CWP 7322/05 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.7322/2005 Mohd. Miyan Versus RSRTC & Anr. Date of Order ::: 07/05/08 Hon'ble Mr. Justice Ajay Rastogi Mr. Praveen Jain, for petitioner Mr. OP Sharma, for respondents-RSRTC At joint request, matter has been finally heard. Instant petition has been filed assailing order dt.18/10/04 (Ann.2) whereby respondents in exercise of powers U/r 18-D(1) of Rajasthan State Road Transport Workers & Workshop Employees Standing Orders, 1965 (“Standing Orders”) compulsorily retired petitioner from service w.e.f. 27/10/2004 while working as Driver; and also challenged deduction of 25% pension & gratuity on the premise of claim petition pending before Motor Accident Claims Tribunal (“MACT”). In course of arguments, Counsel has confined his submissions on merits only with regard to deduction of 25% pension & gratuity (supra). Counsel submits that claim petition was finally disposed of vide Award dt.02/06/05 holding non-claimants jointly & severally liable for payment of compensation in motor accident and even if Award dt.02/06/05 has been passed by MACT holding jointly or severally liable for payment CWP 7322/05 //2// of compensation in motor accident claim unless disciplinary inquiry is initiated and a finding is recorded of petitioner being negligent in discharge of his duties; in absence whereof, no recovery can be made from him and in instant case, no inquiry has been initiated. In support, Counsel placed reliance upon decision of this Court in Mohd. Jalil Vs. RSRTC (dt.14/07/04 in CWP-4861/02), duly upheld by Division Bench in RSRTC Vs. Mohd. Jalil (dt.17/08/04 in Spl Appeal (W) No.524/04) wherein this Court observed ad infra: "ूाथȸ के ǒवǾƨ उसकȧ किथत असावधानी के सà बÛ ध मɅ Ǒकसी ूकार कȧ कोई जांच नहȣं कȧ गई है एवं ¢ितपूित[ रािश ूाथȸ Ʈारा Ǒकस ूकार देय है, के सà बÛ ध मɅ भी ूाथȸ को Ǒकसी ूकार से कोई सुनवाई का अवसर नहȣं Ǒदया गया है, Ǒकसी ूकार कȧ कोई जांच Ǒकए ǒबना ूाथȸ को ¢ितपूित[ रािश कȧ अदायगी के िलए उ× तर दायी ठहराना Ǒकसी भी ूकार से उिचत नहȣं कहा जा सकता । िनगम के वाहन से दध[टना ू घǑटत हई थी ु , अत: ¢ितपूित[ रािश िनगम अदा कȧ गई है, ǔजसकȧ वसूली वाहन चालक से नहȣं कȧ जा स कती । यǑद ूाथȸ के ǒवǾƨ Ǒकसी ूकार कȧ कोई काय[वाहȣ कȧ जानी थी तो उÈ त पǐरूेआ य मɅ ूाथȸ के ǒवǾƨ जांच कȧ जा सकती थी, ऐसी ǔः थित मɅ, जबǑक ूाथȸ को अिनवाय[ सेवािनवित दȣ जा चुकȧ है, ूाथȸ के समः त सेवािनवृित ूलाभो को रोके जाना Ǒकसी भी ूकार Û यायोिचत नहȣं कहा जा सकता । जो पऽ/आदेश Ǒदनांक 2-6-2001 व 25-10-2001 ूितप¢ी गण िनगम Ʈारा जारȣ Ǒकए गये है वे ः वेÍ छाचारȣ है एवं भारतीय संǒवधान के अनुÍ छेद 14 के ूितकूल है ।" Counsel also submits that for self-same motor accident, criminal case was registered against petitioner in which he has been acquitted of offences U/Ss 279 & 304-A, IPC by competent court of jurisdiction vide judgment dt.07/02/08. CWP 7322/05 //3// Per contra, respondents in their reply have come with a case that amount of pension & gratuity in question has been withheld since pecuniary loss has been caused to respondent RSRTC on account of negligence on the part of petitioner in motor accident, which is one of penalties in terms of Cl.36(iii) of Standing Orders; as such once finding has been recorded of petitioner being negligent, part of retiral dues in question has rightly been withheld by respondents vide orders impugned. At this stage, Counsel for petitioner has brought to the notice of this Court Circular issued on 30/06/04 whereby earlier circular dt. 24/10/03 has been clarified while observing that where an employee is found not guilty in criminal case and no disciplinary inquiry has been initiated, merely on the basis of Award passed by MACT, no recovery proceedings be initiated and that apart, no inquiry has been initiated in case of present petitioner, thus impugned deduction of 25% pension & gratuity has wrongly been made. Taking note of facts that no inquiry has been initiated against petitioner while in criminal case, petitioner has been acquitted of offences U/s 279 & 304-A, IPC by competent court of jurisdiction vide judgment dt.07/02/08 and in CWP 7322/05 //4// view of judgment in Jalil Vs. RSRTC (supra) where this Court has examined an issue as to whether in absence of disciplinary inquiry, can amount be recovered from delinquent merely because there is a finding recorded by MACT holding him negligent in driving vehicle in course of motor accident thereby liable for payment of compensation under Award, and finally observed that no such recovery can be made from retiral benefits of an employee on the premise of pendency of claim petition before MACT or the Award being passed therein. As regard submission made by Counsel for respondent-RSRTC for withholding and making impugned deduction of 25% pension & gratuity in terms of Cl.36 of Standing Orders, it is of no substance for the reason that Cl.36 (iii) of Standing Orders postulates nature of penalties which can be inflicted upon delinquent for good and sufficient reasons after holding disciplinary inquiry. Since no inquiry has been initiated against petitioner; and in absence of any finding recorded in disciplinary inquiry holding him being negligent in motor accident, Cl.36 of Standing order is not at all attracted in the facts of instant case – in view whereof, there was no justification for impugned deduction out of his retiral benefits. CWP 7322/05 //5// Consequently, respondents are directed to release retiral dues (pension & gratuity) which remained withheld and payable to him at the time of retirement and be paid to petitioner within three months, failing which petitioner will be entitled for interest @ 10% per annum from the date of its accrual till actual payment. With above observations, writ petition stands disposed of alongwith stay petition. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.5/7322CW05-0705rstc.doc