Rajasthan High Court
Chhotu Singh Alias Chhod Singh (Since ... vs State Of Rajasthan (2024:Rj-Jp:84-Db) on 2 January, 2024
Bench: Manindra Mohan Shrivastava, Praveer Bhatnagar
[2024:RJ-JP:84-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No. 51/2023
1. Chhotu Singh Alias Chhod Singh (Since Deceased),
Through His Legal Heirs-
1/1. Smt. Gheesi Devi Wife of Late Chhotu Singh, Aged About
85 Years, Resident of Village Rudlai, Tehsil Peesangan,
District Ajmer.
1/2. Munna Son of Late Chhotu, Aged About 65 Years,
Resident of Village Rudlai, Tehsil Peesangan, District
Ajmer.
1/3. Nanda Son of Late Chhotu Singh, Aged About 57 Years,
Resident of Village Rudlai, Tehsil Peesangan, District
Ajmer.
1/4. Gazi Son of Late Chhotu Singh, Aged About 54 Years,
Resident of Village Rudlai, Tehsil Peesangan, District
Ajmer.
1/5. Laxman Son of Late Chhotu Singh, Aged About 52 Years,
Resident of Village Rudlai, Tehsil Peesangan, District
Ajmer.
----Appellants
Versus
1. State Of Rajasthan, Through Secretary, Home
Department (Group-I), Government Of Rajasthan,
Secretariat, Jaipur.
2. Director, Pension Department, Rajasthan, Jaipur.
----Respondents
For Appellant(s) : Mr. David Mahala for
Mr. Sandeep Singh Shekhawat
For Respondent(s) : Mr. Rajesh Maharshi, AAG with
Mr. Udit Sharma
Mr. Pankaj Choudhary for
Mr. Rohit Choudhary, Dy.GC
[2024:RJ-JP:84-DB] (2 of 9) [SAW-51/2023]
HON'BLE THE ACTING CHIEF JUSTICE MR. MANINDRA MOHAN SHRIVASTAVA
HON'BLE MR. JUSTICE PRAVEER BHATNAGAR
Judgment
Reportable
02/01/2024
1. Heard.
2. A short issue arises for consideration in this writ appeal
preferred against the order dated 29.11.2022 passed by learned
Single Judge.
3. The essential facts necessary for determination of
controversy involved in this present appeal are that the writ
petitioner Chotu Singh (since deceased) while working as
Constable was subjected to departmental inquiry on certain
charges of misconduct. Initially, he was exonerated but later on
de novo inquiry was directed which culminated in an order of
withholding 15% of the pension as, in the meanwhile, the
employee retired. The order of withholding of 15% of the pension
was assailed by filing the writ petition. The writ petition was
dismissed by the learned Single Judge against which this appeal
has been preferred.
4. Pointed submission of learned counsel for the appellant is
that the learned Single Judge while holding that the order of
withholding 15% of the pension did not warrant any interference
ignored the mandate of the binding instructions issued by the
Government itself that after holding the inquiry, once an action is
proposed, Government was obliged under the law to serve upon
the person concerned a show cause notice specifying the action
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proposed to be taken under Rule 170 of Rajasthan Service Rules,
1951.
5. It is the contention that the decision of learned Single Judge
in the case of Manorama Asopa Vs. State of Rajasthan & Ors.
reported in (2009) 3 WLN 77 and earlier J. N. Purohit Vs. State of
Rajasthan & Ors.: SBCWP No.396/1977 was not correctly and
properly appreciated. He would submit that the mandate of the
instruction obliged the authority to serve a show cause notice
specifying the action proposed. Therefore, it is argued, even
though opportunity of hearing was afforded during departmental
inquiry, a second stage show cause notice was clearly
contemplated under the binding instructions.
6. Per contra, learned Additional Advocate General would
submit that the deceased employee was given a charge-sheet,
afforded opportunity of hearing in the departmental inquiry and
then only inquiry report was submitted before the competent
authority by the inquiry officer. He would submit that the
deceased employee was thereafter supplied with the copy of the
inquiry report and also afforded an opportunity to submit his
representation. Therefore, it is the contention, the principles of
natural justice were fully complied with and technical violation of
the administrative instruction would not come to the aid of the
deceased employee. That is what has been held by the learned
Single Judge.
7. We have heard learned counsel for the parties, perused the
records and also the order under challenge.
8. Indisbutably, the deceased employee was subjected to
departmental inquiry by issuance of a charge-sheet. It is also not
[2024:RJ-JP:84-DB] (4 of 9) [SAW-51/2023]
in dispute that in the departmental inquiry he was afforded due
and proper opportunity of hearing. The inquiry officer upon
consideration of the material evidence both oral and documentary
on record, came to the conclusion of fact with regard to proof of
some of the charges, though not all, as levelled against the
deceased employee. Thereafter, the deceased employee was
supplied with the copy of the inquiry report and his comments
were also sought vide memo dated 11.01.2000. Since, in the
meantime the deceased employee had already retired from
service, an order of withholding his pension to the extent of 15%
was passed.
9. The learned Single Judge dismissed the petition holding that
once the deceased employee was granted an opportunity of
hearing during the course of inquiry, the principles of natural
justice were fully complied with and the decision rendered in the
case of Manorama Asopa (supra) was distinguishable on facts. For
taking that view what has mainly prevailed in the consideration is
that in the departmental inquiry, an opportunity of hearing was
afforded.
10. We, however, find that under an administrative instruction
(clarification) inserted vide F.D. Memorandum No.F.1(54) F.D.(E-
R)/67, dated 30.10.1968, it was stipulated that in case,
Government decide to take action under Rule 170 of the
Rajasthan Service Rules, 1951 in the light of the findings of the
disciplinary authority, the Government will serve the person
concerned with a show cause notice specifying the action
proposed to be taken under Rule 170 of the Rajasthan Service
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Rules, 1951. The aforesaid administrative instruction
(clarification) reads as under:-
"According to proviso (a) of Rule 170 of the
Rajasthan Service Rules, departmental proceedings if
instituted while the officer was in service, whether
before his retirement or during his re-employment,
shall, after the final retirement of the officer, be
deemed to be proceedings under the said rule and
shall be continued and concluded by the authority by
which it was commenced in the same manner as if
the officer had continued in service. A question has
been raised whether in respect of an officer, whose
case falls within the purview of the aforesaid proviso
and proceedings against whom were instituted by an
authority subordinate to the Governor, order for
withdrawals withholding of pension can be passed by
the subordinate authority on the conclusion of the
proceedings, or the authority should refer the case to
the Governor for final orders. The mater has been
considered and it is clarified that the function of the
Disciplinary Authority in respect of departmental
proceedings referred to in Rule 170 is only to reach
finding on the charges and to submit a report
recording its findings to the Government. It is then
for the Government to consider the findings and take
a final decision under Rule 170 of the Rajasthan
Service Rules. In case Government decide to take
action under Rule 170 of Rajasthan Service Rules in
the light of the findings of the Disciplinary Authority,
the Government will serve the person concerned with
a show-cause notice specifying the action proposed
to be taken under Rule 170 of Rajasthan Service
Rules and the person concerned will be required to
submit his reply to the show-cause notice within such
time as may be specified by the Government. The
Government will consider the reply and consult the
Rajasthan Public Service Commission. If as a result of
such consideration in consultation with the
Commission, it is decided to pass an order under Rule
170 of Rajasthan Service Rules, necessary orders will
be issued in the name of the Governor."
11. The aforesaid clarification is in the form of an administrative
instruction, which has the effect of supplementing the statutory
rules governing terms and conditions of services of a pensioner
also. If that be so, the instructions were clearly binding on the
State Government and all its authorities.
[2024:RJ-JP:84-DB] (6 of 9) [SAW-51/2023]
12. A close and careful reading of the aforesaid clarification
reveals that it is in two parts. The first part deals with the stage
up to the submission of a report by the disciplinary authority
before the State Government. The second part, which is relevant
for the present case, deals with the proceedings which are
required to be drawn after submission of report by the
disciplinary authority to the State Government. The mandate of
the instruction is unequivocal in clearly stating that in case,
Government decides to take action under Rule 170 of the
Rajasthan Service Rules, 1951 in the light of the findings of the
disciplinary authority, the Government will serve the person
concerned with a show cause notice specifying the action
proposed to be taken under Rule 170 of the Rajasthan Service
Rules, 1951. It further states that the person concerned will be
required to submit his reply to the show cause notice within the
time stipulated by the Government. It is then, as stated, the
Government has to consider reply and consult the Rajasthan
Public Service Commission and then, as a result of such
consideration in consultation, to pass an order under Rule 170 of
the Rajasthan Service Rules, 1951.
13. Thus, the aforesaid instruction lays down a complete
mechanism of the decision making process before an order under
Rule 170 of the Rajasthan Service Rules, 1951 could be passed.
What therefore is mandated under the binding instructions is that
once a departmental inquiry is concluded and the disciplinary
authority prepares a report, it is required to be forwarded to the
State Government. The next stage is to give a show cause notice
specifying the action proposed to be taken. That would mean that
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the State Government has to propose as to what penalty it
intends to impose on the retired employee in view of the report
submitted by the disciplinary authority. The decision necessarily
involves application of mind not only as to whether the report
submitted by the disciplinary authority should be accepted as it
is, but also as to what would be appropriate penalty
commensurate to the gravity of misconduct alleged and found
proved against the delinquent employee (a pensioner).
14. The next stage of consideration would be application of
mind to the reply submitted by the concerned employee. Even if
the employee may not be in a position to seriously dispute the
finding with regard to misconduct, he may otherwise place
material in the form of mitigating circumstances as to why the
penalty as proposed should not be imposed on him.
15. Illustratively, in a case the Government proposes penalty in
the form of withholding 15% of the pension, it is always open for
the employee to submit before the authority as to why penalty to
such an extent may not be imposed. There may be variety of
circumstances. It will involve the nature and gravity of
misconduct and other circumstances relevant for the decision
making. Not only that, it requires consultation with the Public
Service Commission also. It is only after all these exercises
undertaken that a final decision has to be arrived at to pass an
order as to what penalty is required to be imposed.
16. As against aforesaid mandate of law, we find that all that
was done was that the copy of report was forwarded to the
deceased employee seeking his comment thereon. The notice
dated 11.01.2000 does not satisfy the mandate as contained in
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the binding administrative instructions. Therefore, insofar as
imposition of penalty of 15% of withholding pension is concerned,
it is in clear violation of the provisions applicable and binding.
17. Ordinarily, on such findings, as recorded by us herein above,
we would have relegated the matter to the State Government to
issue a proper show cause notice, hear the retired employee and
then pass an appropriate orders.
18. Unfortunately, the employee died during the pendency of
the proceeding before this Court and is now being represented
through his widow and other representatives. Therefore, further
proceedings, after remand from the stage of show cause notice,
cannot be held in these circumstances.
19. Taking into consideration that now it is practically not
possible to remand the case on account of death of the employee
and further taking into consideration the nature and gravity of
charges, which were found proved against the delinquent
employee and that he retired in 1993, died in 2010 and since
then his widow is getting family pension, in the interest of justice,
we are inclined to put quietus to the issue. The order impugned in
the writ petition is quashed. As far as monetary benefits are
concerned, we hereby order that the widow of the deceased
employee would be entitled to full pension from the date of this
judgment. However, in respect of the period from 1993 till date,
she would be entitled to only 50% of the deducted amount (50%
of the 15% of pension which was deducted under the order
passed by the Government).
20. Taking into consideration that the recipient of the benefit
would be the old-aged widow of the deceased, the amount which
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is required to be refunded should be paid to her within an outer
limit of three months from today.
21. Appeal is accordingly partly allowed in the manner and to
the extent stated herein-above. No order as to costs.
(PRAVEER BHATNAGAR),J (MANINDRA MOHAN SHRIVASTAVA),ACTING CJ
28- Mohit & Rahul
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