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Rajasthan High Court · body

2001 DIGILAW 1590 (RAJ)

Behari Lal Gupta v. State of Rajasthan

2001-09-28

J.C.VERMA

body2001
Honble VERMA, J.–The petitioner is challenging the order of removal dated 24.5.1995 (Annexure-6) and all consequential orders. (2). The petitioner who was initially appointed in the year 1971 as Civil Assistant Surgeon is qualified as M.S. (Gynaecology). He was promoted as Junior Specialist in 1987. When he was posted at Postmortem Centre Sambherlake, District Jaipur, he was served with a charge-sheet on 3.1.1995 calling him to submit his reply or defence. He had asked for inspection of the documents. He was charge-sheeted for wilful absence from duty from 2.10.92 to 5.8.1993 when he was posted at Post-mortem Centre Taranagar District Churu. Charge-Sheets have been attached as Annexures-1 and 2. It is submitted by the petitioner that he had approached the department for supply of certain documents vide Annex-3, but he had received no response despite his repeated reminders, copies of which have been attached with the writ petition. (3). According to the petitioner he was transferred from Health Centre Losal (Sikar) to Taranagar (Churu) on 17.8.92. He had joined the new place and continued to perform his duties. He is said to have applied for casual leave in 1992 to Deputy Chief Medical & Health Officer who sits at Churu at a distance of 150 Kms. because of renal trouble as he wanted to get treatment at Jaipur. There was small stone formation in the Kidney. According to the petitioner he had joined back at Taranagar on 6.8.93 vide Annex.4A. He is said to have submitted all his medical documents also but in the mean time he stood transferred from Taranagar to Sambher vide Annex.-48. He was relieved on 10.8.93 and joined the new posting vide Annex.4C and 4D. He had been reminding the department for regularisation of his leave. On 19.1.1996 he received a letter that he stood removed from service vide letter dated 18.1.1996 as per the direction of the respondent No. 1 passed on 24.11.1995, copy of such order is attached as Annex-5 to the writ petition. An exparte enquiry is said to have been held and by resorting to Rule 19(ii) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 holding the enquiry was dispensed with. (4). An exparte enquiry is said to have been held and by resorting to Rule 19(ii) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 holding the enquiry was dispensed with. (4). It is the case of the petitioner that there was hardly any necessity to dispense with the holding of the enquiry as he was working at Sambher which fact was known to the respondents and therefore, removal of the petitioner from service either on exparte enquiry or dispensing of the enquiry was not in accordance with law. He submits that had some proper opportunity been given in the enquiry, he would have proved that he was suffering from the disease and was under treatment and the petitioner would have shown that no punishment was required to be inflicted on the petitioner or in any case the punishment of removal from service when he had put in more than 24 years of service was too excessive. (5). Separate replies have been filed on behalf of RPSC respondent No. 4 and the remaining respondents. (6). It is stated that the charge-sheet dated 31.10.1994 was issued to the petitioner and ultimately it was published in the news paper as well. As per reply filed, after applying for leave on 29.9.92 he remained absent from 2.10.92 to 5.8.93. He was transferred to Sambher on his own request. He was relieved from Taranagar and joined Sambher on 12.8.93 and it is stated that for the reason that he did not deny the charges of remaining absent for the period in question and, therefore, action under Rule 19 was taken for dispensing with the enquiry and the order of removal was imposed. (7). Even though the RPSC who is only to be consulted before removal was almost a pro-forma party, has also filed a detailed reply justifying the order of removal. As a matter of fact no allegations have been levelled against the RPSC and such RPSC was not at all a necessary party. Action of the disciplinary authority was being challenged and not of RPSC, but still the RPSC has filed a detailed reply as if it was the disciplinary or the competent authority itself by commenting on the conduct of the petitioner for remaining absent for the period in question. Action of the disciplinary authority was being challenged and not of RPSC, but still the RPSC has filed a detailed reply as if it was the disciplinary or the competent authority itself by commenting on the conduct of the petitioner for remaining absent for the period in question. As a matter of fact the averments which should have been clarified by the remaining respondents has been illucidated by RPSC in detail. (8). The only question which remains to be decided in the present case is whether after issuance of the charge-sheet, it was necessary for the respondents to have held the enquiry and to give proper opportunity to the delinquent official. (9). Record was called for. (10). In the case of Kalu Ram vs. State of Rajasthan & Ors. (1), where because of the absence of a Constable, the services were terminated without any enquiry, it was held that the enquiry can only be dispensed with in the circumstances as mentioned in Rule 19 of the Rules i.e. (1) where the penalty is imposed on a Government servant on the ground leading to his conviction; (2) where the disciplinary authority is satisfied for the reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the rules; (3) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure. Rule 19 is reproduced as under:- `19. Special Procedure in Certain Cases:- Notwithstanding any thing contained in Rules 16, 17 and 18, (i) where a penalty is imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge; or (ii) where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the said rules; or (iii) where the Governor is satisfied that in the interest of the security of the State, it is not expedient to follow such procedure, the Disciplinary Authority may consider the circumstances of the case and pass such orders as it deems fit. Provided that the Commission shall be consulted before passing such orders in which such consultation is necessary. (11). Provided that the Commission shall be consulted before passing such orders in which such consultation is necessary. (11). In the case of Union of India vs. Tulsi Ram Patel (2), it was held that the High Court under Article 226 or Supreme Court under Article 32, the Court will interfere on grounds well established in law for the exercise of power of judicial review in matters where administrative discretion is exercised. The finality given by Article 311(3) to the Disciplinary Authoritys decision that it was not reasonably practicable to hold the inquiry is not binding upon the Court. The Court will examine the charge of malafides, if any, made in the writ petition. In examining the relevancy of the reasons, the court will consider the situation which according to the disciplinary authority made it come to the conclusion that it was not reasonably practicable to hold the inquiry. If the court finds that the reasons are irrelevant, then the recording of its satisfaction by the disciplinary authority would be an abuse of power conferred upon it by clause (b) and would take the case out of the purview of that clause and the impugned order of penalty would stand invalidated. (12). In the judgment of the Division Bench of this Court in Sujata Malhotra vs. State of Rajasthan & Ors. (3), decided on 9.4.2001 after discussing the cases of Union of India vs. J. Ahmed (4), P.H. Kalyani vs. Air France, Calcutta (5), Ashok Kumar vs. Union of India (6), Babulal Tatiwal vs. State (7), Babulal vs. State of Rajasthan (8), Chhitarmal vs. State of Raj. (3), decided on 9.4.2001 after discussing the cases of Union of India vs. J. Ahmed (4), P.H. Kalyani vs. Air France, Calcutta (5), Ashok Kumar vs. Union of India (6), Babulal Tatiwal vs. State (7), Babulal vs. State of Rajasthan (8), Chhitarmal vs. State of Raj. (9), Suresh Kumar Chug vs. State (10), P.J. Irani vs. State of Madras (10) and Union of India vs. Tulsiram Patel (12), E.P. Royappa vs. State of Tamil Nadu (13) and Shrilekha Vidyarthi vs. U.P. State (14), and many other cases, Division Bench of this Court in a case where the petitioner had proceeded on leave but had subsequently remained absent and where after dispensing with the enquiry, services were terminated, had held that the disciplinary proceedings are totally vitiated and disciplinary authority had failed to record good and sufficient reasons for passing the impugned order imposing punishment of removal from service against the petitioner, however, while awarding the relief and relying on the judgment of Suresh Kumar Chugh (supra), the petitioner was allowed to be reinstated and continue service and other consequential benefits but with 50% of consequential financial benefits flowing to her as arrears of back wages including pay fixation by virtue of revised pay scales which came into force. (13). In view of the above-said facts, it is nodoubt true that the petitioner was absent for the period in question but according to the petitioner he had been applying for leave on medical grounds for treatment. Had some enquiry been held, the petitioner would have been able to show the justified cause of his absence or to show that he had taken all necessary steps for which a Government servant is supposed to take while applying for leave. It is not understandable as to why and under what circumstances, the State Government had invoked the provisions of Rule 19 for dispensing with the enquiry. The enquiry can only be dispensed with on the grounds mentioned in Rule itself. No such circumstance has been brought on record to show that in the case of the petitioner, the enquiry was dispensed with because of compelling circumstances. The petitioner was a medical Doctor under the employment of the State. The enquiry can only be dispensed with on the grounds mentioned in Rule itself. No such circumstance has been brought on record to show that in the case of the petitioner, the enquiry was dispensed with because of compelling circumstances. The petitioner was a medical Doctor under the employment of the State. Even if the State was of the opinion that the petitioner might have not attended the enquiry, in such situation as well, it was incumbent for the respondent to hold an exparte enquiry against the petitioner which has not been done but in any case the State Government had no reason what-so- ever to dispense with the enquiry as no such circumstance was available in the case for the State to act whimsically without there being any basis or foundation for the same. The petitioner had put in 24 years of service. He could have compulsorily retired by giving a lesser punishment if any enquiry was held or the petitioner would have shown if any opportunity was given to him that the punishment imposed is severe and harsh as to take away 24 years of service or that some minor punishment would have met the justice. But it seems that the competent disciplinary authority by dispensing with the enquiry straight away passed the order of removal from service. In such cases, the disciplinary authority must apply mind as to why the minor punishment or retirement from service by granting retiral benefits as per the services rendered cannot be imposed. In each and every case, the disciplinary authority is to apply its mind to the facts of the case so far imposing of punishment is concerned, but in this case nothing has been brought on record that even after illegally dispensing with the enquiry, the competent authority had applied its mind for imposing any lesser punishment. (14). In my opinion, the impugned order and all other orders flowing from the impugned order cannot be sustained in the eyes of law and are to be quashed. The order of dismissal dated 24.5.1996 (Annex.6) and all other orders effecting the petitioner in this regard are quashed. (14). In my opinion, the impugned order and all other orders flowing from the impugned order cannot be sustained in the eyes of law and are to be quashed. The order of dismissal dated 24.5.1996 (Annex.6) and all other orders effecting the petitioner in this regard are quashed. The petitioner is ordered to be reinstated with all consequential benefits in regard to service, but in the circumstances in my opinion, it is a fit case where direction is required to be given as was given by the Division Bench of this Court in the case of Sujata Malhotra vs. State of Raj. & Ors. (supra), decided on 9.4.2001 that the petitioner would continue in service with all other consequential benefits, but with 50% of the consequential financial benefits flowing to him as arrears of back wages including pay fixation by virtue of revised pay scales which have come into force. (15). With the above-said observations and directions, the impugned order is quashed. The writ petition is allowed. No order as to costs.