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Rajasthan High Court · body

2015 DIGILAW 161 (RAJ)

Inder Singh Rajpurohit v. R. S. R. T. C.

2015-01-19

SANDEEP MEHTA

body2015
JUDGMENT : By way of the instant writ petition, the petitioner seeks to assail the validity and correctness of the order Annex.13 dated 28.12.2011 imposing upon him the following three punishments:- (i) recovery of the salary paid to him between the period 1.8.2008 to 31.7.2010; (ii) treating his unauthorized absence from service to be leave without pay; (iii) Another recovery of sums of Rs. 1000/-& Rs. 669/-respectively was directed to be effected from the petitioner for loss caused to the Rajasthan State Road Transport Corporation (hereinafter in short referred to as the Corporation). Counsel for the petitioner at the outset does not challenge the findings of guilt no. 2 & 3 recorded regarding the charges no. 2, 3 and 4 framed against the petitioner in a departmental enquiry the decision whereof is under challenge in this writ petition. He limits his challenge to the imposition of penalty upon the petitioner whilst holding him guilty for the charge no.1 and directing recovery of salary between the period of 1.8.2008 to 31.7.2010. From a bare perusal of facts and material available on record, it is a glaring case of recurring, intentional malicious harassment and victimization of the employee at the hands of the employer. Facts in brief are that the petitioner was discharged from the Army and thereafter was appointed as a driver in the respondent Corporation in the year 1978. At the time of his appointment, the petitioner submitted his discharge certificate, from the Army regarding the proof of his date of birth. In the said discharge certificate, the date of birth of the petitioner was mentioned as 20.7.1950. The said date was duly entered in the service record of the petitioner maintained in the Corporation. The petitioner was issued a charge-sheet by the respondent in the year 1983 and in pursuance of a departmental enquiry, he was dismissed from service vide order dated 1.12.1983. The petitioner challenged the order terminating his services by filing an appeal. The departmental appeal was not decided for an eternity upon which the petitioner approached this Court by filing a writ petition. While deciding the writ petition, a direction was issued to the Appellate Authority to decide the petitioner’s appeal. Despite this direction, the appeal preferred by the petitioner was not decided. Being aggrieved, the petitioner preferred a D.B.Civil Contempt Petition 125/2006. While deciding the writ petition, a direction was issued to the Appellate Authority to decide the petitioner’s appeal. Despite this direction, the appeal preferred by the petitioner was not decided. Being aggrieved, the petitioner preferred a D.B.Civil Contempt Petition 125/2006. This Court while deciding the contempt petition vide order dated 3.8.2006 held that the petitioner had been harassed and victimized and thereafter the concerned officer of the respondent Corporation was convicted and sentenced to seven days S.I. and a fine of Rs. 5000/-. Counsel for the petitioner stated that to the best of his knowledge, the S.L.P. preferred against the said order is still pending consideration before the Apex Court. Pursuant to the order of the Division Bench punishing the Corporation’s officer in contempt proceedings, the appeal preferred by the petitioner was dismissed. In turn the petitioner filed S.B.Civil Writ Petition No. 4535/2006 before this Court which was decided vide order dated 6.8.2008 and this Court quashed the order imposing penalty and directed the respondents to reinstate the petitioner with all consequential benefits with continuity in service but the cash benefits accrued to the petitioner were withheld from the date of termination till 22.9.2004. The respondents did not rest satisfied with the order of the Single Bench and preferred a Letters Patent Appeal being D.B. Civil Special Appeal Writ No. 1035/2008 which was dismissed by the Division Bench on 8.12.2008. Only thereafter, the respondents begrudgingly relented and issued an order Annexure-4 dated 23.1.2009 directing reinstatement of the petitioner and posted him at the Jhunjhunu Depot. While joining at Jhunjhunu Depot, the petitioner was asked to submit a copy of his driving licence so that he could be assigned the duties of driver. The petitioner accordingly submitted his driving licence to the authorities at the Jhunjhunu Depot. It appears that there was an error regarding the date of birth of the petitioner mentioned in the driving licence in as much as, his date of birth was recorded in the licence as 15.4.1954. Be that as it may. The service record of the petitioner was available with the respondent authorities. It appears that there was an error regarding the date of birth of the petitioner mentioned in the driving licence in as much as, his date of birth was recorded in the licence as 15.4.1954. Be that as it may. The service record of the petitioner was available with the respondent authorities. Accordingly in reference to the date of birth entered in the service record of the petitioner at the time of his appointment and since his age of superannuation was approaching, an order Annexure-6 dated 17.11.2009 came to be passed by the Chief Manager of the Jhunjhunu Depot whereby the date of superannuation of the petitioner was fixed as 31.7.2010. However, it is manifest that the authorities were still smarting from the wounds received in the earlier round of litigation instituted by the petitioner and resuming their hostilities, just four days before the scheduled date of the petitioner’s superannuation, a charge sheet came to be served upon him on 27.7.2010 for four alleged delinquencies. The first and the principal charge alleged against the petitioner was that as per the date of birth entered in the service record, the petitioner was scheduled to be superannuated on 31.7.2008 but by supplying a false information regarding the date of birth i.e. 15.4.1954 which was entered in the driving licence of the petitioner, he misrepresented and thereby misled the authorities into postponing his superannuation by two years and thereby even after having attained the age of superannuation on 31.7.2008 he continued to work in the Corporation and drew salary for two years even though not entitled for it. It was alleged that thereby the petitioner had violated the service rules and regulations of the Corporation. Since the counsel for the petitioner has given up the challenge to the remaining three charges, the Court need not dwell and elaborate upon them. A departmental enquiry was instituted on the basis of the charge sheet. The petitioner submitted a reply to the charge sheet and so far as the charge no. 1 is concerned, he refuted the same and specifically averred that the entire service record of the petitioner was available with the respondent authorities and that the date of superannuation was fixed in the order Annexure-6 in reference to the date of birth mentioned in his service record at the time of his induction in service i.e. in the year 1978. It was averred that he had not made any misrepresentation whatsoever. The petitioner thus prayed that the charge be dropped. The department examined the witness Mr. B.K.Sachdeva, Manager of Jhunjhunu Depot to bring home the charges. In his cross examination, Mr. Sachdeva made the following admissions:- thjg vkjksih & iz’u & izkFkhZ dh tUefrfFk lsokfHkys[k esa 31-7-1950 vafdr Fkh rks izkFkhZ dks 31-7-2008 dks fuxe ls lsokfuo`r D;kas ugha fd;k\ D;k ;g esjh M~;wVh esa vkrk gS ;k fuxe dh\ mRrj & laLFkkiu 'kk[kk }kjk laLFkkiu iaftdk dk iw.kZ :i ls la/kkj.k ugha fd;k x;kA rFkk ukxkSj vkxkj ls lsok iqfLrdk fnukad 24-10-2009 dks izkIr gqbZ bl dkj.k ls xyrh gqbZ gSA lsokfuo`r djuk vki dh M~;wVh esa ugha vkrk ;g dk;Z fuxe dk gSA iz’u & vkxkj dk;kZy; esa lsok iqfLrdk ukxkSj vkxkj ls fnukad 24-10-2009 dks izkIr gks xbZ ml ds i’pkr~ lsok le; ij lsok fuo`r D;kas ugha fd;k\ mRrj & bldk tcko lEcfU/kr vf/kdkjh@deZpkjh ¼laLFkkiu 'kk[kk pkyd½ gh ns ldrk gSA iz’u & pkydksa dh lsokfHkys[k iqfLrdk;as fdl ds ikl jgrh gS\ mRrj & pkydksa dh lsokfHkys[k iqfLrdk;sa vkxkj dk;kZy; esa jgrh gSA On going through the afore quoted portion of cross examination of Mr. Sachdeva, it is evident that the witness admitted that the mistake regarding wrong fixation of the superannuation date of the petitioner was on the part of the Corporation and not on the part of the employee. Despite the said admission, the order Annexure 13 dated 28.12.2011 came to be passed by the General Manager of the Jhunjhunu Depot whereby the petitioner was held guilty of all the charges. Regarding the charge no. 1 which is the bone of contention in this writ petition, it was concluded that the petitioner gave a wrong information regarding his date of birth in as much as the date of birth entered in his licence was 15.4.1954. The petitioner was held guilty of succeeding in postponing his date of superannuation by two years by making a misrepresentation regarding his date of birth. It was concluded that the petitioner cheated the Corporation by misrepresentation and thereby took undue advantage of additional service benefits of two years beyond the date of his scheduled superannuation which should have been 31.7.2008. While holding the petitioner responsible for the charge no. It was concluded that the petitioner cheated the Corporation by misrepresentation and thereby took undue advantage of additional service benefits of two years beyond the date of his scheduled superannuation which should have been 31.7.2008. While holding the petitioner responsible for the charge no. 1, by order Annexure-13 dated 28.12.2011 penalty of recovery of the salary and emoluments drawn by the petitioner for the period between 1.8.2008 to 31.7.2010 imposed on the petitioner was directed to be effected from the retiral benefits of the petitioner. Counsel for the petitioner contends that the order Annexure-13 is grossly illegal, malafide and was based on extraneous considerations. He drew Court’s attention to the communication Annexure-6 dated 17.11.2009 and contended that the date of the petitioner’s superannuation communicated by the aforesaid order is in reference to the date of birth of the petitioner as duly entered in the service record and not in reference to the date of birth mentioned in his driving licence. Learned counsel contends that it is possible that whilst preparing the driving licence, the date of birth might have been entered inadvertently but admittedly, the petitioner did not try to take any advantage of the said date of birth. He submits that if it is to be believed that the age of superannuation of the Corporation’s employees was 58 years during the relevant period, in that event, when the order dated 17.11.2009 reinstating the petitioner came to be passed then, there was no rhyme or reason for the respondents to take the petitioner back on duty. He submits that if the age of superannuation was actually 58 years as claimed by the respondents, then the consequential order would have been passed retiring the petitioner w.e.f. 31.7.2008 and directing payment of the consequential monetary and retiral benefits to him without taking him back on active duty. Learned counsel contends that even in the reply preferred to the writ petition, the respondents have not been able to substantiate the plea that the age of superannuation of the Corporations drivers when the order Annexure-6 came to be passed was 58 years. He vehemently contends that the petitioner did not make any misrepresentation before the respondents whatsoever and ex facie the finding recorded by the disciplinary authority on the charge no. 1 cannot be sustained. He vehemently contends that the petitioner did not make any misrepresentation before the respondents whatsoever and ex facie the finding recorded by the disciplinary authority on the charge no. 1 cannot be sustained. He further contends that six more drivers other than the petitioner whose names are recorded in the order Annexure-6 were simultaneously given retirement upon completion of 60 years of age by the very same order and thus it is evident that the respondents have acted in a malafide manner holding the petitioner guilty of the charge no. 1 and whilst imposing penalty of recovery upon and thus the impugned order Annexure-13 deserves to be quashed to the extent of the charge no. 1. He further prays that it is clearly a case of malafide exercise of power and the writ deserves to be accepted while granting all consequential benefits to the petitioner with penal interest and by imposing a heavy cost on the respondents. Per contra Mr. P.R.Singh learned counsel for the Corporation submits that the order Annexure-6 came to be passed because the authorities were misled by the petitioner and that is why his date of superannuation was mentioned in the order Annexure-6 as 31.7.2010. He contends that the very document on the basis of which the petitioner endeavoured to resume duties i.e. his driving licence bore an incorrect date of birth and thus evidently the petitioner managed to mislead the officers and thereby extended his superannuation age. He, therefore, submits that no interference is called for in the order imposing penalty. Heard and considered the arguments advanced at the bar. Perused the material available on record. This Court is of the firm opinion that the order Annexure-13 passed by the respondent authority holding the petitioner guilty for the charge no. 1 is per se malafide and is a glaring example of victimization. The facts narrated above clearly show that the respondents were bearing a grudge against the petitioner in reference to the earlier litigation in which a senior official of the respondent corporation was punished for contempt for disobeying the orders passed by this Court in the petitioner’s favour. The fact that the date of birth of the petitioner was entered in his service record as 20.7.1950 right from the date of appointment and remained unaltered till the date of the order Annexure-6 is not disputed at any point of time and rightly so. The fact that the date of birth of the petitioner was entered in his service record as 20.7.1950 right from the date of appointment and remained unaltered till the date of the order Annexure-6 is not disputed at any point of time and rightly so. If the case of the respondents that at the relevant point of time, the age of superannuation was 58 years is to be accepted then, even by the time, the order dated 6.8.2008 (Annexure-2) directing reinstatement came to be passed in the petitioner’s writ petition No. 4535/2006, he had already crossed the age of superannuation and thus the respondents should have passed a consequential order retiring the petitioner w.e.f. 31.7.2008 and giving him monetary benefits as directed by this Court. The very fact that pursuant to the decision of the said writ petition, an order of reinstatement Annexure 4 dated 23.1.2009 came to be passed and the respondents issued a notice to the petitioner to report to Jhunjhunu Depot for resuming duties clearly shows that the respondent authority while taking the petitioner back in active service was acting on its own and not at the petitioner’s behest. At no point of time, counsel for the respondent has been able to satisfy the Court that the date of superannuation of the petitioner determined as 31.7.2010 in the order Annexure 6 dated 17.11.2009 was on account of any misrepresentation made by the petitioner. Furthermore, the order Annexure-6 bears the name of seven drivers including the petitioner, all of whom were born in the year 1950. The date of superannuation of each of the seven drivers mentioned in the order was determined by treating the age of superannuation to be 60 years. Thus, the claim of the respondents that the petitioner made a misrepresentation regarding his date of birth and thereby managed to work for an extra period of two years beyond his actual date of superannuation which should have been 31.7.2008 is without any basis and has no legs to stand whatsoever. Learned counsel representing the Corporation despite being provided ample opportunity was unable to place any circular, rule or order of the Corporation whereby this Court could be persuaded to accept the contention that the age of superannuation of the drivers employed in the Corporation was 58 years at any point of time before the order Annexure-6 came to be passed. Learned counsel representing the Corporation despite being provided ample opportunity was unable to place any circular, rule or order of the Corporation whereby this Court could be persuaded to accept the contention that the age of superannuation of the drivers employed in the Corporation was 58 years at any point of time before the order Annexure-6 came to be passed. The conclusion drawn by the disciplinary authority while holding in the order Annexure-13 that the superannuation age of the Corporation’s drivers during the relevant period was 58 years also does not refer to any rule or circular of the Corporation. Thus, this Court has no hesitation in holding that the order imposing penalty was passed at the whims of the Disciplinary Authority in order to wreak vengeance upon the petitioner. It is evident that the respondent authorities took the incongruity of the date of birth entered in the petitioner’s driving licence as a weapon of retribution and then visited the petitioner with the evil consequence thereof while first instituting a departmental enquiry against him just four days prior to his superannuation and thereafter, malafide holding him guilty of the charge no.1. The very substratum of charge no. 1 that the date of superannuation of the petitioner was mentioned in the order Annexure-6 on the basis of wrong information supplied by him is contradicted by the statement of the departmental witness Mr. B.K.Sachdeva which has been quoted herein above and consequently the order Annexure-13 cannot be sustained so far as charge no. 1 is concerned. Furthermore the finding of guilt recorded by the disciplinary authority upon this charge is also per-se fallacious for the reason that if the petitioner had been given the advantage of the so called wrong date of birth mentioned in his driver’s licence (15.4.1954) then his date of superannuation would be 31.4.2012 in reference to the said date of birth, even assuming that the age of superannuation was 58 years. Thus, it is evident that the finding of guilt recorded by disciplinary authority on the charge no.1 apart from being recorded in a grossly biased and prejudicial fashion also suffers from total non application of mind to the admitted facts on record as well. As an upshot of the above discussion, the writ petition deserves to be accepted in part and is hereby allowed. Accordingly, the order Annexure-13 whereby petitioner was held guilty of charge no. As an upshot of the above discussion, the writ petition deserves to be accepted in part and is hereby allowed. Accordingly, the order Annexure-13 whereby petitioner was held guilty of charge no. 1 is quashed to that extent. However, the findings of guilt recorded on other charges were not contested and are maintained. The direction to recover salary of two years from the petitioner is also quashed and set aside. The petitioner shall be entitled to all consequential benefits. The amount falling due to the petitioner shall carry an interest @ 9% from the date of accrual to the date of actual payment. The payment shall be made to the petitioner within a period of eight weeks from the date of receipt of copy of this order. Looking to the conduct of the respondent authority in victimizing the employee, a cost of Rs. 20,000/-is imposed upon respondent Corporation. Upon the cost being realized, the same shall be paid to the petitioner.