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Judgment
Arun Bhansali, J.—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.
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.
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.
Opposing the submissions made by learned counsel for the petitioner, learned counsel for the respondents supported the order impugned. It was submitted that the petitioner was granted opportunity of hearing and the action of the respondents cannot be questioned in the circumstances of the case and the order impugned does not call for any interference.
I have considered the submissions made by learned counsel for the parties and have perused the material placed on record.
It is not in dispute that Ram Gopal Sharma filed S.B. Civil Writ Petition No. 1943/2010 challenging his superannuation at the age of 58 years and in the said writ petition, by interim order dated 25.02.2010, it was directed that the petitioner shall not be retired on attaining the age of 58 years. The writ petition filed by Ram Gopal Sharma came to be decided by order dated 18.03.2011, whereby the writ petition was disposed of in terms of D.B. Civil Special Appeal No. 165/2010, decided on 08.03.2011. The petitioner pursuant to the dismissal of the writ petition and consequent to the direction of the Division Bench, after the decision was taken by the Board on 22.03.2011, passed order dated 24.03.2011 retiring Ram Gopal Sharma w.e.f. 28.02.2010 retrospectively. However, based on the opinion from the counsel, which is apparent from the order (Annex.-5), the petitioner amended the order dated 24.03.2011 and ordered retirement of Ram Gopal Sharma w.e.f. 24.03.2011.
As a consequence of amending the date of retirement the said Ram Gopal Sharma became entitled to enhanced amount of gratuity as the ceiling by then was raised from Rs. 3,50,000/- to 10,00,000/-, which amount was paid to said Ram Gopal Sharma, whereafter on complaints being made in this regard, notice (Annex.-10) was issued to the petitioner, inter alia, indicating as under:--
A perusal of the notice would indicate that it simply sought to inform that the inquiry was proposed. The petitioner vide his reply (Annex.-12), relied on the opinion of the counsel and the amended order dated 31.03.2011, whereby the date of retirement was amended from 28.02.2010 to 24.03.2011.
A look at the so called Inquiry Report reveals that the Inquiry Officer, though noticed the facts regarding opinion of the counsel and the fact that Ram Gopal Sharma was retired by the amended order w.e.f. 24.03.2011, reached the following conclusion:--
A perusal of the finding of the so called Inquiry reveals that the authority has totally ignored the facts that the order dated 24.03.2011 was amended and the date of retirement was amended from 28.02.2010 to 24.03.2011 and based on its assumption that Ram Gopal Sharma had retired on 28.02.2010 came to the conclusion that wrong payment was made and though it is not within the purview of an Inquiry Officer to suggest punishment, it proceeded to also suggest that so called excess amount to the tune of Rs. 5,06,408/- be recovered from the petitioner.
The report of the Inquiry Officer on its face is wholly laconic and has failed to take into consideration the relevant facts and documents, which pertain to the subject matter of inquiry and as such the same could not be relied on for the purpose of passing of the order (Annex.-13) by the respondents.
Besides the above, there is substance in the submissions made by learned counsel for the petitioner that in terms of the Regulations, before ordering recovery vide order (Annex.-13), as the same is in the nature of minor penalty in terms of Clause 6 of the Regulations, the order could not have been passed without following the procedure under Clause 11(a) of the Regulations i.e. without serving a statement of allegations on the petitioner, the notice (Annex.-10) cannot be termed as statement of allegations. Further it is also seen that once the notice was also given to Ram Gopal Sharma, the Inquiry Officer has chosen not to even suggest that the so called excess amount be recovered from the said Ram Gopal Sharma, which clearly shows the pre-dereliction of Inquiry Officer and the respondents qua the petitioner and, therefore, on that count also the impugned order (Annex.-13) cannot be sustained.
In view of the above discussion, the writ petition filed by the petitioner is allowed. The order dated 10.02.2012 (Annex.-13) is quashed and set aside.
No order as to costs.