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Gujarat High Court
Judgename :A.D.DESAI, J.B.MEHTA
LAXMAN POPATBHAI SOLANKI - Appellant
Versus
STATE - Respondent
S.C.A. 194 of 1973
Decided On : 03/03/1975
Rules – Rule 76, 6. 4, 152 – Fundamental right – Right of property – Infructuous proceedings – Vicariously liable – Short facts which have given rise to this petition are as under petitioner was born on October and was employed as a Civil Engineer in then Jamnagar State service on December – He was absorbed in Saurashtra State service as a Deputy Engineer on April – Government of Saurashtra had issued relevant Pension and Gratuity rules for Government servants by Government Resolution on October and subsequently Liberalised Pension Rules were also applied – In spite of this order of this Court for 18 months no show cause notice was issued and impugned show cause notice on very same charges which formed subject-matter of charge-sheet of departmental enquiry was issued on December proposing 50% reduction of petitioners pension and withholding of entire gratuity amount except Rs. 1. 00 – Petitioner filed a detailed reply on January – Thereafter he was heard by Secretary P. W. D. on July and impugned order was passed at Annex – A dated December imposing this 50% cut in pension and reducing gratuity amount only to as per show cause notice – Thereafter petitioner has challenged impugned order in this petition and has demanded now a mandamus that he should be paid up his full pension and gratuity due to him with 6% interest for all these years – Held, Much was said of last charge No. 3 but after legal advice it was never pursued further for obvious reasons as Government after such long period could hardly adduce any evidence to connect Government servant by establishing such charge – In matter of such fundamental right of property like pension or gratuity Government is in a fortunate position because monies well earned by employee remained in State coffers as they have been withheld; and all moneys which became due to him right from 1960 have not been paid to concerned Government servant – Even payment of interest would be a poor solace to petitioner – Therefore in context of such a fundamental right there would be all greater reason to invoke this salutary principle even in exercise of power of judicial review in a writ petition when facts of case are such that it does not justify any fresh enquiry against petitioner – Therefore a direction is called for in interest of justice in this case that no fresh enquiry shall be held against petitioner and his long withheld pension and gratuity shall be paid immediately to him – Petition is Allowed
( 1 ) THIS is one of the most unfortunate cases where a Government servant after he attained the age of superannuation in 1958 has still not been able to recover his full pension and gratuity as per the relevant service rules because of the various infructuous proceedings which were attempted against him.
( 2 ) THE short facts which have given rise to this petition are as under: The petitioner was born on October 9 1903 and was employed as a Civil Engineer in the then Jamnagar State service on December 30 1926 He was absorbed in the Saurashtra State service as a Deputy Engineer on April 1 1948 The Government of Saurashtra had issued relevant Pension and Gratuity rules for the Government servants by the Government Resolution No. 12 of 1948 on October 19 1949 and subsequently the Liberalised Pension Rules were also applied. The petitioner was promoted as Executive Engineer on February 17 1950 and was confirmed on that post on June 28 1954 The petitioner reached the age of superannuation of 55 years on October 5. 1958. As however the Government suspended the petitioner on October 4 1958 the petitioner continued in service but thereafter even for two years no departmental action was taken against him. Finally on October 12 1960 the Government of Gujarat reinstated the petitioner and permitted him to retire with effect from the date of that order. The order further stated that the question of treatment of the suspension period would be subsequently decided. Thereafter the petitioner was prosecuted under sec. 5 of the Prevention of Corruption Act along with the Store-keeper M. P. Parekh in two criminal cases Nos. 2 of 1961 and No. 3 of 1961 before the Special Judge Rajkot where Mr. Parekh was convicted while the petitioner was completely acquitted as the Government failed to prove the charges against him to hold him vicariously liable by invoking sec. 34. Thereafter departmental enquiry was instituted against the petitioner by the Government resolution dated April 5 1963 On August 20 1962 almost the same three charges as the charges in question were served on the petitioner in the same departmental enquiry. On October 30 1962 the departmental enquiry was kept in abeyance and finally by the order of the Governor dated April 13 1964 the departmental enquiry against the petitioner was dropped and the Special Officer was requested to return the report of the Anti Corruption Bureau and other papers forwarded to him earlier in connection with the enquiry. Thereafter the Government even filed a civil suit being civil suit No. 13 of 1962 for recovery of the alleged loss of Rs. 1 28 253 from the petitioner and the storekeeper Parekh where the same facts as in the first two charges were relied upon regarding negligence dereliction of duty and inefficiency of the petitioner which had resulted in the aforesaid loss and even a conspiracy was alleged between both the persons to misappropriate the said amount. Even it was alleged that the non-checking of the account books and non-verification of the stores resulted in this loss by active connivance of the petitioner. Even though the said suit was decreed against the storekeeper Mr. Parekh it was dismissed against the petitioner and that decision was final so far as the petitioner was concerned. As regards the earlier suspension order of October 4 1958 the Government resolution was passed at Annexure D on February 8 1965 after conclusion of all proceedings against the petitioner that the period of suspension shall be considered as spent on duty for all purposes under the provisions of the B. C. S. Rule 152 and the Accountant General was directed on March 20 1965 that as the suspension period was treated as duly period between October 8 1958 and October 11 1960 for all purposes he should accordingly revise the amount of his pension. The Accountant General fixed up the provisional pension mentioning the gratuity amount as even on October 11 1966 the Government had certitud
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