Dr. Ramakant Dixit @APPELLANT@Hash State of Rajasthan & Ors.

The matter though came up for orders on Second Stay Petition filed by the petitioner, at the request of counsel for the petitioner, the matter was finally

heard.

This writ petition has been filed by the petitioner seeking quashing of the charge sheet dated 31.07.2014 (Annex. 6) though wrongly mentioned as

charge sheet dated 17.02.2010 (Annex. 3) in the prayer clause. Further direction has been sought for release of the amount of Gratuity and other

retrial benefits withheld with interest under Rule 89 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter ""Rules of 1996"").

It is inter alia averred in the writ petition that petitioner was selected as Lecturer in the year 1995 and joined the assignment on 31.07.1995. While

the petitioner was posted in Government Law College, Pali in the year 2008, on account of his seniority he was assigned the duties of the Principal of

the Institution on acting basis. Reference has been made to certain happenings during the Session 2008-09.

It is then stated that pertaining to the incidence of February, 2009, a Memorandum dated 31.07.2014 was prepared and sent to the office of Principal,

Government Law College, Pali, which was ultimately sent to Government Law College, Nagaur, from where the petitioner had retired on

31.07.2014. From the college at Nagaur vide letter dated 05.08.2014, the same was sent to the petitioner's residential address at Jodhpur by

registered post, which was received by the petitioner on 07.08.2014 i.e. after the retirement of the petitioner on 31.07.2014.

It is submitted by learned counsel for the petitioner that though the charge sheet is dated 31.07.2014, as the same was served on the petitioner on

07.08.2014 and as the charge sheet did not comply with the requirements of Rule 7(2)(b)(i) of Rules of 1996 i.e. as the same has been issued without

the sanction of the Governor, the same is bad in law.Â

Further, submissions were made that the departmental proceedings can be said to have been instituted only when the charge sheet is served on the

delinquent officer and mere issuance of charge sheet is not sufficient.Â

Reliance was placed on Union of India & Ors. v. Dinanath Shantaram Karekar : AIR 1998 SC 2722 and Bachhittar Singh v. State of Punjab & Anr. :

AIR 1963 SC 395.

It was also contended that as the charge sheet pertained to events which were more than four years before the date of retirement, the same was bad

being in violation of provisions of Rule 7(3) of the Rules of 1996. It was prayed that the charge sheet be quashed and set aside.

Learned counsel for the respondent supported the issuance of charge sheet. It was submitted that the petitioner has already filed reply to the charge

sheet and was now seeking to avoid participation in the proceedings and, therefore, the writ petition deserves to be dismissed.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The facts are not in dispute that the petitioner retired from service on 31.07.2014, the charge sheet in question was issued on 31.07.2014 i.e. the date

of retirement of the petitioner and was served on the petitioner on 07.08.2014.Â

The relevant provisions of Rule 7 read as under:

“7. Right of Governor to withhold or withdraw pension-

(1) ……….

(2) (a) The departmental proceedings referred to in sub rule (1), if instituted while the Government servant was in service whether before his

retirement or during his reemployment, shall, after the final retirement of the Government servant, be deemed to be proceedings under this rule and

shall be continued and concluded by the authority by which they were commenced in the same manner as if the Government servant had continued in

service:

Provided that where the departmental proceedings are instituted by an authority subordinate to the Governor, that authority shall submit a report

recording its findings to the Governor.

(b) The departmental proceedings, if not instituted while the Government servant was in service, whether before his retirement, or during his re-

employment-

(i) shall not be instituted save with the sanction of theGovernor,

(ii) shall not be in respect of any event which took placemore than four years before such institution, and

(iii) shall be conducted by such authority and in such placeas the Governor may direct and in accordance with the procedure applicable to

departmental proceedings in which an order of dismissal from service could be made in relation to the Government servant during his service.

(3) No judicial proceedings, if not instituted while the Government servant was in service, whether before his retirement or during his re-employment,

shall be instituted in respect of a cause of action which arose, or in respect of an event which took place, more than four years before such

institution.â€​

A bare perusal of the above provisions would reveal that if the departmental proceedings have been instituted while the Government Servant was in

service i.e. before his retirement, the same would be proceedings under the rule and shall be continued and concluded in the same manner as if the

Government servant had continued in service. However, if the departmental proceedings are not instituted while the Government servant was in

service i.e. before his retirement, the same shall not be instituted without the sanction of the Governor.

The issue which requires determination is as to whether in the present case the proceedings were instituted against the petitioner while he was in

service or after his retirement. The plea raised by Learned counsel for the petitioner is that as the charge sheet was served on the petitioner after

his retirement, the same was instituted after his retirement. The submission made has no substance. Provisions of Rule 7(6) of the Rules of 1996

read as under:

“7(6) For the purpose of this rule,-

(a) departmental proceedings shall be deemed to beinstituted on the date on which the charges together with a statement of allegations on which they

are based, or the proposal of Government to take disciplinary action together with the allegations on which it is proposed to be taken, are issued to the

Government servant or pensioner, or if the Government servant has been placed under suspension from an earlier date, on such date; and

(b) judicial proceedings shall be deemed to be instituted -

(i) in the case of criminal proceeding, on the date on whichthe complaint or report of a police officer, of which the Magistrate takes cognizance, is

made, and

(ii) in the case of civil proceedings, on the date the plaint ispresented in the court.â€​

The above provision itself provides that departmental proceedings shall be deemed to be instituted on the date on which the charges together with a

statement of allegations on which they are based are issued to the Government servant or pensioner. The provision does not contemplate service of

the charge sheet for the purpose of institution of the departmental proceedings and as such in the present case as the charge sheet was issued on

31.07.2014 i.e. on the last date when the petitioner was still in service, it cannot be said that the same required sanction of the Governor under Rule

7(2)(b)(i) of the Rules.

So far as the judgement of Hon'ble Supreme Court in the case of Dinanath Shantaram Karkar (supra) is concerned, the observations regarding

necessity of service of the show cause notice were made in the circumstances that the notice issued to the delinquent was returned undelivered and

the same was deemed to be served by publication, as such the said judgment has no application to the facts of the present case wherein the statutory

provision i.e. Rule 7(6) of the Rules of 1996 itself defines institution of departmental proceedings.

Similarly, judgment in the case of Bachhittar Singh (supra) also has no application to the facts of the present case.

As the charge sheet has been issued to petitioner while the petitioner was still in service, the provisions of Rule 7(3) of the Rules of 1996 would also

have no application.

In view of above discussion, the plea raised by the petitioner regarding the charge sheet having been issued in violation of provision of Rule 7 of the

Rules of 1996 has no substance.

Consequently, there is no substance in the writ petition, the same is therefore, dismissed.

No order as to costs.      Â