- (1.) THE petitioner, Karan Singh, working as LDC in the Settlement Office (Revenue Department) is at the fag end of his service career, and who is bound to retire on 31.03.2014 on achieving the age of superannuation, hence, the learned counsel for the petitioner, Mr. G.R. Goyal, submits that there is urgency in the matter and the present case may be finally heard at this stage, to which learned Dy. Govt. Counsel has no objection. Accordingly, the writ petition was heard finally.
(2.) THE case has a chequered litigation history in this case. The writ petition filed by the petitioner earlier being SBCWP No.2181/1983 - Karan Singh Vs. State & Ors., was allowed by the learned Single Judge of this Court on 18.07.1994. The petitioner came to the Court when his services were sought to be terminated as he did not pass the departmental test within a period of three years of his initial appointment. The petitioner initially was appointed on 08.03.1979. The learned Single Judge of this Court while allowing petitioner's earlier writ petition held as under: - "It is clear that the proviso to above sub -rule is only a safeguard against arbitrary removal from service without following the principles of natural justice. It does not permit a punitive action to be taken against an employee who has failed to clear the test. The provision does not require or permit taking of action under Rule 16 of the Rules of 1958. Rule 16 of the Rules of 1958 applies to a departmental enquiry for misconduct. The two provisions, if read together, would mean that the procedure for giving a simple discharge to the employee have to be followed. In this case a regular charge sheet was given to the petitioner and a finding was given that his not passing the examination in three attempts amounted to negligence and dereliction of duty. By no stretch of imagination failing to pass a departmental examination could be said to amount to dereliction of duty or negligence. The action against the petitioner is, therefore, wholly illegal. The impugned order deserves to be set aside and is hereby quashed. So far as the relief which can be granted to the petitioner, it is to be borne in mind that instead of giving a simple discharge to the petitioner, punitive action was unnecessarily taken against him. The petitioner does not deserves to be reinstated because actually, the order of removal of service by way of punishment has to be substituted by order of simple discharge. The petitioner has not worked for the last about 11 years. He does not deserves to be awarded back wages only on the technicality of the procedure adopted in removing him from service when he had no right to continue in service. The petitioner therefore, deserves to be granted only a declaration that he could not be removed from service by way of punishment but his services were terminated by way of simple discharge. As the petitioner had to fight this litigation to get himself free from stigma of the punishment, he deserves to be awarded compensatory costs of this limitation. The petition is therefore allowed. The impugned order is quashed. It is instead declared that the petitioner has been given a simple discharge on his not being able to pass departmental examination within the stipulated period. The respondent shall pay Rs.2500/ - (Rupees Two Thousand Five Hundred only), as consolidated costs of this proceeding to the petitioner." Later on, the petitioner filed a review petition/misc. application being S.B. Civil Misc. Application No.210/1994 in S.B.C.W.P. No.2181/1983 - Karan Singh Vs. State & Ors., and the same came to be allowed by the same learned Single Judge on 21.05.1996, in the folloiwng terms: - "This review petition brings out a patent defect in the Judgment dated 18th July, 94 passed in S.B.C. Writ Petition No.2181/83. While granting relief in the case it was stated that the petitioner does not deserve to be reinstated. It has also been stated that "the petitioner has not worked for the last about 11 years. He does not deserve to be awarded back wages only on the technicality of the procedure adopted in removing him from service when he had no right to continue in service." On this basis, only a declaration that he could not have been removed from service by way of punishment and his services were to be deemed to have been terminated by way of simple discharge was given. The review petitioner brings to my notice that the aforesaid statements were factually incorrect as the petitioner continued in service on the strength of an interim order passed on 13.9.84 in S.B. Misc. Stay Petition No.2088/83. By the aforesaid stay order the further operation of the order Ex -7 dated 10.8.83 with regard to the termination of the services of the petitioner was stayed. It was however, made clear that the interim order would not preclude the respondent from passing any other other. It is common ground now that no further order terminating the services by way of simple discharge was passed against the petitioner after 13.9.84. It is, therefore, transpires that on the date of the Judgment the petitioner factually continued in employment and must have been paid salaries of all that period. The refusal to grant relief to the petitioner was therefore based on a misconception that the petitioner was out of job. In the light of the aforesaid circumstances, therefore, this review petition deserves to be allowed and the relief deserves to be granted on the basis of correct facts. The review petition is hereby allowed. It is, therefore, directed that the impugned order dated 10.8.83 Annex -7 to the petition is quashed. The petitioner is declared to be entitled to continuation in services as if that order was not passed. He is also declared to be entitled to all the benefits of services as if that order was not passed. Sh. M.R. Singhvi counsel for the respondents submits that the liberty should be given to the non - petitioner -employer to now consider and decide whether a simple discharge should be given to the petitioner, as this Court has categorically held in the Judgment that a simple discharge could have been instead of a punitive discharge. It is correct that the employer could have given a simple discharge to the petitioner and the petitioner is benefiting only because instead of giving a simple discharge the termination of service was effected by way of punishment. However, keeping in mind the time lag of over 12 years which has occurred since the termination of services of the petitioner, it would not be just and proper to give this liberty to the employer especially because the allegation against the petitioner related to not passing a departmental examination which was wrongly treated to be a misconduct. The matter should come to and end at some stage and I do not consider it necessary to grant liberty to the non -petitioners to pass a fresh order of simple discharge. The order under review shall be read with the aforesaid modifications. There shall be no order as to costs."
(3.) AGAINST the order passed by the learned Single Judge allowing the said review petition of the petitioner, the respondent - State preferred an intra -court appeal being DBSAW No.415/1996 - State of Rajasthan & Ors. Vs. Karan Singh. The Division Bench, however, dismissed the intra -court appeal filed by the respondent - State vide the judgment dated 09.08.2004 (Annex.4). The operative portion of the Division Bench judgment dated 09.08.2004 is quoted herein below for ready reference: - "The learned Single Judge rightly set aside the order, terminating the services of the petitioner. A review application was filed and the plea was taken that the respondent had worked for last 11 years. The said fact was found to be factually incorrect. Thus, the review application was also rejected. It is a fact that the respondent has been continuously working as a Lower Division Clerk even today since, 1972 that is for last 25 years. No case is made out for interference with the order of the learned Single Judge. The special appeal stands dismissed." ;