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2015 DIGILAW 177 (RAJ)

Laxmi Narayan Verma v. State of Rajasthan

2015-01-20

SANDEEP MEHTA

body2015
JUDGMENT : By way of the instant writ petition, the petitioner seeks to assail the legality and validity of the order (Annex.P3) dated 12.8.2009 whereby, whilst holding the petitioner guilty of departmental delinquency, the penalty of withholding of the full pension was imposed on the petitioner. Facts in brief are that the petitioner was employed as a UDC in the IGNP department of the State the respondent herein. He superannuated from service on 31.12.1999. It is alleged that certain complaints regarding misappropriation of funds, forgery etc. were received against the petitioner and some other engineers working in the IGNP. So far as the petitioner is concerned, it is alleged that during the period from 1.4.1996 to 31.5.1999, he committed acts of grave irregularities causing a pecuniary loss of Rs.8,28,977/-to the department and as a consequence, to the State Government. After his retirement, the petitioner was served with a chargesheet vide communication dated 13.6.2003 whereby it was proposed to hold a departmental inquiry against him under Rule 7 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as ‘the Rules of 1996’) read with Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules (hereinafter referred to as ‘the CCA Rules’) in pursuance of a sanction received from the Governor. After concluding the inquiry, the order imposing penalty came to be passed in the above terms. Since the order (Annex.P/3) dated 12.8.2009 has been passed at the behest of the Governor of Rajasthan, the petitioner has challenged the same directly before this Court by way of the instant writ petition as no statutory remedy is available against such order. Learned counsel for the petitioner referred to Rule 7 of the Rules of 1996 and contends that as the instances/incidents of the so called irregularities in relation whereto the departmental inquiry was instituted against the petitioner were specifically fixed between the period ranging from 1.4.1996 to 31.5.1999, no departmental inquiry could have been instituted against the petitioner after the lapse of four years from the last date of the alleged misconduct as per the mandatory provisions of Rule 7(2)(b)(ii) of the Rules of 1996. He submits that the facts as available on record conclusive and beyond all manner of doubt depict that the departmental proceedings were instituted against the petitioner beyond the period of four years referred to in Rule 7 (2)(b)(ii) of the Rules of 1996. He submits that the facts as available on record conclusive and beyond all manner of doubt depict that the departmental proceedings were instituted against the petitioner beyond the period of four years referred to in Rule 7 (2)(b)(ii) of the Rules of 1996. He submits that the date on which a departmental inquiry is deemed to be instituted is defined in Rule 7(6)(a) of the Pension Rules and as per the said definition, departmental proceedings shall be deemed to be instituted on the date on which the charges together with a statement of allegations on which they are based, or the proposal of Government to take disciplinary action together with the allegations on which it is proposed to be taken are issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date. Learned counsel submits that admittedly the chargesheet alongwith the statement of allegations was issued to the petitioner, a retired government employee on 13.6.2003 in relation to the alleged delinquency/misconduct for the specified period between 1.4.1996 to 31.5.1999. He urged that it is manifest from the above facts that the inquiry under Rule 7 was instituted against the pensioner beyond the period of four years and the finding of guilt recorded on the basis of such inquiry cannot be sustained as the inquiry itself is vitiated on account of violation of the mandatory Rule 7(iii) of the Rules of 1996. He places reliance on the judgment passed by the Jaipur Bench of this Court in the case of NK Dalal Vs. State of Rajasthan & Ors. reported in 2004(1) RLW (Raj.) 597 and prays that the writ petition deserves to be accepted and the impugned order (Annex.P/3) dated 12.8.2009 deserves to be set aside qua the petitioner. Per contra, Shri KD Singh and Ms.Kusum Rao, learned counsel appearing for the respondents vehemently opposed the submissions advanced by the learned counsel for the petitioner and contended that there were grave allegations of defalcation and misappropriation of huge sums of money against the petitioner. The allegations were also found substantiated from the FSL report. They, therefore, pray that no interference is called for in the impugned order. Heard and considered the arguments advanced at the bar and perused the material available on record. The allegations were also found substantiated from the FSL report. They, therefore, pray that no interference is called for in the impugned order. Heard and considered the arguments advanced at the bar and perused the material available on record. It is not in dispute that the departmental inquiry in the case at hand was instituted after the petitioner’s superannuation. The modalities of a departmental inquiry proposed to be instituted against a government servant after his retirement are governed by Rule 7 of the Pension Rules of 1996. Rule 7, which is germane for deciding the controversy in issue is reproduced hereinbelow for the sake of convenience:- “7. Right of Governor to withhold or withdraw pension (1) The Governor reserves to himself the right of withholding or withdrawing a pension or part thereof, whether permanently or for a specified period, and of ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement: Provided that the Rajasthan Public Service Commission shall be consulted before any final orders are passed: Provided further that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the amount of ["rupees one thousand two hundred seventy five per mensem]." (2) (a) The departmental proceedings referred to in sub rule (1), if instituted while the Government servant was in service whether before his retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in service: Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report recording its findings to the Governor. (b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment- (i) shall not be instituted save with the sanction of the Governor, (ii) shall not be in respect of any event which took place more than four years before such institution, and (iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. (3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his reemployment, shall be instituted in respect of a cause of action which arose, or in respect of an event which took place, more than four years before such institution. (4) In the case of a Government servant who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where departmental proceedings are continued under sub rule (2), a provisional pension as provided in Rule 90 shall be sanctioned. (5) Where the Governor decides not to withhold or withdraw pension but orders recovery of pecuniary loss from pension, the recovery shall not ordinarily be made at a rate exceeding one third of the pension admissible on the date of retirement of a Government servant. (6) For the purpose of this rule, - (a) departmental proceedings shall be deemed to be instituted on the date on which the charges together with a statement of allegations on which they are based, or the proposal of Government to take disciplinary action together with the allegations on which it is proposed to be taken, are issued to the Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to be instituted – (i) in the case of criminal proceeding, on the date on which the complaint or report of a police officer, of which the Magistrate takes cognizance, is made, and (ii) in the case of civil proceedings, on the date the plaint is presented in the court.” It cannot be gainsaid that the provisions of the Rule are mandatory in nature. The Rule stipulates certain conditions wherein, the Governor can direct institution of departmental inquiry against the retired government employee. The consequence of a departmental inquiry instituted under the said rule would entail the penalty of withholding or withdrawing the pension of the retired employee either wholly or in part either permanently or for a specified period and also for directing recovery from his pension of the whole or part of any pecuniary loss caused to the government. Thus, before such inquiry can be instituted, the mandatory procedure of the Rule are required to be followed in letter and spirit. As per sub-rule (2)(a) of Rule 7, if the departmental proceeding has already been instituted before the retirement of the employee, such inquiry can be continued and would be deemed to be a proceeding under Rule 7(2)(a). However, if the departmental inquiry has not been instituted by the time, the employee retires, the procedure set out in Rule 7(2)(b) comes into play. Rule 7(2)(b) further stipulates three conditions which are essential to be followed before instituting the inquiry:-(i) such inquiry cannot be instituted except with the Governor’s sanction, (ii) it cannot be in respect of any event which took place more than 4 years before such institution and (iii) it has to be conducted by such authority and at such place as the Governor may direct in accordance with the procedure applicable to the departmental proceedings under Rule 16 of the CCA Rules. The crucial question which is required to be addressed in order to resolve the controversy raised in the matter is as to when the departmental proceeding is said to be instituted. Rule 7(6)(a) lays down the situations as to when departmental inquiry would be deemed to be instituted. As per the said rule, the departmental proceeding shall be deemed to be instituted on the date on which the charges together with a statement of allegations on which they are based or the proposal of government to take disciplinary action together with the allegations on which it is proposed to be taken are issued to the government servant or pensioner. Learned counsel for the petitioner has placed on record the inquiry report dated 4.10.2007. Learned counsel for the petitioner has placed on record the inquiry report dated 4.10.2007. The first para of the inquiry report is germane for finding out as to when the departmental inquiry was instituted against the petitioner and is reproduced hereinbelow for the sake of ready reference:- ^^dkfeZd ¼d&3½ foHkkx ds i= dzekad i-1¼64½dkfeZd@d&3@tkWp 03 fnukad 9-6-2006 }kjk foHkkxh; tkWp fo:) Jh lquhy dqekj Hkheoky] rRdkyhu lgk;d vfHk;ark ,oa Jh jkepUnz ls-fu- lgk;d vfHk;ark] rFkk Jh y{ehukjk;.k oekZ] ls-fu-o-fy- {ks=h; ;kaf=d mi[k.M&3] chdeiqj] ds fo:) jktLFkku flfoy lsok;sa ¼oxhZdj.k fu;a=.k ,oa vihy½ fu;e 1958 ds fu;e&16@18 ds vUrxZr Jh lquhy dqekj Hkheoky rRdkyhu lgk;d vfHk;ark] Jh jkepUnz ls-fu- lgk;d vfHk;ark ,oa Jh y{ehukjk;.k oekZ] o-fy- ls-fu- ds fo:) dkfeZd foHkkx ds lela[;d Kkiu fnukad 13-3-2003 }kjk yxk;s x;s vkjksiksa dh tkWp djus dk mRrjnkf;Ro vk;qDr ¼f)rh;½] foHkkxh; tkWp foHkkx dks lkSik x;kA [Emphasis supplied] A bare look at the underlined portion of the inquiry report establishes beyond all manner of doubt that the charges together with statement of allegations on which they were based were issued to the petitioner a retired government employee vide a communication dated 13.6.2003. As is evident from the charge No.1 framed against the petitioner, the instances of delinquencies, irregularities and embezzlements leveled against the petitioner in the statement of allegations specifically relate to the period between 1.4.1996 to 31.5.1999. Thus, the departmental inquiry could only have been instituted against the petitioner as per Rule 7 (2)(b)(ii) of the Rules of 1996 within a period of 4 years from the date of the last alleged delinquency, which in this case is 31.5.1999. The inquiry thus was permissible to be instituted latest by 1.6.2003 and not a day later. Since the inquiry admittedly was instituted on 13.6.2003, which is the date on which the statement of allegation was issued to the petitioner, evidently, the institution thereof was beyond the period of 4 years. As such, the inquiry, which though was held in pursuance to the sanction issued by the Governor under Rule 7 of the Pension Rules is vitiated because the same was instituted beyond the mandatory period of four year prescribed in Rule 7 itself. Thus, it is manifest that the order (Annex.P/3) whereby punishment of withholding of full pension was imposed upon the petitioner was passed on an inquiry which was impermissible in law and was void ab initio qua the petitioner. Thus, it is manifest that the order (Annex.P/3) whereby punishment of withholding of full pension was imposed upon the petitioner was passed on an inquiry which was impermissible in law and was void ab initio qua the petitioner. Thus, the order imposing penalty passed in pursuance of an illegal inquiry is also bad in the eye of law and cannot be sustained. As a result, the writ petition deserves to be and is hereby allowed. The impugned order (Annex.P3) dated 12.8.2009 is set aside qua the petitioner. The petitioner shall be entitled to all consequential benefits flowing from the order imposing penalty being set aside. The petitioner shall also be entitled to interest accruing on his retiral dues in accordance with Rule 89 of the Rajasthan Civil Service (Pension) Rules at the rate of 9% per annum. No order as to costs.