SBCWP No.8003/05. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.8003/2005. Smt.Hemrani Sain Vs. The Board of Revenue & Anr. Date of Order : September 25, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Vishwas Mitra for the petitioner. Shri B.L. Awasthi, Additional Government Counsel. **** BY THE COURT :- This writ petition has been filed by the widow of deceased government servant who was working with the respondents as Patwari in the office of Tehsil Phagi, District Jaipur. The petitioner has challenged the order dated 4/11/1997 by which entire period of services of her late husband starting from date of his initial appointment i.e. 28/2/1979 till passing of that order was forfeited. 2) Shri Vishwas Mitra, learned counsel for the petitioner has argued that the impugned-order was passed merely on the basis of the report of Tehsildar and without any opportunity of hearing being given to the late husband of the petitioner. Learned counsel SBCWP No.8003/05. 2 referring to Rule 86 of the Rajasthan Service Rules, 1951 (for short, "RSR") has argued that even if the respondents wanted to proceed against the deceased government servant for the period he remained absent without leave after the expiry of sanctioned leave, they could proceed against him only by way of initiating departmental proceedings under the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short "CCA Rules") and not otherwise. Learned counsel argued that the impugned- order has been passed simply on the basis of the notice and report obtained from the Tehsildar to forfeite his entire service. There was no satisfactory enquiry or investigation into the facts. Late husband of the petitioner in reply to the notice submitted that for the alleged period of absence he was actually discharging his duties in the circle where he was posted and he even recovered the land revenue on 22/1/1996. He produced to this effect three receipts of depositing amount of land revenue. He handed over the charge to another patwari on 221/1/1996 who assumed charge on 27/1/1996. Tehsildar without making any investigation into all these facts, unilaterally sent its report which was acted upon by the District Collector without verification of true facts. 3) Shri B.L. Awasthi, learned Additional Government Counsel opposed the writ petition and submitted that late husband of the petitioner was SBCWP No.8003/05. 3 absent from June 1993 to July 1993, September 1993 to October 1994, January 1996 to 17/11/1996 and therefore in view of the provisions of Rule 86 of RSR, his past services were forfeited. Petitioner can be entitled to retiral/terminal benefits in lieu of services rendered by her husband only for the subsequent period and not for the period anterior to the impugned-order. 4) Shri Vishwas Mitra, learned counsel for the petitioner has rejoined and submitted that the order impugned was never supplied to the late husband of the petitioner nor was he informed during his lifetime about the factum of forfeiture of his past services. It was only when petitioner raised demand for due benefits arising out of the services rendered by her late husband, that for the first time by the impugned- order she was informed that her husband was not entitled to receive any benefit for his past services rendered to the respondents for more than 18 years. 5) I have considered the rival submissions of the parties and perused the entire record forming part of the record. 6) A perusal of Rule 86 of the RSR makes it clear that sub-rule (2) thereof was amended vide notification dated 8/4/1986 to provide that a government servant, who remains absent from duty after expiry of the sanctioned leave or after communication of refusal of extension of leave, is not entitled to any pay and allowances for the period of such absence SBCWP No.8003/05. 4 and the period of such absence shall be commuted into extra-ordinary leave upon satisfactory reasons being furnished and the period of absence may be regularised by grant of leave due by the authority to grant leave. Clause (b) of sub-rule(2) of Rule 86 of RSR also provides tht wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. Sub-rule (3) of Rule 86 provides that notwithstanding the provisions contained in sub- rules (1) and (2) above the disciplinary authority may initiate departmental proceeding under CCA Rules against a Government servant who wilfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. 7) In view of the aforenoted position of rules, it is clear that if the late husband of the petitioner was absent for such a long period, the only way in which the respondents could proceed against him was to initiate departmental action under the CCA Rules. The entire period of the service which the late husband of petitioner rendered to the respodnents, has been forfeited in a summary manner and it cannot be done in the manner in which, it has been done. The order impugned though has been passed within the scope of Rule 86 of RSR but it is ex-facie contrary to the mandate of the aforesaid Rule 86 of RSR inasmuch as, the action of the respondents is violative of Articles SBCWP No.8003/05. 5 14 & 16 of the Constitution of India. The impunged- order has thus been passed in arbitrary and colourable exercise of powers by the respondents which has devastatingly effected the fundamental rights of the petitioner. Such an order therefore cannot be sustained. 8) In the result, the writ petition is allowed. Impugned-order dated 4/11/1997 (Ann.2) is quashed and set-aside. The late husband of the petitioner is held entitled to receive all retiral/terminal benefits in lieu of the entire service rendered by him to the respondents. Consequently, petitioner is also held entitled to receive retiral/terminal benefits for entire service rendered by her late husband. Compliance of the order shall be made within three months from the date copy of this order is produced before the respondents. (MOHAMMAD RAFIQ), J. anil