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2020 Supreme(Raj) 245
IN THE HIGH COURT OF RAJASTHAN AT JAIPUR BENCH
Sabina and Narendra Singh Dhaddha, JJ.
Ajay Kumar Sharda - Appellant
Versus
High Court Of Judicature For Rajasthan At Jodhpur - Respondent
Civil Writ Petition No. 73 of 2019, 74 of 2019
Decided On : 17-02-2020
R.C. Joshi, Advocate, Virendra Lodha, Advocate, Atishay Jain, Advocate, Devyani Rathore, Advocate, R.P. Singh, Advocate
Headnote:
Criminal Procedure Code - section 173(8) - Rajasthan Civil Services Rules, 1958 - Rule 16(2),7, 90(1)(c) - Rules of 1996 - Rule 7(2)(a), 7(2)(b) and 7(6) - Prevention of Corruption Act, 1988 - Section 173(8) - petitioner has submitted that no enquiry/disciplinary proceedings could be initiated against the petitioner as on the day when charge sheet was issued against the petitioner, he was no longer a Government servant as he had already superannuated - No sanction from the Governor had been taken before initiation of disciplinary proceedings against him. Charge sheet could have been issued by the competent authority, but in the present case, the same had been issued by enquiry officer. As per Rule 16(2) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958), charge sheet could be issued only by the disciplinary authority. Enquiry initiated against the petitioner was a futile exercise as the petitioner could not be imposed any punishment provided under Rule 14 of the Rules of 1958. Petitioner was already facing criminal trial with regard to allegations relating to corruption. Thus, petitioner could be said to have committed an offence, but the said offence could not be described as misconduct - Held, Authority competent to grant leave may withhold whole or part of cash equivalent of privilege leave in case of a Government servant who retired from service on attaining the age of retirement while under suspension or while disciplinary or criminal proceedings are pending against him, if in the view of such authority there is a possibility of some money becoming recoverable from him on conclusion of the proceedings against him. On conclusion of the proceedings, he will become eligible to the amount so withheld after adjustment of Government dues, if any." - Provisional pension where departmental or judicial proceedings may be pending - No gratuity shall be paid to the Government servant until the conclusion of the departmental or judicial proceedings and issue of final orders thereon - Departmental proceedings have been instituted under Rule 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, for imposing any of the penalties specified in clauses (i) and (ii) of Rule 14 of the said Rules, the payment of gratuity shall be authorised to be paid to the Government servant. (2) xxxxxxxxxx" - Leave encashment as well as gratuity of an employee, who is facing departmental proceedings, can be withheld. Thus, there is no force in the argument raised by learned counsel for the petitioner that leave encashment as well as gratuity of the petitioner have been illegally withheld - Writ petitions filed by the petitioner is dismissed
JUDGMENT
1. Vide this order, abovementioned two writ petitions would be disposed of.
2. Petitioner joined Rajasthan Judicial Service on 29.07.1980 in pursuance to the order dated 16.01.1980. Petitioner was promoted as Additional Chief Judicial Magistrate in the year 1993 and was further promoted to the Rajasthan Higher Judicial Service Cadre in the year 2000. On 23.04.2013, an F.I.R. was registered against two advocates, one court clerk and one clerk of an advocate. On 23.06.2013, charge sheet was filed against three persons in the trial court and investigation qua the petitioner was kept pending. Petitioner was arrested on 27.05.2014 and was granted bail by the Hon'ble Supreme Court and was released on bail on 16.05.2015. Petitioner was placed under suspension vide order dated 24.06.2013. Petitioner superannuated on 31.01.2015 after attaining the age of 60 years. On the said date, petitioner was in judicial custody. Petitioner was granted provisional pension. Petitioner by way of a representation claimed that he was also entitled for gratuity and benefit of leave encashment. However, his representation was rejected. Petitioner was served with charge sheet vide memorandum dated 06.01.2017. Hence, the abovementioned writ petitions have been filed by the petitioner challenging the enquiry proceedings initiated against him after his retirement and withholding of benefit of gratuity and leave encashment.
3. Learned counsel for the petitioner has submitted that no enquiry/disciplinary proceedings could be initiated against the petitioner as on the day when charge sheet was issued against the petitioner, he was no longer a Government servant as he had already superannuated on 31.01.2015. No sanction from the Governor had been taken before initiation of disciplinary proceedings against him. Charge sheet could have been issued by the competent authority, but in the present case, the same had been issued by enquiry officer. As per Rule 16(2) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the Rules of 1958'), charge sheet could be issued only by the disciplinary authority. Enquiry initiated against the petitioner was a futile exercise as the petitioner could not be imposed any punishment provided under Rule 14 of the Rules of 1958. Petitioner was already facing criminal trial with regard to allegations relating to corruption. Thus, petitioner could be said to have committed an offence, but the said 'offence' could not be described as 'misconduct'.
4. Learned counsel for the petitioner has further submitted that as per Rule 7 of the Rajasthan Civil Services (Pension) Rules, 1996 (hereinafter referred to as 'the Rules of 1996'), only the Governor could order for withholding of retirement benefits. Respondent had placed reliance on Resolution dated 20.06.1996 (Annexure-R1/1 attached in D. B. Civil Writ Petition No. 73/2019), but the said Resolution could not prevail over the Rules. Rule 15 of the Rules of 1958 does not provide for delegation of powers. Charge sheet could have been issued to the petitioner with regard to any incident which had occurred within four years of his retirement, in case disciplinary proceedings had already been initiated, but in the present case no disciplinary proceedings had been initiated against the petitioner prior to his retirement.
5. Learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Supreme Court in Canara Bank Vs. D.R.P. Sundharam, 2016 12 SCC 724 , wherein it was held as under:
"8. On an exhaustive consideration of the manner in which the provisions have been analyzed and the clear and unambiguous language of the same and also having regard to the provisions of the 1976 Regulations of the Bank with regard to initiation of disciplinary proceeding we have no doubt in our mind that the meaning given to the provisions of the Regulations in the said case is correct and does not require any reconsideration. From t
