Dismissed

State of Raj. and Ors. v. Dr. O.P. Chandak

Rajasthan HC23 Mar 2015SAW/1625/2014

Case brief

AI extract

What is this about?

Special appeal challenging the Single Judge order quashing the pension withholding order. The Division Bench held the enquiry was initiated without jurisdiction as it concerned events preceding the respondent's retirement due to automatic retirement under Rule 50, dismissing the appeal.

What did the court decide?

The appeal was dismissed in upholding the quashing of the order dated 29.8.2011 withholding complete pension.

State of Raj. and Ors. Vs Dr. O.P. Chandak — Pension and Retirement Benefits | Rajasthan HC (2015)

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D.B. CIVIL SPECIAL APPEAL (W) NO.1625/2014

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State of Rajasthan & Ors.

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Vs.

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Dr. OP Chandak

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DATE OF ORDER : 23.3.2015

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HON'BLE MR. JUSTICE GOVIND MATHUR HON'BLE MISS JUSTICE JAISHREE THAKUR

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Dr. P.S. Bhati, Additional Advocate General assisted by Mr. Sajjan Singh Rathore, for the appellant-State Mr. Kuldeep Mathur, for the respondents.

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To question legality, propriety and correctness of the judgment dated 12.9.2014 passed by learned Single Judge in S.B. Civil Writ Petition No.11863/2011, this appeal is preferred. By the judgment impugned, the learned Single Judge while accepting the writ petition, quashed order dated 29.8.2011 whereby complete pension of the respondent-petitioner was ordered to be withheld as per Rule 7 of the Rajasthan Pension Rules, 1996 (hereinafter referred to as 'the Rules of 1996').

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In appeal, the only argument advanced by learned counsel for the appellant is that learned Single Bench erred while holding that the pension was withheld without adhering the principles of natural justice. It is asserted that as a matter of fact, the respondentpetitioner was not co-operating with the enquiry, therefore, under the order dated 28.10.2010 the Enquiry Officer decided to proceed ex-parte in the matter.

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To examine merits of the arguments advanced by learned counsel for the appellant, it shall be appropriate to notice relevant

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facts of the case which are as under :-

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The respondent-petitioner while holding the post of Junior Specialist (Pediatrics) at Government Hospital, Barmer proceeded on leave in the month of February, 1994 and reported on duties on 19.3.1994. He also remained on leave from 23.5.1994 to 13.7.1994. No payment of salary was made to him in the month of February, 1994 to December, 1994, therefore, he approached this Court by way of filing a petition for writ (SBCWP No.5325/1994) to have a direction for payment of complete wages.

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The appellant-respondent while contesting the writ petition aforesaid urged before the Court that the petitioner left the headquarter without permission and also tampered with the attendance register, hence, enquiry was under contemplation. The writ petition aforesaid came to be disposed of under an order dated 14.12.1995 with a direction to the Chief Medical & Health Officer, Jodhpur to decide representation of the petitioner with regard to payment of salary within a period of one month from the date the petitioner presents representation to him. The representation submitted by the petitioner came to be disposed of by the competent authority with a direction to release the due salary.

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The respondent-petitioner, then submitted an application dated 21.10.2003 to have voluntary retirement from service w.e.f. 5.2.2004. No decision was taken by the authority competent with regard to the application dated 21.10.2003 upto 5.2.2004. The respondent-petitioner, therefore, considered himself retired from

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service in light of proviso to Rule 50 of the Rules of 1996. On being failed to get any retiral benefits, he again approached this Court by way of filing writ petition i.e. SBCWP No.3964/2004.

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In reply to writ petition, the respondents stated that the application given for voluntary retirement from service was not acceptable as the enquiry was under contemplation. During pendency of the writ petition, a memorandum under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 dated 25.11.2006 was served upon the petitioner with the allegation of remaining absent from duties without permission and also for tampering with the entries in attendance register during the period commencing from February, 1994 to December, 1994 by way of filing a separate petition for writ i.e. SBCWP No.8421/2007. The petitioner challenged the memorandum dated 25.11.2006. Both the writ petitions aforesaid came to be disposed of under the judgment dated 8.7.2010 with the following observations and directions :-

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“5. Having heard the learned counsels at some length and upon perusal of the pleadings and judgment relied upon by the learned counsel for the petitioner, this Court is of the opinion that both these petitions can be disposed of at this stage by giving directions to the respondents to complete the pending inquiry against the petitioner expeditiously and within the stipulated time frame. The inquiry may be completed within a period of four months from the date. The petitioner will be free to raise all the contentions and rely upon the judgments in support of his case during the course of inquiry

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proceedings before the disciplinary authority.

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Since the dispute as to acceptance of voluntary retirement application would only depend upon the fate of the inquiry the respondents will pass appropriate orders in accordance with law for acceptance of the voluntary retirement application soon upon completion of the inquiry against the petitioner. Since the directions are being issued to complete the einquiry without four months from today, the further needful orders about acceptance of voluntary retirement application, grant of retiral dues should be passed without two months thereafter. If any adverse orders are passed against the petitioner, it goes without saying that petitioner would be at liberty to avail appropriate remedy available under the law against such orders.”

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After disposal of writ petition aforesaid, the Deputy Secretary to the Government of Rajasthan, Department of Personnel (Group-III)/ Enquiries, under the orders of the Governor of Rajasthan by exercising powers under Rule 7 of the Rules of 1996 passed an order dated 29.8.2011, withholding complete pension of the petitioner for all times to come. A challenge to the order aforesaid was given by the petitioner on several counts including that he stood retired from service on 5.2.2004, therefore, no enquiry could have been initiated against him for the act of 1994.

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The learned Single Bench accepted the petition for writ by the judgment impugned by arriving at the conclusion that :

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(1) no adequate opportunity to defend himself was given by the authority competent to the delinquent employee; and

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(2) the issue with regard to voluntary retirement from service w.e.f. 5.2.2004 too was not decided by the authority competent before passing of order under Rule 7 of the Rules of 1996.

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As already stated, the appeal is pursued on the count that the learned Single Bench failed to appreciate that the respondentpetitioner himself did not join the enquiry proceedings, therefore, an order was passed by the Enquiry Officer to proceed against him ex-parte, as such, there was no violation of the principles of natural justice.

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Having considered entire record of the case, we do not find any merit with the arguments advanced. While disposing of S.B. Civil Writ Petitions No.3964/2004 and 8421/2007, the learned Single Bench directed the appellant-respondent to proceed with the enquiry and also to decide the issue with regard to acceptance of the application submitted by the respondent-petitioner as per provisions of Rule 50 of the Rules of 1996. Admittedly, the application aforesaid has not been decided by the authority competent after having directions of this Court. The issue aforesaid, thus, requires adjudication in the instant matter. Rule 50 of the Rules of 1996 provides for retirement on completion of 20 years qualifying service and the relevant portion of Rule 50 reads as under :-

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“ 50. Retirement on completion of 20 years' qualifying service

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(1) At any time after a Government servant has completed twenty years qualifying service, he may be, by giving notice of less than three months in writing to the appointing authority retire from service.

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(2) The notice of voluntary retirement given under subrule (1) shall require acceptance by the appointing authority.

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Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall automatically become effective from the date of expiry of the said period.”

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The respondent petitioner by way of submitting an application on 21.10.2003 made a request to the competent authority to allow voluntary retirement from service w.e.f. 5.2.2004. Uptil 5.2.2004 no refusal was communicated to the petitioner for grant of voluntary retirement. The petitioner, thus, in light of proviso to Rule 50 aforesaid stood retired from service on 5.2.2004.

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Right of Governor to withhold or withdraw pension is available as per Rule 7 of the Rules of 1996, however, the authority can be exercised by instituting departmental proceedings in respect to any event that took place within a period of four years from the date of institution of such proceedings. In the case in hand, as already stated, the petitioner stood retired from service w.e.f. 5.2.2004 and the enquiry was instituted on 25.11.2006 for the events those said to be occurred in the year 1994. No authority for initiating such proceedings was available in light of Rule 7 of the

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Rules of 1996. In view of this legal position, we are of the considered opinion that even the memorandum dated 25.11.2006 was without jurisdiction.

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In view of the finding arrived, we do not find any wrong in quashing the order dated 29.8.2011 withholding complete pension of the respondent-petitioner for all times to come. The appeal, hence, is dismissed.

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[JAISHREE THAKUR], J. [GOVIND MATHUR], J.

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Sanjay

State of Raj. and Ors. v. Dr. O.P. Chandak

Case brief

What is this about?

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State of Raj. and Ors. v. Dr. O.P. Chandak

Case brief

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