SBCWP No.6116/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.6116/1997. Yogesh Chandra Sharma Vs. Rajasthan State Electricity Board & Anr. Date of order : November 19, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Ms. Daya Sharma for the petitioner. Shri Alok Garg for the respondents. **** BY THE COURT :- This writ petition has been filed by the petitioner way back in 1997 challenging the orders dated 30/5/1997 and 11/9/1996 by which, respondents decided to cancel the leave granted to the petitioner for the period from 8/12/1995 till 5/5/1996. The order dated 11/9/1996 was passed by the Secretary of the respondent-Board on the ground that petitioner who was working as Superintendent in the office of Assistant Engineer, Division-I, Rajasthan State Electricity Board, Alwar was transferred to the office of Pratapura District Banswara vide order dated 5/12/1995 but petitioner did not join at the transferred place of posting at Banswara. He was therefore served with the charge-sheet dated SBCWP No.6116/97. 2 12/2/1996 (Ann.1) for wilful absence. Petitioner submitted his reply to the charge-sheet denying the charges of wilful absence. According to the petitioner, leave for the aforesaid period was sanctioned to him by the order of Superintending Engineer (O&M) Banswara vide order dated 15/5/1996 which included the Privilege Leave of 10 days w.e.f. 8/12/1995 to 17/12/1995, commuted leave w.e.f. 18/12/95 to 21/2/96 and Privilege Leave w.e.f. 22/2/96 to 2/3/1996. Aggrieved thereof, petitioner preferred appeals which were dismissed by the appellate authority vide impugned-orders dated 11/9/1996 & 30/5/1997. Finally, petitioner retired on 31/7/1996. Yet, when his retiral benefits were not paid and he was not granted pension, he approached this Court for quashing of the aforesaid two orders with a prayer that respondents be directed to release his pension and all other retiral benefits. 2) Learned counsel for the petitioner argued that respondents have no authority to impose penalty of not granting leave of the aforesaid period. They could not cancel the already granted leave by the Superintending Engineer. It was argued that in the normal course, Executive Engineer is competent to grant leave to the O.S. but since total period of alleged absence was 90 days, the Superintending Engineer had competence. It was argued that SBCWP No.6116/97. 3 respondents are illegally seeking to recover the payment of salary made to the petitioner for the aforesaid period. 3) Shri Alol Garg, learned counsel for the respondents has opposed the writ petition and argued that all other retiral benefits now have been paid to the petitioner and it has been confined only to token of a sum of Rs.14,928/- on account of cancellation of leave granted by the Superintending Engineer from 8/12/1995 to 2/3/1996. It was argued that when already charge-sheet was issued to the petitioner for wilful absence of the said period by the Secretary of the Board, who was higher in authority than Superintending Engineer, Superintending Engineer had no legal authority to supersede his decision by granting leave for the same period which was subject- matter of charge-sheet. It was a case of undue favour shown to the petitioner which was seriously viewed by the Board. Referring to order dated 30/5/1997, learned counsel for the respondents has argued that Board decided that disciplinary action be initiated against the Assistant Engineer who recommended for leave to the petitioner and Superintending Engineer who sanctioned the leave even after refusal of leave by the disciplinary authority. It was argued that since all the retiral benefits including pension has been released to the petitioner, the writ petition to that extent has become infructuous. SBCWP No.6116/97. 4 4) Learned counsel for the petitioner has rejoined and submitted the petitioner retired on 31/7/1996. His pension was not released till he filed this writ petition on 7/8/1997 whereas, the appellate authority in its order dated 30/5/1997 directed to release his pension. 5) In view of the stand taken by the respondents, it is clear that pension of the petitioner was released and he was also paid other retiral benefits but there was certainly delay in releasing all these benefits to the petitioner. Even if the petitioner is subjected to departmental enquiry for the absence from 8/12/1995 to 5/5/1996, which ultimately culminated into the penalty of non grant of pension for the period, the other retiral dues and pension of the petitioner cannot be withheld. At the same time, leave sanctioned by the Superintending Engineer in the event of the decision of the Board to issue charge-sheet to the petitioner for the very same period and award penalty of non grant of leave for that period cannot be accepted. But then period of absence of petitioner for 86 days could not be treated as break in service. Respondent has clarified that this is not being treated as break in service but nevertheless absence of the petitioner for the said period had to be regularised by grant of whatever nature that may be due in the account of the petitioner. If the petitioner does not have 86 leave SBCWP No.6116/97. 5 due in his account, then, differential number of days are required to be adjusted by grant of leave without pay. However, it being the matter of transfer, petitioner would, according to the respondents be entitled to joining time of 7 days. In my considered view, leave granted once could not be cancelled. 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. Though the said rule may not apply to the respondents, but on the same analogy the petitioner should be held entitled to interest for delay in payment of retiral dues. 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. 7) In the result, writ petition succeeds and is allowed in part and the respondents are directed to pay to the petitioner interest on the delaed payment of pension beyond 60 days and other retiral benefits @6% p.a. for the period of delay that was caused in making pension and other retiral dues and absence of SBCWP No.6116/97. 6 the petitioner be regularised by grant of leave that may be found due in his account as also he shall be entitled to joining time of 7 days which period would be adjusted out of the aforesaid period of 86 days. However, in so far as decision of the respondents not to sanction medical leave for the aforesaid period is concerned, the same is liable to be upheld because facts of the case clealry show that petitioner avoided to join at the transferred place and it was owing to this reason, he remained absent from duty. The petitioner is at liberty to make representation to the respondents within one month. Respondents are directed to consider his representation and regularise his period of absence in terms of the observation made by the disciplinary authority. (MOHAMMAD RAFIQ), J. anil