G. M. LODHA, J. - (1.) THE petitioner is a retired C. A. S. while he was working as C. A. S. Class I, he was put under suspension vide order dated 6. 11. 1969 and a charge sheet was served upon him. An enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 was commenced On 29. 7. 1972 a show cause notice was served on him to explain as to why the penalty of dismissal should not be imposed upon him. Before final order can be passed, by order dated 25/11/1972. the petitioner was compulsory retired under Rule 244 (2) of the Rajasthan Service Rules.
(2.) ON 20th October, 1973, however, the petitioner has been dismissed from service vide order Annexure-3, which reads as under- GOVERNMENT OF RAJASTHAN DEPARTMENT OF PERSONNEL (Gr- A -III) ORDER No. F. A (91) Apptts. (A-III)/69. Dated, Jaipur the 20th October, 1973. "on the basis of certain allegations, Dr. L. M. Simlot Medical Officer, Moti Katla Dispensary, Jaipur (under suspension)was charge-sheeted, vide this Department Memo of even number, dated the 13th November, 1969. The following charges were framed against him:-Charges against Dr. L. M. Simlot. "that Dr. L. M. Simlot while functioning as Medical Officer of Moti Katla Dispensary, Jaipur during July and August 1965, had been found responsible for various acts of omission and commission which constitute misconduct in as such as:- 1. He in corrupt collusion with Shri S. N. Sharma Service Telegraphist, DTO, Jaipur issued 2 Essentiality Certificates for duplicate treatment, one in the name of Shri S. N. Sharma and other in the name of Mrs. S. N. Sharma (Shanti Devi)for the same period of treatment 10. 7. 65 to 19. 7. 65, which two essentiality of the first two mentioned at S. Nos. 1 and 2 and the other out of the other 2 mentioned at S. Nos. 3 and 4 (out of the following 4 claims)were false, though no such duplicate treatment was prescribed by him to either of these two patients, which certifying of essentiality issuing of two Essentiality Certificates resulted in Shri S. N. Sharma. , service Telegraphist, DTO, Jaipur fraudulently obtaining the reimbursement of such false duplicate claims, causing corresponding lose to the Government:- (i)Claim dated 28. 7. 65 supported by E. C. No. 4 dated 28. 7. 65 for Rs. 86. 95 in the name of Mrs. S. N. Sharma (Shanti Devi ). (ii)Claim dated 20. 8. 65 supported by EC No. 10 dated 20. 8. 65 for Rs. 79. 85 in the name of Mrs. S. N. Sharma (Shanti Devi ). (iii)Claim dated 28. 7. 65 supported by EC. No. 3 dated 28. 7. 65 for Rs. 83. 90 P. in the name of S. N. Sharma. (iv)Claim dated 20. 8. 65 supported by EC. No. 9 dated 20. 8. 65 for Rs. 65. 85 in the name of S. N. Sharma. 2. He by certifying the receipt of Rs. 35/- (Rs. 5 as consultation fee and Rs. 30/- injunction fee) in each of such 2 duplicate essentiality certificates which formed the basis of preferring duplicate claims by said S. N. Sharma either falsely certified the receipt of Rs. 35/- totalling Rs. 70/-against these 2 Essentiality certificates, without actually, receiving the amounts and thereby obtained pecuniary advantage to the tune of Rs. 70/- for said Shri. S. N. Sharma by way of reimbursement, thereof from this department; or received the said amount of Rs. 70/- (Rs. 35 against each of the 2 Essentiality Certificates) without the same being really due to his (as not treatment was prescribed) and thereby obtained undue pecuniary advantage for himself, causing pecuniary loss to the Government. He while certifying the Essentiality Certificates falsely certified the essentiality of certain medicines in as much as:- One or the other of 3 medicines namely Lederplex Elixir,pernexin and inj. Belamyl could have been avoided as these medicines are more or less indentical drugs the essentiality of these 3 medicines has been certified in Essentiality Certificates Nos. dated 28. 7. 65 in the name of Shri S. N. Sharma. One or the other of the 2 medicines namely Rebraplex and Bivinal Fortem could have been avoided and one of these would have been sufficient through the essentiality on both these has been verifies by him in Essentiality Certificates No. 10 dated 29. 8. 65. Dr. L. M. Simlot contravened the obligatory instructions as contained instate Government Order No. F 2 (27)GA/ A/gr. 11/64 dated 5, 10. 65 and corresponding Circular of the Director of Medical and Health Services Rajasthan, Jaipur No Gen/d. 37000/fg 17 (1) (1)/64 dated 11. 12. 64 and also acted in a manner unbecoming of his status as such Gazetted State Government employees and thus committed groses misconduct. Thus Dr. L M. Simlot failed to maintain absolute integrity, devotion to duty and dignity of office and, he thereby contravened provisions of Rule 1a of the Rajasthan Government Servants and Pensioners' Conduct Rules, 1949 (as amended.) Dr. L. M. Simlot having denied the aforesaid charges a regular departmental enquiry was ordered against him and it was entrusted to the Commissioner, Departmental Enquiries, Rajasthan, Jaipur on 1st July, 1970. The Enquiry Officer submitted his report on 4. 2. 1972. According to the findings of the Enquiry Officer all the three charges stood fully established against Dr. Simlot. After careful consideration of the report of Enquiry alongwith the record of departmental enquiry proceedings, it was tentatively decided that the penalty of dismissal from Government service may be imposed upon Dr. L. M. Simlot. Accordingly a show cause notice of dismissal from service was issued on 29. 7. 1972 to him. On receipt of his reply to the show cause notice, the cause was referred on 26. 9. 72 to the Rajasthan Public Service Commission for their advice. The Rajasthan Public Service Commission tendered their final advise on 24th August 1973. The Commission are of the view that officer beyond a shadow of doubt and advised that the delinquent officer be dismissed from Government Service. On a careful consideration of Dr. Simlot's reply to the Show Cause Notice along with the advice of the Rajasthan Public Service Commission with reference to the relevant record of the case, the Governor while accepting the advice of the Commission, has been pleased to order that Dr. L. M. Simlot be dismissed from Government Service with immediate effect. By Order of the Governor Sd/- (Rajendra Pal Singh) (Deputy Secretary to the Government)". 3. The sole point canvassed before me by Mr. Singhvi is that once a government servant ceased to be a government servant on account of retirement, penalty of dismissal cannot be imposed. Learned Addl. Government Advocate opposed the writ application. The order of dismissal purports to have been passed under rule 1-A of the Rajasthan Government Servants 'and Pensioners' Conduct Rules, 1949 (as amended ). These rules were supersede by the later rules. Rule 1-A reads as under:- "1a. Every Government servant shall at all times maintain absolute integrity, devotion to duty and dignity of office " The Rajasthan Civil Service Conduct Rules, 1971 came into force from 18th August, 1972. The Rules of 1971 have been framed under the proviso to Article 309 of the Constitution of India by the Government of Rajasthan and they are now statutory Rules. Rule 32 contains Repeal and Saving clause. Rule 32 saves the disciplinary proceedings or other proceedings commenced earlier and pending at the commencement of these Rules. Learned Additional Govt. Advocate could not show as to in what manner and under which particular rule, a civil servant who has already been retired, can be dismissed under these rules.
(3.) ALL that is found is the relevant provisions of rule 170 of the Rajasthan Service Rules (as amended ). Rule 170 reads as under:- "170. The Governor further reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to the government, if in a departmental or Judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service including services rendered upon re-employment after retirement. " The present one is the case which is covered by rule 170 Subclause (a), which reads as under ;- "170 (a)provided that such departmental proceeding if instituted while the officer was in service, whether before his retirement or during his reemployment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer has continued in service. " Since the departmental proceedings were already instituted while the petitioner was on duty and service, these proceedings under this rule shall be continued and concluded by the authority by which it was commenced, in the same manner as if the officer has continued in service. However, the penalty which can be imposed under rule 170 of the R. S. R. is withholding of pension or part of it, whether permanently or for a specified period and the right of ordering the recovery from the pension of the whole or part of any pecuniary loss caused to Government. In the very nature of things rule 170 of the R. S. R. finds place in the Chapter which deals with the matter of pensions. Chapter XXVII is regarding the commutation of pension. In the instant case, therefore, when the guilt of the petitioner was established, the respondents were within their legal rights to hold him guilty under the departmental enquiry, which was already continuing at the time of retirement of the petitioner. However in the very nature of things an order for dismissal could not have been passed because the petitioner has been retired. ;