IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CWP(T) No. 2285 of 2008. Reserved on: 05.03.2010. Decided on 20.04.2010. __________________________________________________ R.D. Sharma. …Petitioner. -Versus- State of Himachal Pradesh and others. …Respondents. Coram: The Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1Yes. __________________________________________________________ For the petitioner. : Mr. D.P. Gupta, Advocate vice Mr. K.D. Shreedhar, Advocate. For the respondents : Mr. Rajinder Dogra, Additional Advocate General and Mr. Ramesh Thakur, Assistant Advocate General. ---------------------------------------------------------------------------------------- Rajiv Sharma, Judge: Disciplinary proceedings were initiated against the petitioner vide memorandum dated 07.06.1973 under Rule 14 of the CCS (CCA) Rules, 1965. Disciplinary authority imposed the penalty of compulsory retirement on 21.12.1976. Petitioner preferred an appeal against the imposition of penalty. The appellate authority set aside the order of compulsory retirement on 12.04.1977 vide Annexure A-19. Thereafter, the order dated 12.04.1977 was modified and all the proceedings initiated against the petitioner were cancelled including order dated 21.12.1976 vide order dated 18.05.1978 (Annexure A-1). De novo proceedings 1 Whether the reporters of the local papers may be allowed to see the judgment?.Yes. - 2 - were directed to be initiated against the petitioner. Under Secretary (Panchayats) mooted the proposal vide order dated 22.08.1979 (Annexure A-2), whereby the period w.e.f. 3.11.1971 to 6.6.1973 was to be treated as leave without pay and period w.e.f. 7.6.1973 to 20.12.1976 was not to be treated on duty and the salary during this period was to be kept limited to subsistence allowance. The period w.e.f. 21.12.1976 to 04.03.1978 was treated on duty and on the basis of this, pay and allowances of the post of Inspector were made admissible to petitioner. Petitioner was permitted to file reply to Annexure A-2, dated 22.08.1979. He made a representation against the same on 23.10.1979 (Annexure A-3). However, the same was rejected on 10.06.1982 (Annexure A- 4) by the competent authority. Fresh representation made by the petitioner was also rejected on 23.07.1987 (Annexure A-5). The proposal made vide Annexure A-2, dated 22.08.1979 was finalized w.e.f. 24.07.1987. Petitioner made fresh representations on 15.09.1987 (Annexure A-7), 24.08.1989 (Annexure A-8), 26.3.1990 (Annexure A-9) and 19.02.1991 (Annexure A-10). The same were not decided and in the meantime, petitioner superannuated on 28.02.1991. The provisional pension was paid to him on 14.6.1991. However, the same was stopped after six months. Regular pension was released to him on 19.4.1994. The commutation amounting to Rs. 32,385/- was allowed on 19.4.1994, Gratuity (DCRG) amounting to Rs.26,000/- was sanctioned on 13.4.1993, General Provident Fund amounting to Rs.1066/- and GIS amounting to Rs.1494/- were also released. A sum of Rs.22,484/- towards Gratuity, a sum of Rs.1494/- - 3 - towards Group Insurance Scheme and a sum of Rs.1,066/- was paid without interest. Mr. D.P. Gupta, learned vice counsel for the petitioner has argued that after the issuance of Annexure A-1, dated 18.05.1978, the entire period w.e.f. 03.11.1971 to 04.03.1978 was to be treated on duty for all intents and purposes. He further contended that no de-novo inquiry as per Annexure A-1, dated 18.05.1978 was ever initiated against his client. He then contended that his client was entitled to pensionary benefits including leave encashment immediately after the date of his retirement, i.e., 28.02.1991. He further contended that these amounts were released belatedly, that too without interest. The department has withheld a sum of Rs.17,113/- from leave encashment and Rs.3,516/- from retirement gratuity due to non- payment of house rent, i.e., 25420/-. According to him, the petitioner has only rented a house from Panchayat Samiti, Gagret and this accommodation can not be treated as Government accommodation. Mr. Rajinder Dogra, learned Additional Advocate has vehemently argued that the decision to treat the period, as noticed above without leave, without duty was on the basis of pendency of disciplinary proceedings. According to him, petitioner himself was responsible for the delay in submitting the papers after the fire has destroyed the record in July, 1976. He further contended that the petitioner had not cooperated in reconstructing the record. He further contended that the delay in payment of retrial benefits including leave encashment was due to non-cooperation by the petitioner. He lastly contended that a sum of Rs.20629/- has been - 4 - rightly withheld due to non-payment of house rent by the petitioner. I have heard the learned counsel for the parties and gone through the pleadings carefully. Petitioner was put under suspension on 07.06.1973. He was compulsory retired w.e.f. 21.12.1976. This order was set aside in appeal on 12.04.1977 vide Annexure A-19. The text of the order reads thus: “Whereas penalty of compulsorily retirement w.e.f. 3.11.71 under Rule 12 of C.C.S.(C.C.&A.) Rules, 1965 has been imposed upon Shri R.D. Sharma, Panchayat Inspector vide order No.PCH.H.B.(4)-129/76 dated 21st December, 1976. 2. And whereas said Shri R.D. Sharma, has preferred an appeal against the aforesaid order of the Director of Panchayati Raj. 3. And whereas on the examination of the appeal of Shri R.D. Sharma, it appears that after receiving the notice published in the Tribune of July, 25,1976, Shri R.D. Sharma made a request to supply a copy of the enquiry report, which was done. The proceeding taken against him have thus been vitiated to that extent from that stage. 4. Now, therefore, the undersigned set aside the order No. PCh.H.B.(4)-129/76 dated 24.12.76 of the Director of Panchayati Raj regarding compulsory retirement of Shri R.D. Sharma with the direction that a copy of the enquiry report be furnished to him to make representation to the Director of Panchayati Raj, who will pass order afresh after examination the said representation.” - 5 - Thereafter, fresh order was passed by the Secretary (Panchayats), Himachal Pradesh on 18.5.1978 (Annexure A-1), whereby all the actions initiated against the petitioner were cancelled, including office order dated 21.12.1976 with a further direction to the authorities to held a de novo inquiry against the petitioner. It is admitted case of the parties that no de novo inquiry was ever initiated against the petitioner even after the issuance of Annexure A-1, dated 18.05.1978. Petitioner has superannuated on 28.02.1991. Since the respondents themselves have decided not to hold fresh inquiry, as directed, the period w.e.f. 03.11.1971 to 20.12.1976 was required to be regularized for all intents and purposes. Since no proceedings were re-initiated against the petitioner, the period w.e.f. 03.11.1971 to 20.12.1976 could not be held without pay and without duty. Moreover, there is no finding that the petitioner remained unauthorizedly absent from duty w.e.f. 03.11.1971 to 06.06.1973. Similarly, suspension order was required to be revoked and the period w.e.f. 07.06.1973 to 20.12.1976 was required to be treated on duty once the department had decided not to commence de novo proceedings against the petitioner. Respondents were aware of the order passed by the appellate authority on 18.05.1978 (Annexure A-1) and despite that notice was served upon the petitioner by the Under Secretary (Panchayats) on 22.08.1979. He has filed the reply to the same. The reply of the petitioner was not considered and his case was rejected on 10.06.1982 (Annexure A-4). The final order was made on 24.07.1987 strictly as per Annexure A-2, dated 22.08.1979. - 6 - Petitioner has not been treated in a just and fair manner by the respondents despite mandatory orders passed by the Secretary (Panchayats) vide Annexure A-1, dated 18.05.1978. He has been permitted to superannuate on 28.02.1991. His case for pension was required to be completed and pension was to be paid to him in accordance with law immediately after his retirement. He has been paid provisional pension on 14.06.1991, that too for a period of six months. His commutation case also remained pending despite his request to do the needful at the earliest. He has been paid regular pension only w.e.f. 19.04.1994. His claim for TTA/TA has not been considered. Petitioner was entitled to gratuity amount of Rs.26,000/-. This was released belatedly and only a sum of Rs.22,484/- was paid and a sum of Rs.3,516/- was withheld. Petitioner has not been paid any interest on this amount of Rs.22,484/-. Petitioner was entitled to interest as per Rule 68 of the C.C.S. (Pension) Rules, 1972 read with instruction No. (ii) appended thereto. Petitioner was also entitled to interest on delayed payment of General Provident Fund amounting to Rs.1066/- and Group Insurance Scheme amounting to Rs.1494/-. The respondent-State has withheld a sum of Rs.17113/- towards leave encashment and retirement gratuity amounting to Rs.3516/- for non-payment of house rent, i.e., Rs.25420/-. Petitioner was occupying a house owned by the Panchayat Samiti, Gagret. The house owned by the Panchayat Samiti, Gagret cannot be termed as Government accommodation. Consequently, action of respondents to withhold an amount of Rs.20629/- due to non-payment of house rent is also declared - 7 - illegal. Similarly, respondents were bound to take a decision on the claim pertaining to TTA/TA etc. within a reasonable period. Accordingly, in view of the observations made hereinabove, the petition is allowed. Respondents are directed to count the period w.e.f. 03.11.1971 to 20.12.1976 on duty with all consequential benefits, including pay fixation etc. Petitioner is also held entitled to salary for this period. This period is also directed to be treated for the purpose of qualifying service towards pension. Respondents are also directed to release a sum of Rs.17,113/- with interest @ 9% per annum. Petitioner is held entitled to interest, as noticed above on the delayed payment of gratuity amounting to Rs.3516/-. Respondents are further directed to take a final decision on the TTA/TA claim preferred by the petitioner. Needful be done within a period of eight weeks from today. No costs. (Rajiv Sharma) Judge April 20, 2010. (bhupender) - 8 -