O.P. Chandak vs State of Rajasthan

Vineet Kothari, J.—The lawyers are observing strike which is contrary to various Supreme Court decisions. Name of Mr. C.P. Trivedi, as the counsel for the petitioner and Dr. P.S. Bhati, AAG, as the counsel for the respondents, is shown in the cause list.

The petitioner Dr. O.P. Chandak is present-in-person before the Court. On behalf of the respondents, Dr. H.K. Singhal, Officer-in-Charge, Principal Medical Officer, Government Hospital, Barmer and Mr. N.L. Jawaria, Assistant Secretary to the Government, Department of Personnel (A-3/Lit.), Secretariat, Jaipur are present-in-person before the Court.

Perused the record and heard the parties present. The case is listed at Sl. No. 72 in the supplementary cause list under the category of "For Hearing".

The petitioner has filed the present writ petition on 23.11.2011 with the following prayers:-

"It is, therefore, prayed that by an appropriate writ, order or direction:

i) The impugned order dtd. 29.8.2011 (Annex.14) may kindly be declared illegal and be quashed and set aside and the petitioner be exonerated of the charges levelled against him.

ii) The respondents be directed to release all retiral dues of the petitioner with interest @18% per annum from the date the same became due till the date of payment.

iii) Any other appropriate writ, order or direction which this Hon''ble Court considers just and proper in the facts and circumstances of the present case, may kindly be passed in favour of the petitioner.

iv) Cost of the writ petition may kindly be awarded to the petitioner."

The petitioner is aggrieved by the impugned order Annexure-14 dated 29.08.2011 by which the respondent State Government has stopped his pension to the extent of 100% under the order of His Excellency, the Governor and the Deputy Secretary to the Government has passed the above impugned order.

The facts leading to filing of the present writ petition, in brief, are as follows:-

(i). The petitioner was working as a Medical Officer since the year 1979 and after completing his qualifying service, he sought voluntary retirement from the services of the respondents, when he was working as Senior Specialist (Pediatrics) at the Government Hospital, Barmer;

(ii) The petitioner had earlier filed a writ petition namely, S.B. Civil Writ Petition No. 5325/1994 being aggrieved by the non-payment of salary for the leave period after November, 1993 on the alleged ground of misconduct of remaining absent from duty without sanction. The writ petition aforesaid came to be disposed of by this Court on 14.12.1995 and the respondent Chief Medical and Health Officer, Barmer was directed to pass appropriate order on the representation filed by the petitioner. The said representation filed by the petitioner was not decided by the respondent Chief Medical & Health Officer.

(iii) However, an inquiry was initiated against the petitioner, the petitioner was served with a notice under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (''the Rules of 1958'') on the allegation that he has tampered with the attendance register while he was posted at Phalodi and received the salary for the absence period by memorandum of charge-sheet dated 25.11.2006, as stated in para 10 of the writ petition.

(iv) It appears that while deciding the earlier writ petition of the petitioner on 14.12.1995, the representation of the petitioner was to be decided within a period of one month. It is noticed that while disposing of the writ petition No. 3964/2004 and writ petition No. 8421/2007, decided on 08.07.2010, a copy of the order which has been placed on record as Annexure-9, the respondents were directed to complete the inquiry pending against the petitioner within four months and thereafter further needful orders about acceptance of his voluntary retirement application, grant of retiral dues was to be passed within two months thereafter. In compliance of the order dated 08.07.2010, the petitioner has filed representation, a copy of which has been placed on record as Annexure-10.

(v) The said inquiry pending against the petitioner was concluded on 22.10.2010 and a copy of which inquiry report has been placed on record as Annexure-11 and by the impugned order Annexure-14 dated 29.11.2011 and the major penalty of stoppage of pension to the extent of 100% has been imposed by the respondents.

The petitioner present-in-person before the Court submitted that a disproportionately high penalty of stoppage of 100% of the pension has been imposed upon him by the respondents with the approval of His Excellency the Governor under the signatures of the Deputy Secretary to the Government without giving any specific opportunity of hearing to the petitioner before passing of the impugned order. The petitioner also submitted that the period for which the petitioner was charged with the allegation of misconduct of remaining absent without proper sanction of the leave, the respondent Department had itself sanctioned the leave by different orders and a copy of one such order dated 09.05.1996 was produced before the Court during the course of arguments. He, therefore, submitted that the impugned order Annexure-14 dated 29.08.2011 for stoppage of pension deserves to be quashed both on merits as well as for the breach of the principles of natural justice.

On the other hand, Mr. N.L. Jewaria, Assistant Secretary to the Government, Department of Personnel (A-3/Lit.), Secretariat, Jaipur, appearing on behalf of the respondents, who is present-in-person before the Court submitted that in the inquiry proceedings, the petitioner was allowed to defend his case and the findings of guilt of remaining absent from duty without due sanction of leave has been upheld by and Disciplinary Authority and consequentially, since the petitioner has retired from the services of the respondents, therefore, the impugned order Annexure-14 dated 29.08.2011 of stoppage of 100% pension was justified and no interference is called for in the matter.

Having heard the parties, this Court is of the opinion that the writ petition deserves to be allowed on both the counts. Obviously, the stoppage of 100% pension in the present case appears to be a highly disproportionate punishment imposed upon the petitioner. The impugned order Annexure-14 dated 29.08.2011 also suffers from the vice of breach of principles of natural justice as no opportunity of hearing was given to the petitioner before passing the impugned order under Rule 7 of the Rajasthan Pension Rules, 1996 under which, of course, the respondent State Government was empowered to stop the pension of the retired Government servant, wholly or partially, but the said provisions do not exclude the applicability of the principles of natural justice and such orders, obviously, adverse to the interests of the petitioner entailing the civil and financial consequences, therefore, the respondent State Government ought to have complied with the principles of natural justice and ought to have provided an opportunity of hearing to the petitioner and then, decide the points raised with explanation/reply to the charge-sheet, by a reasoned and speaking order.

A bare perusal of the impugned order Annexure-14 dated 29.08.2011 does not show any such consideration on behalf of the respondent Authority who passed the said order, of course, with the approval of His Excellency. Since no notice or prior opportunity of hearing was given to the petitioner before passing Annexure-14 dated 29.08.2011, there was no occasion for the petitioner to give any explanation or adduce evidence in relation to the charge that his leave for the specified periods has already been sanctioned by the respondent Department itself like the petitioner has produced copy of one such order dated 09.05.1996 during the course of arguments before this Court. Passing of ex parte orders without providing opportunity of hearing to the concerned can result in such incongruity or inconsistency. It was expected of the respondent State Government to comply with the principles of natural justice while passing such quashi judicial orders. In the process, since the impugned punishment of stoppage of 100% pension has been imposed upon the petitioner by passing the impugned order, the issue regarding his VRS application could not even arise and, therefore, his claim for releasing his all due retiral benefits becoming effective on 05.02.2004 and for that purpose, the representation filed by the petitioner was not even decided by the respondents either rejecting or accepting such VRS application. Therefore, the impugned order Annexure-14 dated 29.08.2011 deserves to be quashed and the writ petition deserves to be allowed.

Accordingly and in view of the above, the impugned order Annexure-14 dated 29.08.2011 is quashed and set aside and the writ petition is allowed. The respondents are directed to release all the retiral benefits and pensionary benefits to the petitioner within a period of two months from today with interest @6% per annum. No costs. A copy of this order be sent to the parties concerned forthwith.