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2011 DIGILAW 1084 (RAJ)

State of Rajasthan v. Shanti Prasad

2011-05-20

ARUN MISHRA, KAILASH CHANDRA JOSHI

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JUDGMENT 1. - Defects as pointed out by the office are waived heard on merits. 2. This intra-court appeal has been preferred by the appellant- State of Rajasthan through Secretary, Department of medical & Health Services, Jaipur against the order dated 12.02.2009 passed by learned Single Judge in S.B.Civil Writ Petition No.813/1999 by which the learned Single Judge allowed the writ petition of the respondent ordered as follows: "As a result of the aforesaid discussion, this writ petition is allowed order impugned Annex-6 dated 09.10.1979 and, so also, appellate authority's order dated 13.08.1998 are hereby quashed and set aside with all consequential benefits. The petitioner has already attained the age of superannuation, therefore, the respondents are directed to pay all the arrears to the petitioner from the date of termination of his service till the date of his retirement and, thereafter, pay entire benefits including pensionary benefits to the petitioner with effect from the date of superannuation within a period of three months failing which the petitioner shall be entitled for interest at the rate of 6 per cent per annum. There shall however be no order as to costs. " 3. The brief facts arising out of this appeal are that respondent-petitioner Shanti Prasad was initially appointed on the post of Sanitary Inspector in the Medical & Health Department of Government of Rajasthan on 04.11.1957 and in the year 1970 when he was working under the Chief Medical Health Officer, Pali, he was charge sheeted under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal ) Rules 1958 vide charge sheet dated 02.03.1974 and all six charges were levelled against him and the enquiry report was submitted by the Enquiry Officer to the Disciplinary Authority who passed order on 09.10.1979 whereby penalty of termination of service was imposed against the respondent/petitioner. The respondent-petitioner filed the appeal against the penalty but the appeal of the respondent-petitioner was not decided then the respondent-petitioner filed the S.B.Civil Writ Petition NO. 700/1983 and said petition was decided by the order dated 20.04.1983 and it was ordered to the respondent-petitioner to dispose of the appeal within three months. The respondent-petitioner filed the appeal against the penalty but the appeal of the respondent-petitioner was not decided then the respondent-petitioner filed the S.B.Civil Writ Petition NO. 700/1983 and said petition was decided by the order dated 20.04.1983 and it was ordered to the respondent-petitioner to dispose of the appeal within three months. After dismissal of the appeal by the appellate authority, respondent-petitioner preferred another writ bearing S.B.Civil Writ Petition No. 70/1984 and it was ordered in the above writ to remand the matter back to the Appellate Authority to hear the petition after supplying some documents as prayed in the writ petition. The respondent-petitioner's appeal was again dismissed vide order dated 30.04.1987 and in another writ bearing S.B.Civil Writ Petition NO. 1722/1987 was filed by the respondent-petitioner that was decided on 06.09.1996 and the order of the Appellate Authority dated 30.04.1987 was set aside. Against that order, the appellant filed Special Appeal and in D.B.Civil Special Appeal No. 631/1996 and six months time was granted to decide the appeal by the Appellate Authority. The appeal filed by the respondent-petitioner was dismissed by Appellate Authority on 13.08.1998 against which the respondent-petitioner filed the S.B.Civil Writ Petition NO. 813/1999 in which impugned order was passed. 4. The learned Single Judge allowed the writ petition on 12.02.2009 against which this Special Appeal. 5. The counsel for the appellant contended that the order of the learned Single judge is perverse to the material on record contrary to law governing the service period of the petitioner, therefore, it is liable to be quashed. 6. He further contended that the respondent-petitioner by cheating the employer was unbecoming of a Government Servant, therefore, the penalty of termination of service was imposed upon the respondent-petitioner . All the charges against the respondent-petitioner were proved and adequate opportunity of hearing was provided, therefore, the order of the learned Single Judge is liable to be quashed. 7. The counsel for the petitioner further contended that the learned Single Judge has straightway allowed all benefits of regular service from the date of termination to superannuation, which is contrary to the established law laid down by this Court as well as Hon'ble Apex Court because when the respondent was not in service the monetary benefits cannot be provided to him. 8. 8. Per contra, learned counsel for the respondent-petitioner contended that the order of the learned Single Judge is legal one and when the order of the termination of respondent-petitioner was found to be perverse, illegal then he is entitled to all the consequential benefits, the pensionary post retiral benefits. 9. We have considered the rival contentions raised by both the parties, the learned Single Judge has considered all the contentions raised in the appeal. The learned Single Judge held that the Enquiry Officer while dealing with the enquiry did not take into consideration the statement of the driver Sohan Signh, who was the principal witness of the alleged charges the learned Single Judge further held that the enquiry as well a disciplinary authority have completely ignored the material evidence and illegally gave finding that the charges Nos. 1 to 3 & 4 levelled against the respondent-petitioner are proved by the department whereas in the absence of the evidence of the driver, it can be said to be no evidence. At the first instance even the record was not made available to the respondent-petitioner after the directions of this Court. The order of the Appellate Authority further shows that partial record was made available to the respondent-petitioner, therefore, the learned Single Judge while relying upon the Constitution Bench of the Hon'ble Apex Court in the case of S.N. Mukherjee v. Union of India, reported in (1990) 4 SCC 594 ordered to quash the order of the termination. 10. We have also considered the question of monetary benefits allowed to the respondent-petitioner for the period when his services were terminated to the date of superannuation. 10. We have also considered the question of monetary benefits allowed to the respondent-petitioner for the period when his services were terminated to the date of superannuation. Learned Single Judge has ordered to pay all the arrears to the petitioner from the date of termination of his service till the date of retirement but no reason has been assigned for this and it is admitted fact that the respondent never worked for this period, therefore, in our considered view, the order of setting aside of the termination order of the respondent is legal one and cannot be said to be erroneous or perverse but so far as directions to pay all arrears to the petitioner from the date of termination of his service till the retirement is concerned, we direct that 50 % of the arrears be paid to the petitioner from the date of termination of his service till the date of his retirement but all the pensionary benefits to the petitioner with effect from the date of superannuation be paid @ interest of 6 per cent per annum. 11. Resultantly, this special appeal is partly allowed as indicated above.Special Appeal Partly Allowed. *******