SCA No. 15064 of 2003 · Gujarat High Court

CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 28/03/2006 ORAL JUDGMENT

In the present petition, the petitioner who is a SCA/15064/2003 JUDGMENT retired employee of the District Panchayat, Vadodara has challenged the charge-sheet dated 5.9.2003 issued against him. The petitioner retired as Mechanical Supervisor with effect from 29th February 2000. During his service, though one charge-sheet was issued against him, by the order dated 16.1.2003 it was held that the charges are not proved and the inquiry was therefore dropped. On 5.9.2003, a charge-sheet came to be issued against the petitioner involving as many as five charges. The gist of the charges can be noted as follows:- (1) Charge No.1. The petitioner had remained absent unauthorizedly without sanction of leave for the period between 18.11.88 to 17.3.89. (2) Charge No.2: Though by communication dated

2.1.89, the petitioner was asked to report for duty immediately, he refused to accept the post and did not resume duty. (3) Charge No.3. He had produced a report suggesting that between 18.12.88 to 17.3.89, he was suffering from liver pain which according to the Department was with a view to misleading the office. (4) Charge No.4. This charge is consequential to charge No.3 and it stated that for the period SCA/15064/2003 JUDGMENT between 18.12.88 to 17.3.89, he had created false documents to justify the absence without leave. (5) Charge No.5 pertains to his absence between

18.11.88 to 17.3.89 during which period, according to the chargesheet, the petitioner had gone abroad and thereby committed misconduct.

Few facts, which are not in dispute, can be noted at this stage.

That the petitioner retired from service with effect from 29.2.2000. During his service, no chargesheet containing any of the abovementioned charges was issued against him. The said chargesheet was issued against the petitioner more than three years after his retirement on 5.9.2003.

From the above materials, it can be seen that the chargesheet was issued against the petitioner after his retirement for the alleged events which had taken place in the year 1988-89.

Rule 189-A of the Bombay Civil Service Rules reads as follows: 189-A. The Governor reserves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if in a departmental or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his SCA/15064/2003 JUDGMENT service, including services rendered upon re- employment after retirement: Provided that -- such departmental proceeding, if instituted (a) while the Government servant was in service whether before his retirement or during his re-employment shall after the final retirement of the Government servant be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the Government servant had continued in service; (b) such departmental proceeding if not instituted while the Government servant was in service, whether before his retirement or during his re-employment-- (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect of any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relations to the Government servant during his service.

In view of the above factual and legal position, it is not possible for the respondents to sustain the chargesheet. The same is therefore required to be and SCA/15064/2003 JUDGMENT is hereby quashed.

I find that there was total non-application of mind on the part of the administration in issuing chargesheet on the petitioner after so many years of his retirement for some alleged absence from duty and for production of some documents to cover such absence which took place in the year 19888 and 1989. When the administration did not find it appropriate to inquire into the same for more than a decade while the petitioner was in service, there was no reason why such issues should have been raked up more than 3 years after the retirement of the petitioner. Issuance of the chargesheet more than three years after the date of retirement has resulted into denying the retiree of his full retiral benefits. The petition is therefore, SCA/15064/2003 JUDGMENT allowed with cost of Rs.10,000/- (Rupees ten thousand only). Rule is made absolute accordingly. (vjn) (Akil Kureshi, J.)