- (1.) THIS appeal is directed against judgment and decree dated 26.08.2002 passed by Additional District Judge No.3, Udaipur, whereby, the suit filed by the plaintiff -respondent has been decreed and the order dated 03.01.2001 passed by the appellants has been declared invalid and they have been directed to make payment of a sum of Rs. 49,879/ - alongwith interest @ 6% per annum to the plaintiff.
(2.) THE facts in brief may be noticed thus : the plaintiff Kamal Singh filed a suit for declaration and recovery of a sum of Rs. 49,879/ - alongwith interest @ 18% per annum against the defendants, inter alia, with the averments that plaintiff was in service of the Rajasthan State Electricity Board, Jaipur ('the Board') and retired from service on 31.07.1999; during service, the plaintiff was given a charge -sheet dated 04.08.1997, wherein, an inquiry under Regulation 6 of the Rajasthan State Electricity Board Employees (Classification, Control and Appeal) Regulations, was initiated, which was replied by the plaintiff on 12.09.1997 and whereafter the plaintiff has been held guilty and, consequently, by order dated 03.01.2001 an order has been passed for recovery of a sum of Rs. 49,879/ - from the plaintiff; it was indicated that one Jodh Singh working as Helper -I was posted at Devgarh of Kankroli Division and his date of birth in the service book was recorded as 05.05.1947 and he was retired on 31.03.1988; the plaintiff was posted at Kankroli as Assistant Engineer (O & M), before which, the date of birth of of said Jodh Singh was recorded in the service book and according to which he was to retire in the year 2005; in the year 1976 a complaint had been received by the then Assistant Engineer ­ R.L. Bangad that Jodh Singh had got incorrect date of birth recorded in the service book, which letter was placed by R.L. Bangad in the personal file, alongwith the said letter there was no document, by which, the date of birth could be treated as incorrect; since 1976 several persons remained as Assistant Engineer and no action was taken on the complaint received in the year 1976 and said Jodh Singh was paid salary for the period June, 1982 to March, 1988 after taking work/services from him, which was quantified at Rs. 73,025/ - and the said sum was placed towards advance against each of the Assistant Engineer, who was posted during the said period bifurcating the same in terms of their periods of posting; it was claimed that the plaintiff could not alter the service record of Jodh Singh and the inquiry officer has held the plaintiff guilty and directed deduction of Rs. 49,879/ - from his retiral benefits; the audit party gave its report on 19.09.1992 regarding the date of birth of Jodh Singh; the penalty was questioned; the procedure before the inquiry officer was also questioned; it was claimed that the plaintiff was called for personal hearing before passing of the impugned order by letter dated 04.12.2000 and he was required to remain present on 11.12.2000 at Jaipur, which letter was issued by him on 20.12.2000 on account of nationwide strike by the postal employees, which strike had started on 05.12.2000 and ended on 18.12.2000, whereafter, the plaintiff sent a letter dated 29.12.2000 seeking personal hearing and sent a reminder on 2001, however, the order had already been passed on 03.01.2001; ultimately, it was prayed that the recovery in pursuance to order dated 03.01.2001 is arbitrary, unjust, illegal and void and sought refund of a sum of Rs. 49,879/ - alongwith interest @ 18%. 3. A written statement was filed by the defendants and the averments made in the plaint were denied; reliance was placed on the inquiry report and it was claimed that said Jodh Singh remained in service on account of negligence on part of the officers, who were held guilty; despite calling for personal hearing, the plaintiff did not appear for personal hearing; other officers, who were charged alongwith the plaintiff have not questioned the inquiry and penalty and the plaintiff had alternative remedy by way of appeal under the Regulations, which has not been availed.
(3.) THE trial court framed three issues and after hearing the parties came to the conclusion that the inquiry initiated was highly belated, the plaintiff was not afforded sufficient opportunity of hearing and even on merit of the charge, it came to the conclusion that Jodh Singh was paid the salary after taking work from him and, therefore, it cannot be said that it resulted in any loss to the Board and ultimately decreed the suit declaring the penalty order as invalid and ordered the defendants to pay a sum of Rs. 49, 879/ - alongwith interest @ 6% per annum from the date of filing suit i.e. 17.07.2001.;