of this order.