CW 626/06 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH S.B. Civil Writ Petition No.626/06 Mahendra Singh Versus State & Anr. DATE OF ORDER : 09/01/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. M.M. Mehrishi, for petitioner Mr. M.C. Gupta, Addl. Govt. Counsel, for State *** Instant petition has been filed assailing order Ann.2 dt.12th January, 2001 whereby petitioner after being held guilty in inquiry initiated U/r.17 of Rules, 1958 punished with the penalty of stoppage of one annual grade increment without cumulative effect and salary other than subsistence allowance was also withheld by the disciplinary authority. For the delinquency committed by him while he was in District Udaipur was placed under suspension on 7th September, 2000 on contemplation of inquiry. However, suspension order was revoked vide order dt.17th October, 2000 and notice U/r.17 of CCA Rules, 1958 was served upon the petitioner and after taking his reply into consideration, the authority held him guilty and punished with the penalty of stoppage of one annual grade CW 626/06 [2] increment without cumulative effect vide order Ann.2 dt.12th January, 2001 – copy of which as per reply filed by the respondents was served upon the petitioner on 30th January, 2001. Counsel for petitioner submits that before passing of order inflicting penalty upon him Ann.2 dt.12th January, 2001, he was transferred to District Jaipur and prior thereto he joined on 28th December, 2000. As such the authority inflicted penalty upon him cannot be considered to be disciplinary/ appointing authority under the Rules. As such the order itself is without jurisdiction and competence. He further submits that once inquiry itself has been initiated U/r 17 of the Rules, further penalty inflicted upon him of withholding salary other than subsistence allowance was wholly unwarranted and such discretion exercised by the authority in no manner can be said to be in consonance with R.54 (3) of the Rajasthan Service Rules. Respondents have filed reply to the writ petition wherein it has been averred that so far as order inflicting penalty was duly served upon CW 626/06 [3] him on 30th January, 2001 and it was appealable order under R.23 of the Rules, 1958 and without availing remedy of appeal, petitioner approached this court after more than 5 yrs. of penalty being inflicted upon him. Counsel further submits that once he was held guilty, the authority was justified in withholding salary other than subsistence allowance already paid to him under order impugned. I have heard counsel for parties and perused the material on record. This fact remained uncontroverted that the order inflicting penalty upon the petitioner Ann.2 dt.12th January, 2001 was served upon him on 30th January, 2001. Since no counter to the reply has been filed by the petitioner and this being appealable order under R.23 of the rules. Thus, alternative remedy was available to the petitioner under Rules, 1958. Apart from alternative remedy available to CW 626/06 [4] the petitioner, even on merits submission made is without substance for the reason that delinquency was committed by the petitioner while he was posted at Udaipur and the disciplinary authority was SP who served him notice and being disciplinary authority after holding him guilty punished with the penalty of stoppage of one annual grade increment vide order Ann.2 dt.12th January, 2000. Mere transfer or joining in other District will not absolve the authority who has inflicted penalty upon him in regard to delinquency committed by the petitioner. So far as salary other than subsistence allowance is concerned, once he was held to be guilty and looking to short period for which he remained under suspension and particularly when suspension order is not under challenge. Petitioner being held guilty in inquiry initiated against him the discretion left with the authority under R.54(3) of the Rules cannot be said to be arbitrary exercise of power. Consequently, this court find no substance in the writ petition, the same stands dismissed. [AJAY RASTOGI], J. FRBOHRA626CW06 9-1.doc