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1996 DIGILAW 1191 (RAJ)

Chiranji Lal Sharma v. State of Rajasthan

1996-10-24

ARUN MADAN

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Honble MADAN, J. – The grievance of the petitioner as unfolded in the writ petition in short is that the petitioner who is an employee of Directorate of Education, Jaipur, was appointed as LDC in the said department in the year 1965 and was confirmed on the said post w.e.f. 1968. He was thereafter promoted to the post of UDC in the year 1975 and on seniority basis was also confirmed on the said post. (2). It has been contended by the petitioner that he was placed under suspension w.e.f. 13.4.81 while he was discharging his duties in the Govt. Secondary School, Jalsu District Jaipur as UDC he was served with a charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as the ``CCA Rules) vide memorandum dated 29th Septe- mber, 1982 wherein four charges were levelled against him. It has been mentioned that the said charges are also a matter of criminal case registered against the petitioner on 14.3.81 under Section 409 IPC. The charge-sheet was duly served on him and he also replied to the same on 23rd October, 1982. (3). With regard to the criminal cases mentioned hereinabove vide FIR No. 52/81 before Addl. Chief Judicial Magistrate No.1, Jaipur District, Jaipur it has been contended that the same was decided by the said court on 3.6.1991; whereby the petitioner was acquitted of the charge under Section 409 IPC. The intimation of this fact was duly conveyed to the respondent-department and the department taking note of this fact re-instated the petitioner vide order dated 8.1.1991 and since then the petitioner continuously served as UDC at Government Secondary School Toda- meena, District Jaipur. In pursuance of the aforesaid charge-sheet a departmental enquiry was initiated by the department against the petitioner and one Shri Ram Swaroop Sharma was appointed enquiry officer w.e.f. 21.7.84 and he conducted the enquiry upto 19.8.85 and adjourned the proceedings to 10.9.85 by directing the Govt. Nominee to place on the record the documents concerning the charges and thereafter no further steps were taken by the said enquiry officer. It has been contended that the petitioner had been participating in the enquiry proceedings before the enquiry officer on all the respective dates but since the record was not available the enquiry remained inconclusive. Nominee to place on the record the documents concerning the charges and thereafter no further steps were taken by the said enquiry officer. It has been contended that the petitioner had been participating in the enquiry proceedings before the enquiry officer on all the respective dates but since the record was not available the enquiry remained inconclusive. Thereafter subsequent to the acquittal of the petitioner in the criminal case, a new enquiry officer was appointed who re-initiated an enquiry against the petitioner vide order dated 18.9.1992. The said enquiry officer was directed by the department to complete the enquiry within the stipulated period of one month. Since the petitioner had already faced the enquiry earlier before the first enquiry officer, the second enquiry officer did not even call upon the petitioner and hence drawing his presumption that the earlier enquiry officer had already submitted the report did not submit his report to the department. The petitioner being eager to know the result of the enquiry sent a letter dated 7.11.92 to the respondents with a request that the enquiry be finalised which has been pending for a long time. When the petitioner did not receive any reply from the respondents he finally served a notice to the respondent dated 21.12.93 of demand for justice through his counsel with a prayer for fixation of pay and allowance for the period he remained under suspension and also demanded subsistence allowance for the said period. It was also prayed in the notice that the enquiry be completed expeditiously since the same had been pending for a period of nearly one decade. (4). Having not heard anything from the respondents the petitioner was constrained to initiate proceedings against the respondents before the Service Appellate Tribunal, Jaipur on 30.1.93 which was registered as appeal No. 12/93. The learned Tribunal vide its order, dated 30.11.93 after giving due notice to the respondents allowed the petitioners appeal in the following terms : ``Accordingly we accept the appeal of the appellant and order as under :– (1) The salary for the period 1.2.81 to 12.4.81 and the payment of subsistence allowance as per rules be made to the appellant within 2 months of this order. The competent authority should also decide what percentage of salary the appellant would be entitled to as subsistence allowance during the suspension period. The competent authority should also decide what percentage of salary the appellant would be entitled to as subsistence allowance during the suspension period. His claim for subsistence allowance @ 75% of the pay after six months of suspension is to be decided before making the payment of his subsistence allowance in the stipulated period also. (2) The DE under Rule 16 CCA against the appellant be finalised within 3 months of this order and on the basis of decision of the DE orders be also passed in regard to the suspension period under Rule 54 of RSR. (3) The appeal against the punishment order in the DE under Rule 17 CCA be decided within 2 months of passing of this order. (4) After taking the final decision about the suspension period the appellant be fixed under the Pay Scale Rules of 1983, 1987 and 1.9.88 respectively so he may be able to get the benefits of revised pay for which he is entitled according to Rules. This should be done within 2 months of the decision in the pending DE. (5). The receipt of subsistence allowance by the petitioner from the department has not been disputed by the petitioner in view of the directions of the Tribunal. As regards the appeal against punishment under Rule 17 of the CCA Rules, the same has also been decided. It has been contended in this regard that the said order passed in appeal by the Appellate Authority is already under challenge before this court in a separate writ petition filed by the petitioner on 31.10.94 and the matter is subjudice. The grievance of the petitioner in this writ petition is only confined to the non-compliance of the aforesaid direction of the learned Tribunal in terms of its order, dated 30.11.93, since the respondents have not yet completed the departmental enquiry as directed within the stipulated period of 3 months as well as the matter of pay fixation of the petitioner as per the Revised Pay Scale Rules of 1983, 1987 and 1989 as a result of which the petitioner has adversely suffered in his career. (6). It has further been contended that notwithstanding the above, the D. E. against the petitioner is still pending and not yet finalised by the respondents and the respondents vide order, dated 22.10.92 appointed yet another enquiry officer (3rd E.O.) at Jaipur. (6). It has further been contended that notwithstanding the above, the D. E. against the petitioner is still pending and not yet finalised by the respondents and the respondents vide order, dated 22.10.92 appointed yet another enquiry officer (3rd E.O.) at Jaipur. It has been contended in this regard that the petitioner was informed by the appointment of the said enquiry officer on 15.12.92 when the petitioner was directed to be present before the said enquiry officer on 28.12.92. (7). The petitioner feeling incensed of the continuous prolong enquiry which still remains inconclusive, sent another representation to respondent No.2 with a request that the pending enquiry should be expeditiously completed in view of the aforesaid directions of learned Tribunal. (8). By this writ petition, the petitioner has saught to challenge the continuan- ce of the enquiry proceedings against the petitioner on the grounds inter-alia, (a) that the charges levelled against the petitioner in the charge-sheet were the same as alleged in the criminal case in which the petitioner had already been acquitted and no appeal by the State has been preferred against the acquittal, (b) no payment of subsistence allowance has been made to the petitioner during the suspension period and the enquiry is still pending, (c) that there has been intervening gap of more than 12 years between issuance of charge sheet and the initiation of the enquiry proceedings and during this period the petitioner has already been acquit- ted of the charges which are subject matter of both, the criminal case as well as the Departmental Enquiry and hence the enquiry should be deemed to have been abated for the reason of inordinate delay, (d) that the petitioner has faced enquiry before four enquiry officers and none of them has either concluded the enquiry or submitted his report to the department & (e) that the impugned action of the res- pondent is contrary to Rule 16(9) of the CCA Rules which is referred to herein below: ``The disciplinary authority shall, if it is not the inquiring authority, consider the record of the inquiry and record its findings on each charge. The disciplinary authority may while considering the report of the enquiring authority for just and sufficient reasons to be recorded in writing remand the case for further/denovo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other. (9). During the course of hearing learned counsel for petitioner has vehemen- tly contended at the bar that there has been no justification for the respondents to have continued with the enquiry by appointing one enquiry proceedings have remained inconclusive till date, notwithstanding the lapse of over one decade the said enquiry proceedings should be deemed to have abated by influx of time. He has further contended at the bar that it was kept in view the aforesaid circumstan- ces and as a result of inordinate delay in the enquiry proceedings, the petitioner has challenged the same by way of an appeal before the Rajasthan Civil Services Appellate Tribunal on 30.1.1993 and the learned Tribunal vide its order, dated 30.11.1993 had given the aforesaid directions by allowing the petitioners appeal, but surprisingly enough the directions of Tribunal which were binding on respon- dents have deliberately been flouted by respondents on one pretext or another instead of completing the enquiry within stipulated period of 3 months as directed nor appeal has been decided by appellate authority within stipulated period of 2 months as directed under Rule 16 & 17 of CCA Rules. The petitioner has further not been paid subsistence allowance for the disputed period nor his pay fixation has been done till date. (10). In their reply the respondents have controverted the above contentions of the petitioner by contending inter-alia that the petitioner is solely responsible for not co-operating in the enquiry and hence it could not be completed within the stipulated time as per the directions of the Tribunal. (11). Learned counsel for the respondents has stated at the bar that there was absolutely no reason for the respondents to have acted malafide against the petitioner since there was no irrationality or personal grudge against the petitioner. On merits it has been contended that the enquiry was perfectly judicious and in consonance with the provisions of law. (12). I have heard learned counsel for the parties and have perused the relevant documents on record and examined the legal position with reference to the relevant rules. (13). On merits it has been contended that the enquiry was perfectly judicious and in consonance with the provisions of law. (12). I have heard learned counsel for the parties and have perused the relevant documents on record and examined the legal position with reference to the relevant rules. (13). Prima-facie I am of the considered opinion that assuming that the petitioner was guilty of the charges levelled against him as alleged by the respon- dents, respondents should have been more concerned and vigilant not only to initiate the departmental enquiry against the petitioner at the earliest point of time but should have also completed the same at the earliest possible opportunity. The conduct of the respondents has been such from which it is apparent that inordinate delay in completing the enquiry proceedings has been mainly on account of change of one enquiry officer after another and as many as four enquiry officers were appointed during the intervening period and surprisingly enough non of the enquiry officers took responsibility to complete the enquiry proceedings at the earliest spell of time. I am surprised to note that the respondents have flagrantly disobeyed the directions of learned appellate Tribunal by not finalising the enquiry within the stipulated period of 3 months of the order, dated 30.11.93 and even the appeal against the impugned order of punishment could not be decided within the period of two months of the passing of the said order as directed by learned Tribunal. (14). My observations are fortified from the judgment of this court in the matter of Bhupendra Singh vs. State of Raj. & Ors. (1), wherein identical questions had arisen for consideration of this court. Relying upon the judgment of the Apex Court in the matter of A.R. Antuley vs. R.S. Nayak (2), that the delay in initiation of the proceedings is bound to give room for allegations of bias, malafides and misuse of power, if the delay is too long and unexplained, this court while allowing the writ petition, directed the respondents to process the case of the petitioner for regular promotion to the concerned promotional post and if as a result of enquiry the petitioner was exonerated and found suitable for being promoted, then the petitioner should be entitled to the necessary relief in accordance with law. (15). (15). As a result of the above discussions I am of the view that the petitioner deserves to succeed. The writ petition is consequently allowed with no order as to costs. The impugned order dated 5.4.1994 by which denovo enquiry was initiated against the petitioner is quashed and set aside. Consequently the enquiry proceedings also deem to have abated against the petitioner. The respondents are directed to release all consequential benefits alongwith interest @ 12% per annum from the due date till payment as admissible including the subsistence allowance and re-fixation of pay to which the petitioner may be entitled in accordance with the rules in terms of the directions of learned Service Appellate Tribunal dated 30.11.1993 within a period of four months from the date of submission of certified copy of this order.