VERMA, J. - (1.) THE father of petitioner Kamal Kishore Saraswat, and employee of Municipal Council, Ajmer, was working as Nakedar. He retired on attaining the age of superannuation on 31. 7. 81 (ann. 1), whose pension and gratuity is being claimed in the present writ petition. For the convenience late Mr. Kamal Kishore Saraswat shall be referred to as "mr. Saraswat".
(2.) MR. Saraswat was involved in Anti Corruption case, but before the case could be initiated MR. Saraswat died on 11. 3. 82 and the proceedings before the Anti Corruption Department was dropped vide order dated 3. 6. 82 (Ann. 2 ). At the time of superannuation, MR. Saraswat had requested the department to grant him the pension and gratuity. On death of MR. Saraswat his wife Smt. Sushila Devi continued to make request to the department for release of retiral benefits, pension and gratuity, but without any result. His wife had also died on 7. 12. 82. The present writ petition has been filed by the daughter Indra Kanta Saraswat, who is one of the legal representative; other legal representatives of MR. Saraswat are Chandra Prakash and Ram Prakash Saraswat. The petitioner has also placed on record `no objection certificate' from other legal representatives of MR. Saraswat if the pension benefits are released to petitioner. The respondents were informing the claimants that the pension case is being processed in the concerned department and vide letter dt. 2. 2. 83 (Ann. 6) the legal representatives were informed that for the reason that Anti Corruption case is pending, therefore, the case is being processed u/r. 170 (A) (1) of the Rajasthan Service Rules, even though the case of Anti Corruption Department itself had been dropped in June, 1982, but still in Feb. , 1983 the Commissioner of Municipal Council, Ajmer was under the impression that case of Anti Corruption against Mr. Saraswat was pending. A succe- ssion certificate obtained for the amount of pension and gratuity and other retiral benefits was duly handed over vide letter dt. 27. 2. 91 (Ann. 10 ). The heirs of Mr. Saraswat were informed vide letter dated 29. 5. 91 (ann. 12) that no amount can be released, agg- rieved against the impugned orders dt. 27. 2. 91 (Ann. 10) and 29. 5. 91 (Ann. 12) the peti- tioner had filed the present writ petition praying, therein, to issue writ of mandamus to respondents for release of the pension and other retiral benefits of Mr. Saraswat. In reply filed by respondents it is stated that on 31. 7. 81 the employee was suspended for the act of mis appropriation of funds. It is admitted that Mr. Saraswat had superannuated on 31. 7. 81. It is also admitted that the proceedings of Anti Corruption case were dropped, but it is stated that because of mis appropriation of fund the employee was not entitled to the full amount of retiral benefits and that amount was recoverable and it has to be adjusted from the amount of retiral benefits. In the written statement it is no where mentioned that the employee was not entitled to any pension and gratuity or other retiral benefit. The only defence is that because of certain criminal proceeding pending against Mr. Saraswat, which stood dropped in June, 1982, the retiral benefits are not to be paid. However, it is not denied that the employee was entitled to the release of retiral benefits otherwise. Notification published in Rajasthan Gazatte, 4 (Ga) (1) dated 17. 9. 87 page 213 provides pension benefits to employees of Municipalities for Ex-Ajmer Merwara area, wherein the employees appointed prior to 1. 11. 56 and retired were entitled to pension benefits as applicable during the time. In the present case the employee Mr. Saraswat was admittedly employed prior to 1. 11. 56. In the present case non commutation of gratuity and non payment of pension even after dropping of the criminal proceeding against Mr. Saraswat is not understandable. Even the respondent has not come up with the detail of any such mis-appropriation as had been alleged. However, it goes without saying that on death of Mr. Saraswat the criminal proceeding had come to an end in June, 1982. Despite the criminal proceeding having been dropped, the Municipal Council is still under the impression that there is no final decision of the criminal proceeding, as has been stated in the reply to writ petition. No amount can be recovered from a dead person and even during life time of such person, the amount can only be recovered after proving the misconduct, which admittedly has not been done. The department was at liberty to start the Disciplinary proceeding against the officer concerned during his life time, which had not been initiated and after the death of such employee it is not possible to initiate the proceedings. I find no reason with the respondents to have not accept the request of the legal representatives of Mr. Saraswat for release of the retiral benefits of Mr. Saraswat. For about 18 years, the amount of retiral benefits have not been released without any justified cause and has been retained illegally by the Municipal Council, Ajmer on unsustainable grounds, without there being any legal or moral basis.
(3.) FOR the reasons and discussions mentioned above, the writ petition is to be allowed with a direction to respondents to immediately release all the retiral benefits of Mr. Saraswat i. e. pension/family pension, gratuity and other benefits which may be due to Mr. Saraswat and his family. The due amount be paid to petitioner within a period of two months from the date of receipt of copy of this order. The petitioner shall also be paid the cost of Rs. 2,000/- of this writ petition by respondent. With the above observations, the writ petition is allowed with cost of Rs. 2000/ - .;