Bheru Singh Kanawat vs The State of Rajasthan

Dr. Vineet Kothari, J.—The lawyers are observing strike which is contrary to various Supreme Court decisions. Name of Mr. Shambhoo Singh, as the counsel for the petitioner and Mr. Manish Patel, as the counsel for the respondents, is shown in the cause list.

Nobody is present for either of the parties.

Perused the record. The case is listed at Sl. No. 18 in the cause list under the category of "Admission with Notice Served-Reply Filed".

The petitioner has filed this writ petition in this Court on 17.09.2013 with the following prayers:-

"It is, therefore, most humbly prayed that this writ petition may kindly be allowed with cost and by an appropriate writ, order or direction:-

(i) The impugned recovery notice/order dated 12.09.2013 (Ann. 6) may kindly be quashed and set aside.

(ii) the enquiry initiated against the petitioner exparte may kindly be quashed and set aside.

(iii) Any other appropriate order which deemed fit in the facts and circumstances of the case may kindly be passed in favour of the petitioner."

The facts as stated in para 2 to 7 of the writ petition are quoted herein below for ready reference:-

"2. That the petitioner was posted as Gram Sewak-Cum-aden Sachiv of Gram Panchayat Anant, Tehsil-Dhariyawad (Pratapgarh) for the period of 2006 to 2010 and during this period he was looking after the work of MAHANAREGA in the various gram panchayats of this Panchayat Samiti in which one of the Gram Panchayat was Gram Panchayat Anant.

That during the his period of work of Gram Panchayat Anant under the Scheme of Maha NAREGA and E.G.S. was sanctioned and the same was executed through the Gram Panchayat Anant.

That on the basis of the complaint made by local M.L.A. Shri Nagraj Meena, Programme Officer (E.G.S.) rural development and Panchayat Raj dept. Jaipur regarding the work conducted for the year 2006-07 to 2008-09 by the concern gram Panchayat, the work under the Narega scheme was totally forge therefore inquiry may be conducted. On the basis of the above complaint order dated 10-12-2009 along with list of the sanctioned work was passed by appointing the inquiry officer to conduct the inquiry and explain to whom of the public representative officers and employee was guilty. Copy of the order dated 10-12-2009 along with list for the period of 2006-07 to 2009-10 are submitted herewith and marked as Annexure-1.

That in pursuance of the above order the inquiry was conducted and submitted before the respondent no. 2 by the inquiry officer on 3-5-2012. Copy of the latter dated 3-5-2012 along with inquiry report is submitted herewith and marked as Annexure-2. That it is relevant mentioned to here that the inquiry was conducted exparte and the same was receive only on 12-9-2013 when the than Sarpanch Shri Kuldeep Meena demanded and also with the order dated 12/09/2013.

That the respondent no. 4 has issued the notice dated 15.06.2013 along with list of work for proposed recovery to the Sarpanch and Gram Sewak, mentioning that the work conducted for the year of 2006-07 to 2009-10 under the Maha-Narega Scheme was not found correct and according to the inquiry report the amount of rupees 3,36,768/- are recoverable from Sarpanch and other employees. Though this notice was not given to the petitioner."

The respondents have filed a detailed reply to the writ petition and their stand is quoted herein below for ready reference:-

"In connection with the above direction, the executive engineer PWD was appointed as inquiry officer and after due process he submitted the inquiry report dated 03/05/2012 holding the petitioner responsible for the recovery of the amount. The copy of the inquiry report dated 03/05/2012 is already on record in this case. The said inquiry report was submitted to the Collector Pratapgarh for needful steps and action. Thereafter, on receiving the said inquiry report, a recovery order dated 14/05/2012 has been passed for the recovery of amount of Rs. 10,42,658/- against the petitioner and others. It is relevant to submit here that the proper course of recovery effect could not be given on the said basis because the complete inquiry report was not made available to the concern and therefore the competent concern of the State again proceeded in the matter after completing the requirement of inquiry details and initiated the recovery vide notice dated 10/05/2013. The copy of the notice dated 10/05/2013 is submitted herewith marked as Annexure-R/2. In the present matter petitioner was found involved in committing the negligence and irregularities of fund of Rs. 3,36,767/-. It is further relevant to submit here that vide letter dated 15/06/13 the requisite details viz. measurement books and must roll were demanded and the same were made available to the concern vide letter dated 06/09/13 alongwith inquiry report for necessary effect and action. The copy of the letter dated 06/09/13 is already on record in this case.

At this juncture, it is to be brought on record that on receiving the relevant record from the Gram Panchayat Annat it has been found that valuation and measurement of the work executed was made by the petitioner himself and thus, fresh amended notice was initiated and issued vide letter dated 12/09/13 determining the recoverable amount of Rs. 3,36,767/- from the petitioner and the petitioner was called upon to deposit the said amount. The copy of the said amended notice dated 12/09/13 is submitted herewith marked as Annexure-R/3.

In this way the complete process has been initiated and completed by the competent authority of the answering respondent for the recovery of the amount which absolutely just and proper and in accordance with the provisions of law."

In Vasudev Bhatt Vs. State of Rajasthan & Ors., CWP No. 8880/2010, decided on 14.02.2014, this Court has held as under:-

"14. Looking to the extent of respective defalcation and financial loss caused by them, if His Excellency the Governor has considered it appropriate to increase the extent of stoppage of pension, as also the period of stoppage of pension, the same cannot be said to be per se illegal or arbitrary and such punishment need not be interfered with by this Court under Article 226 of the Constitution of India.

For the same reason, the recovery of financial loss caused to the State by the acts and omissions of these Government servants, is also justified and in accordance with the Rules and the other Government servants who have not retired from the service, cannot challenge the said recovery under Article 226 of the Constitution of India. Their involvement as well as supervisory negligence in the contracts executed by or through them during the relevant period under the NREGA Scheme, has been proved in the findings returned by the Enquiry Officer, namely, the Commissioner of the said Department. These findings of facts are binding on this Court also as the same have not been shown to be perverse or without any foundation in any manner.

Thus, on both the grounds raised for attacking the impugned orders of recovery of the amount and for stoppage of pension, are unsustainable and, the writ petitions are found to be devoid of merit and same are liable to be dismissed.

The writ petitions are, accordingly, dismissed. No costs. A copy of this order be sent to the concerned parties forthwith."

Therefore, this Court is not inclined to interfere in the impugned recovery order Annexure-6 dated 12.09.2013 against the petitioner and the inquiry, if any, is to be made by the respondent authorities in the matter, the petitioner will be free to give his explanation and to lead proper evidence in his defence and the questions of fact, to be determined, are to be decided only by the concerned authorities only. No interference is called for in the impugned recovery order in the writ jurisdiction of this Court under Article 226 of the Constitution of India. The writ petition is, accordingly, liable to be dismissed. The same is dismissed. No order as to costs.

A copy of this order be sent to the parties concerned forthwith.