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Union of India (Uoi) Vs. Durga Prasad Garg - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Second Appeal No. 445 of 1964
Judge
Reported in1971WLN115
AppellantUnion of India (Uoi)
RespondentDurga Prasad Garg
DispositionAppeal dismissed
Excerpt:
.....upon the plaintiff cannot be said to be in consonance with the principles of natural justice. the special contribution was not withheld under rule 1314 by the controlling officer but the same was forfeited by way of imposition of penalty on account of the alleged misconduct of the plaintiff, and since no proper enquiry in consonance with the principles of natural justice was conducted, the impugned order withholding the special contribution in the present case was rightly set aside by the lower appellate court. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years..........rule which enumerates penal ties makes mention of withholding of the whole or part of provident fund contribution or gratuity in accordance with the provisions of the state railway provident fund and gratuity rules (chapter xiii and xv) it may be observed that rule 1314 appears in chapter xiii of the indian railway establishment code, volume i. while procedure has been prescribed in the discipline and appeal rules-for penalties nos. 5, 8 and 9 under rule 1707 and penalties nos. 2 to 4 & 6 under rule 1712. no. procedure has been prescribed for holding enquiry regarding item no. 10 which deals with withholding of the whole or part of the provident fund contribution or gratuity with which we are concerned in the resent case. in absence of there being any procedure laid down for imposing.....
Judgment:

C.M. Lodha, J.

1. The plaintiff-respondent Durga Prasad was retired from the post of Sub-Store Keeper, General Stores, Ajmer with effect from 1-4-1958. Thereafter the Controller of Stores, Bombay issued a notice dated May 1958 (Ex. 1) to the plaintiff requiring him to show cause in writing why Rs. 500/- from the plaintiffs special contribution to Provident Fund should not be withheld on account of the plaintiff's gross negligence in discharge of his duty inasmuch as he had relied on a Khalasi to verify that all the keys and seals relating to the wards had been returned and placed in the key-box when closing the department with the result that there was a loss of 243 bearing brasses from the strong room in foundary of C & W Shops, Ajmer. It may be stated here that this loss occurred in April 1953 from which a major joint enquiry was held and a finding of gross negligence was arrived at against the plaintiff by the Committee constituted for holding enquiry into the matter. The report of that Committee dated 14-5-1953 has been placed on the record, and marked Ex. A/19. On receipt of the notice the plaintiff asked for copies of certain documents and ultimately submitted his explanation to the Controller on 28. 12. 1958 (Ex. 1/4). The plaintiff's grievance is that no enquiry whatsoever was held against him and in violation of the principles of natural justice the General Manager by his order dated 10-6-1959 (Ex. A. 17) ordered that Rs. 500/- may be withheld from the plaintiff's special contribution to the provident fund. The plaintiff filed/ appeal before the Railway Board, but was unsuccessful and ultimately after serving a notice under Section 80 Civil P.C. he instituted the present suit out of which this appeal arises in the Court of Munsiff, Ajmer City praying that a decree for Rs. 500/- which had been wrongly withheld by the defendant may be passed in his favour. The suit was resisted by the defendant.

2. After recording the evidence produced by the parties the learned Munsiff, Ajmer City (West) by his judgment dated 30-1-1962 dismissed the plaintiff's suit.

3. Aggrieved by the judgment and decree by the Munsiff the plaintiff filed appeal which was allowed by the Additional Civil Judge, Ajmer who reversed the judgment and decree by the trial court and decreed the plaintiff's suit as prayed. Consequently the Union of India has come in second appeal to this Court.

4. Learned Counsel for the appellant has urged that in view of the Committee dated 14.5.1953 it was not at all necessary to hold a fresh enquiry into the charge of gross negligence made against the plaintiff and that in any case there had been no violation of principles of natural justice before the impugned order with-holding the amount of Rs. 500/- from the special contribution was passed.

5. Para 1314 of the Indian Railway Establishment Code, Volume I which deals with Special Contribution to Provident Fund provides that if a subscriber not being a Gazetted Railway servant quit service on fulfilment of any of the conditions mentioned in Clause (d) to (e) and the Controlling Officer is satisfied that the service of subscriber has been good, efficient and faithful the Controlling Officer may order that in addition to the contribution credited under Rules 1312 and 1313 the subscriber's provident fund account shall be credited with a special contribution calculated in the manner prescribed below. It is not disputed that the plaintiff had retired and thereby became entitled to the special contribution provided the Controlling Officer was satisfied that the plaintiff's service had been good, efficient and faithful. In para No. 1 of the plaint it had been stated that the competent authority duly certified that the plaintiff's services had been good, faithful, efficient and continuous. In the written statement filed by the defendant it was admitted that the services of the plaintiff had been certified to be good, faithful, efficient and continuous subject to Rs. 500/- being forfeited. Thus the forfeiture of Rs. 500/- was not on account of the services of the plaintiff being not good, efficient and faithful but on account of there being a specific charge of gross negligence against him. It is not the defendant's case that the amount in dispute on account of special contribution was not paid to the plaintiff because his service had not been found good, efficient and faithful.

6. At this stage it would be proper to refer to Rule 1702 of the Discipline and Appeal Rules (For non-gazetted Staff) of the Western Railway from which this case comes. Item No. 10 under this rule which enumerates penal ties makes mention of withholding of the whole or part of Provident Fund contribution or Gratuity in accordance with the provisions of the State Railway Provident Fund and Gratuity Rules (Chapter XIII and XV) It may be observed that Rule 1314 appears in Chapter XIII of the Indian Railway Establishment Code, Volume I. While procedure has been prescribed in the Discipline and Appeal Rules-for penalties Nos. 5, 8 and 9 under Rule 1707 and penalties Nos. 2 to 4 & 6 under Rule 1712. No. procedure has been prescribed for holding enquiry regarding item No. 10 which deals with withholding of the whole or part of the Provident Fund Contribution or Gratuity with which we are concerned in the resent case. In absence of there being any procedure laid down for imposing the penalty of withholding the contribution it is not denied on behalf of the appellant that only principles of natural justice have to be observed. As to what are the principles of natural justice, inspite of several decided cases, it has not been possible to lay down any exhaustive definition. But the minimum that is necessary is that the delinquent officer should have a reasonable opportunity of being heard. In the present case admittedly no enquiry was held after the service of the notice (Ex. 1) on the plaintiff, who furnished his reply to the notice Ex. A/14 on 23-12-1951. The impugned order whereby the penalty was imposed (Ex. A 17) even does not show whether the reply submitted by the plaintiff was at all considered. Its full contents are as follows:

I agree The provisional decision of my predecessor to withhold Rs. 500/- from Section C. to P. F of Shri Garg is confirmed.

It appears that the sole basis for this order, as nothing to the contrary has been pointed out, was the report of the Major Joint Enquiry dated 14.5.53 which was admittedly not directed against the plaintiff but was a sort of general enquiry into the alleged loss of 243 bearing brasses from the strong room in the foundry of C & W Shops, Ajmer. Inspite of this report having been submitted as far back as 14-5-1953 the authorities concerned did not take any action against the plaintiff till he was retired on 1-4-1958 and it was only after his retirement that the notice Ex. 1 dated May 1958 was served upon him. Thus it appears that no proceedings whatever took place in connection with the charge against the plaintiff contained in the notice Ex. 1. In these circumstances the use of the report by the Committee for major joint enquiry against the plaintiff was not justified and the penalty imposed upon the plaintiff cannot be said to be in consonance with the principles natural justice.

7. Apart from that there is yet another aspect of the case which must not be lost sight of. The charge against the plaintiff was one of gross negligence, which is alleged to have resulted in loss to the Government, which can be a ground for imposition of major penalty, namely, the dismissal or removal from service and holding such a charge as proved necessarily amounts to a stigma. In this view of the matter also it was necessary for the defendant to have held a proper enquiry & this having not been done the impugned order the plaintiff must be held to be bad. It is remarkable that for five years after the committee's report had been submitted no departmental proceedings were initiated against the plaintiff and it is only after the plaintiff had been retired on his attaining superannuation that the impugned disciplinary proceedings were started against him and he was punished. It is highly doubtful whether such disciplinary proceedings could be started against the plaintiff after his retirement but without expressing any firm opinion on this point, so far as the circumstances of the present case are concerned, I have come to the conclusion that the special contribution was not withheld under Rule 1314 by the Controlling Officer but the same was forfeited by way of imposition of penalty on account of the alleged misconduct of the plaintiff and since no proper enquiry in consonance with the principles of natural justice was conducted, the impugned order withholding the special contribution in the present case was rightly set aside by the lower appellate court.

8. Accordingly, I dismiss this appeal. In the circumstances of the parties are left to bear their own costs.

9. Learned Counsel for the appellant prays for leave to appeal to Division Bench. However, I do not consider it a fit case for grant of leave. The prayer is disavowed.


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