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2019 DIGILAW 2417 (RAJ)

Om Prakash Godara v. State of Rajasthan

2019-09-11

S.RAVINDRA BHAT

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JUDGMENT : S. RAVINDRA BHAT, J. 1. In this writ petition an order dated 29.9.2001 has been challenged; by that order 25% of the pension payable was withheld for five years under the Rajasthan Civil Services (Pension) Rules, 1996 (hereafter "the Rules of 1996"). 2. The brief facts of the case are that at the relevant time, the petitioner was posted as Tehsildar at Nohar district Ganganagar (now district Hanumangarh). In relation to his charge, a suit (No. 22/1968 Krishna Nand Giri V/s State) was pending. The plaintiff had sought declaration that the agricultural land which was a subject matter of the dispute, was khudkast. The area of the land was approximately 2375 bighas. The suit was decided by the concerned authority i.e. Sub Divisional Officer (SDO) on 26.2.1973. The claimant's submissions were accepted; he was granted relief. Apparently, an appeal was not preferred against that order; eventually the matter came to the notice of the District Collector, who on 7.2.1974 stayed the operation of the judgment and order dated 26.2.1973 and made a reference to the Revenue Board under Section 232 of the Rajasthan Tenancy Act. As on the date when the present writ petition was instituted, the reference was still pending; the stay of the order of the SDO continued to operate. 3. On 6.2.1995, the departmental authorities initiated disciplinary proceedings against the petitioner under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. Four charges were levelled against the petitioner; (1) that with a view to benefit the private party in a proceeding, the petitioner failed to discharge his duties as Parokar with due diligence; (2) he intentionally withheld relevant facts to assist the third party in the suit; (3) that the adverse order against the State was not communicated; and (4) that he never recommended to the higher authorities that appeal ought to be preferred. Apparently, the Sub Divisional Officer (SDO), who decided the merits of the case, Shri D.D. Sood was also investigated, however no action was taken against him. The departmental proceedings culminated in a finding of the Enquiry Officer, who by the report dated 23.6.1998, found that the petitioner was guilty of three charges out of four. The petitioner was served with a copy of the report on 29.6.1998; he represented against the findings. In the meanwhile, he had superannuated. The departmental proceedings culminated in a finding of the Enquiry Officer, who by the report dated 23.6.1998, found that the petitioner was guilty of three charges out of four. The petitioner was served with a copy of the report on 29.6.1998; he represented against the findings. In the meanwhile, he had superannuated. By order dated 29.9.2001, the disciplinary authority while accepting the findings of the Enquiry Officer, imposed the penalty of 25% cut of pension for five years. 4. It is argued that the enquiry report clearly shows that the petitioner had made adequate arrangements for the State's representation before the SDO. In this regard, it is pointed out that the Naib Tehsildar was designated to attend the case and that the question of the petitioner being found responsible for the adverse order, did not arise. Learned counsel highlighted that no doubt the petitioner as Tehsildar appeared before the SDO on 1.12.1972, 27.12.1972 and 29.12.1972; however, that did not detract from the fact that the Naib Tehsildar was deployed and did attend the proceedings. It was submitted that in these circumstances, to hold the petitioner, who worked as Tehsildar, as solely responsible was unfair. Learned counsel pointed to the discriminatory nature of the State's approach in this regard submitting that the concerned SDO, who actually passed the order; Shri D.D. Sood- was allowed to scot free and was even promoted to the Indian Administrative Service. The preliminary enquiry held against him did not lead any further progress and even charges were not drawn against him. On the other hand, the petitioner, who at best held an overall responsibility as Tehsildar, but was not the prime mover for the decision against the State, was inflicted with a severe penalty of forfeiture of pension. It is submitted that therefore the penalty order is arbitrary. 5. It was furthermore submitted importantly that by virtue of Rule 7 of the Rules of 1996, there was no finding with respect to the nature of the monetary loss. Therefore, the State could not have forfeited or effected a pension cut. Clearly, there was no monetary loss; on an overall analysis, it was evident that no damage was caused to the State because the adverse order was stayed and a reference was made to the Revenue Board. 6. Therefore, the State could not have forfeited or effected a pension cut. Clearly, there was no monetary loss; on an overall analysis, it was evident that no damage was caused to the State because the adverse order was stayed and a reference was made to the Revenue Board. 6. Counsel appearing for the respondent-State, on the other hand, submitted that if the petitioner's arguments are correct that he had deployed Naib Tehsildar, there was no reason for him to appear before the SDO on three days. She highlighted that the Tehsildar represents the State and in fact was expressly made a party to the proceedings. Its importance can be gauged from the fact that declaration was sought in respect of large land admeasuring 500 acres. The charge was not merely non-appearance but also that important materials with respect to two orders made previously, were suppressed from the SDO, who did not take them into account. It was furthermore submitted that the petitioner was Incharge as Tehsildar and was overall responsible not only for the conduct of the case but also for the monitoring. Therefore, his omission to inform his superior officers and forward a copy of the adverse order, ensured that no appeal was filed. It was clearly to enure benefit to the third party (plaintiff in this case). The fact that subsequently that order was stayed and a reference was made to the Board of Revenue did not in any way advance the writ petitioner's case; those events were purely accidental because the Collector was made cognizant of the adverse nature of the order and took suo moto action staying its effect. 7. Learned counsel for the State seriously disputed the petitioner's submission that the power to effect a pay cut is available only when the delinquent officer is found guilty of charges which have resulted in determined monetary loss. She submitted that Rule 7 of the Rules of 1996 applies in regard to all kinds of misconduct and not merely to those involving financial irregularities which resulted in loss to the exchequer. She submitted that Rule 7 of the Rules of 1996 applies in regard to all kinds of misconduct and not merely to those involving financial irregularities which resulted in loss to the exchequer. It was submitted that in this case if the decision of the SDO is to be finally upheld and is to remain undisturbed the repercussion would be serious inasmuch as rights in regard to huge area of land would have been in favour of thirty party who would then have been not entitled to it for such order. 8. Learned counsel lastly argued that the Court should not intervene in the proceedings since the petitioner did not exhaust his alternative remedy of an appeal and furthermore, the penalty order cannot be characterized as disproportionate or excessive having regard to the circumstances of the case. 9. Rule 7 of the Rules of 1996 reads as under:- "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 three thousand four hundred fifty 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 re-employment, 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." 10. It is evident from the above factual discussion that the gravamen of the charge against the petitioner was essentially, neglect in the defense of the State in the revenue proceeding, which led to a declaration by the SDO that a large swathe of land was khudkhast. The petitioner's defense was that the proceedings were handled by the Naib Tahsildar, whom he had nominated to attend the hearings as pairokar and that in the circumstances, the mere fact that he had attended the hearings on three occasions did not render him responsible. He also tried to lay the blame upon the SDO who decided the case; further, he submitted that the State did not eventually face any adverse order, because of the reference to the Revenue Board. He lastly argues that Rule 7 cannot be invoked, and pension forfeited, unless there is a quantified and determined finding with respect to financial loss. 11. In the opinion of this court, the petitioner's arguments are unmerited. The charge levelled against the petitioner was not as much as neglect to attend the hearing, nor as grave as the improper handling of it; the petitioner does not dispute that two previous orders, which apparently had an important bearing on the issue (decided by the SDO on merits, leading to adverse decision against the State) were not shown during the proceeding. Surely, as Tehsildar, and a custodian of the revenue records of the State, the petitioner had the duty to ensure proper defense of the case, and not mere representation by the Naib Tehsildar, who appears to have been a mute bystander during the proceedings. 12. This court is also of the opinion that there was clear neglect, if not downright negligence on the part of the petitioner in not forwarding a copy of the SDO's order (which he was undoubtedly aware of) to the higher authorities, which could have enabled them to decide on the soundness of the order, and feasibility of appealing it. The inquiry officer's finding that this was meant to be, and certainly did benefit the third party involved (i.e. the claimant) is a reasonable one; there is, in any case, nothing to dispel it. Nor can the petitioner claim mileage from the fact that eventually when this dereliction came to light, remedial action was taken by the Collector and a reference made to the Board. 13. Nor can the petitioner claim mileage from the fact that eventually when this dereliction came to light, remedial action was taken by the Collector and a reference made to the Board. 13. This court is of opinion that the argument that Rule 7 can be invoked only in the event of a determined and quantified pecuniary loss, is meritless and insubstantial. While interpreting a pari materia provision (Rule 9 of the Central Civil Services, Pension Rules, 1972) the Supreme Court held, in Union of India And Ors. Vs Shri B. Dev 1998 (7) SCC 691 as follows: "Rule 9: Right of President to withhold or withdrawn pension:- The President reserves to himself the right to withholding or withdrawing a pension or part thereof, whether permanently or for a specified period and or 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 Union Public Service Commission shall be consulted before orders are passed.. **** Rule 9 gives to the President the right of (1) withholding or withdrawing a pension or part thereof (2) either permanently or for a specified period and (3) ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government. This power can be exercised if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. The power therefore, can be exercised in all cases where the pensioner is found guilty of grave misconduct or negligence during the period of his service. One of the powers of the President is to recover from pension, in a case where any pecuniary loss is caused to the Government, that loss. This is an independent power in addition to the power of withdrawing or withholding pension. The contention of the respondent, therefore, that Rule 9 cannot be invoked even in cases of grave misconduct unless pecuniary loss is caused to the Government, is unsustainable." 14. Earlier, the Supreme Court had ruled, in D.V. Kapoor vs Union of India & Ors. This is an independent power in addition to the power of withdrawing or withholding pension. The contention of the respondent, therefore, that Rule 9 cannot be invoked even in cases of grave misconduct unless pecuniary loss is caused to the Government, is unsustainable." 14. Earlier, the Supreme Court had ruled, in D.V. Kapoor vs Union of India & Ors. AIR 1990 SC 1923 that the nature of the power is wide: "Under Rule 9(1) of the Central Civil Services(Pension) Rules, 1972, the President has reserved to himself the right to withhold pension in whole or in part, whether permanently or for a specified period, or he can recover from pension of the whole or part of any pecuniary loss caused by the Government employee to the Government subject to the minimum. However, the exercise of the power is hedged with a condition precedent that a finding should be recorded either in departmental enquiry or judicial proceedings that the pensioner committed grave misconduct or negligence in the discharge of his duty while in office, as defined in Rule 8(5), Explanation (b), which is an inclusive definition, i.e. the scope is wide of mark, dependent on the facts or circumstances in a given case. In the absence of such a finding, the President is without authority of law to impose penalty or withholding pension as a measure of punishment either in whole or in part, permanently or for a specified period." 15. The question was placed in perspective in a more focused manner, in State of Orissa v. Kalicharan Mohapatra 1995 (6) SCC 105 where the Supreme Court interpreted Rule 6 of All India Services (Death-cum-Retirement Benefit) Rule, 1958 and held that it was not necessary that the proceedings should relate to the charge on causing pecuniary loss to the Central or the State Govt. by misconduct or negligence during the service. The court held as follows: "the appellants relied upon Rule 6 of the All India Services (Death-cum-Retirement Benefits) Rules, 1958 in support of their action. The appellants' case was that in view of the pendency of the said criminal case, they were justified in withholding the gratuity amount and also in not sanctioning the pension finally. The Tribunal has held that the said rule does not avail the appellants inasmuch as the charge against the respondent is not one of causing pecuniary loss to the Central or State Govt. The Tribunal has held that the said rule does not avail the appellants inasmuch as the charge against the respondent is not one of causing pecuniary loss to the Central or State Govt. by misconduct or negligence within the meaning of Rule 6 (1). We are of the opinion that the reading of the rule by the Tribunal is unsustainable and incorrect. The rule reads thus: "Recovery from pension:--(1) The Central Government reserves to itself the right of withholding or withdrawing a pension or any part of it whether permanently or for a specified period and the right of ordering the recovery from pension of the whole or part of any pecuniary loss caused to the Central or a State Government, if the pensioner is found in a departmental or judicial proceedings to have been guilty of grave misconduct or to have caused pecuniary loss to the Central or a State Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement. Provided that no such order shall be passed without consulting the Union Public Service Commission--Provided further that; (a) such departmental proceeding, if instituted while the pensioner was in service, whether before his retirement or during his re-employment, shall, after the final retirement of the pensioner, be deemed to be a proceeding under this sub-rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the pensioner had continued in service. A reading of Sub-rule (1) of Rule 6 discloses the following features: (a) if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or (b) where a pensioner is found in a departmental or judicial proceeding to have caused pecuniary loss to the Central or State Government by his misconduct or negligence during his service (including the service rendered on re-employment after retirement). (c) the Central Government is entitled to withhold or withdraw pension or any part of it whether permanently or for a specified period. The Central Government is also entitled to order recovery from pension of the whole or part of any pecuniary loss caused to the Central or State Government. Sub-rule (2) says that: (a) where a departmental or judicial proceeding is instituted under Sub-section (1) or (b) where a departmental proceeding is continued under Clause (a) of the proviso to Sub-rule (1). The Central Government is also entitled to order recovery from pension of the whole or part of any pecuniary loss caused to the Central or State Government. Sub-rule (2) says that: (a) where a departmental or judicial proceeding is instituted under Sub-section (1) or (b) where a departmental proceeding is continued under Clause (a) of the proviso to Sub-rule (1). (c) such employee shall be sanctioned by the government which instituted such proceedings a provisional pension not exceeding the maximum pension admissible to him during the period of pendency of such proceeding (d) but no gratuity or death-cum-retirement gratuity shall be paid to him until the conclusion of such proceedings and the issuance of final orders thereon. It is thus clear from an analysis of Sub-rule (1) and (2) that where a judicial proceedings is pending against a pensioner for grave misconduct the government is entitled to withhold gratuity amount and/or death-cum-gratuity amount and is also entitled to sanction provisional pension for the period of pendency of the said proceedings. It is not necessary that a judicial proceeding should relate to the charge of causing pecuniary loss to the Central or State Government by misconduct or negligence during his service. Sub-rule (1) of Rule 6 specifies two grounds upon which action thereunder can be taken. One is where the pensioner is found guilty of grave misconduct and the other is whether he is found to have caused pecuniary loss to the Central and State Government by misconduct and negligence during his service. Sub-rule (2) provides for orders to be made during the pendency of such proceedings. It may also be mentioned that neither the All India Service (Death-cum- Retirement) Rules nor the Pensions Act, General Clauses Act or the Leave Rules (referred to in Rule 2 (2) define the expression "misconduct". It would, therefore, be reasonable and permissible to understand the said expression in 6 aforesaid in the manner defined in the prevention of Corruption Act. The Tribunal was, therefore, in error in holding that unless the charge expressly charges the pensioner with causing pecuniary loss to Central or State Government by his negligence or misconduct during his service, the action under Sub-rule (2) of Rule 6 cannot be taken." 16. The Tribunal was, therefore, in error in holding that unless the charge expressly charges the pensioner with causing pecuniary loss to Central or State Government by his negligence or misconduct during his service, the action under Sub-rule (2) of Rule 6 cannot be taken." 16. In view of the above discussion, it is held that there is no merit in the petitioner's submission that action can be initiated under Rule 7 only when the government finds quantified pecuniary loss to the State. 17. As far as the last argument with respect the SDO being exonerated which the petitioner alleges, was discriminatory, is concerned, this court notices, that there is no concept of "negative equality" which is enforceable. In this regard, it would be useful to recollect the decisions of the Supreme Court. In Union of India (Railway Board) and Ors. v. J.V. Subhaiah and Ors. (1996) 2 SCC 258 the court observed that: "The principle of equality enshrined under Article 14 of the Constitution, as contended for the respondents, does not apply since we have already held that the order of the CAT, Madras Bench is clearly unsustainable in law and illegal which can never form basis to hold that the other employees are invidiously discriminated offending Article 14. The employees covered by the order of the Madras Bench may be dealt with by the Railway Administration appropriately but that could not form foundation to plead discrimination violating Article 14 of the Constitution." 18. In Gursharan Singh v. New Delhi Municipal Committee 1996 (2) SCC 459 the Court declined to invoke Article 14 of the Constitution for giving relief to the appellant and observed: "There appears to be some confusion in respect of the scope of Article 14 of the Constitution which guarantees equality before law to all citizens. This guarantee of equality before law is a positive concept and it cannot be enforced by a citizen or court in a negative manner. To put it in other words, if an illegality or irregularity has been committed in favour of any individual or a group of individuals, others cannot invoke the jurisdiction of the High Court or of this Court, that the same irregularity or illegality be committed by the State...so far such petitioners are concerned, on the reasoning that they have been denied the benefits which have been extended to others although in an irregular or illegal manner. Such petitioners can question the validity of orders which are said to have been passed in favour of persons who were not entitled to the same, but they cannot claim orders which are not sanctioned by law in their favour on principle of equality before law. Neither Article 14 of the Constitution conceives within the equality clause this concept nor Article 226 empowers the High Court to enforce such claim of equality before law. If such claims are enforced, it shall amount to directing to continue and perpetuate an illegal procedure or an illegal order for extending similar benefits to others. Before a claim based on equality clause is upheld, it must be established by the petitioner that his claim being just and legal, has been denied to him, while it has been extended to others and in this process there has been a discrimination." 19. In Faridabad CT. Scan Centre v. D.G. Health Services 1997 (7) SCC 752 the Supreme Court held that "wrong orders cannot be perpetuated with the help of Article 14 on the basis that such wrong orders were earlier passed in favour of some other persons and that, therefore, there will be discrimination against others if correct orders are passed against them." 20. Again the principle was enunciated crisply in State of Haryana v. Ram Kumar Mann (1997) 1 SCC 35 which underlined that a litigant's right "..must be founded upon enforceable right to entitle him to the equality treatment for enforcement thereof. A wrong decision by the Government does not give a right to enforce the wrong order and claim parity or equality. Two wrongs can never make a right." 21. In the present case, the fact that the SDO concerned was not proceeded with cannot be a ground to hold that the proceedings against the petitioner were unwarranted or unfair. There may have been good reasons for not initiating action or there may not have been; those facts are not before this court. Moreover, the gravity of the conduct is gauged by the nature and extent of involvement of the concerned official. Given these factors, this court is of opinion that the proceedings initiated against the petitioner were justified; the findings of the inquiry officer were also warranted by the materials on record. Moreover, the gravity of the conduct is gauged by the nature and extent of involvement of the concerned official. Given these factors, this court is of opinion that the proceedings initiated against the petitioner were justified; the findings of the inquiry officer were also warranted by the materials on record. Furthermore, the court is also of the considered opinion that there was nothing disproportionate in the nature of the penalty imposed, which was for a limited duration. 22. In the light of the above findings, it is held that the petition has to fail; it is accordingly dismissed without order on costs. All pending applications too are disposed of.