SBCWP NO.90/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.90/1997. Ramesh Kumar Sharma Versus State of Rajasthan & Anr. Date of Order:- March 16, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ashish Saxena for the petitioner. Miss Priyanka Pareek, Additional Government Counsel. ***** BY THE COURT:- This writ petition has been filed by the petitioner challenging the order dated 5/5/1988 passed by the Development Officer (Vikas Adhikari) Panchayat Samiti Masuda, Ajmer by which, he was awarded penalty of stoppage of one annual grade increment with cumulative effect and his absence for the period from 9/11/1983 to 22/12/1983 and 18/1/1984 to 30/1/1984 i.e. for 57 days was ordered to be regularised on half pay, for the period from 31/1/1984 to 30/4/1984 for 11 days without pay, from 1/5/1984 to 4/5/1984 for 4 days towards privilege leave, from 5/5/1984 to 8/5/1984 for 4 days without pay, from 1/7/1984 to 14/11/1984 for 130 days without pay, for 20 days on half pay and from 5/12/1984 to 31/12/1984 for SBCWP NO.90/97. 2 20 days without pay and in this manner, in all period of absence for 340 days was regularised. 2) Shri Ashish Saxena, learned counsel for petitioner has argued that as a result of this illegal order, petitioner's pay fixation and grant of Selection Scale have all been affected. Impugned-order has been passed without adhering to the requirement of departmental enquiry envisaged under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, “Rules of 1958”). It is contended that award of penalty of stoppage of one annual grade increment with cumulative effect is a major penalty and therefore provisions contained under Rule 16 of the Rules of 1958 were required to be followed before imposing the same. The disciplinary authority has purportedly passed this order in compliance of the order of the District Establishment Committee dated 26/2/1988 whereas, there was no such stipulation in that order passed by the District Establishment Committee which is evident from the order dated 22/12/1987 conveyed to the petitioner by the Secretary Zila Parishad, Ajmer. Learned counsel cited Rule 89 of the Rajasthan Panchayat Samitis and Zila Parishads Service Rules, 1959 and argued that according to sub-rule (2)(b) of Rule 89 of the Rules of 1959, the disciplinary authority is authorised to award only penalty of censure and penalty of withholding SBCWP NO.90/97. 3 increment can be inflicted upon the employee only by the Standing Committee of the Panchayat Samiti and Zila Parishad. It is therefore prayed that the writ petition be allowed and the impugned-order be quashed and set-aside. 3) Miss Priyanka Pareek, learned Additional Government Counsel has opposed the writ petition and argued that petitioner was habitual absentee. He did not submit any explanation for his absence of 340 days. It was thereafter that back services of the petitioner were forfeited by the Panchayat Samiti vide Resolution dated 12/6/1987 which was communicated to the petitioner vide order dated 18/6/1987. When the petitioner filed appeal before the District Establishment Committee, Zila Parishad, Ajmer, Committee allowed the appeal and issued directions for regularization of services of petitioner by grant of leave etc. and thus forfeiture of service was substituted by grant of leave. 4) Petitioner has specifically alleged that the order dated 5/5/1988 passed by Vikas Adhikari Panchayat Samiti Masuda, Ajmer was passed by him in purported compliance of the order of the District Establishment Committee Zila Parishad dated 26/2/1988. It appears from the letter dated 29/4/1994 issued by the Vikas Adhikari that the matter of the petitioner for absence of 340 days was placed before the Standing Committee which SBCWP NO.90/97. 4 vide its order dated 12/6/1987 took a decision to forfeit his past service. When the matter was forwarded to the Zila Parishad, it was directed that his absence be regularised by grant of due leave and the remaining period of 26 days may be regularised by grant of leave without pay. It appears that the Vikas Adhikari in the name of making compliance of that order of the Zila Parishad passed the impugned-order dated 5/5/1988 thereby withholding one annual grade increment with cumulative effect. There is nothing on record to show that any proceeding envisaged by Rule 16 of the Rules of 1958 was conducted. Even if leave of absence of the petitioner for 340 days is regularised in view of serious misconduct, but then no penalty can be awarded without adhering to the rule of law and due process of law. Respondents can award penalty only after they followed the procedure contained under Rule 16 of the Rules of 1958 which is necessary for awarding any of the major penalties. 5) In the result, writ petition is allowed. Impugned-order dated 5/5/1988 (Annexure-4) is quashed and set-aside only to the extent of award of stoppage of one annual grade increment with cumulative effect however with liberty to the respondents to proceed with the departmental enquiry against the petitioner in accordance with law. It is clarified that direction contained in SBCWP NO.90/97. 5 the award in so far as regularization of absence of the petitioner by grant of various kinds of leave is concerned, same is maintained. This would however not preclude the respondents from proceeding afresh against the petitioner in the departmental proceedings if they decide to do so. Petitioner is entitled to all consequential benefits. 6) Compliance of the judgment shall be made within a period of three months from the date copy of this order is produced before the respondents. (MOHAMMAD RAFIQ), J. anil