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1981 DIGILAW 317 (RAJ)

K. D. Mantri v. State of Rajasthan

1981-07-30

DWARKA PRASAD

body1981
DWARKA PRASAD, J. - The petitioner was working as an Assistant Sales Tax Officer with effect from August 1, 1955 in an officiating capacity and with effect from February 1, 1956 in a substantive capacity. He was temporarily promoted in an officiating capacity as Commercial Taxes Officer, on which post he was confirmed with effect from October 14, 1971. It was alleged that during the aforesaid period, while the petitioner worked as a Commercial Taxes Officer, he committed certain acts which were considered to constitute misconduct by the State Government. Four charge sheets were served upon the petitioner, copies of which have been placed on the record as Annexures 2,3,4 and 5. The relevant details of the charge sheets are as under,- S.No. Identification Mark Date of charge sheet Period to which it relates 1. Annexure 2 9.12.1970 24.6.65 to 6.6.67 2. Annexure 3 11.12.1970 -do- 3. Annexure 4 16.8.1973 1964-65 1965-66 1966-67 4. Annexure 5 27.11.1973 1971-72 2. The petitioner was served with charge sheets along with memorandum of allegations in respect of each charge sheet. He was later on compulsory retired by the State Government under the provisions of Rule 244 (2) of Rajasthan Service Rules by the order dated October 9,1979. The order of his compulsory retirement was also sought to be challenged by the petitioner in this writ petition. But it appears that the petitioner also filed an appeal in that matter before the Rajasthan State Civil Services Appellate Tribunal, which was allowed by the Tribunal on September 19, 1980 and the order of compulsory retirement of the petitioner was set aside. As such, the relief in the matter relating to the compulsory retirement of the petitioner has not been pressed at the hearing of this writ petition, as the said order already stands quashed by the order of the Tribunal dated September 19, 1980 and it has been ordered by the Tribunal that the petitioner be deemed to continue in the service of the State. The petitioner subsequently retired from Government Service on September 30, 1980 on attaining the age of superannuation. 3. The only ground pressed by the learned counsel for the petitioner in this writ petition now before me was that the Departmental Enquiries which were initiated against the petitioner by serving upon him charge sheets Annexures 2, 3, 4, and 5 should be quashed. 3. The only ground pressed by the learned counsel for the petitioner in this writ petition now before me was that the Departmental Enquiries which were initiated against the petitioner by serving upon him charge sheets Annexures 2, 3, 4, and 5 should be quashed. Learned Counsel for the petitioner advanced three reasons why the enquiries which are pending should not be allowed to be proceeded with by this Court, viz,— (i) That the incidents to which the aforesaid four enquiries relate are very old and since more a decade has already elapsed, the enquiries should not be permitted to be proceeded with. (ii) That the petitioner has retired from Government service in the year 1980 and that the disciplinary proceedings are now continued by virtue of the provisions of Rule 170 of the Rajasthan Service Rules, but as no question of recovery of any pecuniary loss alleged to have been caused to the Government has been raised in any of the charges levelled against the petitioner, it would be inexpedient to proceed further with the disciplinary enquiries. (iii) That the subject matter of the charges framed against the petitioner relate to the performance of his duties as a Commercial Taxes Officer, and while the petitioner was acting in a quasi judicial capacity, if any discretion has been wrongly exercised by the petitioner, the same should not be considered as a misconduct. 4. The ground of malafides was also sought to be urged by the learned counsel for the petitioner and it was argued that four senior officers then working in the Government of Rajasthan were annoyed with the petitioner viz. Shri Mangal Behari, Shri Ramakrishanan, Shri Santake and Shri S.L. Joshi and that the aforesaid four officers had a bias against the petitioner and they managed that charges were framed against the petitioner and charge-sheets were served upon him. But the learned counsel for the petitioner was unable to satisfy me from the record as to how the four officers named above, even if biased, could be said to have influenced the framing of charges against the petitioner or they could become instrumental in getting the charge-sheets prepared against him? But the learned counsel for the petitioner was unable to satisfy me from the record as to how the four officers named above, even if biased, could be said to have influenced the framing of charges against the petitioner or they could become instrumental in getting the charge-sheets prepared against him? It is admitted that none of the above named four officers was working in or was associated with the Appointment or General Administration Department of the Government of Rajasthan, which issued the charge sheets to the petitioner, at the relevant time. After hearing learned counsel for the petitioner on the question of malafides at some length I am unable to discover any link between the framing of charges against the petitioner on four different occasions by the Appointment Department of the Government of Rajasthan and the four officers named above. Even if it be presumed for the sake of argument that the four officers viz. Shri Mangal Behari Ramkrishnan, Shri Santake and Shri Joshi or any of them bore any ill-will against the petitioner and has a bias against him, yet how could any one of them or all of them influence the State Government so as to persuade it to frame charges against the petitioner and issue charge sheets to him on four different occasions. The officers named above were not in any manner connected with the disciplinary enquiries which are being conducted against the petitioner in pursuance of the four charge-sheets served upon him. It is common case of the parties that the charges are being enquired into by the Additional Commissioner, Departmental Enquiries, Rajasthan. Thus, in my view, no foundation has been laid by the petitioner for the plea of malafides or bias, so far as the State Government is concerned which issued the charge sheets, or against the Enquiry Officer/who is proceeding with the enquiry is in respect of the aforesaid four charge sheets. 5. While considering the question about the validity of the disciplinary proceedings initiated against the petitioner, this court is not called upon to enquire into the malafides or bias of the four officers named above or any one of them. But what is required to be considered is as to whether the disciplinary enquiries initiated against the petitioner were actuated by bias and were consequently malafide or that the enquiries were conducted with bias. But what is required to be considered is as to whether the disciplinary enquiries initiated against the petitioner were actuated by bias and were consequently malafide or that the enquiries were conducted with bias. No basis whatsoever, has been shown to exist for any plea of malafides so far as the State Government is concerned and no allegation of malafides has been advanced against the enquiry officer. Merely because the petitioner has chosen to allege in the writ petition that the then Finance Minister, in collusion with some of the officers named above, got the charge-sheets prepared and initiated the disciplinary enquiries against the petitioner, the same is hardly sufficient when there is no foundation at all for advancing such a charge. There is no material on the record to support the alleged ground of malafides and as such the plea of malafides deserves to be rejected at the very outset. 6. Before adverting to the reasons advanced by the learned counsel for the petitioner in support of his plea that the disciplinary proceedings should not be permitted to be proceeded with, itmust be observed that ordinarily this Court would not interfere in a case where a charge sheet has been served upon a Government servant and disciplinary enquiry has been initiateencuntil such enquiry is completed and some penalty is imposed in consequence thereof. Once a disciplinary enquiry has been initiated, ordinarily it should be allowed to proceed to its logical conclusion, unless there are strong reasons to justify an interference by this Court at an intermediary stage. Learned counsel for the petitioner relied upon three decisions of their Lordships of the Supreme Court and a Banch decision of this Court in support of his submission that this Court in its discretion should not allow the disciplinary proceedings to continue in the present case. Learned counsel for the petitioner himself did not submit that the disciplinary proceedings pending against the petitioner suffered from any lack of jurisdiction. But according to him, they should be discontinued as they have been pending for more than a decade and relate to incidents which had taken place long time back. 7. Learned counsel for the petitioner himself did not submit that the disciplinary proceedings pending against the petitioner suffered from any lack of jurisdiction. But according to him, they should be discontinued as they have been pending for more than a decade and relate to incidents which had taken place long time back. 7. In C.L. Subramaniam V. Collector of Customs (1) their Lordships of the Supreme Court held that in that case the Government servant was not afforded a reasonable opportunity to defend himself in the course of disciplinary proceedings and they consequently struck down the order of removal from service passed as a result of the disciplinary proceedings. While striking down the order imposing penalty on the ground of lack of reasonable opportunity their Lordships observed as under:- "The facts of this case are not such as to justify any fresh enquiry, against the appellant. Hence we direct that no fresh enquiry shall be hold against the appellant and he be restored to the position to which he would have been entitled to but for the impugned order." 8. The other case relied upon by the learned counsel for the petitioner is Dewan Singh vs. State of Haryana (2). This was again a case where their Lordships of the Supreme Court set aside the order of dismissal passed against the Government servant on the ground that the principles of natural justice were ignored and reasonable opportunity, as envisaged in s. 124(2) of the Punjab Panchayat Samities & Zila Parishad Act, 1961 was not afforded to the employee so as to enable him to make an effective representation in order to establish his innocence. In these circumstances, while quashing the earlier disciplinary enquiry, their Lordships observed as under:- "Although in the ordinary course it would have been open to the authority to institute a fresh enquiry on his reinstatement, after the order of dismissal has been set aside, we are clearly of opinion that this is not a case where that procedure should be permitted For one reason the appellant was dismissed in December, 1967 and he has been out of employment for over eight years. He has also not many years to serve. He has also not many years to serve. Besides, the serious, allegations regarding the incident of August 15, 1967, which, according to us must have influenced the authority to pass the order of dismissal, have not been found to be established in a judicial trial. While, therefore, quashing the impugned order of dismissal, which we hereby do, we direct that the appellant shall be rainstated in service with immediate effect and there shall be no further enquiry into the allegations forming the subject matter of the charge against him". 9. Union of India v. M.B. Patnaik (3) is another case of similar nature. In that case, the learned judges of the Orrissa High Court held that the finding of guilt and the imposition of punishment on the basis of that finding arrived at in disciplinary proceedings could not be sustained. Their Lordships also declined to allow the disciplinary authority to hold a second enquiry on the ground that 15 years have elapsed since the charges were framed and that the employee had suffered considerably on account of his being subjected to disciplinary proceedings for such a long time. Their Lordships of the Supreme Court upheld the decision of their Lordships of the Orrissa High Court and observed that it would be inequitable for a fresh enquiry being made into the charge framed against the employees having regard to the long lapes of time, the offences having been stated to have been committed in about 1955. Their Lordships also took note of the fact that no recovery could be made from three of the employees who had retired from service. 10. All the three cases referred to above and relied upon by the learned counsel for the petitioner have an important distinguishing feature viz.. that the concerned employee had been earlier subjected to disciplinary proceedings for a verylong time and the said disciplinary proceedings thought resulted in an order of removal or dismissal of the employee, which order was ultimately quashed by the High Court or by the Supreme Court, and in this context it was held by their Lordships that the offences having been committed a long back it would be inappropriate to start fresh enquiries on the same charges again, after the lapse of so many years. Their Lordships have taken into consideration the suffering and harassment caused to the concerned employees for a very long period on account of their being subjected to long departmental proceedings, which had ultimately to be quashed by the Court on account of some or the other defect in the procedure adopted by the disciplinary authority. 11. A similar view was taken by this Court in State of Rajasthan vs. Sardara Ram (4). In that case Government servant was charge sheeted in a departmental enquiry in the year 1958 and he was suspended on December 3, 1958. The departmental enquiry resulted in an order of removal. The State Government on appeal passed an order on September 11, 1962 setting aside the order of removal of the concerned employees and directed that the Inspector General of Police should himself make an enquiry. For a number of years nothing was done by the Inspector General of Police to complete the enquiry. A writ petition was filed in which a direction was issued by this Court on January 27, 1966 to the Inspector General of Police, who was entrusted with the enquiry by the State Government, to complete the enquiry within a period of four months from the date of the order of this Court. But when the disciplinary enquiry was not completed within the period specified by this Court in its order dated January 27,1966, the Government servant filed yet another writ petition in this Court. It was in view of the aforesaid facts that this Court held that the mandate of the Court was flouted and the departmental proceedings were not completed for such a long period without any justification and in such peculiar circumstances the court directed that the enquiry should not be continued under Rule 170 of the Rajasthan Service Rules Again this was a case where the first enquiry conducted against the Government servant resulted in his removal from office but the same was subsequently set aside and a fresh enquiry was ordered, which was not completed inspite of the express direction of the Division Bench of this Court passed on January 27,1966 that the enquiry should be completed within a period of four months. It is because the disciplinary authority flouted the mandate of the Court, the same justified annulment of the disciplinary proceedings. 12. It is because the disciplinary authority flouted the mandate of the Court, the same justified annulment of the disciplinary proceedings. 12. In the case before me, four enquiries initiated against the petitioner have yet to be completed. The earliest relates to the period between 1964 to 1967. Two of the enquiries were started in December, 1970 while the other two were initiated in the year, 1973, The present writ petition was filed in the year, 1976 and on September, 27, 1976 this Court passed an order staying further proceedings in the disciplinary enquiries. Thus the incidents, at the time when aforesaid stay order was passed by this Court, were hardly ten years old and the enquiries were less than six years old. Since the proceedings in the disciplinary enquiries could not be taken from 1976 to 1981 on account of the stay order passed by this Court at the request of the petitioner himself, the intervening period from 1976 should be kept out of consideration while looking at time when the incidents which were subject matter of the enquiries had taken place or while counting the period which has elapsed since the said enquiries were initiated. 13. In Govinda Menon vs. Union of India (5) it was urged that the disciplinary proceedings initiated against the Government employee should not be proceeded with. Their Lordships observed as under in this context;— "The jurisdiction for grant of writ of prohibition is primarily supervisory and the object of that writ is to restrain Courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or also to prevent them from exceeding the limits of their jurisdiction. In other words the object is to confine Courts or tribunals of inferior or limited jurisdiction within their bounds. It is well settled that the writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but the writ also lies in a case of departure from the rules of natural justice. xxx xxx xxx xxx xxx xxx A clear distinction must, therefore, be maintained between want of jurisdiction and the manner in which it is exercised. xxx xxx xxx xxx xxx xxx A clear distinction must, therefore, be maintained between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the matter is corse non-judice and a writ of prohibition will lie to the Court or inferior tribunal forbidding it to continue proceedings therein in excess of its jurisdiction." Their Lordships held that there was no lack of jurisdiction and no case was made out for grant of a writ of prohibition under Article 226 of the Constitution. 14. In Isha Beevi V. Tax Recovery Officer (6) it was observed by their Lordships of the Supreme Court as under:— "These proceedings could only be quashed even at this stage, if they were entirely without jurisdiction. Othrewise, a prayer for gashing proceedings would, obviously, be premature. No occasion for the issue of a writ of Mandamus can arise unless the applicants show non-compliance with some mandatory provision and seek to get that provision enforced because some obligation towards them is not carried out by the authority alleged to be flouting the law. xxx xxx xxx xxx xxx xxx They have, therefore, asked for writs of prohibition. The existence of an alternative remedy is not generally a bar to the issuance of such a writ or Order. But, in order to substantiate a right to obtain a writ of prohibition from a High Court or from this Court, an applicant has to demonstrate total absence of jurisdiction to proceed on the part of the officer or authority complained against". 15. In State of Bihar V.J.A.C. Saldanha (7) their Lordships of the Supreme Court held that crime detection and crime punishment have clearly demarcated spheres of activity. Some serious allegations were advanced against the investigating agency and investigation was ordered to be taken up by the independent agency. In this context it was observed as under:— "It must, however, be pointed out that if an information is lodged at the police station and an offence is registered, the mala fide of the informant would be of secondary importance if the investigation produces unimpeachable evidence, disclosing the offence." 16. Thus it is clear that even if any mala fides, which is attributed to the respondents Nos. Thus it is clear that even if any mala fides, which is attributed to the respondents Nos. 2 to 7 and which I think it irrelevant to consider might have any merit, the same would be of no avail, so far as the disciplinary enquiries conducted against the petitioner are concerned. Once the charge-sheets have been served and the disciplinary enquiries have been initiated the outcome there of would depend upon the material that may come on the record before enquiry officer and the bias of the respondents Nos 2 to 7 in respect of initiation of such enquiries would be immaterial. 17. In K.K. Dao Choudhary v. State of West Bengal (8) it was observed that whether there was any bias it will, malafides or a due opportunity to be heard or to produce evidence was given in the course of departmental proceedings, are all questions of fact and in case of conflicting assurtions made by affidavits given by the two sides, it is difficult to decide such questions in writ petitions. 18. Learned counsel for the petitioner at the time of hearing vehemently argued that nothing was done in the departmental enquiries from 1970 to 1976 and they should be quashed on that ground. No such allegation has been made in the writ petition. It does cot appear from the record before me an to how much time the petitioner himself took in filing his replies to the four charge-sheets served upon him and as to when the enquiry officer was appointed and how much time was taken in effecting service upon the petitioner. Even from the letter produced by the petitioner of April, 1976, it is apparent that the petitioner had not appeared and it cannot be said as to how much time was taken in effecting service upon the petitioner, who was compulsory retired from Government service in the year 1975, which order was subsequently quashed. 19. Then it was argued by the learned counsel for the petitioner that since the petitioner has retired from Government service after attaining the age of super- annuation in September 1980, the disciplinary proceedings should not be allowed to continue against the petitioner even thereafter. 19. Then it was argued by the learned counsel for the petitioner that since the petitioner has retired from Government service after attaining the age of super- annuation in September 1980, the disciplinary proceedings should not be allowed to continue against the petitioner even thereafter. It was argued by the learned counsel that there was no question of recovery of pecuniary loss caused to the Government and as such continuance of the disciplinary enquiries under Rule 170 of the Rajasthan Service Rules should not be permitted by this Court. The relevant portion of Rule 170 of the Rajasthan Service Rules runs as under:- "170. The Governor further reserves to himself 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 Govt. if in a departmental error or judicial proceeding, the pensioner is found guilty of grave misconduct or negligence during the period of his service including service rendered upon re-employment after retirement:- (a) Provided that such departmental proceedings, if instituted while the officer was in service, whether before his retirement or during his re-employment, shall after the final retirement of the officer, 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 officer had continued in service; xxx xxx xxx xxx xxx xxx" 20. In my view, after the Government servant retires from employment, the punishments which could be inflicted upon him, if the alleged misconduct is found proved in the disciplinary enquiries, could be either of withholding or withdrawing the pension or any part of it, whether permanently or for a specified period. If some pecuniary loss is held to be caused to the Government by the act of the concerned Government servant, then under Rule 170 the disciplinary authority is empowered to order the recovery of the amount of such pecuniary loss in whole or in part from the pension payable to the Government servant. If some pecuniary loss is held to be caused to the Government by the act of the concerned Government servant, then under Rule 170 the disciplinary authority is empowered to order the recovery of the amount of such pecuniary loss in whole or in part from the pension payable to the Government servant. Thus it is only for the purposes of recovery of pecuniary loss that an enquiry may be continued under Rule 170 against a government employees who has retired from Government service, but the same may be continued in other cases as well and if serious misconduct is found to be proved, the Governor may order the withholding or withdrawing of the pension or any part thereof, either permanently or for a shorter period. Moreover, after going through the four charge-sheets, referred to above it cannot be held at this stage that there was no question of recovery of any amount or pecuniary loss caused to the Government in any of the four enquiries. When charges of rare nature are levelled, it is difficult for this Court in its discretion to direct the annulment of disciplinary proceedings, rather at such an early stage when there is nothing on the basis of which the court may come to the conclusion that the charges advanced against the employee are absolutely frivolous. After the requisite evidence is recorded in the course of disciplinary enquiries, it may appear that charges relating to grave and serious misconduct are brought home to the employee concerned and at such an early stage it would be highly inappropriate for this Court to interfere with the pending disciplinary proceedings against the petitioner. It has not been alleged that there was any lack of jurisdiction in the Additional Commissioner, Departmental Enquiries, who conducting the four enquiries against the petitioner, nor any kind of bias has been alleged against him. As such, there is no reason why this Court should interfere at this stage and should not allow the normal course of disciplinary enquiries to be followed, so as to allow them to reach their logical conclusion. As such, there is no reason why this Court should interfere at this stage and should not allow the normal course of disciplinary enquiries to be followed, so as to allow them to reach their logical conclusion. It would thus be inappropriate and inexpedient in this case, to apply the analogy of the decisions referred to above, in which the courts have refused to allow the Government servant, who had already undergone a long and tortureous course of disciplinary proceedings to undergo a similar course again by initiation of fresh enquiry on the same charges. 21. It would, however, be proper to direct in the present case that the disciplinary enquiries in all the four cases which are pending against the petitioner should be expeditiously disposed of. It cannot be disputed that the earliest proceedings were initiated in December, 1970 and although they remained pending for the last four years on account of the stay order passed by this Court, yet it cannot be denied that they have been pending for quite a long time and it would be in the interest of all concerned including the petitioner, that they should be disposed of as early as possible. I, therefore, direct that all the four disciplinary proceedings pending against the petitioner before the Additional Commissioner, Departmental Enquiries, Rajasthan, Jaipur be disposed off expeditiously. 22. The writ petition has no merit and is dismissed. The parties are left to bear their own costs.