State of Rajasthan v. Ratanlal — 1967 DIGILAW 65 (RAJ)

CHHANGANI, J.—This is a second appeal by the State against the appellate judgment and decree of the Senior Civil Judge, No. 1, Jodhpur decreeing the plaintiffs suit in the following terms— (a) The plaintiff is granted a declaration that the orders of Departmental Authorities evidenced by Ex. 5 and 6 are illegal, and contrary to law. (b) The amount which has been withheld from the pay of the appellant amounting to Rs. 367/98 paisa was illegally withheld. The plaintiff is granted a decree for that amount. (c) The judgment passed in this case will not prevent the Government from charge sheeting the appellant again in respect of the occurrence of 4.10.1961. (d) The appellant will have costs of the appeal from respondent No. 1. 2. The facts leading to this second appeal may be briefly stated as follows. 3. The plaintiff-respondent was appointed as a Sub-Inspector of Police on 14.12.1949 and was subsequently confirmed on 8.8.1952. In the month of October, 1951 he was stationed at Banner as a Sub-Inspector of the District Intelligence Branch (CID), Banner. In the discharge of his duties he arrested one Khanu Barber when the latter was seen coming from Pakistan with 11 thans of cloth. This Khanu Barber was produced in the Barmer Police Station but subsequently he was let off and not prosecuted. The plaintiff-respondent and Umed Singh, the Station House Officer, Incharge of the Police Station, Barmer and a Head Constable were suspected of dereliction of duty in connection with the arrest and release of Khanu Barber and it was considered proper to hold a departmental enquiry against them. On 24.1.1952 the plaintiff-respondent was served with a charge sheet by the Deputy Superintendent of Police, Banner. The first charge alleged that he having arrested Khanu Baibar with 11 thans of smuggled cloth produced him in the Police Station, Barmer, but subsequently he was let off by Umed Singh and the plaintiff and was not produced before the Customs Authorities and that in doing so, he acted dishonestly. The second charge against the plaintiff-respondent was that Dharnidhar, Naraindas, Sheoshanker and Rawatmal had made entries in the Roznamcha dated 4.10.1951 about the incident relating to the arrest of Khanu Barber and the plaintiff respondent had subscribed his signatures in the Roznamcha but he got the signatures in the Roznamcha of Naraindas, Shiveshanker and Rawatmal erased and got the paper in Dharnidhars Roznamcha torn. Further after enquiry the Deputy Superintendent of Police recorded findings against the plaintiff-respondent. The findings were sent through the Superintendent of Police, to the Deputy Inspector General of Police Jodhpur Range, Jodhpur. The Deputy Inspector General of Police recorded the following findings against the plaintiff-respondent— "The S. Is Umed Singh and Ratanlal conjointly conspired and let off the accused along with the camel They also prepared false farad and made false entries in the Police Record." A finding was also recorded against Head Constable Harakchand. On the basis of these findings, the Deputy Inspector General of Police awarded the punishment of reduction in their pay by two increments for a period of two years. 4. The plaintiff-respondent filed an appeal before the Inspector General of Police, Rajasthan, Jaipur but that proved unsuccessful. 5. The plaintiff, thereafter, after serving notice under sec. 80, Civil Procedure Code, filed a suit against the Rajasthan State, Inspector General of Police, Rajasthan and the Deputy Inspector General of Police, Jodhpur praying for setting aside the orders of the Deputy Inspector General of Police dated 11th August, 1953 and the order of the Inspector General of Police dated 11.7.1955, for the recovery of Rs. 367.98 paisa. The plaintiff-respondent challenged the order of the Deputy Inspector General of Police on eleven grounds detailed in para 6 of the plaint. The important grounds may be noticed at this stage — "6. (1) That no statement of allegations on which the charges were purporting to be based was given to the plaintiff as required by rule 16(a) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950. (v) That from final order of Dy. I.G., Jodhpur dated 11.8.53 it appears that the plaintiff has been punished for fabricating false documents and making false entries in the police records, but this was never made the subject matter of the change and consequently final order based upon new material outside the scope of the charge is illegal. (viii) That the notice to "show cause" against the proposed penalty was never given to the plaintiff. (x) That the statement of the material witness Khanu Barber was recorded during the course of the preliminary enquiry in the back of the plaintiff and no opportunity to cross-examine the witness was given to him yet the Dy. I. G. P. Jodhpur based his findings on the testimony of this witness which was illegal." 6. (x) That the statement of the material witness Khanu Barber was recorded during the course of the preliminary enquiry in the back of the plaintiff and no opportunity to cross-examine the witness was given to him yet the Dy. I. G. P. Jodhpur based his findings on the testimony of this witness which was illegal." 6. The State resisted the plaintiffs claim. The specific replies to the important grounds relied upon by the plaintiff respondent in para 6 were replied as follows— "6 (1) Charges were so comprehensive as to include the statement of allegations and no separate statement of allegations was necessary. (v) Plaintiff was charged for fabricating false evidence and making false entries and he was duly punished for that. (viii) The second show cause notice against the proposed punishment was not required by Rajasthan Police Regulations 1948 and further Art. 311 of the Indian Constitution does not apply. (x) That it was incorrect to say that no opportunity was given to the plaintiff to cross-examine Khanu Barber. The plaintiff was present when Khanu Barber was examined during preliminary enquiry and Shri Ratanlal gave in writing on 29.11.1952 that he would not cross-examine any more witnesses and as such Khanu was not again summoned for the purpose of crossexamination." 7. The trial court framed five issues as follows— (1) Whether the order of Deputy I.G.P., Jodhpur dated 1.8.1953 and upheld by the I.G.P., Jaipur vide his order dated 18.7.1955 is illegal and ultra vires on the grounds disclosed in para No. 6 of the plaint?...P (2) Whether the suit is barred by limitation?...D (3) Whether Art. 311 is not applicable in this case and the suit is not entertain able?...D (4) Whether the plaintiff is entitled to a sum of Rs. 367.98 nP. as shown in paras No. 7 and 8 of the plaint?...P (5) What is the relief? The plaintiff examined himself in evidence as PW1 and produced a few documents. The State led no evidence but relied upon documentary evidence only. The trial court recorded the finding on issue No. 1, against the plaintiff and held that there was no serious defect in procedure adopted by the Enquiry Officer. The issue No. 2 relating to limitation was decided in favour of the plaintiff. The State led no evidence but relied upon documentary evidence only. The trial court recorded the finding on issue No. 1, against the plaintiff and held that there was no serious defect in procedure adopted by the Enquiry Officer. The issue No. 2 relating to limitation was decided in favour of the plaintiff. As regards the issue No. 3, the trial court held that the plaintiff was reduced to a lower stage in the time scale but observed that the reduction to the lower stage in the time scale did not involve reduction in rank and, therefore, Art. 311 was not attracted. Issue No. 4 was also decided against the plaintiff. On these findings, the trial court dismissed the plaintiff-respondents suit. 8. The plaintiff-respondent filed an appeal which was heard by the Senior Civil Judge No. 1, Jodhpur. The Senior Judge held that the charge sheet was not framed precisely and carefully. He also observed that the first charge did not show what further action had to be taken by the appellant after he had produced Khanu Barber in the Police Station, Barmer. According to him, his part of work would come to an end as soon as he brought the suspected person, and made him over to the S.H.O. of the Police Station. Regarding the second charge, the learned Senior Civil Judge held that the finding of the Deputy Inspector General of Police that the Sub-Inspector Umed Singh and the plaintiff-respondent prepared false farads and made false entries had no relation to the charge which was framed against the plaintiff-respondent. Considering these defects and the fact that the statement of allegation was not given to the plaintiff-respondent, he came to the conclusion that prejudice had been caused to the appellant and that the failure to supply statement of allegations cannot be brushed aside as a mere irregularity. He thus held the enquiry into charges vitiated. The Senior Civil Judge also observed that the stoppage of the two increments did amount to reduction in rank and that the appellant having not been given a show cause notice before the award of punishment Art. 311 was violated. In this view of the matter, he accepted the plaintiffs appeal and decreed his suit in the terms stated above. 9. In this view of the matter, he accepted the plaintiffs appeal and decreed his suit in the terms stated above. 9. The Stale did not choose to hold a fresh enquiry into the charges as permissible under the decree of the first appellate court but has filed the present second appeal. 10. The first controversy raised before me is whether there has been a noncompliance of R. 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950 (hereinafter to be referred to as the Rules) which were inforce at the time of the enquiry of such a nature so as to vitiate the enquiry. The principles relating to departmental enquiries against the Government servants are well settled and be summed up as follows— 11. The departmental enquiry is not an empty formality but is a serious proceeding of a quasi judicial nature and should be conducted in a manner as to ensure a fair deal to the Government servant proceeded against and to avoid causing an apprehension that he will not be getting a fair trial. If there are any rules prescribing a procedure for such an enquiry those rules should be complied with substantially., if not literally. If there are no such rules, the principles of natural justice and fair play should be kept in view and the Government servant should be given an opportunity to defend himself so as to ensure the observance of principles of natural justice. While every trivial breach of rule will not have the effect of invalidating the enquiry a non-compliance of the rules which results in the denial of reasonable opportunity to delinquent Government servant and a violation of the principles of natural justice cannot but vitiate the enquiry. The case has to be examined in the light of the above principle. The first grievance of the plaintiff-respondent was that the statement of allegations was not supplied to him along with the charge-sheet. There is no controversy on the factual aspect. The learned Deputy Government Advocate, however, contended that the omission to supply the statement of allegations did not result in any prejudice to the plaintiff-respondent inasmuch as the charges were elaborate enough and the plaintiff-respondent could meet the charge adequately. The learned Senior Civil Judge examined charge No. 1 to ascertain whether it was elaborate enough as to cause no prejudice to the plaintiff-respondent. The learned Senior Civil Judge examined charge No. 1 to ascertain whether it was elaborate enough as to cause no prejudice to the plaintiff-respondent. He pointed out two defects in the charge— (1) That the dale of the incident was wrongly mentioned as 24-10 1951. (2) That the charge did not contain specifically what further part the plaintiff-respondent had to play after he produced Khanu Barbel in the Police Station, Barmer. According to the learned Judge the plaintiff-respondent had no further duty to discharge after Khanu Barber was produced in the Police Station, Barmer, and it appears that he thought that the subsequent responsibility lay upon the Sub-Inspector Police incharge of the Police Station, Barmer. In my opinion, the view taken by the Senior Civil Judge is reasonable. It was necessary that the Enquiry Officer should have either given the statement of allegations so as to apprise the plaintiff-respondent of the nature of the laches or dereliction of duty committed by him or in the alternative, the charge sheet itself should have been elaborate enough to indicate the nature of accusation against the plaintiff-respondent. The Deputy Government Advocate placed before me no information regarding the respective duties and responsibilities of Sub-Inspector of Police incharge of Police Station and the plaintiff respondent in the matter of the subsequent steps to be taken in relation to prosecu-tion of Khanu Barber after he was produced in the Police Station, Barmer. In the circumstances the finding arrived at by the Senior Civil Judge that omission to supply the allegations of fact coupled with the nature of the charge sheet given to the plaintiff-respondent had resulted in prejudice to the plantiff-respondent, is fully justified and calls for no interference. 12. With regard to the second charge-sheet, the charge specifically recited that the plaintiff-respondent got his signatures in some of the daily diaries (Roznamchas) erased and one paper in Roznamchas containing his signature was torn out. However, the finding recorded against the plaintiff-respondent was that he fabricated false documents and prepared false farads. The finding arrived at by the Deputy Inspector General of Police cannot be a proper finding on the second charge framed against the plaintiff-respondent. Considering the manner in which the case was put up before the Senior Civil Judge his conclusion with regard to the second charge is also correct and calls for no interference. 13. The finding arrived at by the Deputy Inspector General of Police cannot be a proper finding on the second charge framed against the plaintiff-respondent. Considering the manner in which the case was put up before the Senior Civil Judge his conclusion with regard to the second charge is also correct and calls for no interference. 13. The learned Deputy Government Advocate during the course of his arguments invited my attention to para 6 of the order of the Deputy Inspector General of the Police holding the charges proved against the appellant and imposing punishment and contended that this part contains a finding on charge No. 2 against the plaintiff respondent. This paragraph reads as follows— "Now coming to the second story, it reveals from the daily diaries of the constables of the DIB staff that it is true, otherwise, the constables would not have been able to manipulate such a a story at their own accord without having any reason for that. Moreover, the erasing of signature of S.I. Ratanlal and destroying papers from these diaries also support that the second story is true and seems that S.I. Ratanlal has done it after releasing the second accused and the camel with the connivance of S.I. Shri Ummed Singh". To appreciate the Deputy Government Advocates argument, I may refer to para 4 where the Deputy Inspector General of Police referred to the three stories revealed from the record— "4(1) That the DIB Staff arrested the accused Khanu and Bheek Singh along with the camel and eleven Thans of cloth. Bheek Singh was let off by the S.I. Ratanlal and other DIB Staff and Khanu along with the camel and cloth was produced in the Police Station. (2) That the DIB Staff arrested the above two accused with the camel and cloth. Bheek Singh escaped and Khanu and the property was produced in the P. S. Barmer. (3) That the DIB Staff saw only one man going with eleven thans and when he interrogathe left the Thans there and ran away." In para 5 of examined the correctness of the three alternative stories stories indicated above. He discarded the story No l as it had been supported only by Khanu Barber. (3) That the DIB Staff saw only one man going with eleven thans and when he interrogathe left the Thans there and ran away." In para 5 of examined the correctness of the three alternative stories stories indicated above. He discarded the story No l as it had been supported only by Khanu Barber. In sub-para (2) he considered the second story and in accepting the second story he made reference to general terms to the daily diaries of the constables and the erasure of the signatures of Sub-Inspector Ratanlal and destruction of papers from the diaries and held the second story substantially acceptable, although the Deputy Inspector General of police made an observation indicating that the story accepted by him was in variance with the second story recited in para 4. These observations are "It seems that S. I. Ratanlal has done it after releasing the second accused and the camel with the connivance of S. I. Shri Ummedsingh." In para 4 the recital was that Bheeksing escaped. I have no hesitation in coming to the conclusion that the observations made by the Deputy Inspector General of Police generally in considering the various stories cannot be equated with a definite finding on charge No. 2, particularly when in the operative part of his order he recorded a clear finding that Umedsingh and the plaintiff respondent prepared false Farads and made false entries in the police record. The new point made out by the Deputy Government Advocate does not persuade me to differ from the view taken by the Senior Civil Judge which is reasonable and which is intended to give reasonable opportunity to the plaintiff-respondent in the matter of his grievance. The enquiry against the plaintiff-respondent in respect of charge No. 1 having been materially defective and having resulted in prejudice to the plaintiff-respondent and there being no finding on charge No. 2 and the finding of the Deputy Inspector General of Police being on a matter not related to charge No. 2, I am inclined to take the view that there has been a flagrant non-compliance with Rule 16 and that the plaintiff-respondent had no proper opportunity to defend himself. The enquiry, therefore, stands vitiated and the learned Judge of the first appellate Court was justified in arriving at the conclusion in favour of the respondent. 14. The enquiry, therefore, stands vitiated and the learned Judge of the first appellate Court was justified in arriving at the conclusion in favour of the respondent. 14. Even so, it was argued by the Deputy Government Advocate that the punishment actually awarded to the plaintiff-respondent was one of mere stoppage of increments and that it did not amount to reduction in rank and therefore Art. 311 was not attracted. The Deputy Government Advocate relied upon The Divisional Personnel Officer, Southern Railway, Mysore vs. S. Raghavendrachar(l), The High Court, Calcutta and another vs. Amal Kumar Roy and others(2). The counsel for the respondent, however, relied upon Dandapani Gouda vs. State of Orissa(3) in support of his contention that the withholding of increments also amounts to reduction in rank. 15. I have gone through the case cited at the Bar. The preponderance of the judicial opinion appears to be that the withholding of increments or reduction to lower stage in the same time scale do not amount to reduction in rank. Rank as observed by the Supreme Court in High Court, Calcutta vs. Amal Kumar(2) has reference to classification and must invoke the reduction to lower post or lower time scale. Reduction to a stage in the same time scale does not amount to reduction in rank. In this view of the law, I must hold that the view taken by the Senior Civil Judge that there was reduction in rank of the plaintiff respondent is not correct and that finding cannot be upheld and has to be quashed. 16. This, however, does not conclude the matter. The question still requiring consideration is whether apart from the violation of Art. 311 non-compliance of Rule 16 by itself should be considered sufficient to sustain the decree of the first appellate court. The Deputy Government Advocates contention in this connection is that R. 16 as it stood at the relevant time need not have been complied with in the case of the plaintiff-respondent as he was eventually awarded a minor punishment which according to him was mere withholding of increments. The plaintiff-respondents counsel however contended that the order of the Deputy Inspector General awarding punishment clearly stated that the plaintiff-respondent was reduced by two increments and that this amounted to reduction in the same time scale and before the awarding of such a punishment an enquiry as contemplated by R. 16 was necessary. The plaintiff-respondents counsel however contended that the order of the Deputy Inspector General awarding punishment clearly stated that the plaintiff-respondent was reduced by two increments and that this amounted to reduction in the same time scale and before the awarding of such a punishment an enquiry as contemplated by R. 16 was necessary. It will be relevant at this stage to read the relevant provisions of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950 which were then in force. Rule 15 prescribed various punishments which could be imposed in good and sufficient reasons. At sub-para (iii) is mentioned the following punishment— "Reduction in a lower post or time scale or to a lower stage in the time-scale; or in the case of pension to an amount lower than that due under the rules." Rule 16, in so far as relevant for our purpose reads as folllows:— "Without prejudice to the provisions of the Public Servants Inquiries Act, 1950, no order imposing the penalty of dismissal, removal or reduction shall be passed on a member of a service (other than an order based on facts which had led to his conviction in a Criminal Court or by a Court Martial) unless he has been informed in writing of the grounds on which it is proposed to take action and has been afforded an adequate opportunity of defending himself. The grounds on which it is proposed to take action shall be reduced to the form of a definite charge or charges which shall be communicated to the person charged together with a statement of the allegations on which each charge is based and of any other circumstances which it is proposed to take into consideration in passing orders on the case" It is significant that Rule 16 used the expression "reduction" only and not the expression used in the Constitution "reduction in rank". It will be hardly proper to read "reduction" as used in Rule 16 as equivalent to "reduction in rank". The portion of Rule 15 which has been quoted above also uses the word "reduction" in relation to reduction to a lower post or time scale or lower stage in the time scale. It will be hardly proper to read "reduction" as used in Rule 16 as equivalent to "reduction in rank". The portion of Rule 15 which has been quoted above also uses the word "reduction" in relation to reduction to a lower post or time scale or lower stage in the time scale. On a consideration of the scheme of the rules and the language of Rules 15(3) and 16 it is clear to me that the procedure prescribed by Rule 16 has also to be adopted to punishment mentioned in Rule 15(3). In other words, even when an officer is punished by way of reduction to a lower stage in the time scale it was necessary under the rules in force at the time when the enquiry was held against the respondent that the procedure prescribed in Rule 16 should have been followed. 17. The contention of the Deputy Government Advocate that the procedure prescribed by R. 16 then in force need not have been adopted has no merits and deserves to be rejected and is hereby negatived. 18. It was also hinted at the stage during the course of arguments that noncompliance of these rules do not afford a cause of action to the respondent inasmuch as these rules were in the nature of administrative directions. There was of course divergence of judicial opinion in the various High Courts on this point. This Court of course has been consistently taking the view that the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950 are statutory rules and have binding effect. Reference may be made to Kanhaiyalal vs. State of Rajas-than(4). Again in Dr. Kishen Singh vs. State of Rajasthan(5) disciplinary enquiry was initially started against an officer under R. 16 of the Rules and he was awarded punishment with stoppage of two increments with cumulative effect. The writ application by the Government servant was allowed by this Court and the following propositions were laid down: "We do not mean to say that it is not permissible for the disciplinary authority to proceed under R. 17 for imposing minor panalties, simply because it has proceeded initially under R. 16 but it is certainly necessary that if it proposes to change the procedure from R. 16 to R.1/-, a clear notice to that effect must be given to the person concerned before proceeding under R. 17. In a case like the present one, where the respondent wanted to proceed against the petitioner in respect of some wrong which was alleged to have been committed by him five years earlier, or, for that matter two and a half years earlier, it was all the more necessary that he should have been given a personal hearing and the evidence on whose basis he was sought to be punished should have been examined in his presence." It was further observed that it was a glaring case in which the very first principles of natural justice were clearly violated and the petitioner was punished almost ex parte. The conflict has been now set at rest by the authoritative pronouncement of the Supreme Court in State of Uttar Pradesh vs. Babu Ram Upadhya(6). In this case the earlier Privy Council cases were considered and examined and the principle was laid down as follows : "In our view, subject to the overriding power of the President or the Governor under Art. 310, as qualified by the provisions of Art. 311, the rules governing disciplinary proceedings cannot be treated as administrative directions, but shall have the same effect as the provisions of the statute whereunder they are made, in so far as they are not inconsistent with the provisions thereof. In view of this authoritative pronouncement of the Supreme Court it was idle for the Deputy Government Advocate to contend that non-compliance with Rule could not afford any cause of action to the plaintiff-respondent. 19. Lastly, it was contended that the provisions of the Police Act and the Police Regulations made under the Act provide for the enquiry into the case of a Police Officer and that it was not necessary to comply with the procedure laid down by R. 16. This point was not raised either at the trial stage or at the first appellate stage. It was not also relied upon in the memorandum of appeal. It was for the first time that this point was made out to-day. In the absence of necessary averments and the likelihood of prejudice to the plaintiff-respondent on account of being called upon to meet a new point in the nature of surprise to which he could have raised various defences I am not inclined to allow this point to be agitated at this stage. 20. In the absence of necessary averments and the likelihood of prejudice to the plaintiff-respondent on account of being called upon to meet a new point in the nature of surprise to which he could have raised various defences I am not inclined to allow this point to be agitated at this stage. 20. Apart from the non-compliance with the Rules I am satisfied that in the present case there has been no observance of the principles of natural justice and the appellant cannot be said to have reasonable opportunity of defending himself and the appellant had no reasonable opportunity of meeting the accusation against him and I do not feel inclined to interfere with the view taken by the First Appellate Court. 21. In my opinion, the. decree of the Senior Civil Judge is justified and calls for no interference. There is no force in this appeal which is hereby dismissed with costs.