Peer Mohammad Khan vs State of C.G. and Others

Satish K. Agnihotri, J.—Challenge in this petition is to the order dated 13/16.06.2011, passed by the respondent No. 3 i.e. Van Mandaladhikari, Raigarh, Van Mandal, Gharghoda, District Raigarh. The facts, in nutshell, as projected by the petitioner is that the petitioner working as Vanpaal, retired on 30.04.2005. Thereafter, the order dated 17.10.2008 to recover a sum of Rs. 1,32,874/- was passed with a condition that unless the said amount is deposited, the case of the pension of the petitioner would not be settled. Being aggrieved, the petitioner preferred a writ petition being W.P.(S) No. 6857/2006, challenging the validity of the order dated 17.10.2008. This Court, after hearing all the parties, by order dated 26.02.2010, allowed the petition holding as under:

Looking from all angles, including gravity of the allegation, it is required to hold regular enquiry before establishing firstly, the amount of loss caused to the State; secondly, the person who is responsible for causing loss; and, thirdly, whether loss was caused by negligence or by breach of any order. Thus, the impugned order dated 17.10.2008 (Annexure P/2) is quashed, reserving liberty to the respondent/ authorities to hold an enquiry for establishing the above stated facts and taking appropriate action thereafter, if so advised.

Learned counsel appearing for the petitioner submits that before imposition of penalty, as aforestated, no show cause notice was issued and also a proper enquiry was not held. In pursuance of the order dated 26.02.2010, passed by this Court in W.P.(S) No. 6857/2008, the respondent authorities without issuing the proper show cause notice specifying the charges leveled against the petitioner to enable him to meet out the same, issued a notice on 05.02.2011 (Annexure R-2), calling upon the petitioner to appear before the Joint Divisional Forest Officer, Gharghoda, to put forward his case. Thereafter, the impugned order was passed on 13/16.06.2011 (Annexure P-5).

Learned counsel appearing for the State submits that proper enquiry was held, though a show cause notice was not issued. However, the petitioner was given an opportunity to appear before the authority and thereafter, the impugned order dated 13/16.06.2011 was passed.

On perusal of the impugned order, it is evident that the respondents have not held proper enquiry after issuing proper show cause notice, as it was observed in the order dated 26.02.2010 of this Court that the regular enquiry be held to establish the amount of loss caused to the State; secondly, the person who is responsible for causing loss; and, thirdly, whether loss was caused by negligence or by breach of any order. No opportunity as required to meet the allegations was afforded to the petitioner and also no liability has been determined except that since during the period, the petitioner was posted in the office. Thus, he is liable to pay the entire amount.

Looking from other angle, Rule 9 of the Chhattisgarh Civil Services (Pension) Rules, 1976, (for short "the Rules, 1976"), deals with the right of the governor to withhold or withdraw pension. Sub Rule (3) of Rule 9 prescribes that no judicial proceeding, 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 of departmental proceeding.

Sub Rule (6)(a) of Rule 9 prescribes that a departmental proceedings shall be deemed to be instituted on the date on which the statement of charges is issued to the Government servant or pensioner. There is no dispute that in the case on hand, the alleged event relates to period from 15.07.2003 to 09.11.2004. No charge sheet was issued within the period of four years, as contemplated under sub Rule (3) of Rule 9 of the Rules, 1976, from the date of alleged event and/or cause of action. Even after liberty was granted to the respondent authorities, no show cause notice was issued, no charge sheet was framed and served on the petitioner except the notice dated 05.02.2011 was issued directing the petitioner to appear before the concerned officer on 26.02.2011 before passing the impugned order dated 13/16.06.2011.

For the reasons mentioned hereinabove, the entire exercise of power by the authorities is contrary to the provisions of rules and also the direction passed by this Court vide order dated 26.02.2010, passed in W.P.(S) No. 6857/ 2008. Thus, in view of foregoing, the impugned order dated 13/16.06.2011 (Annexure P-5) cannot sustain and is accordingly quashed. Resultantly, the writ petition is allowed. No order as to costs.