MANORAMA ASOPA Vs. THE STATE OF RAJASTHAN

JUDGEMENT

(1.) BY these two petitions, the petitioner has challenged the impugned punishment orders dt. 29.05.2003 and Annex.25 dt. 06.10.2004 passed by the respondent No. 2 -Director, Secondary Education, Bikaner (in SBCWP No. 1120/2005) and Annex.17 dt. 06.10.2004 (in SBCWP No. 1310/2005). Both these penalty orders have been passed by the Director, Secondary Education under the Rajasthan Pension Rules, 1996 under Rule 7 by imposing penalty of withholding of 5% of the pension amount payable to her in one case permanently and in another writ petition for a period of 1 year. The said penalty order was passed against the petitioner after holding an enquiry against the petitioner while she was working as Head -Mistress in Government School, Raj Mahal, Jodhpur under Rule 16 of the CCA Rules.

(2.) THE case set up by the petitioner in the present writ petition is that the petitioner was initially appointed as Teacher Grade II in the Education Department of Government of Rajasthan on 17.10.1965 and after passing RPSC examinations in the year 1966, she was posted as Sr. Teacher cum Lecturer and continued on the said post. Thereafter she was promoted as Head Mistress of the Secondary School in the year 1978 and after working as Principal from the year 1990, she retired from the services in the year 1999 on 31.08.1999 on attaining the age of superannuation. According to the petitioner her service career had remained unblemished throughout and she was granted promotion also from time to time, but in the year 1995, three different charge -sheets were served upon her under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. These charge -sheets pertained to the period when the petitioner was working as Head -mistress at Govt. Girls Secondary School, Jalori Gate, Jodhpur between the period from 03.12.1988 to 08.11.1989. According to the petitioner, enquiry with regard to first charge -sheet was dropped by the Disciplinary Authority himself vide order dt. 27.09.2003 (Annex.1) whereas the enquiry for two charge -sheets were held against the petitioner and the petitioner was found guilty of the various charges levelled against her and the enquiry report was given to her along with letter dt. 27.02.2002.

(3.) AS per Rule 7 of the Rules of 1996 which is in pari materia with Rule 170 of the Rajasthan Service Rules, only the Governor has power to withhold whole or part of the pension of a Government servant and though in the present case, the RPSC and the Governor were consulted and they approved the said punishment on the petitioner, but no notice prior to the said approval or passing of impugned penalty order by the Disciplinary Authority was given to the petitioner and, therefore, the said orders deserve to be quashed. 4. Mr. Bhandari mainly relied upon the judgment of this Court in the case of Dr. J.N. Purohit v. State of Rajasthan and Anr. reported in : 1986(2) WLN 638. In para 10 of the said judgment, this Court held as under: It is not disputed that no notice was given to the petitioner under Rule 170 of the RSR to show cause as to why his pension or any part of it for a period of 10 years be not withheld. Under the proviso (a) to Rule 170 of the RSR departmental proceedings if instituted while the officer was in service whether before his retirement or during his re -employment, shall after the final retirement of the officer be deemed to be proceeding under Rule 170 and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service. There is a clarification issued by the Government which appears below proviso (e) to Rule 170 of the RSR. It was made on a question being raised whether in respect of an officer whose case falls within the purview of proviso (e) of Rule 170 of the RSR and proceedings against whom were instituted by an authority subordinate to the Governor, order for withdrawal or withholding of pension can be passed by the subordinate authority on the conclusion of the proceedings, or the authority should refer the case to the Governor for final orders. The matter has been considered and decision was taken as under:The matter has been considered and it is clarified that the function of the disciplinary Authority in respect of departmental proceedings referred to in Rule 170 is only to reach a finding to the Government. It is then for the Government to consider the findings and take a final decision under Rule 170 of the Rajasthan Service Rules in the light of the findings of the Disciplinary Authority, the Government will serve the person concerned with a show -cause notice specified the action proposed to be taken under Rule 170 of the Rajasthan Service Rules and the person concerned will be required to submit his reply to the show cause notice within such time as may be specified by the Government. The Government will consider the reply and consult the Rajasthan Public Service Commission. If as a result of such consultation with the Commission; it is decided to pass an order under Rule 170 of the Rajasthan Service Rules, necessary orders will be issued in the name of the petitioner. Though, the clarification was made in respect of an officer whose case fell within purview of the provisions of Rule 170, the RSR and the proceedings against whom were instituted by the Governor but it can be said that in case where the Disciplinary Authority proposed and if it is decided to take action under Rule 170 of the Government has to serve the person concerned a show cause notice of the proposed action requiring him to submit his reply within such time as may be specified by the government. It has already been stated that withholding of pension or any part of it whether permanently or for a specified period is not one of the penalties specified in Rule 14 of the CCA Rules. One of the penalties specified in Clause (iv) of Rule 14 of the CCA Rules is reduction to a lower service or in case of pension to an amount lower than that due under the rules. Even if the penalty imposed in this case may fall in Clause (iv) of the Rule 14 of the CCA Rules, notice to show cause notice before inflicting such penalty is missing. Therefore, before an order under Rule 170 of the RSR can be passed against a Government servant when he is found guilty of grave misconduct in a departmental or judicial proceedings, it is necessary to issue show cause notice under Rule 170 of the RSR to the Government servant and an opportunity to show cause against the action proposed to be taken must be given to him and unless it is done, no order under Rule 170 of the RSR can be made. In the instant case admittedly no notice for the proposed action under Rule 170 of the RSR was given to Dr. Purohit and he was not called upon to show cause against the proposed action. Thus, the order Ex.22 cannot be said to be in accordance with law and is liable to be quashed.