Full Judgment
16. 08.2012 PRESENT HON'BLE MR JUSTICE GOPAL KRISHAN VYAS Mr. R.S. Saluja, for the petitioner. Dr. G.R. Kalla, Dy. Govt. Counsel for respondent Nos.1 to 3. Heard learned counsel for the parties. In this writ petition, the petitioner has prayed for following reliefs : (A) That, respondents may kindly be directed to treat petitioner's husband to have voluntarily retired in year 1971 and consequently, grant petitioner invalidity pension. (B) That, alternatively without prejudice to aforesaid if the petitioner's husband is to be treated to have retired in 1990 than by granting necessary extra-ordinary leave the respondents may kindly be directed to sanction pension in favour of petitioner. (C) That, for purpose of aforesaid order dated 16.10.2006 (Annex.17) and 30.10.2006 (Annex.18) may kindly be quashed and set aside. 2 Learned counsel for the petitioner submits that petitioner's husband was initially appointed on the post of Teacher Grade-III in the Education Department on 16.12.1952 and while working as such on deputation at Government Secondary School, Ropa, he left the school on 1.7.1971 after seeking permission to leave headquarter. Due to unavoidable circumstances, late Chandmal petitioner's husband did not join duties but ultimately on attaining the age of super-annuation, the petitioner was given retirement w.e.f. 31.10.1990 vide order dated 21.10.1990. It is further submitted that petitioner's husband died on 01.01.1992. Thereafter, repeatedly the petitioner made representations before the respondents for granting family pension for the services rendered by her husband but abruptly, the Dy. Secretary (I), Education (Group-II) Department, Govt. of Rajasthan passed an order dated 16.10.2006 (Annex.17) whereby the Dy. Secretary forfeited the services rendered by the petitioner's husband prior to 2.7.1971 because he remained willful absent from duties w.e.f. 2.7.1971 to 31.10.1990. Learned counsel for the petitioner submits that the order dated 16.10.2006 (Annex.17) has been passed while exercising the power under Rule 86 (1) of Raj. Service Rules, therefore, refusal to grant family pension to the petitioner is illegal and unconstitutional because as per Rule 86 (3) of Raj. Service Rules prior to passing order under 86 (1) of Raj. Service Rules, there is pre-condition to hold an enquiry as per Raj. Civil Services (Classification, Control & Appeal) Rules, 1958 and admittedly no such enquiry was conducted prior to passing the order dated 16.10.2006 (Annex.17) for forfeiting the past services of the petitioner's husband prior to 02.07.1971, 3 therefore, the order impugned may be quashed and all the subsequent orders denying the family pension to the petitioner may also be quashed and set aside. Learned counsel for the respondents submits that it is a case in which the petitioner's husband remained willful absent from duties w.e.f. 02.07.1971 to 31.10.1990, therefore, it was felt necessary by the respondent department to pass an order for forfeiting the past services rendered by petitioner's husband, who was working on the post of Teacher Grade.III. It is further submitted that there is no illegality in the order impugned because as per Rule 86 (1) of the Raj. Service Rules, there is power left with the competent authority to forfeit the past services of an employee who remained willful absent from duty for years together. The crux of argument of learned counsel for the respondents is that petitioner's husband remained willful absent from duties right from 02.07.1971 to 31.10.1990, therefore, there is no question to grant pensionary benefits to her in view of Rule 86 (1) of Raj. Service Rules, therefore, the prayer made by the petitioner, who is wife of late Chandmal Porwal deserves to be rejected. After hearing learned counsel for the parties, I have perused the entire record of the case. Admittedly, there is no dispute with regard to substantive appointment of the petitioner's husband on the post of Teacher Grade III w.e.f. 16.12.1952. It is also not in dispute that husband of petitioner late Chandmal Porwal worked regularly upto 1.7.1971. The dispute is that he remained willful absent from duty w.e.f”
02. 07.1971 to 31.10.1990 but for such misconduct, no departmental enquiry was conducted against late Chandmal Porwal during his lifetime, which is mandatory under Rule 86
(3) of Raj. Service Rules. Rule 86
(3) of Raj. Service Rules is as follows : Rule
86. Absence after expiry of leave :
(3) Notwithstanding the provisions contained in sub- rules
(1) and
(2) above the disciplinary authority may initiate departmental proceedings under Rajasthan Civil Services (Classification, Control & Appeal) Rules against a Government servant who wilfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service. Upon perusal of the reply filed by the respondents, it is abundantly clear that no enquiry whatsoever was conducted against the husband of petitioner for misconduct of willful absent from duty. Meaning thereby, it was totally inaction on the part of the respondents for which the petitioner cannot be blamed. I am in full agreement with the arguments advanced by learned counsel for the petitioner that any order can be passed for forfeiting the past services of an employee after following the due procedure laid down under the Rules. In this case, although, there is power left with the State Government under Rule 86
(3) of Raj. Service Rules for forfeiting service after taking disciplinary action in accordance with CCA Rules but no such enquiry was conducted against the petitioner's husband in his life time or till the date of his superannuation and ultimately 5 without holding an enquiry, he was given retirement on attaining the age of superannuation. Admittedly, the petitioner's husband died in the year 1992 after attaining the age of superannuation. Meaning thereby, the date on which the husband of petitioner died after retirement, there was no departmental enquiry pending against him nor any adverse order was passed for forfeiting the services of the petitioner's husband and for the first time the order for forfeiture of service was passed on 16.10.2006 (Annex.17) after 15 years. In my opinion, the order dated 16.10.2006 is patently illegal and unconstitutional and has been passed without following the mandatory provision of Rule 86
(3) of Raj. Service Rules, that too, after 15 years of the delay and retirement of government servant, therefore, such order is not sustainable in law. In view of above, the order dated 11.09.2006 (Annex.16) and order dated 16.10.2006 (Annex.17) and all other subsequent orders are hereby quashed and set aside. The respondents are directed to grant pensionary benefits of late Shri Chandmal Porwal to the petitioner w.e.f. the date of his superannuation till date of death and thereafter grant family pension to the petitioner, who is wife of late Chandmal Porwal. It is also made clear that petitioner will not be entitled for salary w.e.f. 02.07.1971 to 31.10.1990 the period in which the husband of petitioner remained absent from duty. However, the respondents shall grant benefit of fixation of pay for the aforesaid period and calculate his last pay on the date of superannuation and after calculation of pension of the petitioner and pay accordingly. The compliance of the order may be made 6 within a period of four months from the date of receipt of certified copy of this order. The writ petition is allowed in above terms. (Gopal Krishan Vyas), J.
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