- 1 - S.B.CIVIL WRIT PETITION NO.4312/2005 (KAPOORA RAM VS. STATE OF RAJ. & ORS.) DATE OF ORDER : 28/7/2008 HON'BLE JUSTICE GOPAL KRISHAN VYAS Mr.Sandeep Shah, for the petitioner. Mr.Rajesh Bhati, Dy.Government Counsel. In this petition, petitioner has prayed for directions to the respondents to make payment of salary for the period February, 2001 to May, 2001 and from April, 2002 to October, 2002. It is also prayed that respondents may be directed to make payment of amount outstanding to the petitioner with regard to TA, Medical and other vouchers along with all retiral benefits with interest on delayed payment. The petitioner while working on the post of Hostel Superintendent w.e.f. 6/11/1964 served with a charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 on 14/10/1997 and in said inquiry petitioner was exonerated on 18/11/2000 from the charges levelled against him. The second charge charged was issued to petitioner on 26/11/1997 and petitioner was placed under suspension on the - 2 - basis of contemplation of departmental inquiry. In the said inquiry also petitioner was exonerated from the allegations levelled against him. Thereafter, petitioner was superannuated on 28/2/2003. Earlier a writ petition filed by the petitioner before this Court was allowed with a direction to respondents to pay entire salary of the suspension period relating to first charge sheet. In the year 1997 another writ petition was preferred by the petitioner against the first charge sheet issued to the petitioner and said writ petition was decided on 9/10/2000 with directions to the disciplinary authority to conclude the inquiry and pass final order and in case petitioner stands exonerated, to make due payments to him strictly in accordance with law. In this writ petition, case of petitioner is that after exoneration from the charges levelled against him his pension case was not finalized after superannuation w.e.f. on 28/2/2003. As per petitioner in the order of exoneration a specific order was passed by the disciplinary authority that petitioner shall be entitled for salary during the period he remained under suspension. Before final payment of salary of suspension period, a writ petition was preferred by the petitioner before this court and the said writ petition was registered as S.B.Civil Writ Petition No.2040/2002 in which learned Single Judge has passed the order on 29/1/2004,whereby, specific order passed by learned - 3 - Single Judge which reads as follows:- “Accordingly, this writ petition filed by the petitioner is allowed in the manner that the impugned communications Annex.19 dated 11.1.2002 and Annex.20 dated 23.4.2002 are set aside and the respondents are directed to pay full salary to the petitioner for the period during which he remained under suspension i.e. from 24.7.1995 to 26.6.1996. No order as to costs.” On 6/5/2008, learned counsel for the petitioner pointed out that after passing of the aforesaid order the Director, Social Welfare Department passed an order for payment of salary to the petitioner for the period for which he remained under suspension, which is evident from Annex.R/15. However, till today salary of the aforesaid period is not paid to the petitioner so also the petitioner's retiral benefits have not been finalized, therefore, it is submitted that due to non-finalization of his case since 2003 it is not possible for him and his family to survive, therefore, respondents may be directed to finalize the pension case. Upon prayer so made it was deemed just and proper to call Director, Social Welfare Department, Government of Rajasthan to explain why the case of petitioner for retiral benefits including - 4 - pension is not finalized. In pursuance of the order passed by this Court, the Director, Social Welfare Department remained present in person and filed additional affidavit along with certain documents. Thereafter, on 19/5/2008 petitioner was directed to remain present before Assistant Director, Social welfare Department and complete all the formalities and to fill-up the relevant forms as required under law for grant of pension and respondent were directed not to compel the petitioner to file any application for leave and recovery of the amount. Further it is directed that if any there are any dues against the petitioner then respondents are free to take proper action for deducting the said amount but same shall be informed to the petitioner that under which head the deduction have been made by the respondents. The respondents were further directed that respondents shall finalize the pension case of the petitioner within a period of four weeks thereafter. On 15/7/2008 it was brought to the notice of this Court that PPO has been issued by the Pension Department but learned counsel for the petitioner submitted that recovery of Rs.1,13,869/- has been made from the pensionary benefits of the petitioner. Respondents were again directed to explain under which provision of law without any order of competent authority and without any inquiry or any notice given to the petitioner, the - 5 - order of recovery has been issued from the pensionary benefits without fixing any liability upon the petitioner. It is also required to be observed that in terms of order dated 19/5/2008 the petitioner appeared before the Assistant Director, Social Welfare Department for completing all the formalities along with photographs and photographs were received by the concerned clerk but news item was published by the respondent department in which it was stated that petitioner has not submitted relevant documents and photographs for the purpose of finalizing his pension case and petitioner was directed to submit 09 photographs and to appear in the office of Assistant Director on 10/7/2008. The contention of petitioner is that respondents are unnecessarily harassing the petitioner and not finalizing his pension case although he was exonerated from the charges levelled against him in the departmental inquiry. Therefore, respondents were directed to explain how the advertisement was issued for submitted 09 photographs against when the same were already filed by petitioner which were also received by the concerned clerk of the Department. The main contention of petitioner is that although PPO for the purpose of pension has been issued but without fixing any liability a recovery of Rs.1,13,869/- has been made from the - 6 - pensionary benefits of petitioner. It is also submitted that respondents are unnecessarily harassing the petitioner and have deducted huge amount from his pensionary benefits without any order by the competent authority, therefore, said amount cannot be deducted by the respondents. Likewise, salary as ordered by this Court has also not been paid and only amount of subsistence allowance has been paid to the petitioner which is not in consonance with the provisions of law. Learned counsel for the petitioner while inviting attention of this Court towards Annex.R/17 submitted that petitioner was to be paid salary for the period commencing from 23/9/94 to 23/7/95 but he has not been paid salary for the aforesaid period although he was exonerated from the charges levelled against him. In this view of the matter, the petitioner submitted that amount of Rs.1,13,869/- deducted from the pensionary benefits of petitioner may be paid to him because it has been deducted without fixing any liability upon the petitioner, therefore, no such recovery can be made. Per contra, learned counsel for the respondents submitted that recovery has rightly been made as per audit report because - 7 - same is outstanding against the petitioner as the petitioner has not given proper charge, therefore, he was held responsible for the said recovery in which there is no illegality committed by the respondents. Respondents have also annexed certain audit objections in which petitioner has been held responsible and deductions have been made from his pensionary benefits which is in consonance with the law. Further it is submitted that now there is no due for which payment is required to be made by the State Government. It is also submitted that petitioner himself is not cooperating with the Department and number of communications were sent to him for giving charge and other material which were in his possession, therefore, there is no ground for interference in this writ petition and the same may be dismissed. I have considered the rival submissions. In this case main contention of petitioner is with regard to finalization of his retiral benefits including pension which, as per record, stands redressed but recovery of Rs.1,13,869/- has been made from the pensionary benefits of petitioner which is evident from the PPO issued by the Pension Department. In my opinion, if such a huge amount is required to be recovered then respondents are under obligation to first fix the liability of the petitioner after due inquiry and providing opportunity of hearing to the petitioner and - 8 - straightway the respondents cannot deduct any amount from the retiral benefits of petitioner. Under Pension Rules, 1996 even after retirement if any government amount is due for which recovery is to be made then there is a procedure prescribed under the Rules, even disciplinary action can be taken by the respondents for effecting the recovery which has not been done in this case, therefore, amount so recovered from the pensionary benefits of petitioner is against the principle of natural justice, as such, the recovery order deserves to be set aside. In this view of the matter, this writ petition is allowed. Respondents are directed to make payment of recovered amount to the petitioner and further respondents are free to take proper action against the petitioner in accordance with Pension Rules for the purpose of recovering the amount, if any, due against the petitioner. Respondents are further directed to pay salary of the petitioner for the period commencing from 23/9/94 to 23/7/95 because petitioner was exonerated from the charges levelled against him, therefore, there is no question of sanctioning leave without pay vide order Annex.17. The respondents shall the pay the salary, as directed above, within a period of three months from the date of receipt of certified copy of this order. Since, the respondents failed to make payment of full - 9 - salary to the petitioner in spite of the fact that he was exonerated from the charges levelled against him, therefore, I deem it just and proper to grant interest upon the delayed payment of salary for the period aforesaid @ 12% p.a. because it was illegally detained by the respondents. No order as to costs. (GOPAL KRISHAN VYAS), J. pb