LAXMAN POPATBHAI SOLANKI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) This is one of the most unfortunate cases where a Government servant after he attained the age of superannuation in 1958 has still not been able to recover his full pension and gratuity as per the relevant service rules because of the various infructuous proceedings which were attempted against him.

(2.) The short facts which have given rise to this petition are as under: The petitioner was born on October 9 1903 and was employed as a Civil Engineer in the then Jamnagar State service on December 30 1926 He was absorbed in the Saurashtra State service as a Deputy Engineer on April 1 1948 The Government of Saurashtra had issued relevant Pension and Gratuity rules for the Government servants by the Government Resolution No. 12 of 1948 on October 19 1949 and subsequently the Liberalised Pension Rules were also applied. The petitioner was promoted as Executive Engineer on February 17 1950 and was confirmed on that post on June 28 1954 The petitioner reached the age of superannuation of 55 years on October 5. 1958. As however the Government suspended the petitioner on October 4 1958 the petitioner continued in service but thereafter even for two years no departmental action was taken against him. Finally on October 12 1960 the Government of Gujarat reinstated the petitioner and permitted him to retire with effect from the date of that order. The order further stated that the question of treatment of the suspension period would be subsequently decided. Thereafter the petitioner was prosecuted under sec. 5 of the Prevention of Corruption Act along with the Store-keeper M. P. Parekh in two criminal cases Nos. 2 of 1961 and No. 3 of 1961 before the Special Judge Rajkot where Mr. Parekh was convicted while the petitioner was completely acquitted as the Government failed to prove the charges against him to hold him vicariously liable by invoking sec. 34. Thereafter departmental enquiry was instituted against the petitioner by the Government resolution dated April 5 1963 On August 20 1962 almost the same three charges as the charges in question were served on the petitioner in the same departmental enquiry. On October 30 1962 the departmental enquiry was kept in abeyance and finally by the order of the Governor dated April 13 1964 the departmental enquiry against the petitioner was dropped and the Special Officer was requested to return the report of the Anti Corruption Bureau and other papers forwarded to him earlier in connection with the enquiry. Thereafter the Government even filed a civil suit being civil suit No. 13 of 1962 for recovery of the alleged loss of Rs. 1 28 253 from the petitioner and the storekeeper Parekh where the same facts as in the first two charges were relied upon regarding negligence dereliction of duty and inefficiency of the petitioner which had resulted in the aforesaid loss and even a conspiracy was alleged between both the persons to misappropriate the said amount. Even it was alleged that the non-checking of the account books and non-verification of the stores resulted in this loss by active connivance of the petitioner. Even though the said suit was decreed against the storekeeper Mr. Parekh it was dismissed against the petitioner and that decision was final so far as the petitioner was concerned. As regards the earlier suspension order of October 4 1958 the Government resolution was passed at Annexure D on February 8 1965 after conclusion of all proceedings against the petitioner that the period of suspension shall be considered as spent on duty for all purposes under the provisions of the B.C.S. Rule 152 and the Accountant General was directed on March 20 1965 that as the suspension period was treated as duly period between October 8 1958 and October 11 1960 for all purposes he should accordingly revise the amount of his pension. The Accountant General fixed up the provisional pension mentioning the gratuity amount as even on October 11 1966 the Government had certitude that no departmental enquiry was either pending or proposed to be held against the petitioner. Therefore on January 7 1967 the Government resolution at Annex. P directed payment of arrears of salary of the period of suspension to the petitioner in pursuance of the order of February 8 1965 and as per the Government orders the petitioners pension had thus been fixed accordingly at Rs. 231.20 P. and his gratuity was fixed at Rs. 9652.50 P. on the basis of 33 years service under the aforesaid provisional fixation. Government however by the order dated October 11 1966 purported to impose a reduction of 50% in the pension amount and the full amount of gratuity was sought to be deducted. The said order was however quashed by the decision of this Court in Special Civil Application No. 47 of 1968 decided on April 24 1970 where my learned Brother spoke for both of us as no opportunity was given to the petitioner to show cause against the proposed reduction sought to be imposed under rule 76(b) of the Pension Rules. As the petitioner had retired from the service on October 12 1960 and since then the question of the petitioners pension and gratuity remained pending the matter being very old it was considered of utmost importance that the amount payable should be decided as early as possible. Therefore we had directed the authority to decide the said questions within a period of two months from the date of that order. In spite of this order of this Court for 18 months no show cause notice was issued and the impugned show cause notice on the very same charges which formed the subject-matter of the chargesheet of the departmental enquiry of 1962 was issued on December 21 1971 proposing 50% reduction of the petitioners pension and withholding of the entire gratuity amount except Rs. 1.00. The petitioner filed a detailed reply on January 18 1972 Thereafter he was heard by the Secretary P.W.D. on July 24 1972 and the impugned order was passed at Annex. A dated December 12 1972 imposing this 50% cut in pension and reducing the gratuity amount only to Re. 1/as per the show cause notice. Thereafter the petitioner has challenged the impugned order in this petition and has demanded now a mandamus that he should be paid up his full pension and gratuity due to him with 6% interest for all these years.

(3.) On behalf of the State no affidavit has been filed by the Deputy Secretary who decided this matter nor even any reasoned order has been produced. An affidavit was filed by the Dy. Secretary Thakar who had merely perused the papers. In the affidavit in reply in para 7 it has been categorically stated that there was a shortage of store material estimated to be of the value of Rs. 1 28 0 This was due to inefficiency negligence and lack of proper control and supervision of and over the staff in respect of the physical verification of the stores on the part of the petitioner. Therefore even this one incident which involved the Government into heavy financial loss was sufficient for the Government to conclude that the service of the petitioner was not thoroughly satisfactory. This is the sole ground which has been relied upon in other parts of this affidavit. The order is not sought to be justified on any other ground for obvious reasons to which Be will presently refer. Mr. Shall for the State has also now made the file of this order available as on the present state of the record there was no proper affidavit of the Deputy Secretary who had decided this matter and as he had failed to give any reasoned order in such matter involving such serious consequences by forfeiting the petitioners accrued right to pension and gratuity for the long service put in by the petitioner. Even though the State has pursued such a series of infructuous proceedings against the petitioner even in the present case we are constrained to state that the State has miserably failed to support the legality of this order or even to justify the order even when such a later attempt was made to convince us by showing us the relevant file.