Yog Raj v. State of Rajasthan — 1997 DIGILAW 223 (RAJ)

Honble PALSHIKAR, J. – By this petition, the petitioner has challenged the order dated 10.1.86 by which penalty of stoppage of promotion for a period of three years, from the date promotion becomes due, was imposed. (2). The factual matrix from which the present petition arises, stated briefly are as follows. (3). The petitioner is an employee of the State of Rajasthan and at the material time, was working as a Sub-Engineer. He was initially recruited as Engineering Subordinate in the Public works Department in 1964 and it was this post which was subsequently designated as Sub-Engineer. The petitioner was working under the direct control and supervision of the Executive Engineer Mr. Amar Nath Arora at the time when the incident of misconduct is alleged to have occurred. (4). It is alleged that the petitioner, while he was so functioning as Sub-Engineer, between the period of 1969 to 1972, has given inflated running bills, resulting in monitory loss to be State. These bills were prepared on the basis of the readings made by the Engineer. The bills were checked by the Assistant Engineer and were passed by the Executive Engineer. The allegation is that the bills were deli berately inflated by the petitioner to cause wrongful loss to the Government and wrongful gain to the contractor. However, the charge-sheet alleging the petitioner with this misconduct was issued only on 21.1.85.The notice, along with which the charge sheet was issued, stated that the petitioner should show cause why he should not be penalised with a minor penalty under rule 17 of the Rajasthan Civil Services(Classification, Control and Appeal) Rules, 1958, (hereinafter referred to as ``CCA Rules of 1958). The petitioner showed cause and ultimately by the order dated 10.1.86, the penalty as referred to above was imposed. In view of the provisions of CCA Rules of 1958, the petitioner could not file any appeal and having failed in the review petition, has approached this court for justice. (5). Several contentions have been alleged by the learned counsel appearing on behalf of the petitioner, which substantially deal with the procedural require- ments of law, which according to the learned counsel are mandatory in nature and have resulted in substantial injury of irreparable nature to the petitioner, vitiating the entire proceedings.The submissions, stated briefly . (1) The provisions of the CCA Rules of 1958 have been violated. (1) The provisions of the CCA Rules of 1958 have been violated. There is no order under rule 18 for holding joint enquiry.Without such order, no enquiry can proceed jointly. (2) Holding of joint enquiry, without an order under rule 18, has caused irreparable injury of loss of right of appeal, which ,otherwise is available under the Rules. (3) The enquiry commenced in 1985 for an incident allegedly taking place bet- ween 1969 and 1972, is grossly belated and is gravely unjust to take up imposition of a minor penalty after such a long period. (4) The enquiry suffers from malice in law as one of the essential part of the enquiry and right of the petitioner dealwith granting of personal hearing to the petitioner, after recording of evidence. This was done by Mr. M.D. Korani. The alle- gation is that Mr. N.S. Bhandari was related to the Executive Engineer Mr. G.S. Bhandari and consideration by him was loaded with the bias in law. This amounted to hearing being granted to a person with pre-decided considerations regarding the enquiry. This being malice in law, the further proceedings in the enquiry are vitiated, including the order dated 10.1.86. The submissions made by the learned counsel were opposed by the learned Addl.G.A. Mr. P.C. Sharma. According to him, the question of bias and malice on the part of Mr. N.S. Bhandari cannot be considered as that person is not joined as a party respondent. No injury is caused by holding a joint enquiry as contemplated by rule 18 of the Rules without there being any order to that effect as principles of natural justice have been vio- lated in the conduct of enquiry.According to the learned counsel for the respondent only hearing was granted by Mr. N.S. Bhandari and decision was taken by the disciplinary Authority, namely,the State of Rajasthan and, therefore, completion of one of the formalities and procedures by the person related to the accused or delinquent cannot and does not vitiate the entire proceedings.According to the lea- rned counsel, the allegations were serious enough and consequently delay in filing the charge-sheet of about 14 years is liable to be ignored. Both the learned counsel supported their submissions by citing reported and unreported decisions of this Court and the Supreme Court of India. Both the learned counsel supported their submissions by citing reported and unreported decisions of this Court and the Supreme Court of India. For proper adjudication of the rival contentions, in my opinion, it would be necessary in the present case to consider at length the provisions of CCA Rules of 1958 providing for such departmental action as proper application of those rules would have material bearing on the decision of this petition. (6). The CCA Rules of 1958 have been framed to provide a Code of Procedure, in accordance with which departmental proceedings are to be taken up against the delinquent government servant. Adequate safeguards embodying the principles of natural justice have been provided by these rules and, therefore,normally, substantial following of these rules, while conducting the enquiry, is sufficient protection of the rights of the delinquent as also implementation of the principles of natural justice and consequently I will have to examine the nature of the rule and the nature of the infringement of that rule for coming to the conclusion whether the infringement has resulted in miscarriage of justice. (7). Rule 14 of the CCA Rules of 1958 provides for various penalties. Of the pe- nalties prescribed to rule 14, the first three penalties are considered to be minor for imposition of which the prescribed procedure is one laid down by rule 17 of the Rules. The other penalties mentioned in rule 14 are major penalties, the procedure being provided by rule 16. (8). Rule 18 of the rules provides for joint inquiry of officers of different cate- gory or grade or rank. It reads as under :- ``18. Joint inquiry—(1) Where two or more government servants are concerned in any case, the government or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in common proceeding. (2) Any such order shall specify(i) the authority which may function as the Disciplinary Authority for the purpose of such common proceedings; (ii) the penalties specified in rule 14 which such Disciplinary Autho- rity shall be competent to impose; and (iii) whether the procedure prescribed in rule 16 or 17 may be followed in the proceeding. (9). (2) Any such order shall specify(i) the authority which may function as the Disciplinary Authority for the purpose of such common proceedings; (ii) the penalties specified in rule 14 which such Disciplinary Autho- rity shall be competent to impose; and (iii) whether the procedure prescribed in rule 16 or 17 may be followed in the proceeding. (9). A perusal of the above rule will show that it is obviously permissible for the State to hold a joint enquiry and it is necessary under that rule, therefore, that an order directing holding of an enquiry jointly under that rule is liable to be made. The rule also states why the order should be made and what the order shall contain. It is provided that such order under rule 18 shall specify the authority which may function as a Disciplinary Authority. The penalties which the authority shall be competent to impose and the procedure to be followed. (10). Rule 15 provides the Disciplinary Authorities who have the power to inflict the penalties mentioned in rule 14.Rule 21 provides that orders made by the Government will not be appealable and rule 23 provides the authority before whom the appeals can be made. Right of appeal undoubtedly is and has been so regarded as one of the basic rights and defence of a delinquent employee. A perusal of rule 15 would show that the Disciplinary Authority of the petitioner and that of the Executive or the Superintending Engineer was entirely different.The petitioner being a member of the Subordinate Service, had a right of appeal against punishment imposed, before the Government in Administrative Department, whereas no such rights exist in the Executive or Superintending Engineer by reason of rule 21. The petitioner in the instant case have been deprived of this right of appeal by holding a joint enquiry by the government itself,without there being an order under rule 18 of the Rules. In my opinion, this infraction of rule 18 results in injure of substantial nature to the petitioner, vitiating the entire proceedings . But for holding of this joint enquiry, the petitioner would have his right of appeal in tact and could have agitated before the appellate authority, all the questions of fact and law. This right has been taken away. In my opinion, this infraction of rule 18 results in injure of substantial nature to the petitioner, vitiating the entire proceedings . But for holding of this joint enquiry, the petitioner would have his right of appeal in tact and could have agitated before the appellate authority, all the questions of fact and law. This right has been taken away. The Government Advocate has relied on the decision of the Supreme Court reported in 1972 Lab.I.C. 627 (2) to point out that in disciplinary proceedings, High Court cannot sit as a court of appeal over a decision of the authority, namely, Disciplinary Authority , based on relevant materials. This autho- rity was cited for the contention that there cannot be a re-appreciation of evidence by this Court.The proposition of law as laid down by the Supreme Court in this case cannot be disputed. This Court cannot, under Article 226, function as a court of appeal in disciplinary proceedings particularly when such Court of appeal or authority or appellate authority is established by the law prescribing the procedure for holding departmental enquiries.In the present case, such authority having been established by rule 23 of the CCA Rules of 1958,the question of this Court exercising powers under Article 226, working as Court of appeal, does not arise. However, in view of this very proposition of law, the violation of the right of appeal is established. This Court, under Article 226 cannot consider and reappreciate the evidence unless the appreciation is perverse. The right of the petitioner to go before the appellate authority has been taken away by the State, without making order under rule 18 and thus a substantial injury of irreparable nature is caused to the petitioner. In my opinion, an order under rule 18, directing holding of joint enquiry is mandatory where such order results in depriving any delinquent officer of a valuable right of appeal. Violation on the part of the authorities to do so, obviously results in injury of irreparable nature. On this ground alone, the proceedings are vitiated. (11). Relying on 1981 WLN (Unreported cases), 194 (2), it was contended by the learned counsel for the petitioner that the order of penalty is without jurisdiction, as it is passed by an authority which is not a disciplinary authority of the petitioner. On this ground alone, the proceedings are vitiated. (11). Relying on 1981 WLN (Unreported cases), 194 (2), it was contended by the learned counsel for the petitioner that the order of penalty is without jurisdiction, as it is passed by an authority which is not a disciplinary authority of the petitioner. In the present case, the order has been passed by a higher authority, namely, the State Government and passing of such order after compliance with rule 18 being permissible in law, it cannot be said that the order is void ab-initio for lack of jurisdiction.Rule 18 does confer jurisdiction on a higher authority to hold a departmental enquiry. The action of such holding of joint enquiry, however, is bad in law, if it is not preceded by an order as contemplated by rule 18. In the instant case,there is no such order.The order of penalty,does not, therefore, become void for lack of jurisdiction but is unsustainable in law for breach of procedure. It is passed by an authority without there being a proper authorisation to that effect, as contemplated by rule 18 of the Rules. (12). The next contention raised by the learned counsel is of malice in law.According to the learned counsel, granting of personal hearing by a person who was obviously interested in the result of the enquiry was loaded with malice in law. According to the learned counsel, hearing was granted on behalf of the government by Mr. M.D. Korani and Mr. N.S. Bhandari who was cousin of Mr. G.S. Bhandari who was one of the delinquent officers and Executive Engineer. It was on the basis of the report made by these officers that the ultimate decision was taken by the State. A perusal of the order dated 10.1.86 shows that the disciplinary authority has found the Superintending Engineer, the Executive Engineer and the Assistant Engineer not guilty of the charges, whereas it has found only the Sub-Engineer as guilty of making and submitting an incorrect measurement. In my opinion, no further elaboration of the injury caused by consideration of the case by Mr. N. S. Bhandari is necessary. Malice in law means, malice which is presumed in law to exist in the mind of the authority. There need not be any factual malicious conduct present and alleged in the officer and consequently, the objection of the learned Government Advocate that in the absence of Mr. N. S. Bhandari is necessary. Malice in law means, malice which is presumed in law to exist in the mind of the authority. There need not be any factual malicious conduct present and alleged in the officer and consequently, the objection of the learned Government Advocate that in the absence of Mr. N.S. Bhandari being party to this petition, the objections of malice cannot be raised, is unsustainable. No doubt it is the law that malafides cannot be gone into in the absence of the person against whom they are alleged. But allegations of malafides are of two kinds. One, allegation of malice in law and another allegation of malice in facts.Joining of the party against whom malice is averred factually is necessary under law but is not so when the malice alleged is malice in law. Malice in law is an inference of existence of malice arising out of attending circumstances and not out of the person against whom the malice is alleged. In the present case, the malice arises by mere dealing with the proceedings by Mr. N.S. Bhandari who is related to one of the delinquent officers. The existence of this fact, which is undisputed, itself is sufficient to prove malice in law. Hence, the proceedings based on the hearing granted by such an officer, are also vitiated and on this ground also they are liable to be quashed. (13). Coming to the question of delay, I am of the opinion that the proceedings of punishment is vitiated on this ground also.The incident admittedly took place before 1972 and the enquiry is commenced in 1985. From the show cause notice itself it is obvious that even in the prima-facie opinion of the State, the misconduct, if proved, required only a minor penalty. To take 13 years time to decide whether the imposition of minor penalty should be undertaken or not is inexcusable in law. A man cannot be exposed to a minor penalty after thirteen years. The decisions referred to by the learned Government Advocate in this regard, have no bearing on the present case because the penalty proposed by the Government itself was minor in nature. The order of punishment dated 10.1.86 is, thus, liable to be quashed on the ground of delay also. (14). The decisions referred to by the learned Government Advocate in this regard, have no bearing on the present case because the penalty proposed by the Government itself was minor in nature. The order of punishment dated 10.1.86 is, thus, liable to be quashed on the ground of delay also. (14). In the view I have taken on the provisions of the CCA Rules of 1958, I see no reason to go into the submissions regarding the nature of penalty and whether the penalty of withholding promotion as and when it becomes due is imposition of a minor penalty or major penalty. I leave that question open. (15). In the result, the petition succeeds and is allowed. The order dated 10.1.86 is quashed. There will be no orders as to costs.