D. L. Chouhan v. State of Rajasthan — 1997 DIGILAW 339 (RAJ)

Honble VERMA, J. – The petitioner is challenging the impugned orders Exs. 22, 25 and 26 imposing upon him the punishment of stoppage of one grade increment for one year with cumulative effect, which order also contains a direction that the petitioner be not posted on the site of construction and be not paid the salary during the period of suspension except the subsistence allowance which had been paid to him during the period of suspension. (2). The petitioner who had initially joined as Junior Engineer in the Rajasthan Housing Board (hereinafter called `the Board) in April, 1971, was promoted to the post of Assistant Engineer on 29.12.1973 and was further promoted to the post of Resident Engineer (Executive Engineer) on 28.3.1989. He was placed under suspen- sion vide order dated 14.6.1991 for a contemplated enquiry against the petitioner relating to the house collapsed damaged in Sector 17, Extension Chopasani Road Scheme, Jodhpur. He was charge-sheeted vide letter dated 28.6.91 issued by the Housing Commissioner. The enquiry was to be held under Regulation 11 of the Rajasthan Housing Board Employees (Disciplinary Action and Appeal) Regulations, 1976 (referred to hereinafter as `the Regulations of 1976). The petitioner was charge-sheeted on the alleged allegation of failure to check the quality of the masonary work and failure to ensure proper curing of masonary work done. Copy of the charge-sheet is attached as Ex. 2 with the petition. The petitioner had denied the allegations and asked for copies of certain documents vide his preliminary reply Ex. 3 and ultimately he had filed a detailed reply on 16.9.1991 vide Ex. 4. One Shri C.B.L. Mathur a retired Chief Engineer was appointed as Enquiring Authority and the Deputy Housing Commissioner, Jodhpur Circle, Jodhpur was nominated as the Presenting Officer on behalf of the prosecution. The petitioner alleged that vide Ex. 7 dated 21.10.1991 a programme was made to fix the time for inspection of the site on 30.10.1991. It was decided that the Enquiring Authority alongwith the Presenting Officer and the petitioner would visit the place of damaged buildings. It was also decided that the contractor and the other staff who were responsible for getting the building constructed were to be present on the site. However, the programme could not mature on the date fixed. It was decided that the Enquiring Authority alongwith the Presenting Officer and the petitioner would visit the place of damaged buildings. It was also decided that the contractor and the other staff who were responsible for getting the building constructed were to be present on the site. However, the programme could not mature on the date fixed. It is stated by the petitioner that because of cer- tain contingencies the prosecution could not start the enquiry and the enquiry was being postponed. The petitioner has drawn the attention to the letter Ex. 13 wherein it was so mentioned. The petitioner has been asking for early decision of the enquiry and ultimately the Enquiry Officer had taken a decision to finalise the enquiry at the earliest possible and for that purpose the Enquiry Officer vide letter dated 21.1.1992 had directed the Presenting Officer to produce certain documents which were relevant for the purpose of the enquiry i.e. three sets of photographs of damaged building, three sets of blue print copy of plans of the structure collapsed, complete and upto date accounts of the payments to the contractors, all relevant file and record of the work, and quality control, last results of the work being done by the contractors. The petitioner submits that because of the demise of the earlier Enquiry Officer Shri Mathur, another Enquiry Officer Shri B.G. Sharma was appointed as Enquiry Officer vide order dated 20.3.1992 but still vide another order dated 21.4.1992 Shri B.G. Sharma was replaced by Shri S.K. Mukherjee, Retired Chief Engineer, P.W.D. B & R vide Ex. 17. According to the petitioner the prosecution did not produce any evidence whatsoever but had only produced one or two files for perusal of the Enquiry Officer and thus because of the reason that no evidence was led before the Enquiry Officer, and charges against the petitioner could not be proved. The petitioner had submitted that even before his taking over the charge, 75% masonary work had already been completed. He had stated that the work had since commenced from May, 1990 and the petitioner was not the incharge of the building at that time. Ultimately the Enquiry Officer had given a finding whereby the petitioner had been totally exonerated. The petitioner submits that despite the fact that he had been exonerated by the Enquiry Officer a show-cause notice dated 1.2.1993 was issued to the petitioner vide Ex. Ultimately the Enquiry Officer had given a finding whereby the petitioner had been totally exonerated. The petitioner submits that despite the fact that he had been exonerated by the Enquiry Officer a show-cause notice dated 1.2.1993 was issued to the petitioner vide Ex. 19 whereby the competent authority has stated that he was not in agreement with the finding of the Enquiry Officer and therefore the punishment of stoppage of one increment for one year with cumulative effect was proposed. (3). A reply was asked for from the petitioner. The Enquiry Officers report has also been attached as Ex. 20. The petitioner vide his reply Ex. 21 had replied to the show-cause notice. But the respondent vide Ex. 22 dated 23.2.1993 without considering the facts or giving any reason whatsoever had imposed the punishment of stoppage of one grade increment for one year with cumulative effect with the further direction that the petitioner and other two persons are not to be posted at any of the construction site. After passing of the order Ex. 22 the petitioner was taken back in service by revoking the suspension order vide letter dated 23.2.1993. Being aggrieved, the petitioner filed a detailed statutory appeal on 20.3.1993 vide Ex. 24 which appeal was dismissed vide order of the appellate authority dated 21.4.1993 Ex. 25 and still vide another letter dated 5.10.1993 Ex. 26 the petitioner was informed that he shall not be paid any salary except the subsistence allowance already paid to him. The orders Exs. 22, 25 and 26 have been challenged by the petitioner in the present writ petition. (4). The petitioner submits that the order of punishment dated 23.2.1993 passed by the respondents remained inoperative and could not be implemented for the reason that the petitioner had already retired from service on 30.11.1993 and his increment was due on 1.12.1993 after his retirement. The petitioner had already earned his last increment in December, 1992 and before falling due of the next in- crement in December, 1993 the petitioner had already superannuated. Therefore, the order of punishment of stoppage of one grade increment with cumulative effect was an order which could not be implemented at all. (5). The petitioner had already earned his last increment in December, 1992 and before falling due of the next in- crement in December, 1993 the petitioner had already superannuated. Therefore, the order of punishment of stoppage of one grade increment with cumulative effect was an order which could not be implemented at all. (5). The petitioner has challenged the impugned orders being arbitrary and violative of Articles 14 and 16 of the Constitution of India on the ground that the competent authority has not given any reason for its disagreement with the finding of the Enquiry officer and that the order imposing penalty is totally a non- speaking order. The petitioner submits that because of the reason that the Enquiry Officer had already exonerated the petitioner, it was incumbent upon the competent authority to have given reasons or in any case should have passed a speaking order. It is further submitted that the competent authority has not recorded its own finding in respect of each charge and the impugned order runs contrary to the regulations framed by the Board. Therefore, the order of punishment is just a nullity. The petitioner further submits that there was no evidence whatsoever before the Enquiry Officer what to talk of any legal evidence. Until and unless any evidence is produced by the prosecution before the Enquiry Officer, the competent authority had fallen in error in disagreeing with the report of the Enquiry Officer in which the petitioner had been totally exonerated. The petitioner submits that earlier Mr. Mathur the Enquiry Officer had also exonerated the petitioner of the charges and subsequently again in the departmental enquiry conducted by Shri Mukherjee he had been exonerated. According to the petitioner despite having been exonerated of the charges the petitioner has been illegally punished. (6). No reply has been filed on behalf of the respondents. (7). The only main ground of attack urged by the petitioner for impugning the impugned orders is that while disagreeing with the Enquiry Officers report, the competent authority has not given any reasons whatsoever and to support the proposition the counsel for the petitioner relies upon a Single Bench judgment of this Court in G.S. Rajawat vs. Rajasthan Financial Corporation and Ors. (1). The petitioner also submits that the appellate order does not deal with the points raised by the petitioner in the appeal and both the order i.e. Annex. (1). The petitioner also submits that the appellate order does not deal with the points raised by the petitioner in the appeal and both the order i.e. Annex. 22 and the appellate order Annex. 23 are cryptic. (8). It is true that in the show-cause notice Annex. 19 dated 1.2.1993 the competent authority has not given any reasons whatsoever for disagreeing with the findings of the Enquiry Officer. The competent authority has only stated that he does not agree with the findings of the Enquiry Officer and, therefore, proposed the punishment of stoppage of one grade increment with cumulative effect. In the impugned order Annex. 22 dated 23.2.1993 he has not given any reasons whatsoever and the order is also cryptic. The petitioner had filed a detailed reply vide Annex. 24 and the same has been dismissed again by a non-speaking and cryptic order vide Annex. 25. It is settled law that in case the competent authority wants to disagree with the finding of the enquiry officer, it is incumbent upon the competent authority to give reasons of its disagreement and then and then only it can be said that the principles of natural justice have been complied with and the competent authority has applied its mind to the facts of the case. It has been so held in G.S. Rajawats case (supra) as mentioned above. This Honble Court, while dealing with the facts of G.S. Rajawat, had observed as under :– ``What was required in such fact-situation was that the Disciplinary Authority ought to have recorded specific reasons for disagreement with the findings of the Enquiring Authority and it ought to have given a notice to the petitioner indicating its reasons for disagreement with the findings of the Enquiring Authority and called upon him to submit his explanation. It is true that under Regulation-37(2), no specific procedure has been laid down which is required to be followed except that a charge- sheet is to be given and a reasonable opportu- nity of defence is to be afforded to the employee concerned but, when the Disciplinary Authority has thought it proper to appoint an Enquiry Officer and a Presenting Officer and regular procedure for departmental Enquiry was followed it was obligatory for the Disciplinary Authority to have considered the record of the Enquiry and to have recorded reasons, for disagreement specifically, in case, it decided not to agree with the findings and conclusions of Enquiring Authority. It was also obligatory for the Disciplinary Authority to have given a notice of its reasons for disagreement to the petitioner and to have given him anopportunity of making representation.The employ- ment of the petitioner was a public employment and the statutory body like the Rajasthan Financial Corporation was bound to act in accordance with the basic rules of natural justice. The enquiry got conducted by the respondent Corporation was a quasi judicial enquiry and, therefore, the duty to observed the Rules of natural justice was implicit. The Rules of natural justice warrant that whenever some material adverse to a person is sought to be used in a quasi judicial proceedings such adverse material must be made available to the man and he must be given a reasonable opportunity of submitting his explanation/representation in counter to that adverse material. A reasonable opportunity of defence includes within itself the right to know the adverse material and to submit argument to counter that adverse material. If a man is not made aware of the adverse material the opportunity of defending himself given to him is reduced to an empty formality. Therefore, whether there exists Statutory Rules or not, ordinarily, the quasi judicial body or authority must give entire adverse material to the affected person must also give him an opportunity to put forward his case in regard to that adverse material. (9). In Hari Narain Goyal vs. Rajasthan State Warehousing Corporation and Others,(2) this Court had held that it was a mandatory requirement of the Rules to furnish a copy of the enquiry report together with reasons of disagreement. (9). In Hari Narain Goyal vs. Rajasthan State Warehousing Corporation and Others,(2) this Court had held that it was a mandatory requirement of the Rules to furnish a copy of the enquiry report together with reasons of disagreement. It was further held that if the inquiring authority records a finding of not guilty and the disciplinary authority disagrees with the findings of the inquiring authority then too the disciplinary authority must give a copy of the report of inquiring authority along- with its reasons for disagreement with those findings and give an opportunity to the employee to submit his representation. (10). In the present case, the competent authority had passed the impugned order without following the basic principles of natural justice. He has not applied his mind to the report of the Enquiry Officer nor he has given any reasons for dis- agreement with the report of the Enquiry Officer only by saying that he disagrees with the Enquiry Officers report, therefore, it cannot amount to compliance of the basic principles of natural justice and application of mind. For the reason that the delinquent official must known the points and the reasons which go adverse to him so that he should meet those reasons effectively. It is also mandatory to give rea- sons of disagreement in the show-cause notice if it is issued or/and in the order of punishment so that the delinquent official should know the mind of the competent authority on the points which the competent authority considers it to be adverse against the delinquent official. No such procedure has been adopted by the competent authority in any of its orders. No reason for disagreement has been given either in the show-cause notice or in the impugned order Annex. 22 and, thus, the basic order imposing punishment cannot be held to be valid in the eyes of law and deserves to be set aside. (10). Apart from the fact that the impugned show-cause notice and the order imposing punishment lacks the minimum requirement of law of application of mind by the competent authority, even the appellate authority has not discussed or given any reasons whatsoever while dismissing the appeal. The order of the appellate authority was also cryptic. (11). For the reasons and the discussion mentioned above, the writ petition is allowed. The impugned orders Annex. The order of the appellate authority was also cryptic. (11). For the reasons and the discussion mentioned above, the writ petition is allowed. The impugned orders Annex. 22, 25 and 26 dated 20.2.1993, 21.4.1993 and 5.10.1993 respectively are quashed and set aside. No orders as to costs.