NAVRATANMAL VYAS Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is a writ petition under Art. 226 of the Constitution of India.

(2.) DURING the relevant period, the petitioner was posted as Head Constable of Police at Nagaur in the office of the Prosecuting Inspector, Nagaur. On 9-2-60 he was charge sheeted by the Deputy Inspector General of Police, Jodhpur Range, Jodhpur. The charge ran as follows - "that you Shri Navratanmal, H. C. No 59 of District Nagaur (Under suspension) entered in conspiracy with other constables and Head Constables, not to take meals and to go on hunger strike. You are therefore charged for indisciplinary conduct. " After holding an enquiry, the Deputy Inspector General of Police, vide order dated 24-5-60 found that the above charge stood proved against the petitioner. The petitioner was therefore ordered to be compulsory retired on proportionate pension from service with effect from the date of service of the order. The petitioner went in appeal against the said order but the appeal was dismissed by the Inspector General of Police. On second appeal, the Government on the advice of the Public Service Commission allowed appeal vide order Ex. 1 dated 13-7-62 which runs as under - "the appeal filed by Shri Navratan Mal, Exhead Constable against the order of his compulsory retirement from service on proportionate pension passed by the Deputy Inspector General of Police, Jodhpur Range, Jodhpur, and upheld by the Inspector General of Police, Rajasthan, has been carefully examined by the Government and it is observed that the charges framed against the appellant could not be fully proved. In view of the above observation, the Governor in consultation with the Rajasthan Public Service Commission has been pleased to accept the appeal and to quash the order of the Inspector General of Police and Deputy Inspector General of Police dated the 25th February, 1961 and 25th April, 1960 respectively and to order that the appellant be reinstated from the date of his compulsory retirement. The period between the date of the compulsory retirement and to the date on which he reports for duty will however be treated as extraordinary leave. By Order, Sd. Shivshanker, Secretary to the Government. " The direction in the aforesaid order that the period from the date of the compulsory retirement to the date on which he reports for duty will, however, be treated as extraordinary leave resulted in a substantial loss to the petitioner inasmuch as in case of extraordinary leave, he was not entitled to any pay and allowances. He therefore preferred a review of the order under R. 34 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. The Governor rejected the review petition on 4-11-70 vide Ex. 2. The petitioner then filed this petition in this Court on 1-2-1971 challenging the legality of the order of the State Govt. dated 13-7-62 with the prayer that the period between the date of compulsory retirement, that is, 25-4-60 and the date on which the petitioner joined duty, that is, 13-7-62 be treated as a period spent on duty and the Government be directed to give all the benefits including full pay and allowances for the aforesaid period. The main ground pleaded by the petitioner in the writ petition is that the order treating the intervening period as extraordirary leave is wholly illegal, unjust and in utter disregard of sub-cls. (2) and (4) of R. 54 of the Rajasthan Service Rules, 1951. According to the petitioner, the Government having fully exonerated the petitioner from the charge levelled against him, it was bound to treat the intervening period as the period spent on duty and he was entitled to full pay and allowances for the said period. The petitioner categorised the order a penalty or punishment which, according to him, could not be made under the Service Rules or under the Constitution of India.

(3.) IN the present case, the order dated 13-7-62 admittedly resulted in pecuniary loss to the petitioner. The consideration of the authority whether a particular case comes under sub-cls. (2) and (4) or sub-cls. (3) and (5) must be held to be an objective rather than a subjective function as held by the Supreme Court in the above case. Such a determination implies a duty to act judicially and in that view, an opportunity to show cause against the proposed action must be afforded to the affected party. But in the instant case, it is admitted that no such opportunity was afforded to the petitioner. IN the circumstances, it must be held that the impugned order is liable to be struck down as invalid on the ground that it violates the principles of natural justice as has been done in Gopalkrishna Naidu's case (supra ).