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2015 DIGILAW 222 (RAJ)

Mahendra Kumar Garg v. State of Rajasthan

2015-01-23

SANDEEP MEHTA

body2015
Hon'ble MEHTA, J.—The petitioner (an Assistant Engineer in the Public Health and Engineering Department) retired from services on 31.7.2006. The petitioner was posted at Pratapgarh Division of the respondent department. During physical verification, shortfall and deficits in stock and certain other irregularities came to be noticed against him. Just before the petitioner was approaching the age of superannuation, certain communications came to be issued proposing to recover from the petitioner the amount of pecuniary loss caused by said deficit and shortfall in stock, which occurred between the years 1997-98, 1998-99 and 2003-04. Few of the notices given to the petitioner in the year 2005/2006 have been placed on record as Annex.P/6, P/7 and P/8. By way of the notices, he was directed to deposit the amounts indicated therein so as to make good the losses. An order (Annex.P/9) came to be issued by the Executive Engineer, PHED, Pratapgarh Division on 16.10.2006 whereby the petitioner was warned that shortfall and deficit in the department were attributed to him during his service period and he was communicated about the same by various letters and notices issued to him between July 2005 and April 2006. The petitioner was intimated that the inaction of the petitioner to make good the incurred losses amounted to adamancy and was viewed seriously by the senior officials of the respondent department. It is further alleged that the petitioner did not pay any heed to the warning letter and failed to deposit the losses attributed to him. 2. It is noteworthy that the petitioner superannuated on 31.7.2006 while these exchanges were going on. The petitioner’s post retiral benefits to the tune of about Rs.4,50,000/- were withheld by the respondents upon which he approached this Court by filing S.B.Civil Writ Petition No.7903/2008. In reply to the said writ petition, the respondents claimed that a domestic enquiry was initiated in relation to the deficit and shortfall in stock attributed to the petitioner but the same remained unconcluded. The Court disposed of the said writ petition directing the respondents to conclude the enquiry against the petitioner within a period of three months from the date of the order and if upon such enquiry, any dues were found against the petitioner on account of his negligence, the respondents were given liberty to withhold the petitioner’s retiral dues to that extent. It was further directed that if no enquiry was held and if the responsibility of the financial loss could not be fixed on the petitioner for any reason, then his retiral dues would have to be released forthwith after the expiry of the aforesaid period of three months. 3. In pursuance of the aforesaid directions given by the Court in the petitioner’s earlier writ petition, the department formed an Enquiry Committee. The petitioner was sent a notice dated 6.6.2012 for participating in the enquiry. The enquiry committee examined the record and concluded the proceedings by order (Annex.P/20) dated 8.6.2012 holding that the recovery proposed earlier from the petitioner was justified. 4. The petitioner has approached this Court by way of the instant writ petition assailing the validity and legality of the order (Annex.P/20) in pursuance whereof, a sum of Rs.4.5 lacs was withheld from the petitioner’s retrial dues towards the recovery of the shortfall and losses allegedly caused due to the petitioner’s conduct during his service. 5. Learned counsel for the petitioner submits that the decision to inflict recovery of the amount of the alleged deficit and shortfall on the petitioner was taken without holding any enquiry as warranted under the Rajasthan Civil Services (Classification, Control and Appeal) Rules (hereinafter referred to as CCA Rules). No such enquiry was conducted when the petitioner was in service even though the allegations related to the period between 1997 to 2004 i.e. much prior to the petitioner’s retirement from service. Pursuant to the petitioner’s retirement from service, such enquiry could only have been instituted in accordance with Rule 7 of the Rajasthan Civil Services (Pension) Rules, 1996. Under the said Rule, departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-employment could not be instituted without the sanction of the Governor and in respect of any event which took place more than four years before the institution of the enquiry. The enquiry if instituted was required to be conducted by an authority and at a place as directed by the Governor and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. The enquiry if instituted was required to be conducted by an authority and at a place as directed by the Governor and in accordance with the procedure applicable to the departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service. Learned counsel thus submits that as the petitioner retired from service on 31.7.2006, by effect of Rule 7, no departmental proceedings could be instituted against him after his retirement except with the sanction of the Governor. Furthermore, since no enquiry was instituted during the service tenure of the petitioner and as the events in relation whereto, the department proposed to initiate the enquiry took place more than 4 years before enquiry being instituted, the whole of the proceedings get vitiated as being contrary to the mandatory provisions of Rule 7 of the Rules of 1996. He further submits that as per sub-clause (iii) of Rule 7(2)(b), the enquiry if any, was required to be conducted in accordance with Rule 16 of the CCA Rules. No such procedure was adopted by the respondents and therefore, ex-facie, the order (Annex.P/20) whereby punishment of recovery was inflicted upon the petitioner cannot be sustained in the eye of law. 6. Per contra, Shri NK Mehta, learned AGC tried to support and defend the order (Annex.P/20) on the ground that this Court, while deciding the earlier writ petition preferred by the petitioner gave liberty to the department precisely to hold such an enquiry and as such, no challenge can be laid to the findings of the Enquiry Committee by resorting to technical defences/objections in reference to the Pension Rules or the CCA Rules. He, therefore, submits that no interference is called for in the impugned order. 7. Heard and considered the arguments advanced at the bar and perused the material available on record. 8. It cannot be gainsaid that the order (Annex.P/20) dated 8.6.2012 whereby recovery of the pecuniary loss towards the shortfall and deficit was imposed on the petitioner is in the nature of order imposing penalty as defined under Rule 14 sub-clause (iii) of the CCA Rules, which is quoted hereinbelow for the sake of ready reference:- “14. 8. It cannot be gainsaid that the order (Annex.P/20) dated 8.6.2012 whereby recovery of the pecuniary loss towards the shortfall and deficit was imposed on the petitioner is in the nature of order imposing penalty as defined under Rule 14 sub-clause (iii) of the CCA Rules, which is quoted hereinbelow for the sake of ready reference:- “14. Nature of Penalties.–The following penalties may, for good and sufficient reasons, which shall be recorded, and as hereinafter provided, be imposed on a Government servant, namely :– (i) … (ii) … (iii) recovery from pay of the whole or part of any pecuniary loss caused to the Government by negligence or breach of any law, rule or order” 9. Admittedly, the recovery was directed in order to recompense the pecuniary loss caused to the government. The loss was attributed to the petitioner and thus, the order (Annex.20) was obviously an order of imposing penalty in the nature of the one specified in Rule 14(iii) of the CCA Rules. It is further noteworthy and the admitted case of the respondents that no departmental enquiry whatsoever was instituted against the petitioner for investigating the truth of the allegations while the petitioner was in service. After the petitioner’s retirement, departmental enquiry if any, could only have been instituted in accordance with the mandatory provisions of Rule 7 of the Rules of 1996. The argument that the court while deciding the earlier writ petition of the petitioner by its order dated 13.3.2012 permitted the respondents to hold a formal enquiry and thus they were at liberty to inflict a penalty on the petitioner without resorting to a proper enquiry as per law is prima-facie fallacious and unacceptable. When the court gave liberty and directed the respondents to hold an enquiry against the petitioner, by necessary implication of law, it was required that the enquiry was to be conducted under the Rules. The court’s order dated 13.3.2012 was apparently misconstrued by the respondent authority who probably gained an impression that they had been given a handle to act as per their whims and fancies and to give a total go by to the procedure established by law. By taking this stance, the respondent authorities are attempting to seek justification for their own misdeeds by trying to take shelter of the Court’s order. By taking this stance, the respondent authorities are attempting to seek justification for their own misdeeds by trying to take shelter of the Court’s order. This Court would never be a party to permit an action not allowed as per law and thereby perpetuate and justify illegal proceeding. It is to be presumed that the enquiry which this Court directed to be held by aforesaid order dated 13.3.2012 was required to be conducted as per law. No enquiry was permissible dehors the Pension Rules which are mandatory in nature. 10. As, undisputedly, the order inflicting the punishment of recovery has been proposed against the petitioner without holding an enquiry, the same cannot be sustained as being contrary to the mandatory provisions of law. 11. As a matter of fact, this Court is constrained to observe that the facts of the case clearly indicate that the senior officers of the department have managed to find an escape route in the matter by shifting the burden of their own misdeeds on the petitioner just before his superannuation. It is the admitted case of the department that the alleged irregularities committed by the petitioner i.e. before his retirement had already been noticed way-back in the year 2005. Nothing prevented the concerned official/s to institute a proper and prompt departmental enquiry against the petitioner while he was still in service. It is quite possible that if a regular enquiry was held, the complicity of the higher ups superior officers would have been exposed. Failure of the concerned officials to institute a timely legal enquiry despite being aware of the huge losses caused to the State Government in itself amounts to a dereliction in discharge of duties and should be visited with the consequences thereof. 12. As a consequence of the above discussion, this Court has no hesitation in holding that the order (Annex.P/20) is vitiated on account of having been passed in gross contravention of mandatory provisions of law and the procedure for holding an enquiry against a retired government employee particularly Rule 7(2) of the Pension Rules,1996. 13. Accordingly, the writ petition is allowed. The impugned order (Annex.P/20) dated 8.6.2012 is quashed and set aside. The petitioner shall be entitled to all consequential benefits flowing from the quashing of the order (Annex.P/20). 14. 13. Accordingly, the writ petition is allowed. The impugned order (Annex.P/20) dated 8.6.2012 is quashed and set aside. The petitioner shall be entitled to all consequential benefits flowing from the quashing of the order (Annex.P/20). 14. This Court further directs that this order shall be placed before the Secretary, Department of Personnel, who shall hold a preliminary enquiry to find and identify the officer/s responsible for the failure to initiate prompt departmental enquiry in this matter and such officer/s shall be thereafter proceeded with in accordance with law. 15. Since the petitioner’s retiral benefits have been withheld without any rhyme, reason or justification, the amount accrued to the petitioner shall carry an interest @ 9% per annum in accordance with Rule 89 of the Rajasthan Civil Services (Pension) Rules from the date of accrual to the date of reimbursement. No order as to costs.