SBCWP No.1754/01. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.1754/2001. Madan Swaroop Simlote Vs. State of Rajasthan & Ors. Date of order : November 7, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri P.V. Calla for the petitioner. Shri Ankur Rastogi for the respondents. **** BY THE COURT :- Reportable Heard learned counsel for the parties. 2) This writ petition has been filed challenging the judgment & order of Rajasthan Civil Services Appellate Tribunal dated 8/12/2000 with the prayer that the respondents be directed to release him all post retiral benefits with interest which he had prayed for in appeal that was filed before the Tribunal. 3) Shri P.V. Calla, learned counsel for the petitioner has argued that when the petitioner was serving the respondents and when he was on the verge of retirement, he was required vide order of the respondents dated 12/7/1999 to deposit a sum of SBCWP No.1754/01. 2 Rs.32,728/-. According to this order, said amount was sought to be recovered from the salary of the petitioner in case if same was not deposited on or before 15/9/1999. Petitioner represented against this order on 12/8/1999 and submitted that he is on the verge of retirement and during his entire service career, neither there is any adverse remarks in the service record nor he has been confronted with any disciplinary enquiry. However, petitioner was not afforded any opportunity of hearing nor any notice for the alleged recovery was ever served upon him. It was alleged in the order that there were irregularities in purchase of Gabian Wire amounting to Rs.1,28,378/- during the financial 1996-97. It was contended that it was not made known as to on what basis the respondents came to allege that the loss of Rs.1,28,378/- was caused to the government. No enquiry was held inasmuch as, petitioner was not associated with any such enquiry. When the petitioner submitted representation, respondents by their letter dated 21/8/1999 asked the petitioner to deposit amount of of Rs.32,728/- on or before 15/9/1999, failing which, it was threatened that charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, "CCA Rules") would be served upon him. Petitioner was due to retire as on 30/9/1999 SBCWP No.1754/01. 3 therefore, in apprehension that in case he did not deposit the same, he would be served with the charge- sheet particularly when he is on the verge of retirement and in that circumstance, his service career shall be prejudicially effect, he deposited the said amount with the respondents vide cash challan on 9/9/1999. But, to the utter surprise of the petitioner, his retiral dues were not cleared though the government vide order dated 18/9/1999 issued a No Objection Certificate in his favour that neither any disciplinary enquiry was ever pending against him nor is pending. This NOC was addressed to the Joint Director of the Pension Department itself. But despite this communication of the government, when the pension department did not clear his retiral dues, petitioner approached the Rajasthan Civil Services Appellate Tribunal. The Tribunal dismissed the appeal of the petitioner on the ground that respondents submitted a U.O. Note regarding pendency of the disciplinary enquiry against the petitioner regarding certain irregularities in purchase of certain items amounting to Rs.1,28,378/- pertaining to the year 1996-97 and he thus caused a huge loss to the government and, therefore, the respondents were justified in not releasing the due pensionary benefits to the petitioner untill and unless the disciplinary proceedings are not concluded. It was SBCWP No.1754/01. 4 contended that the Tribunal erred in taking this as pending enquiry and on that basis dismissing the appeal directing the respondents to grant provisional pension to the petitioner and to expedite the pending disciplinary proceedings and finalise the same within two months. 4) It was prayed that the respondents have since vide order dated 27/8/2007 dropped even that matter in which only preliminary enquiry was held and sanctioned approval for giving pensionary benefits, petitioner is entitled to refund of the amount of Rs.32,728/- with interest along with other payments of retiral dues which was not received by him as no enquiry whatsoever was pending against him after his retirement nor he was ever served with the charge- sheet during all this time. Petitioner has been illegally deprived of his legitimate dues for last 9 years. It was therefore prayed that the writ petition may be allowed and the judgment of the Tribunal may be set-aside. 5) Shri Ankur Rastogi, learned counsel for respondents opposed the writ petition and argued that there were allegations of serious financial irregularities against the petitioner and when the pension department was apprised of the matter, respondents were advised for not releasing the pension under Item No.4 of Appendix-III of Rule 22 of the GF & AR Rules Part-I. The provisional pension of SBCWP No.1754/01. 5 the petitioner was sanctioned vide order dated 1/5/2001 and it was submitted that the amount of Rs.32,728/- having been deposited voluntarily, petitioner cannot now be permitted to claim refund of the same. It was submitted that the certificate was issued to the petitioner in a routine manner. The retiral dues of the petitioner were withheld only on account of pendency of another disciplinary enquiry against the petitioner which fact too was submitted by the department before the Tribunal. In the preliminary enquiry also, charges levelled against the petitioner were substantially found proved and for this reason, the pensionary benefits which were due to the petitioner, could not be released to him. This preliminary enquiry report was submitted by the Assistant Accounts Officer and was forwarded to the Director Watershed Development and Soil Conservation Department. Since petitioner retired on 30/9/1999, charge-sheet could not be issued. Eventually however, department has dropped the matter vide order dated 27/8/2007 and since retiral dues of the petitioner have been sanctioned by the government, payment thereafter shall be made to the petitioner shortly. Hence, it was prayed that the writ petition be dismissed. 6) I have given my anxious consideration to the arguments aforesaid and perused the material on record as well as the judgment of the Tribunal. SBCWP No.1754/01. 6 7) The fact which is not in dispute is that neither before or at any point of time after retirement of the petitioner on 30/9/1999, was he served with the charge-sheet under Rule 16 of the CCA Rules or for that matter under Rule 17 thereof. The Tribunal was pursuaded to dismiss the appeal of the petitioner merely on the basis of preliminary enquiry report, copy of which, was submitted for its perusal in the shape of a U.O. Note. The Tribunal concluded that since the incident pertaining to which the said preliminary enquiry report was submitted was of the year 1996-97 and that it was prior to 4 years of the date of retirement of the petitioner, respondents were within their rights to hold the departmental enquiry against the petitioner which is presently pending. The Tribunal while directing for payment of provisional pension impressed upon the respondents to expedite the enquiry proceedings and conclude the same within two months. In my view, the Tribunal has wholly misconstrued the provisions of law and has also misread the documents produced before it. Mere submission of preliminary enquiry report by the Assistant Accounts Officer to the Director Watershed and Soil Conservation Department relating to an incident which occurred within four years prior of the date of petitioner's retirement, could not be a ground for dismissal of the appeal. No charge sheet SBCWP No.1754/01. 7 under Rule 16 of the CCA Rules was served upon the petitioner, in absence of which, it cannot be said that the disciplinary enquiry was pending against the petitioner and, therefore, the direction of the Tribunal to expedite and conclude the disciplinary enquiry pending against the petitioner within a period of two months, was wholly misconceived. Retiral dues of the petitioner could be withheld only for a valid reason and in terms of Rule 7 of the Rajasthan Civil Service (Pension) Rules, 1996 and not under the provisions of Rajasthan Service Rules, 1951. The charge-sheet for an incident which occurred within 4 years prior to the date of the retirement, could be served upon a retired government servant with the sanction of the Governor. In other words, the relevant rules required that a government servant is to be proceeded against in a disciplinary enquiry, that too with the approval of the Government of the State with a rider that such charge-sheet cannot be issued in relation to an incieent which had taken place more than 4 years before the date of retirement of that government servant. In the present case, admittedly, no charge-sheet was ever served upon the petitioner, either before his retirement or at any time after his riterement. Respondents have now produced before this court copy of the order dated 27/8/2007 showing that disciplinary matter against SBCWP No.1754/01. 8 the petitioner has been dropped. A perusal of this order however indicates that this is a communication sent by the Joint Director (Admn.) Watershed & Soil Conservation Rajasthan, Jaipur to the Joint Director Agriculture (Admn.) Jaipur with reference to the letter dated 21/8/2004 according to which, government directed for dropping the preliminary enquiry proceedings pending against the petitioner. Even though, this order was passed by the government as far as back 21/8/2004, but till date, petitioner has not been paid his due post retiral benefits. 8) Coming now to the sum of Rs.32,728/- which was deposited by the petitioner with the respondents vide challan dated 9/9/1999 which fact is evident from the documents exhibited in the appeal before the Tribunal including the representation of the petitioner dated 12/8/1999, it is evident that the work in relation to which recovery was sought to be made, was executed three years before the date of recovery. Therefore, at that stage, this could not possibly be determined whether or not there was any shortage of Soil on the site. Petitioner represented that if notice was served upon him, he would have certainly apprised the authorities of his case but the order of recovery was passed without affording any opportunity of hearing to him. Petitioner was vide order dated 21/8/1999 threatened for initiation of departmental enquiry under Rule 16 of the CCA SBCWP No.1754/01. 9 Rules in case the amount in question was not deposited on or before 15/9/1999. Petitioner was due to retire on 30/9/1999. In those circumstances, he was left with no option except to deposit the amount of Rs.32,728/- in apprehension that his pensionary benefits would be withheld after his retirement. Thus, it is clear that the aforesaid amount was deposited by the petitioner in compelling circumstances which act on the part of the respondents was wholly illegal and arbitrary because even before this Court, the respondents have not been able to substantiate whether the aforesaid amount was liable to be recovered from the petitioner and that too, when preliminary enquiry was dropped by the government itself and at the time of retirement of the petitioner, no disciplinary proceedings were pending against him. Hence, the respondents have failed to justify their action for recovering the aforesaid amount from the salary of the petitioner. 9) Rule 89 of the Rajasthan Civil Services (Pension) Rules, 1996 provides that the government is under legal obligation to make payment of all retiral benefits of a retired government servant within a period of 60 days and in any case if payment is delayed beyond 60 days, a government servant is entitled to the interest @9% p.a. on the delayed payment. In the present case, all retiral dues have been paid to the petitioner at a belated stage much SBCWP No.1754/01. 10 beyond the period of 60 days. Petitioner is therefore entitled to receive interest on the delayed payment of retiral dues excluding the period of 60 days. 10) In the result, the writ petition is allowed. The impugned judgment & order dated 8/12/2000 is set- aside. The respondents are directed to release all due post retiral benefits in favour of the petitioner together with interest @ 9% per annum beyond 60 days from the date of retirement of petitioner of i.e. 30/9/1999 thus counting from 1/12/1999 till its payment to the petitioner. The respondents are further directed to refund to the petitioner a sum of Rs.32,728/- together with interest @6% per annum till its payment to him. Compliance of this order shall be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. anil