Rajasthan High Court - Jodhpur

Legal Representative Of Prem ... vs State Of Rajasthan on 2 December, 2021

Bench: Vijay Bishnoi

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 1531/2005

Legal Representative of Prem Shanker Tripathi s/o Late Radha Krishna Tripathi, Resident of 9, Math Bhupalpura, Udaipur.

1/1. Smt. Sushila Tripathi w/o late Prem Shanker Tripathi Resident of 9, Math Bhupalpura

1/2 . Harish Tripathi s/o late Prem Shanker Tripathi Resident of 9, Math Bhupalpura, Udaipur

1/3. Rajeev Tripathi s/o late Prem Shanker Tripathi Resident of 9, Math Bhupalpura, Udaipur.

1/4. Nilam Acharya w/o late Bhawani Shanker Acharya d/o Prem Shanker Tripathi Resident of 11. Mahaveer Nagar, Shobhagpura Udaipur.

----Petitioners Versus

1. The State of Rajasthan through Principal Secretary, Finance Department, Government of Rajasthan, Secretariat, Jaipur.

2. The Department of Personal; through Principal Secretary, Government of Rajasthan, Secretriate, Jaipur.

3. Excise Commissioner, Rajasthan, Sec

4. Director, Pension and Pensioners Welfare Department, Jaipur.

                                                            ----Respondents


For Petitioner(s)         :    Mr Manish Shisodia
For Respondent(s)         :    Mr Girish Kumar Sankhla





                                              (2 of 6)               [CW-1531/2005]


              HON'BLE MR. JUSTICE VIJAY BISHNOI

                            Judgment / Order

02/12/2021

This writ petition is filed by the petitioners seeking

following reliefs:

"It is, therefore, most respectfully prayed on behalf of the petitioner that the writ petition may kindly be allowed and this Hon'ble Court may be pleased to issue a writ in the nature of mandamus or any other appropriate writ, order or direction,

(i) so as to quash the impugned order dated 15.12.2004 (Annexure-3) passed by the respondent no.3.

(ii) so as to quash the impugned order dated 10.06.2004 (Annexure-6) passed by the respondent no.4 and all consequential orders including orders (Annexure-7 and Annexure-8) so far as they direct recovery of amount to the tune of Rs.92,042/-.

(iii) so as to award damages to the tune of Rs.25,000/- towards mental and physical harassment, litigation expenses and other sufferings occasioned to the petitioner on account of the impugned orders.

(iv) direct the respondent no.-4 to pay amount of Rs.92,042/- wrongly deducted from the retiral benefits of the petitioner along with interest at the rate of 12% per annum.

(v) any other appropriate writ, order or direction which may be considered just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner.

                                            (3 of 6)               [CW-1531/2005]

     (vi)   Costs    of the writ petition may kindly be
            awarded to the petitioner."


     Vide    order     dated      15.12.2004           (Annexure-3),        the

respondent No.3 fixed the pay of the petitioner. Vide order

dated 10.06.2004 (Annexure-6), the petitioner was denied

retiral benefits while holding that the period of suspension is

liable to be computed only towards pension and gratuity and

not for any other purpose. Vide order dated 17.01.2005

(Annexure-7), the Pension Department made deductions to

the tune of Rs.92,042/-. Annexure-8 is the warrant of

recovery issued by the Pension Department.

Brief facts of the case are that the petitioner was

initially appointed as Prosecuting Inspector in the State

Excise Department on 05.01.1972. He was promoted to the

post of Assistant Excise Officer on 26.10.1978 and further

granted promotion on the post of District Excise Officer in the

year 1995. While working as Assistant Excise Officer, Udaipur

in the year 1985, disciplinary proceedings under Rule 16 of

the Rajasthan Civil Services (Classification, Control and

Appeal) Rules, 1958 (hereinafter to be referred as 'the Rules

of 1958') were initiated against the petitioner in relation to

16 different charges. The said disciplinary enquiry was

concluded and vide order dated 28.06.1989, the petitioner

was awarded punishment of withholding of three annual

grade increments with cumulative effect. It is further

ordered that the services of the petitioner for the period he

remained under suspension shall be counted while computing

pension, gratuity and other benefits of service but he was

denied any other emoluments except the subsistence

(4 of 6) [CW-1531/2005]

allowance already paid for the period he remained under

suspension.

The grievance of the petitioner is to the effect that

though the punishment order clearly provides that the

services of the petitioner while under suspension are liable to

be counted while computing pension, gratuity and other

retiral benefits but the respondents misinterpreted the said

order and concluded that the services of the petitioner during

suspension period cannot be counted for granting benefit of

annual grade increments and can only be counted towards

pension and gratuity.

Learned counsel for the petitioner has argued that from

perusal of the punishment order dated 28.06.1989, it is clear

that no specific direction regarding withholding of annual

grade increments for the period, when the petitioner was

under suspension, was there but the respondent department

misinterpreted the said order and illegally denied the benefit

of selection grades to the petitioner for the period he

remained under suspension and further illegally made a

recovery of amount of Rs.92,042/- from the retiral dues of

the petitioner.

Learned counsel for the petitioner has placed reliance

on a decision of a Division Bench of this Court rendered in

Kan Singh vs. State of Rajasthan & Ors., reported in RLR

1989(1) 111 and argued that the Division Bench of this

Court clearly held that suspension is not a punishment and

contract of service continues even during suspension,

therefore, increments should be allowed to be drawn unless

withheld by specific order.

(5 of 6) [CW-1531/2005]

Learned counsel for the petitioner has, therefore,

prayed that this writ petition may be allowed and the relief

prayed for in the writ petition may kindly be granted.

Per contra, learned counsel for the respondents-

department has opposed the writ petition and argued that

the respondents have not committed any illegality in passing

the impugned orders and in deducting the amount of

Rs.92,042/- from the retiral dues of the petitioner.

Heard learned counsel for the rival parties.

Vide order dated 28.06.1989, the disciplinary authority

awarded punishment to the petitioner of withholding of three

annual grade increments with cumulative effect with a

further direction that the petitioner will not be entitled to get

any other emoluments except the subsistence allowance for

the period he remained under suspension, however, the said

period will be counted while computing pension, gratuity and

other benefits of service. In the order dated 28.06.1989, it is

not ordered that the petitioner will be deprived from the

benefits of annual grade increments for the period, he

remained under suspension.

The Division Bench of this Court in Kan Singh vs.

State of Rajasthan & Ors. (supra) has held as under:

"19.......The annual grade increment shall ordinarily be drawn as a matter of course unless it is withheld by a specific order. Stoppage of annual grade increment is itself a minor penalty as provided under Rule 14 of the Rules of 1958 and therefore, if a government servant who is suspended is

(6 of 6) [CW-1531/2005]

denied the annual grade increments it will amount to a penalty without any determination of his guilt.

20. In this view of the matter, we are of the opinion that since the contract of service continues even during suspension, increment should be allowed ordinarily to be drawn unless it is withheld by a specific order. Since it is not the case of the respondents that any specific order had been passed in the instant case, withholding annual grade increment of the petitioner, the petitioner is entitled to the annual grade increments during the period of his suspension and the subsistence allowance shall be calculated accordingly."

In view of the above discussion, I am of the view that

the deduction of Rs.92,042/- from retiral dues of the

petitioner was illegal.

Hence, the writ petition of the petitioner succeeds and

is allowed. The impugned orders dated 15.12.2004,

10.06.2004 and 17.01.2005 and the recovery warrant dated

17.01.2005 issued by the respondents are hereby quashed and

set aside. The respondents are directed to make payment of

Rs.92,042/- to the petitioner along with interest at the rate of 6%

from the date it was actually deducted.