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2011 DIGILAW 1994 (RAJ)

Paras Ram v. State of Rajasthan

2011-09-15

GOPAL KRISHAN VYAS

body2011
Hon'ble VYAS, J.—In this writ petition, the petitioner has prayed for quashing impugned order dated 11.11.2004, Annex. P/12 and consequential order dated 26.11.2004, Annex. P/13 and relief is further sought for direction to the respondents to calculate the service period of the petitioner with effect from 30.7.1980 to 18.8.1985 for the purpose of qualifying service for pensionary benefits and to issue revised P.P.O. While sanctioning extraordinary leave on medical ground instead of extraordinary leave without pay. 2. As per facts of the case, in the disciplinary proceedings initiated against the petitioner a penalty of stoppage of 3 grade increments with cumulative effect was inflicted and further it was ordered that the period in which the petitioner remained absent from duty shall not b counted for the purpose of pension. The order of aforesaid penalty was challenged by way of filing writ petition before this Court and co-ordinate Bench of this Court vide judgment dated 20.4.1998, Annex. 2 quashed the said penalty order and held the petitioner entitled for all consequential benefits. The judgment dated 20.4.1998, Annex. 2 was passed in S.B. Civil Writ Petition No. 306/1992 which was further challenged by way of filing appeal before the Division Bench being D.B. Special Appeal (Writ) No. 629/1998, in which, the Division Bench of this Court passed an order on 13.11.2000 whereby the appeal filed by the respondents was rejected. 3. Thereafter, the petitioner filed so many representations for grant of all service benefits because he was superannuated from service but the benefits were not granted and, at last, vide order dated 14.11.2004 the Secretary, Co-operative Department an order whereby the petitioner was granted extraordinary leave for the period from 23.7.1980 to 18.8.1985. According to the petitioner, the said order has the effect of excluding the aforesaid period from calculating the qualifying service for the purpose of pensionary benefit. Vide Annex. 13 the Deputy Registrar (Admn.), Co-operative Societies Department issued the compliance order and directed the respondents to finalise the pension case of the petitioner. The petitioner is assailing the validity of both the orders Annex. 12 dated 11.11.2004 and Order Annex. 13 dated 16.11.2004 on the ground that both these orders are in violation of the order passed by the co-ordinate Bench of this Court on 20.4.1998 in the earlier writ petition filed by him. 4. The petitioner is assailing the validity of both the orders Annex. 12 dated 11.11.2004 and Order Annex. 13 dated 16.11.2004 on the ground that both these orders are in violation of the order passed by the co-ordinate Bench of this Court on 20.4.1998 in the earlier writ petition filed by him. 4. Further, it is argued by learned counsel for the petitioner that if these orders will remain in existence, then, the petitioner will not get benefit of five years of service and with the intention to deprive the petitioner from the fruits of calculating the said period for pension purpose the respondents have passed the impugned orders. Learned counsel for the petitioner while inviting attention towards judgment dated 20.8.1998 passed by the co-ordinate Bench submits that while allowing the petitioners earlier writ petition certain observations were made by the co-ordinate Bench of this Court that the petitioner has sufficiently undergone harassment and torture by way of departmental inquiry, therefore, the request for passing fresh order in the inquiry is also rejected; meaning thereby, the co-ordinate Bench of this Court was of the opinion that the petitioner was harassed and tortured by the respondents and above assertion made by the co-ordinate Bench was affirmed by the Division Bench, therefore, both the impugned orders deserve to be quashed. 5. Learned counsel appearing on behalf of the respondents vehemently opposed the prayer and submits that the petitioner is not entitled for any benefit for the period commencing from 23.7.1980 to 18.8.1985 because in this period the petitioner remained absent from duty, for which, departmental inquiry was conducted and the petitioner was penalized but the said penalty order was set aside by this Court, therefore, for regularising the said period impugned orders were passed, in which, there is no illegality. 6. I have considering the rival submissions made by both the parties and perused the entire record of the case more specifically judgment of the co-ordinate Bench of this Court dated 20.4.1998 passed in S.B. Civil Writ Petition No. 306/1992, filed earlier by the petitioner. Upon perusal of the said judgment, it is revealed that the order of penalty Annex. 6. I have considering the rival submissions made by both the parties and perused the entire record of the case more specifically judgment of the co-ordinate Bench of this Court dated 20.4.1998 passed in S.B. Civil Writ Petition No. 306/1992, filed earlier by the petitioner. Upon perusal of the said judgment, it is revealed that the order of penalty Annex. 1 was quashed for the reason that in the inquiry conducted by the inquiry officer the petitioner was exonerated by the inquiry officer but the Disciplinary Authority did not agree with the finding of the inquiry officer in the inquiry report and passed order for de novo inquiry and, inspite of the fact that the inquiry officer once again exonerated the petitioner from the charges levelled against him, the Disciplinary Authority did not again agree with the finding of the inquiry officer and issued notice as to why the petitioner be not punished as the Disciplinary Authority did not agree with the finding of the inquiry officer. 7. It emerges that the petitioner remained absent from duty on account of his illness and he had submitted medical certificate in that regard. The said certificates are lying in the head office, therefore, the petitioner prayed in the inquiry that the record may be summoned from the head office but the inquiry officer did not bother, therefore, the order impugned in the earlier writ petition, S.B. Civil Writ Petition No. 306/1992, was set aside. The co-ordinate Bench of this Court passed the following order on 20.4.1998: "Accordingly, this petition is allowed and the impugned orders at Anx. P/5 and Anx. P/7 are set aside. Once the impugned orders are set aside, the petitioner would be entitled for all consequential benefits in the service. At this stage, a request was made by the learned counsel Mr. Bishoni for the respondents, to be given then an opportunity to pass a fresh order after assigning reasons. This is too late in the day. Several years have passed in this case and the petitioner has sufficiently undergone the harassment and torture for all these years, by way of Departmental Enquiry. Hence, this request of Mr. Bishnoi is rejected." 8. Bishoni for the respondents, to be given then an opportunity to pass a fresh order after assigning reasons. This is too late in the day. Several years have passed in this case and the petitioner has sufficiently undergone the harassment and torture for all these years, by way of Departmental Enquiry. Hence, this request of Mr. Bishnoi is rejected." 8. In my opinion, once the co-ordinate Bench held that the petitioner is entitled for all consequential benefits, then, it was not open for the respondents to again pass order for sanctioning extraordinary leave without pay for the said period. The order was to be made for sanction of extraordinary leave on medical ground. Therefore, the prayer of the petitioner for sanction of leave on medical ground deserves to be accepted and the petitioner shall be entitled for calculation of the said period for the purpose of pension. 9. It appears from the entire pleadings that somehow the respondents wanted to deprive the petitioner from getting the fruits of calculating the service period commencing from 23.7.1980 to 18.8.1985 during which period he remained on medical leave for calculating the said period for qualifying service. The action of the respondent authorities is totally unwarranted and illegal in view of the fact that co-ordinate Bench granted all consequential benefits to the petitioner. 10. In this view of the matter, this writ petition is allowed. Both orders impugned in this writ petition Annex. P.12 dated 11.11.2004 and Annex. P/13 dated 16.11.2004 are quashed and set aside. Respondents are directed to treat the period commencing from 23.7.1980 to 18.8.1985 as qualifying service for the purposes of pensionary benefits only. The petitioner shall not be entitled for any salary for the aforesaid period and while calculating the aforesaid period to be qualifying service period for the purpose of pension, revised Pension Payment Order may be issued with all consequential benefits and arrears. This entire exercise shall be done within three months from the date of submission of certified copy of this order. 11. There shall however be no order as to costs.