Arun Bhansali, J. - (1.) THIS writ petition has been filed by the petitioner aggrieved against the order dated 10.02.2012 (Annex. -13), whereby the petitioner has been informed that as per the enclosed Inquiry Report, he has been held guilty of making excess payment of gratuity to the tune of Rs. 5,06,408/ - to one Ram Gopal Sharma and he was directed to deposit the amount with the respondents within a period of seven days.
(2.) THE petitioner while holding the post of Dy. Manager with the Nagaur District Milk Producer Cooperative Union, Nagaur, and working as Managing Director, passed an order dated 24.03.2011 (Annex. -3), inter alia, ordering that Ram Gopal Sharma stood retired on attaining the age of 58 years on 06.02.2010 w.e.f. 28.02.2010 and his name is removed from the Salary Scroll, Service Record and Attendance Register from the date of order i.e. 24.03.2011. The order was passed as the writ petition filed by Ram Gopal Sharma challenging his superannuation at the age of 58 years, was dismissed by the High Court though on account of grant of interim order in the said writ petition, he was continuing in service. As Ram Gopal Sharma questioned his retirement retrospectively w.e.f. 28.02.2010, the petitioner vide Annex. -4 sought legal opinion from the counsel representing the respondent and based on opinion, order dated 31.03.2011 was passed by the petitioner amending the order dated 24.03.2011 and retiring Ram Gopal Sharma from 24.03.2011 instead of 28.02.2010. The implication of change of date of retirement was that Ram Gopal Sharma became entitled to enhanced gratuity, as the ceiling whereof was enhanced vide Notification dated 12.09.2008. Whereafter, by order dated 19.04.2011 (Annex. -9), the petitioner received cheque of gratuity qua Ram Gopal Sharma to the tune of Rs. 8,56,408/ -, which was directed to be paid to Ram Gopal Sharma. Vide notice dated 24.11.2011 (Annex. -10) issued by Dy. Registrar & Inquiry Officer addressed to the petitioner alongwith Ram Gopal Sharma, Nand Kishore and Jog Singh, it was informed to them that the inquiry on the complaints pursuant to the letters received was proposed and the petitioner was called upon to remain present before the Inquiry Officer. The allegations in the complaint annexed with the application, inter alia, pertained to payment of excess gratuity to Ram Gopal Sharma. The petitioner gave his reply, inter alia, relying on the opinion received from the counsel of the respondent, subsequent thereto the order Annex. -13 dated 10.02.2012 was passed by the respondent as noticed hereinbefore.
(3.) IT is submitted by learned counsel for the petitioner that the respondents were not at all justified in directing payment/recovery of a sum of Rs. 5,06,408/ - against the petitioner; the petitioner is governed by provisions of Rajasthan Co -operative Dairy Federation Employees (Disciplinary Action & Appeal) Regulations, 1980 ('the Regulations') and under the Regulations a direction for recovery from pay of the whole or any part of pecuniary loss caused to the Federation by negligence or breach of orders falls within minor penalties and as per the procedure prescribed for the awarding minor penalties, the petitioner should have been given statement of allegations and a reasonable opportunity of making any representation, however, no such statement of allegations was ever served on the petitioner and the notices (Annex. -10 and Annex. -11) cannot be termed as statement of allegations. It was further submitted that a bare look at the report, which is only a fact finding report, it is apparent that the Inquiry Officer has not taken into consideration the fundamental facts regarding the passing of the order dated 24.03.2011 and the opinion of the counsel and, therefore, the same could not have formed the basis for passing of the order. It was submitted that the action of the respondents is ex -facie illegal and as such the same deserves to be quashed and set aside.;