Allowed

G P Joshi v. Raj Financial Corp

Rajasthan HC22 Jan 2019CW/4544/1999

Case brief

AI extract

What is this about?

This writ petition challenged dismissal from service due to procedural impropriety. The court held the enquiry invalid for relying on interested witnesses and unexamined preliminary reports, violating natural justice. Since the petitioner was superannuated, the dismissal was quashed, and partial back wages with full retirement benefits were granted.

What did the court decide?

Quashed dismissal and appellate orders; granted continuity of service, 50% back wages, full retirement benefits, and 9% interest on gratuity.

G P Joshi Vs Raj Financial Corp — Pension and Retirement Benefits | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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S.B. Civil Writs No. 4544/1999

G P Joshi

----Petitioner

Versus

Raj Financial Corp

----Respondent

For Petitioner(s) : Mr.J.K.Yadav For Respondent(s) : Mr.Virendra Lodha, Sr.Adv with Mr.Atishay Jain

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HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

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Judgment / Order

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22/01/2019

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This writ petition has been remanded back to this court by the Division Bench vide order dated 10.5.2018 which reads as under:

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“It is submitted by learned counsel for both the parties that many argument were raised before the learned Single Juge but have not been dealt with and even all the arguments have not been referred thus a joint prayer has been made to remand the case back to the learned Single Judge by causing interference in the matter, which may be again considered in the light of the arguments made by the parties.

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As prayed, the order dated 7.11.2017 is set aside with the remand of the case to the Single Bench.

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With the aforesaid, appeal stands disposed of.”

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This Court is of the view that the matter which has attained finality by a judgment passed by Single Judge, ought not be

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[CW-4544/1999]

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remanded merely on the basis of a joint prayer made by counsel appearing before the Division Bench. In the case reported by Hon’ble Apex Court in Roma Sonkar Vs. Madhya Pradesh State Public Service Commission and anr.- 2018 (10) scale,222, wherein the Apex Court held as under:

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“3. We have very serious reservations whether the Division Bench in an intra court appeal could have remitted a writ petition in the matter of moulding the relief. It is the exercise of jurisdiction of the High Court under Article 226 of the Constitution of India. The learned Single Judge as well as the Division Bench exercised the same jurisdiction. Only to avoid inconvenience to the litigants, another tier of screening by the Division Bench is provided in terms of the power of the High Court but that does not mean that the Single Judge is subordinate to the Division Bench. Being a writ proceeding, the Division Bench was called upon, in the intra court appeal, primarily and mostly to consider the correctness or otherwise of the view taken by the learned Single Judge. Hence, in our view, the Division Bench needs to consider the appeal(s) on merits by deciding on the correctness of the judgment of the learned Single Judge, instead or remitting the matter to the learned Single Judge.”

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Be that as it may, as the earlier order dated 7.11.2017 has been set aside by the Division Bench, it has become necessary for this court to again decide this matter which has been pending since 1999 for adjudication.

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[CW-4544/1999]

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(3 of 18)

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The brief facts which have been placed on record before this court are that the petitioner, who was holding the post of Deputy Manager (Finance) was served with a charge-sheet vide memorandum dated 18.5.1994 wherein 11 charges were leveled. The Enquiry Officer conducted the enquiry wherein the petitioner participated and submitted his reply. The Enquiry Officer submitted his report on 25.4.1997 which was served upon the petitioner vide letter dated 29.4.1997. The petitioner submitted his objection relating to the enquiry report and the Disciplinary Authority passed the order dated 29.8.1998 accepting the findings of the Enquiry Officer and punished the petitioner of dismissal from service. The payment for the period of suspension beyond the subsistence allowance was also dis-entitled. The petitioner filed an appeal before the Board, but same was also dismissed by the Board and communication to this effect was sent to the petitioner vide letter dated 23.12.1998. The review petition preferred was also rejected.

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The counsel for the petitioner submits that the Enquiry Officer has not followed the principles of natural justice while conducting the enquiry and the petitioner was held guilty of the charges wrongfully based on evidence recorded by the Enquiry Officer of five witnesses produced by the respondents in support of the charges. The counsel submits that the five witnesses namely B.L.Chhabra , Manoj Modwal , Ram Babu Gupta , R.P.Meena and K.K.Sharma , were examined who were interested witnesses and there was no independent witness examined. The counsel points out that B.L.Chhabra and Ram Babu Gupta were those officers who had conducted the preliminary

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enquiry and prepared the report against the petitioner which was made the basis of issuing the charge-sheet. It is his submission that both B.L.Chhabra and Ram Babu Gupta were, therefor interested witnesses who would only support the charges leveled against the petitioner. The Enquiry officer has relied upon the statement and submitted preliminary enquiry report holding the petitioner guilty of the charges. It is his further submission that neither the preliminary enquiry report was made available to the petitioner nor any witness or documents relied upon for the purpose of preparation of preliminary enquiry report were produced during the course of enquiry.

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The second submission of counsel for the petitioner is with regard to three other witnesses who were examined by the Enquiry Officer. He submits that Manoj Modwal, R.P.Meena and K.K.Sharma were interested witnesses. Manoj Modwal, examined as PW-2 was holding the post of Deputy Manager (Technical) and against Manoj Modwal, separate charge-sheet under Regulation 37 of the RFC Staff Regulations Act, 1958 (hereinafter referred to as “Regulation of 1958”) had been issued wherein same charge as charge no.7 leveled against the petitioner, was leveled. However, Manoj Modwal was left scot-free by the Disciplinary Authority without conducting regular enquiry and on the basis of his reply alone, he was left by only passing the order of recorded warning ‘to be careful in future’ vide letter dated 20.7.1995. Natually, Manoj Modwal could not have been made as witness against the petitioner since he has put all the burden on the petitioner alone with regard to the charge for which the witness himself was charge-sheeted. The Enquiry Officer relying upon his evidence

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held the petitioner guilty of charge no.7 and, thus gross illegality was committed by the Enquiry Officer.

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The counsel for the petitioner similarly submits that R.P.Meena, PW-4 was also one of the witness examined while he too had been charge-sheeted for the allegations as alleged against the petitioner. But R.P.Meena was again left scot-free without conducting enquiry and with a caution ‘to be careful in future’ by the Disciplinary Authority while his evidence was considered for holding petitioner guilty of the charges by the Enquiry Officer.

¶34

So far as K.K.Sharma is concerned, counsel submits that K.K.Sharma was the Law Officer who had prepared the chargesheet and was thus an interested witness. The entire enquiry was conducted relying upon the preliminary enquiry report and the onus of proving the charges was shifted on the petitioner in the way that the petitioner was required to disprove the charges. The petitioner submitted his objections before the Disciplinary Authority pointing out that his Superior Officers under whose instruction the petitioner have performed his duties, had not been presented before the Enquiry Officer and no independent evidence was not recorded.

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The counsel further submits that with regard to similar charge, a separate charge-sheet was issued to the petitioner on 9.5.1995 wherein the Disciplinary Authority after examining his reply, passed a punishment order of stoppage of one grade increment without cumulative effect vide order dated 7.6.1997. It is his submission therefor that separately relating to the same incident, the petitioner could not have been again punished. The

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counsel submits that he had asked for documents, however, the documents were not made available to the petitioner only after the statements were recorded by the Enquiry Officer and thus the petitioner could not confront the witnesses in relation to the documents and was thus prevented from putting up his defence fairly and properly.

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The counsel for the petitioner also submits that in the writ petition, he has specifically raised the aforesaid argument and the respondents have in their reply admitted that copy of preliminary enquiry report was not made available. Further it has been asserted by respondents that same was not required to be made available to the petitioner stating therein that preliminary enquiry report was not supplied to the petitioner as he was not required to reply the same. The counsel further has also asserted in the petition of not giving him an opportunity to cross-examine the witnesses in relation to the documents. With regard to the other officers who were separately charge-sheeted, it has been stated in the reply that they were separately examined and thereby exonerated. The counsel for the petitioner has also raised objection regarding the decision taken in the appeal and submits that the appeal which was placed before the Board of Directors was required to be examined in the light of submissions raised therein. However, the Board has cursorily dismissed his appeal without giving reasons. The counsel submits that the proceedings conducted were not in consonance with the principles of natural justice and the petitioner could not have been punished on the basis of such an enquiry.

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(7 of 18)

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The counsel for the petitioner has relied upon the judgment passed by Apex Court in Nirmala J.Jhala Vs. State of Gujarat and anr. reported in (2013) 4 SCC 301 , Allahabad Bank and ors. Vs. Krishna Narayan Tewari reported in (2017) 2 SCC 308 and D.V.Singh Vs. Rajasthan State Mines and Minerals Ltd. reported in 2017 (3) WLC 573 passed by this court. He also relies upon the judgment passed in Roop Singh Negi Vs. Punjab National Bank reported in 2009 (2) SCC 570, State of Uttaranchal Vs. Kharak Singh reported in 2008 (8) SCC 236.

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Per contra, counsel appearing for the respondents submits that apart from petitioner, there were other persons working with respondents who had been charge-sheeted in relation to the charges leveled which were similar to that of petitioner. Counsel has pointed out that there were 08 officers who were chargesheeted and apart from the petitioner, Sh. K.B.Sindhawa, Manager and Sh.S.K.Singhal, Asstt. Manager were also served with the charge-sheet and enquiry was conducted independently and order of punishment of removal from service in case of Sh.K.B.Sindhawa, and dismissal from service in case of Sh. S.K.Singhal were passed. So far as other five delinquents are concerned, charges were dropped or exonerated and in cases of Sh.R.P.Meena and Sh.Manoj Modwal, they were cautioned ‘to be careful in future’ and Sh.B.L.Gupta was served with penalty of censure. Counsel for the respondents further submits that preliminary enquiry conducted by the concerned Preliminary Enquiry Officer could not have been ignored as the same was exhibited with the enquiry report of Enquiry Officer and concerned Preliminary Enquiry Officer was also produced as witness. Counsel

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submits that so far as evidence of Sh.Manoj Modwal and Sh.R.P.Meena are concerned, it was in relation to the charges as against the petitioner. No objection at that stage was raised by the petitioner when the statements were recorded and the petitioner, therefore, cannot be allowed to raise objection regarding the recording of evidence.

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The counsel for the respondents has also submitted that the principles of natural justice have been followed. The petitioner was asked to produce evidence in defence which he failed to produce inspite of opportunity being given to him. Taking into consideration the seriousness of the charges which were found to be proved against the petitioner, the decision for dismissal from service was passed. The counsel submits that this court would not reappreciate the evidence recorded before the Enquiry Officer and would not substitute its own opinion with that of Enquiry Officer in the inquiry. The counsel further submits that Sh.K.B.Sindhawa, Manager had preferred a writ petition before this court being SBCW Pet. No.2537/1998 which came to be dismissed by this court vide judgment dated 11.4.2017. The counsel also submits that Sh.S.K.Singhal had also preferred writ petition being SBCW Pet. No.5664/1999 before this court which too was dismissed vide judgment dated 5.5.2017.

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In view of similarity of the charges as against the petitioner and Sh.S.K.Singhal and Sh.K.B.Sindhawa, this court ought not to interfere with the present order of punishment. No other argument had been raised.

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[CW-4544/1999]

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I have heard learned counsel for the parties at length again and looked into the record which has been produced by the respondents. Before I deal with the submissions of counsel for the petitioner, it could be appropriate to examine the case in the light of judgments which have been passed by this court in the cases of Sh.K.B.Sindhawa (supra) and Sh.S.K.Singhal (supra).

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In the case of Sh.K.B.Sindhawa, decided on 11.4.2017, this court was examining the submissions raised by the petitioner who was working with RFC. A charge-sheet was served upon him vide memorandum dated 19.5.1994 wherein 8 charges were leveled against him. Enquiry Officer conducted the enquiry and submitted his report which was made available to the concerned delinquent who submitted his representation and thereafter the Disciplinary Authority vide order dated 25.2.1997 after discussing all the charges leveled against the petitioner reahced to the conclusion that the petitioner had been guilty of other types of irregularity also. Taking into consideration the charges, the petitioner delinquent was punished with removal from service. The counsel therein argued that enquiry was conducted in slip shod manner and however he prayed that keeping in view that petitioner had long 28 years of service to his credit, the punishment of removal from service be converted to punishment of compulsory retirement. Thus no argument was advanced before this court relating to the decision making process or with regard to the evidence and legality of recording evidence.

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Having examined the submissions and prayer made by counsel for the said petitioner, this court reached to the conclusion that punishment awarded to the concerned delinquent cannot be

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said to be excessive and it was held that penalty commensurate with the charge proved against the petitioner. The writ petition was accordingly dismissed. Thus, this case is distinguishable from that of Sh.K.B.Sindhawa.

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In case of Sh.S.K.Singhal, arguments advanced before this court was of different nature. There the petitioner submitted that exparte enquiry proceedings undertaken against the petitioner were unjustified as he had not been paid the subsistence allowance during the period of suspension and thereby he was prevented from participating in enquiry. The second submission raised was with regard to the deninal of defence assistance as per choice. After recording the submissions, this court reached to the finding that under Art. 226 of the Constitution, the court would not deal with the evidence in detailed and it was also noticed that the petitioner had been granted subsistence allowance but lateron he himself did not get his attendance marked and subsistence allowance thereafter was not released. Regarding non-inspection of documentary evidence, the excuse taken by the petitioner was not accepted and non-availability of defence assistance was also found to be not in prejudice to the concerned petitioner and thus writ petition preferred was dismissed.

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Having noticed the aforesaid judgments passed by this court, this court is satisfied that the arguments which have been raised in the present writ petition by the counsel for the petitioner to challenge the order of punishment, are different and differ from those as noted above and thus the submission of counsel for the respondents that the court should dismiss the petition of the

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[CW-4544/1999]

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(11 of 18)

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petitioner only on the ground that writ petition of Sh.S.K.Singhal and Sh.K.B.Sindhawa have been dismissed is without any force and is accordingly rejected.

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It is settled principle of law that each case has to be decided on the facts as come on record and the arguments and submissions raised before the court. In both the cases, as noticed above, there was no argument raised by the counsel for the petitioner of violation of principles of natural justice. Hence the present case has to be examined on different footing as per arguments raised before this court.

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Having looked at the submissions raised by counsel for the petitioner, I find that the court should examine whether the decision making process was duly followed as per procedure laid down in Regulation 37(2) of the Regulation of 1958. As per Regulation 38, the right of an appeal has been provided in it. In any case, where the Enquiry Officer conducts the enqujiry, he acts in a quasi-judicial manner and, therefore, it is inherently essential for him to follow the principles of natural justice while conducting the enquiry. A fair opportunity within the four corners of the principles of natural justice has to be provided to the concerned delinquent to defend himself and at the same time while examining the evidence, which has come on record, it must be noticed whether evidence being produced by the prosecution in any manner prejudiced or interested which results in influencing the verdict of the Enquiry Officer.

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In the present case, two witnesses namely B.L.Chhabra and Ram Babu Gupta, as noticed above, were admittedly those who prepared the preliminary enquiry report. The copy of the said

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preliminary enquiry report was not made available to the petitioner although it was marked as exhibit and the evidences of witnesses to the preliminary enquiry report were not examined for holding the charges proved as against the petitioner. No independent witness was examined. The documents which were relied upon for preparation of the preliminary enquiry report were also not produced before the Enquiry Officer. Thus Enquiry Officer has not applied its mind independently and has relied solely on whatever has already been submitted in the preliminary enquiry report by the concerned witnesses who prepared it.

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As regards three other witnesses whose statements have been recorded, this court finds that Sh.Manoj Modwal was subjected to charge-sheet relating to the same charge similar to one leveled against the petitioner. The said witness has put the entire burden of delinquency on the petitioner and his statement has been accepted by the Enquiry Officer without any demur. The argument of the counsel for the respondents that the petitioner should have objected to the regarding recording the statements of Sh.Manoj Modwal and Sh.R.P.Meena, is noted to be rejected. The law in this regard is clear. The persons against whom the chargesheet has been issued cannot be expected to disprove the charges. It is for the prosecution to prove the charges and bring home the guilt as against the concerned delinquent. It is true that theory of strict proof may not apply in the departmental enquiry proceedings but surmises and conjectures and suspicion cannot take place of evidence. The documents and evidence ought to be placed before the Enquiry Officer to bring home the charges. In M.V.Bijlani Vs. UOI reported in 2006(5) SCC 88 , the Apex Court held as under:

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“It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.

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The report of the Enquiry Officer suffers from the aforementioned vices. The orders of the disciplinary authority as also the appellate authority which are based on the said Enquiry Report, thus, cannot be sustained. We have also noticed the way in which the Tribunal has dealt with the matter. Upon its findings, the High Court also commented that it had not delved deep into the contentions raised by the Appellant. The Tribunal also, thus, failed to discharge its functions properly.

¶73

For the views we have taken, the impugned judgments are wholly unsustainable.

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The appeal is, therefore, allowed. The consequence of the said order would have been to remit the matter back to the disciplinary authority. We, however, do not intend to do so as the charges relate to the year 19691970. The Appellant, due to pendency of these proceedings, has suffered a lot. He is, therefore, directed to be reinstated in service, if he has not reached the age of superannuation. However, keeping in view the fact that, he has not worked for a long time, we direct that he may only be paid 50% of the back wages. He is also entitled to costs of this appeal. Counsel's fee assessed at Rs.5000/-.

¶75

Thus I find that recording the statement of witnesses namely Sh.Manoj Modwal and Sh.R.P.Meena, against whom charges were also leveled of similar nature and who have been exonerated of the said charges, could not have been considered as independent witnesses for bringing home the charges as against the petitioner. The Enquiry Officer has thus submitted an enquiry report which hinges on perversity. The Disciplinary Authority to whom the

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petitioner submitted his representation against the enquiry report and also submitted written submissions at the time of personal hearing, has failed to take notice of the said submissions. The Disciplinary Authority has thus fallen in error in holding and relying upon the enquiry report for holding the petitioner guilty and accordingly the order passed by the Disciplinary Authority based on such enquiry report would have to be set aside.

¶79

In the case of Nirmala J.Jhala (supra) as cited by counsel for the petitioner, the Apex Court has held as under:

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“45. In view of above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross-examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice.

¶81

In Ayaaubkhan Noorkhan Pathan v. State of Maharashtra & Ors., AIR 2013 SC 58, this Court while placing reliance upon a large number of earlier judgments held that cross-examination is an integral part of the principles of natural justice, and a statement recorded behind back of a person wherein the delinquent had no opportunity to cross- examine such persons, the same cannot be relied upon.

¶82

The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry.

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“A prima facie case, does not mean a case proved to the hilt, but a case which can be said to be established, if the evidence which is led in support of the case were to be believed. While determining whether a prima facie case had been made out or not, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence”. (Vide: Martin Burn Ltd. v. R.N. Banerjee, AIR 1958 SC 79) (See also: The Management of the Bangalore Woollen Cotton and Silk Mills Co. Ltd. v. B. Dasappa, M.T. represented by the Binny Mills Labour Association, AIR 1960 SC 1352; State (Delhi Admn.) v. V.C. Shukla & Anr., AIR 1980 SC 1382; Dalpat Kumar & Anr. v. Prahlad Singh & Ors., AIR 1993 SC 276; and Cholan Roadways Ltd. v. G. Thirugnanasambandam, AIR 2005 SC 570).

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The issue, as to whether in the instant case the material collected in preliminary enquiry could be used against the appellant, has to be

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considered by taking into account the facts and circumstances of the case. In the preliminary enquiry, the department placed reliance upon the statements made by the accused/complainant and Shri C.B. Gajjar, advocate. Shri C.B. Gajjar in his statement has given the same version as he has deposed in regular enquiry. Shri Gajjar did not utter a single word about the meeting with the appellant on 17.8.1993, as he had stated that he had asked the accused/complainant to pay Rs. 20,000/- as was agreed with by Shri P.K. Pancholi, advocate. Of course, Shri C.B. Gajjar , complainant, has definitely reiterated the stand he had taken in his complaint. The chargesheet served upon the appellant contained 12 charges. Only first charge related to the incident dated 17.8.1993 was in respect of the case of the complainant. The other charges related to various other civil and criminal cases. The same were for not deciding the application for interim reliefs etc.

¶88

The charge-sheet was accompanied by the statement of imputation, list of witnesses and the list of documents. However, it did not say that so far as Charge No. 1 was concerned, the preliminary enquiry report or the evidence collected therein, would be used/relied upon against the appellant.

¶89

There is nothing on record to show that either the preliminary enquiry report or the statements recorded therein, particularly, by the complainant/accused or Shri C.B. Gajjar, advocate, had been exhibited in regular inquiry. In absence of information in the chargesheet that such report/statements would be relied upon against the appellant, it was not permissible for the Enquiry Officer or the High Court to rely upon the same. Natural justice is an inbuilt and inseparable ingredient of fairness and reasonableness. Strict adherence to the principle is required, whenever civil consequences follow up, as a result of the order passed. Natural justice is a universal justice. In certain factual circumstances even nonobservance of the rule will itself result in prejudice. Thus, this principle is of supreme importance. (Vide: S.L. Kapoor v. Jagmohan, AIR 1981 SC 136; D.K. Yadav v. JMA Industries Ltd., (1983) 3 SCC 259; and Mohd. Yunus Khan v. State of U.P. & Ors., (2010) 10 SCC 539)”

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21. In Allahabad Bank Vs. Krishna Narayan Tewari case (supra), the Apex Court held as under:

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“7. We have given our anxious consideration to the submissions at the bar. It is true that a writ court is very slow in interfering with the findings of facts recorded by a Departmental Authority on the basis of evidence available on record. But it is equally true that in a case where the Disciplinary Authority records a finding that is unsupported by any evidence whatsoever or a finding which no reasonable person could have arrived at, the writ court would be justified if not duty bound to examine the matter and grant relief in appropriate cases. The writ court will certainly interfere with disciplinary enquiry or the resultant orders passed

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by the competent authority on that basis if the enquiry itself was vitiated on account of violation of principles of natural justice, as is alleged to be the position in the present case. Non-application of mind by the Enquiry Officer or the Disciplinary Authority, non-recording of reasons in support of the conclusion arrived at by them are also grounds on which the writ courts are justified in interfering with the orders of punishment. The High Court has, in the case at hand, found all these infirmities in the order passed by the Disciplinary Authority and the Appellate Authority. The respondent’s case that the enquiry was conducted without giving a fair and reasonable opportunity for leading evidence in defense has not been effectively rebutted by the appellant. More importantly the Disciplinary Authority does not appear to have properly appreciated the evidence nor recorded reasons in support of his conclusion. To add insult to injury the Appellate Authority instead of recording its own reasons and independently appreciating the material on record, simply reproduced the findings of the Disciplinary Authority. All told the Enquiry Officer, the Disciplinary Authority and the Appellate Authority have faltered in the discharge of their duties resulting in miscarriage of justice. The High Court was in that view right in interfering with the orders passed by the Disciplinary Authority and the Appellate Authority.

¶95

I am in agreement with the arguments advanced by counsel for the petitioner with regard to the power exercised by the Appellate Authority. As per the minutes which have been placed before this court, on perusal, I find that the Board has not dealt with the appeal at all and has not given any reasons for rejecting the appeal. The very purpose of providing appeal before the Appellate Forum is to allow the Appellate Authority to re-examine and re-consider the case of the delinquent with an unbiased and independent mind. It is expected that the submissions raised by the delinquent be dealt with though not in detail but the arguments raised in appeal must be meted out. However, the Appellate Authority has failed to perform its duty caste upon it. Thus the Appellate order also being laconic cannot be allowed to be sustained.

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Keeping in view that this writ petition relates to year 1999, and that the petitioner has already attained the age of superannuation on 31.3.2014, this court is of the view that no purpose would be served in remanding the matter back to the respondents on account of deficiency in the enquiry as pointed out herein above. Keeping in view the law laid down by Apex Court in Allahabad Bank (supra) with regard to grant of relief wherein the Apex Court has held as under:

¶99

“10. The next question is whether the respondent would be entitled to claim arrears of salary as part of service/retiral benefits in full or part. The High Court has been rather ambivalent in that regard. We say so because while the High Court has directed release of service/retiral benefits, it is not clear whether the same would include salary for the period between the date of removal and the date of superannuation. Taking a liberal view of the matter, we assume that the High Court’s direction for release of service benefits would include the release of his salaries also for the period mentioned above. We are, however, of the opinion that while proceedings need not be remanded for a fresh start from the beginning, grant of full salary for the period between the date of dismissal and the date of superannuation would not also be justified.

¶100

This court deems it appropriate to allow this writ petition to the extent of quashing and setting aside the order passed by Disciplinary Authority dated 29.8.1998 and Appellate Order dated 23.12.1998.

¶101

Accordingly, this writ petition is allowed to the extent of quashing the orders passed by Disciplinary Authority as also Appellate Authority and the petitioner would be entitled to continuity of service upto the date of superannuation with all service benefits on that basis. However, he will be only entitled to

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50% salary for the period between the date of his dismissal to the date of superannuation. All retiral benefits shall also be released in his favour on the basis of arriving at the actual pay fixation and the full salary which he would have drawn on the date when he superannuated. The petitioner would also be entitled to interest on the retiral benefits including gratuity @ 9% per annum as provided in the State Service Rules.

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No costs.
(SANJEEV PRAKASH SHARMA),J

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Sandeep/-1

G P Joshi v. Raj Financial Corp

Case brief

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G P Joshi v. Raj Financial Corp

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