[^- ^ IN THE HIGH COURT OF JUDICATURE AT BILASPUR(CP3^TriSGARH)_ / WRIT PETITION N0< <Z>S2-^—OF2003 PETITIONER Panna Lal AgrQ^al^son of /Duli Chand Agra^aly a©edateout 70 years» Retired Eilrincjl]|>al» residenfe of shanti Nagar» District Rajnandga©n,(C»S<i)» VE R S U S RESPONDENTS s 1<» state ofChhattisgarh, throufh Secretary> Departrrent of Education, ^ DeK*S^Bhawan»Mantralayat Raipur, / ^S-^^tt District-Raipar.(c,©»5 ^^^•' 3^%S^°?^ t 2» Direcfeor, ^'^ci^' I.OK SHIKSHAN ..'• /<y<^'_^ •••''.^fc^ ^•y^ LOK SHIKSHAN SANCHA&NALAY, Chhattisgarh<» / : 3, District Education Ofificer^ Rajnan<igaon» District- Raj nandgaon»(C<»0*) : 4» superxntendent of police^ Rajnandgaon^District-Rajnandgaon, (C.G.) : 5<i .The Gollectox'^ RajnandQaon, Distrlct-Rajnandgaon^C^Go) WRIT PETITION UNDER ARTICLES |2@/227 OF _THE CONSTITVTION GF INDIAa _.___ AF^ THB HIGH COURT OP CHHAmSGiARH: BILA8PUR 8in^e Bench: Hon*Me Slurl Satish K. AgnUiotri, J. W. P. Wo. 3524 of 2003 PetitioHer : Paana Lal Agrawal Versus Respondents : State ofChhattisgarh & others Post for onter on 6 Deceniber, 2006 Sd/- Satish K. Agnihotri Judge THB HIGH COUKT OP CHHATTISGARH: BILA8PUR Singile Bench: Hon»Me81uri Satlali K, Agaihotrl, J. W. P. No. 3524 of 2003 Petitioner : Paana Lal Agrawal Versus Respondents : State of Chhattisgarh & ofhers Shri Suxul Sahu, counsel for fhe petitioner, Shri A.S. Kachhawaha, Goveniaient Advocate for fhe respondents/State. ORDBR f^ ( (o Decemtier, 2006) 1. The p^tifioner has f3ed fhis writ pefition xiader Articte 226/227 of the Constitution of India challengiag the vaUdity ofthe impugned order dated 30,9.2CX)3 (Aruiexure P/l), whereby tfae recoveiy of Rs. 1,41,892.50/- was oidered froin fhe petitioner. The petitioner farther prayed for graiit of gratuity wifh iaterest aad fuU peaasion W.e.f. 16.10.1994. 2. The indisputable facts ia brief, are fhat fhe petitioner, while posted as a Prmcipal, Girls Higher Secondaiy School, Chiiikhadan, Distdct Rajnandgaon, was suspended on 22.3,1993 (Anxiexure P/3) for gross financial irregalarities, conimitted by him as Drawiag aiid Disbursiag OflGicer, Gowenaineat Higher Secondaay Sch<x>l, Udaipur, Distdct Rajnandgaon. On fhe same day ie, 22.3.1993, fhe petitk>ner was issued a charge-sheet containiag two charges for misappxopriation of funds to fhe /&/ extent ofRs. 2,83,785/- during the period between 1.10.1987 to 19,6.1990. The petitioner subinitted his reply to the chax^e-sheet vide letter dated 16.4.1993 (Annexure P/4), denymgaU fhe atlegatk>ns aad asking for a copy of fhe docuraents, cash book, voucher etc., for the period belween 1.10.1987 to 19.6.1990. 3. The Deputy Director, Public Instnictions, Rajnaadgaon coifcducted fhe enquiry after providiag sufficient opportunity ofhearmg to the petitioner aad ofher co-delmquexit officer, one Shri M.P. Agrawal, Accountao^t, came to fhe foUowiag conclusion:- "^T ^ra y«i»<"iY^ uiN ^ <ii|<i'« ^n? ^rraT "'rar f^ ^ft yro^fto <H<Ac|ld <^<sliyic1 2.83.785/- "®>. ^Tf^T ^ WZ yf <Mi6<lui ^? 'y»eMi<t ?^ 'T^ felT I^Ri^ f^P? ^ V^ftS ^Mt lr| ^T ^rf^T ^ 40.000/- ^5. ^T y<t»<ut ^^PT? 'r<ll<tlciq 4 ^cT "^?T ^ I J"ft 4toi?cTO <a^qici ^6<^1 ^ ^(f^d<ul <»(S|*1^ f^ctn^l itl^ftdctl ^<B^ ^ ^T ^R Pl^ui ^€t^ar^ ^ v^ss ^Nt 11 ^if^ ^ ^iupr "^^ ^ ^cFft ^t "^rf^T ^t <H4»<1 ?PNt ^f ^t W^t sft ^3gN ^f^CT ^ld<fe yf ^T^TFT "5'f ^t 3TT^ ^I^ ^W^ 164/l^-rtf4» 2-9—89(^g4^l 14) ^ <re?T WO^O^ffO 'CTraT idt;<i<i< ^TWT ^ y?ii^t-i aaN f^R<ft<* ^sr ^' ^fwfl^ ^Pi^Piiddi^ sit^ ?rr^r PifSj^tY ^ Rt-dtft^ ^WCT ?ro^ ^t 31^? eqpr f^dKII STT | 3SQ: ^T ^WT vft ?TTcTT ^t ^pfk ^9 Rt-tl'ft^l fW^T ^t "^^ ^? ^t <ai^ui in t^R°T ^ra^TT ^t ^RT "^B^tT ^F^ ^fd«t? ?t ^TRT STT | f^^ ^St^ ^HT ^fSt f^TTI 3RT: ^ 3PT^ 4»tfo<lT ^ W^T ^ qif^cq ^ ^?lft ^qiT ^t ^t ^T^ Wgpl ^ft <il<»«<ld^ <Hlg<"l ^T @H^CT 3|1^1<<>1^ Wf <tiPici< ^g^ ^? ^ft ^yom <t»)Nt<7l^l ^t'f^dl ^ t^PPT 53 ^ yi4t(l<lT i^t ^rt^ ^W ^t 1 /&. 3RT: ^ ^nysro Rit^d ^qr <Ul^ut FfVf 1965 ^ Pl^lH 3 (l) ^ II^gcT <UI^<UI ^ ^rt^ ^|T«UI ^ ^Nt t r' aad report was accordmgly submitt^l on 22.7. IW6, 4, The second show-cause iiotice with a copy ofthe report was sent to the petitioner vide letter dated 26.2.1998 offhe Joiat Dircctor, Public Instnictions, Durg. The petitioner submiftked his repty vide letterdated 12.3.1998 (Amiexure P/8). 5. The Director, Public instructions, Goveniment of Chhattisgarh, Raipur, agrceiag wifh fhe enquiry report aad after havmg considered fhe represeHtation ffled by the petitioxier to fhe second show-cause notice^ which was served on fhe petitioner along wifh tiie enqiiiiy report, dirccted for recoveiy of 50% of fhe total aaiount i.e. 2,83,785/-, fix>m fhe i^titioner. In fhe enquiry, siace ftie petitioner aiid one Shri M,R Agrawal, fhe then Accoiintant, were found equally responsible for niisappropriatioxi offunds for a sum ofRs. 2,83,785/-, 50% offhe total amount i.e. 1,41,82.50/- was to be reccwered finoni fhe petitioner. The ofher co-deUnquent officer, Shri M,P. Agrawal, Accountant, m fhe meazitioaie, died. The petitioner also rctired froni senrice, on attamiiig'the age of superaniiuation w,e,f. 16.10.1994. 6. Bemg aggrieved, fhe petitioner filed fhis petitk>n for the reKef, as stated above. 7. Shri Sunil Sahu, learaed counsel appearmg for fhe petitioner would subiait fhat since fhe ^titioner had already retired froia seryice, no recoveiy can be inade froxa fhe petitioner under Rule 9 of the Chhattisgarh Civfl Services (Pension) Rules, 1976 (hereinafter referred to as "fhe Riiles, 1976'} • The petitioner did not chaUenge fhe validily of fhe impugned oider on any oftier ground that the enquiry was perverse, fiixidiag was on fhe basis of no evideace or ffaere was aay mfirmily, irregularity or illegality m the process offhe enquiry. 8. It was next contended fhat siace the accouiitant was rcspoiisible to deal with fhe accounts, fhe entire liability ought to bave been fastened on fhe accountant aad it was not possible for fhe petitioner to supervise the finaacial aspects of fhe Govemmeiit Higher Secondaiy School, Udaipur, District Rajnandgaon, wherem he was posted as Drawing and Disburaing Offl^er^ during the period between 1.10. 1987 to 19.6.1990. 9. Shri A.S. Kachhawaha, leamed Deputy Goveniiaertt Advocate, appe<armg for fhe respondents/State, per a^ntra, would submit that a proper enquiry was held and conchision of fhe enquiry officer was on fhe basis of sufBcient evidence, after havir^ provided sufficient opportfuaity of hearing to fhe petitioner. It was next contended fhat since fhe departmeiital enquiry was mitiated by isstdng charge-sheet on 22.3. 1993 when fhe i^titioner was ia service, fherefore, it cannot be contended by leanied couasel for thie petitfosier fhat fhe departmental enquiry was initiated after fhe retirement of the petitioner and no rccoveiy coirid be ordercd under Rule 9 of fhe Rxiles 1976. Learaed couiisel appeariag for fhe res^wndents fiirther contended that fhis Coiirt has lixoited jurisdiction to look into fhe iafirmity, iHegality or irregularity in fhe departmental proceediags, which has not been challenged by fhe petitioner. a S wS /^ 10, After haviog heard leanied counsel for fhe parties and haviag perused fhe pleadiags aad docuineBte appended fhereto, it is apparcnt that the enquuy was mitiated oa 22.3.1993 aad 0x1 the same day fhe charge-sheet was issued to fhe petitioner. The petitioner has submitted his repty to the charge-sheet and participated ia fhe enquiiy. The petitioner has not rai^xl axiy grievaace wifh regard to fhe conduct of the eiiquuy or fhat fhere was any mfirmity, iUegaUty or irregiilarity or no inaterial was avaflable for holdiag fhe petitioner guilty of fiiiancial irreguladty. This contention of fhe petitioiier fhat the recovexy amoimt caanot be oidercd, after retirement of fhe petitioner firom fhe service, is not tenable. 11. Rule 9 offhe Riiles, 1976 reads as under :- ??9. R^ht of govemor to wifhhold or wifhdraw ^xision,-(l) The Gover&or resewes to himself fhe right of wifhholdmg or withdrawiag a pension or part fhereof, whefher permaxienffy or for a specifiied period, aad oforderiag recovexy froBi pension of fhe whole or part of any pecuniary loss caused to fhe Govemxnent if, isi any departmeatal or judicial proceediag, fhe pensioner is found guilty of grave misoonduct or negUgpnce during the period of his seryice, includmg service rcndered upon re-eEEiployxneiit after retirenient: Provided fhat the State Public Service Comiimssioii shall be conszdted before aoy final oiders are passed: Provided further fhat wherc a part ofpensioii is wifhheld or wifhdrawn, fhe aiaount of such pension shall not be reduced below 2[the mioimuin pension as determmed by the Govemment from time to time]; (2) (a) The departmental piw^eediags a[xxx]» if instituted whfle the Govenunent servant was ia seryice whether before his retirenient or during his re-einployxaent, shall, afiter the fmal retircment of the Govermnent Servant, be deemed to be 6 /&T proceediags under fhis rule and shaU be contmued an concluded by the authority by which fhey were commenced/ m the same maiuier as if fhe Govemment senraat had coxitinued HI service: Provided fhat where fhe departinental piwxediags are nistituited by an aufhority subordinate to fhe Goveraor, tfaat aufhority shall subniit a report regardiag its findixigs to fhe Goveraor, (b) The departuiental prcx^eedings, if not iastitiited white fhe Govenunent servant was ia seryice whefher before his retirem.ent or duriag his re-eniployiiient:- (i) shaU not be iastituted save wifh fhe saaction ofthe Govemor; (ii) shaU not be in rcspect of aay event which t<X)k place niore than four years before such nistitatioii; aiid l(iii) shafl be conducted by such aufhonly aad in such place as fhe Goverameiit raay direct and in accordance wifh the procediire appUcable to departaiental proceediags:- (a) WL which an order of disxnissal froni sendce could be made m relation to fhe Govemiaent sewaat diiring his service in case it is pro^sed to withhold or wifhdraw a pension or part fhereofwhefher pennaaenfly or for a specified ^riod; or (b) ia which aii order of recoveiy froia his pay of fhe whole or part of any pecuiuary loss caused by hiia to fhe Govemment by negligence or breach of orders could be raade ui relation to fhe Govemment servant dxirbig his service ifit is proposed to order recovexy froni his pension of fhe whole or part of aay pecuniasy loss caused to fhe Goveninient], (3) xxx xxx xxx (4) (5) (6) X?QC XXX XXX XXX XXX XXX XXX XXX xxx' ffce Rule 9 offhe Rules, 1976 clearfy provides for recoveiy ia c&se fhe departmieiital enquiry was initiated before fhe Tetiremient of an employee. 12. In the present case, fhe petitioner retired w.e.f. 16.10.1994 and fhe enquiry was iaitiated on 22.3.1993. The petitioner and Shri M.P. Agrawal, the fhen Accountaat (ofher co-delmiquent oflficer), were fouiid guilty for misappropriation of fiiiids to fhe extentof Rs. 2,83,785/-. The petitioaer was rightfy heM responsible for mafcmg payxnent of 50% of fhe total aniount ie. Rs. 1,41,892.50/-. Theonlerisjust aad proper aiid does not warraat any interference in fhe facts aad circiamistances of the case. 13. It is weU setfled prmciples of law fhat fhe Court, whfle exercising its power of j'udicial review can go iato the decision maldng process, but not fhe decision itself. In the piesent case, no perversily, fllegality, irregularity smd impropriety is atteged and found in ffae d^^ision xnaAdng pxxx^ess. 14, For fhe reasons aforcnieD.tioned, fhis petition is dismissed, No order as to coste. Bablu Sd/- Satish K. Agnihotri Judge