SBCWP No.5036/06. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.5036/2006. Kashmir Singh Vs. State of Rajasthan & Anr. Date of Order:- February 27, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.M. Mehrishi for the petitioner. Shri Zakir Hussain, Additional Government Counsel. ****** BY THE COURT: This writ petition has been filed by the petitioner with the directions to quash and set- aside the departmental proceedings, show cause notice dated 22/5/2001, declare that petitioner is not guilty of the charge and direction to the respondents to pay to the petitioner full pension and other dues of gratuity etc. within one month with interest @12% p.a. 2) Shri M.M. Mehrishi, learned counsel for the petitioner has argued that petitioner while serving the respondents as Assistant Engineer in the Irrigation Department, was served with the charge- sheet on 10/2/1995 in relation to alleged SBCWP No.5036/06. 2 delinquency for the period from 1981 to 1984. The petitioner was charge sheeted under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, Rules of 1958”) for the alleged charges levelled therein vide joint charge sheet dated 10/2/1993. The said charge-sheet was issued by respondent No.2, the Secretary to the Government. The enquiry officer exonerated the petitioner vide enquiry report dated 7/2/2001. However, the disciplinary authority vide order dated 22/5/2001 dissented from the view recorded by the enquiry officer vide order dated 7/2/2001 and required the petitioner to submit his reply. Petitioner submitted his reply on 27/7/2001. The disciplinary authority did not take any final decision and in the meantime, petitioner retired from service on attaining the age of superannuation on 31/3/2003. His pension case was not finalised and he was not paid gratuity, provident fund and other retiral dues. In these circumstances, petitioner served upon the respondents number of representations and finally approached this court by filing this writ petition. 3) Shri M.M. Mehrishi, learned counsel for the petitioner submitted that even after issuing of notice on 10/7/2006, respondents did not pass any final order in the matter. It was only when this court on the last date of hearing on 13/1/2009 SBCWP No.5036/06. 3 required the learned counsel appearing for the respondents to inform the court about the fate of disciplinary enquiry, the respondents have now passed the order of penalty or stoppage of pension of the petitioner in past. It is submitted that order of penalty cannot be given effect to because the respondents have kept disciplinary proceedings pending for a long time which prejudiced defence of the petitioner and that the enquiry report was submitted as far as 7/2/2001 and eight years have gone by since then. It is contended that no retirement dues of the petitioner have been paid till date. Without indicating any specific date, the order of penalty has been passed. 4) Shri Zakir Hussain, learned Additional Government Counsel opposed the writ petition and submitted that now when the order of penalty has been passed, petitioner would be paid remaining retiral dues. It was contended that for all this time when the final order is not passed, petitioner could not be paid retiral dues as per rules. 5) Having regard to the facts of the case and perusing the material on record, I find that validity of the order of penalty only coupled with the fact whether such order of penalty could be passed after such an enormous delay, are the questions which would be open to be examined, if and when petitioner challenges the said order in a fresh writ petition for which, learned counsel for SBCWP No.5036/06. 4 petitioner seeks liberty, which is granted. However, other retiral dues of the petitioner certainly cannot be withheld. 6) 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 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. In the instant case, petitioner was belatedly charge sheeted on 10/2/1995 for the events that took place between period 1981 to 1984. The disciplinary authority was wholly negligent in not passing the final order of penalty even during eight years after submission of the enquiry report by the enquiry officer. Notice of dissent was also sent to the petitioner on 22/5/2001 to which, petitioner submitted reply on 27/7/2001. The respondents could not pass the final order for last eight years and for all this time, retiral dues remained unpaid to the petitioner for which he is entitled to receive with interest @9% per annum. SBCWP No.5036/06. 5 7) In the result, the writ petition is allowed with cost of Rs.2000/-. The respondents are directed to pay to the petitioner whatever remaining retiral dues including gratuity, provident fund, leave encashment and final pension. The respondents are directed to release all due post retiral benefits in favour of the petitioner together with interest @ 9% per annum for the period of delay beyond 60 days from the date of retirement of petitioner i.e. 31/3/2003 thus counting from 1/6/2003 till its payment is made to the petitioner. 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