NIRMALJIT KAUR,J. - (1.) The petitioner herein has challenged the Order dated 27.07.1999 withholding 100% pension of the petitioner in pursuance to the report of the Enquiry Officer holding 27 charges as proved against him.
(2.) The petitioner was appointed as Lower Division Clerk with the respondent department on 13.06.1960. He was promoted to the post of Inspector on 27.10.1960 and subsequently to the posts of Naib Tehsildar and Tehsildar on 06.01.1963 and 03.01.1976, respectively. Thereafter, the petitioner was granted Junior Scale of Rajasthan Administrative Services on 01.07.1986 and later on, was promoted to Senior Scale of Rajasthan Administrative Services w.e.f. 16.02.1992. However, he was placed under suspension on 05.11.1992 but no charge-sheet was served upon him for almost 06 months. Accordingly, he was reinstated in service on 31.07.1993 and superannuated on the same day i.e. 31.07.1993. After his retirement, a notice was issued to him on 30.08.1993 asking him to file reply to the charge-sheet which is purported to have been sent on 30.07.1993. The petitioner immediately vide his letter dated 10.09.1993, responded to the notice by stating therein that he has not received the charge-sheet. Hence, another charge-sheet was handed over to him on 13.10.1993. The petitioner duly submitted his reply to the charge-sheet. The Enquiry Officer held him guilty of all the 27 charges vide his enquiry report. Thereafter, the State Government vide Notice dated 11.09.1998 asked the petitioner to submit his representation which he duly submitted on 06.10.1998. However, his representation was rejected and the respondent authorities passed an Order dated 27.07.1999 withholding the entire pension of the petitioner.
(3.) While praying for setting aside the impugned Order dated 27.07.1999, some of the arguments raised by the learned counsel for the petitioner are as under :- (A) The petitioner having superannuated from the Government service on 31.07.1993, no enquiry could have been initiated against him as he ceased to be a "Government Servant" as defined in the Rule 2(e) of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (for short "the Rules of 1958"). As per the Rule 2(e) of the Rules of 1958, the "government servant" does not include a person who had already superannuated from the Government service. The only provision which permitted the State Government to continue with an enquiry against the Government servant was Rule 170 of the Rajasthan Service Rules, 1951 (for short "the Rules of 1951") and under the Rule 170 of the Rules of 1951, the only punishment that could have been imposed was for recovery of the loss alleged to have been caused by such Government servant to the Government. Under the Rule 170 of the Rules of 1951, such an order of recovery cannot be passed, unless a notice under that rule is given to the petitioner by the Governor proposing to withhold the pension. Thus, the petitioner was governed under Rule 170 of the Rules of 1951 only. However, neither of the provisions of Rule 170 of the Rules of 1951 have been complied with, which require a notice under Rule 170 by the Governor and moreover, the loss has also to be quantified. In the present case, the loss has not been quantified. Hence, the order of withholding the entire pension was unreasonable and without jurisdiction. Further, order of punishment cannot be passed under the Rules of 1996 as the enquiry was initiated much prior to the coming of the rules. (B) It was further submitted that enquiry has been conducted against the petitioner by breaching the principles of natural justice. The copies of all the relied upon documents were not made available to the petitioner, although, the petitioner was permitted to inspect the same. Although, the petitioner admitted the passing of the orders by him, unless the copies were made available to the petitioner, he could not effectively defend the enquiry. (C) That the petitioner discharged his quasi judicial/judicial functions while disposing of the application for allotment, granting khatedari rights etc. No allegations of bad faith or corrupt motive was made in the charge sheet issued to the petitioner. In absence of allegations of bad faith or corrupt motive in the charge-sheet, the petitioner cannot be said to have committed any misconduct. Assuming without admitting that the orders passed in the 27 charges were erroneous or for that matter not in accordance with law, the remedy of appeal, revision or reference was available to the aggrieved party but the orders passed by the petitioner were not challenged before any competent forum. Thus, the orders have attained finality and could not have been made subject matter of the departmental enquiry. There is not an iota of evidence that the petitioner passed these orders on corrupt motives. (D) The State Government passed the impugned order without examining the record. Under Sub-Rule 9 of Rule 16 of the Rules of 1958, it is the bounden duty of the State Government to record the findings on each charge. However, in the present case, evidence produced by the parties have not been referred to by the State Government and straightway, conclusions have been arrived at by the State Government. The State Government has passed the said order without application of mind and without taking the representation, the record and the evidence into consideration. (E) It was further contended that in relation to Charge Nos. 1, 3, 4, 6, 9, 10, 11, 12, 13, 17, 19, 21, 22, 26 and 27, the State Government has travelled beyond the scope of the charge and has recorded a finding without any evidence and material. The petitioner has been charged of causing unlawful gain to himself as well as the applicants but no such charge was ever levelled against the petitioner. Not only this, the finding has been recorded by the State Government holding the petitioner guilty of bad faith whereas neither any charge was levelled against the petitioner nor any evidence has been led by the State Government to substantiate this charge. Further, the entire disciplinary action taken against the petitioner is vitiated for the reason that the charges Nos. 1, 2, 4, 6, 7, 8, 9, 11, 16, 18, 19, 20, 21, 22, 23, 24, 25, 26 and 27 have been sought to be proved by producing the concerned Tehsildars. The petitioner had passed the orders in most of these cases on the basis of the report submitted by the concerned Tehsildar. Under such circumstances, if the report of the Tehsildar is challenged by the State Government then the action was required to be taken against the Tehsildar and not the petitioner but in a totally unusual manner, the charge against the petitioner is sought to be proved by the evidence of the concerned Tehsildar. Although, the petitioner submitted that none of the concerned Tehsildars who have appeared as witnesses have stated that the orders passed by the petitioner were not in accordance with law. Under such circumstances, holding the petitioner guilty of the charge on the basis of this type of evidence is absolutely illegal and unwarranted. ;