Rajasthan High Court - Jodhpur
Balwant Singh Solanki vs Jodhpur Vidhyut Vitran Nigam Ltd on 23 September, 2021
Author: Dinesh Mehta
Bench: Dinesh Mehta
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 9157/2021 Balwant Singh Solanki S/o Jorawar Singh, Aged About 63 Years, By Caste Rajput, R/o Village Post Jhadoli, Tehsil Pindwara, District Sirohi.
----Petitioner Versus
1. Jodhpur Vidhyut Vitran Nigam Ltd., Through Its Chairman Cum Managing Director, New Power House Road, Jodhpur.
2. Rajasthan Rajya Vidyut Karamchari Trust, Jaipur, Through Its Secretary (Cpf-Trust), Rajasthan Vidyut Prasaran Nigam Ltd. Shed No. 11, Vidhyut Bhawan, Jyoti Nagar, Jaipur.
3. Superintendent Engineer (O And M), Jvvnl, Sirohi.
4. Assistant Engineer (Htm), Jodhpur Vidhyut Vitran Ltd.
Sirohi.
5. Account Officer (O And M), Jodhpur Discom, Sirohi.
----Respondents For Petitioner(s) : Mr. Harish Kumar Purohit For Respondent(s) : Mr. Hanuman Singh Gour Mr. Deepesh Beniwal JUSTICE DINESH MEHTA Order 23/09/2021
1. By way of the present writ petition, petitioner has challenged communication dated 12.05.2021, issued by the Secretary- Rajasthan Rajya Vidyut Karmachari Trust, respondent No.2, who has cancelled gratuity Pass Order No.655 dated 30.06.2020, issued qua the petitioner, inter alia observing that since the criminal case against the petitioner under Prevention of Corruption (Downloaded on 24/09/2021 at 09:09:05 PM) (2 of 6) [CW-9157/2021] Act has not been finally decided, gratuity amount of the petitioner can not be paid.
2. The petitioner, an Assistant Engineer in the respondent- Jodhpur Vidyut Vitran Nigam Limited superannuated on 31.03.2018.
3. While the petitioner was in service, he was apprehended by the Anti Corruption Bureau and consequentially a criminal case under the provisions of Prevention of Corruption Act Act came to be registered against him.
4. Though the petitioner was placed under suspension but no disciplinary enquiry was initiated against him and the petitioner got superannuated.
5. After his retirement, all retiral dues were paid to the petitioner and after his persuasion a Pass Order in relation to his gratuity came to be issued on 30.06.2020. The Account Officer, however, put a note that the amount of gratuity be paid first, if any penalty is imposed on account of criminal offence, the sanctioning officer will be personally responsible for the recovery.
6. Such being the position, payment in furtherance of the Pass Order No.655 dated 30.06.2020, was not made and ultimately Secretary of the Rajasthan Rajya Vidyut Karmachari Trust (CPF Trust) cancelled the same.
7. Mr. Purohit, learned counsel for the petitioner, invited Court's attention towards the Pass Order dated 30.06.2020 (Annex.4) and submitted that the respondents have finally prepared the Pass Order, however, the Accounts Officer or some other officer of the Respondent- Nigam had put an arbitrary condition that the Paying (Downloaded on 24/09/2021 at 09:09:05 PM) (3 of 6) [CW-9157/2021] Authority should undertake that in case any recovery is to be made, he would guarantee recovery from the petitioner.
"uksV%& Hkqxrku ls iwoZ ;g lqfuf"pr djys fd vxj Criminal offence ds dkj.k Hkfo'; esa dksbZ tqekZuk (penalty) gksrh gS] rks mldh olwyh dh ftEesokjh vkidh gksxh"
8. Learned counsel argued that how can the Paying/Controlling Authority undertake that in case any recovery is to be made from the petitioner, he would make the same good. Learned counsel argued that not only the condition/note referred above, even the order dated 12.05.2021, whereby Pass Order has been cancelled, is illegal and contrary to law.
9. Inviting Court's attention towards Rule 3(3) of Rajasthan State Electricity Board Payment of Gratuity Rules, 1972, he argued that the gratuity can be withheld only under conditions enumerated in point (a) and (b) of Sub Rule (3) of Rule 3 of Rules of 1972.He emphasised that in the present case, when the petitioner has been allowed to retire without enquiry being initiated against him, it can not be said that any amount would be recoverable from petitioner for the loss he has caused to the respondent- Nigam.
10. Mr. Hanuman Singh Gour, learned counsel for the respondent- Nigam argued that the respondents are fully justified in withholding the gratuity, inasmuch as, the case under Prevention of Corruption Act, is pending against the petitioner.
11. Heard.
12. Having perused the material on record and considering that during the service tenure, the respondents have not initiated any disciplinary proceedings against the petitioner in relation to the (Downloaded on 24/09/2021 at 09:09:05 PM) (4 of 6) [CW-9157/2021] case of Prevention of Corruption Act, in which the petitioner was trapped.
13. This Court is of the firm view that the respondents can not justifiably withhold the gratuity.
14. Rule 3(3) of the Rules of 1972 has been enacted in order to ensure that recovery can be made from an employee, if any loss has been caused to Nigam by the employee. However, in the instant case, no adjudication in this regard has been made. The loss has not been assessed nor was there any case of causing loss to the Nigam's property. Hence, the respondents can not withhold the gratuity amount of the petitioner merely because a criminal case is pending against him. Rule 3 of the Rules of 1972 reads thus:-
"(3) Notwithstanding anything contained in sub-
clause(1) and (2) above:
(a) The gratuity of an employee, whose services have been terminated, for any act, willful omission or negligence causing any damage or loss to, or destruction of property belonging to the Nigam shall be forfeited to the extent of the damage or loss so caused.
(b) The Gratuity payable to an employee shall be wholly forfeited(i) if the services of such employee have been terminated for his riotous or disorderly conduct or any other act of violence on his part, or
(ii) if the services of such employee have been terminated for any act which constitutes an offence involving moral turpitude, provided that such offence is committed by him in the course of his employment. "
15. A careful reading of above quoted Rule suggests that the Rule provides forefeiture and not 'withholding'. And that too in cases of termination. In the opinion of this Court under Rule 3(3) forefeiture of gratuity is possible in case an employee has been terminated for willful ommission or negligence causing loss or (Downloaded on 24/09/2021 at 09:09:05 PM) (5 of 6) [CW-9157/2021] damage to the property of the Nigam or for any act of riotous or disorderly conduct or act of violence as provided in Clause (a) and Clause b(1) of subrule (3) of Rule 3 of the Rules of 1972. The gratuity can also be wholly forfeited if session of an employee has been terminated for an offence involving moral turpitude in the course of employment. But 'termination' of the employee is a precursor or a condition precedent for forfeiture of the gratuity.
16. Indisputably, upon petitioner being apprehended by the Anti Corruption Bureau, he was placed under suspension, but, no disciplinary enquiry was initiated against him.
17. In the opinion of this Court, even if extreme case is taken and the petitioner is convicted in the case pending against him, may have some barring of payment on pension but his gratuity can not be forfeited as his services were not terminated.
18. As an upshot of the discussion foregoing, this Court is of the considered opinion that the impugned order dated 12.05.2021, issued by the respondent No.2 is clearly contrary to Rule 3(3) of the Rules of 1972, besides being violative of Article 14 of the Constitution. The same is, therefore, quashed.
19. The present writ petition is allowed, with a direction to the respondents to make payment of gratuity alongwith applicable interest to the petitioner within a period of four weeks from today.
20. The petitioner shall be required to furnish an undertaking that in case any amount is found due against the petitioner in relation to the criminal case pending against him, he shall make the same good within a period of four weeks of the demand being made by the respondent- Nigam, subject albeit to his right to take legal recourse against such demand.
(Downloaded on 24/09/2021 at 09:09:05 PM)
(6 of 6) [CW-9157/2021]
21. Stay application also stands disposed of accordingly.
(DINESH MEHTA),J 23-pooja/-
(Downloaded on 24/09/2021 at 09:09:05 PM) Powered by TCPDF (www.tcpdf.org)