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2001 DIGILAW 1758 (RAJ)

Raj Kamal Gaur v. Rajasthan High Court

2001-11-02

A.R.LAKSHMANAN, BHAGABATI PRASAD BANERJEE

body2001
Honble PRASAD, J.–The petitioner, in the present writ petition, is a Judicial Officer. The writ petition has been filed by him to challenge the order of punishment awarded to him by the respondents after departmental proceedings. The petitioner was imposed with a penalty of reversion from the post of Civil Judge (S.D.) & Additional Chief Judicial Magistrate to the post of Civil Judge (Jr. Division) and Judicial Magistrate. (2). The case of the petitioner is that he joined the Rajasthan Judicial Service (R.J.S.) on 19.7.1985 as Munsif and Judicial Magistrate Ist Class at Kishangarhbas, District Alwar. He was promoted to the post of Additional Chief Judicial Magistrate and was also granted senior scale in the year 1993. Thereafter the petitioner was placed in the selection scale from senior scale. The petitioner claims that he continued to serve with the best of his sincerity and hard work. The petitioner has claimed that while he was posted as Additional Chief Judicial Magistrate (Economic Offences) at Jodhpur he received a memorandum on 10.4.2000. In this memorandum an enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (referred to hereinafter as ``the C.C.A. Rules, 1958) was proposed against him. The statement of allegations alongwith charges framed was also served on him. (3). The stand of the petitioner is that three pronged charges and allegations were levelled based upon one single incident. Firstly, it was appointment of Basant Kumar as Class IV Servant on 7.12.1999 against the rules and prescribed procedure. Secondly, the person who was appointed as Class IV servant was a close relative of the petitioner and thirdly, the appointment was made in a hasty manner without properly advertising the vacancy. The petitioner during the course of the enquiry submitted an application on 10.5.2000. By this application the petitioner sought the record of the persons given appointment under Class IV category. This information was sought by the petitioner to prove the practice and procedure adopted by the other officers. This was sought by him to establish that he had adopted the same practice and procedure which has been adopted by the other officers. Such application was rejected without providing sufficient reasons as claimed by the petitioner. Such documents were needed for the defence but they were denied to be supplied to the petitioner though they were neither classified nor were against the public interest. (4). Such application was rejected without providing sufficient reasons as claimed by the petitioner. Such documents were needed for the defence but they were denied to be supplied to the petitioner though they were neither classified nor were against the public interest. (4). The petitioner has claimed that he made the appointment after due authorisation by the District and Sessions Judge to fill up the vacant post of Class IV employee vide his letter No. 191/99/7352 dated 1.12.1999. The petitioner has stressed that the appointment was not made dehors the rules and there was no procedure prescribed for making such appointment. Under Rule 29 of the Rajasthan Class IVth Services (Recruitment & Other Service Conditions) Rules, 1999 (referred to hereinafter as `the Rules of 1999) the appointment of temporary and urgent nature did not have any fixed practice and procedure. The petitioner had adopted the necessary practice and procedure as per the precedents holding in the Subordinate Courts at that time. There was nothing unusual or new about the whole case. (5). The petitioner submitted that though Basant Kumar was his close relative but, however, appointment of a close relative was never a matter of illegality or any kind of unlawful practice specially when the same had been in consonance with the appropriate rules. This has been made clear by the petitioner that in past the authorities have never taken up such incidence as an illegality leave aside charge-sheeting and punishing the persons who made such appointments by treating it as a misconduct. (6). The petitioner had never admitted the charges as alleged and claimed that he was not guilty of the charges. Under these circumstances, the Enquiry Authority was supposed to take the statements and evidence on record. Unfortunately the Enquiry Authority made its own conclusion that the petitioner had pleaded guilty even when the petitioner had vehemently denied all the charges and then without adopting further practice and procedure, the Enquiry Authority has held the petitioner guilty. The petitioner claims that he was not afforded further opportunity to defend himself and he was held guilty of the charges. The petitioner has further claimed that no opportunity of examination or cross- examination of material witnesses was given. The petitioner was also not allowed to examine himself so as to clarify his stand regarding the abovementioned charges. The petitioner claims that he was not afforded further opportunity to defend himself and he was held guilty of the charges. The petitioner has further claimed that no opportunity of examination or cross- examination of material witnesses was given. The petitioner was also not allowed to examine himself so as to clarify his stand regarding the abovementioned charges. The petitioner further claimed that he was not supplied the necessary record to prepare his defence. He was not also permitted to summon the relevant record. (7). The Enquiry Authority submitted the enquiry report on 28.8.2000. The Enquiry Authority has concluded with the assumption that the petitioner had admitted all the allegations levelled against him, whereas the petitioner repeatedly denied the charges of committing any illegality or misconduct. It has been contended by the petitioner in his defence that appointment given to his close relative was not devoid of any rules and was only in the nature of temporary and urgent appointment which was made as per the authorisation. In this back-ground, it was absolutely improper to draw the conclusion that the petitioner had admitted the charges levelled against him. The petitioner claims that the Enquiry Authority has relied upon various decisions of the Honble Supreme Court. The petitioner says that all the cases are distinguishable because the petitioner has different facts in his case. (8). The petitioner has claimed that the Rules of 1999 do not provide for any practice and procedure looking into the peculiar circumstances whereby the nature of appointment needed quick and immediate action. The petitioner has claimed that the subordinate courts in making such appointments has been consistently not following the procedure which is required to be followed in making regular selections. The Enquiry Authority held that the appointment of a close relative amounts to a grave misconduct. This points towards nepotism and corruption. It is claimed by the petitioner that this absolutely vindictive view ought not to have been taken because no law whatsoever bars the appointment of a close relative, if he is eligible and found suitable for the job. (9). The enquiry report was considered by the Full Court and proposal for dismissal from service was communicated to the petitioner. The petitioner was communicated that if he wishes to send a representation the same may be sent within a period of 15 days. (9). The enquiry report was considered by the Full Court and proposal for dismissal from service was communicated to the petitioner. The petitioner was communicated that if he wishes to send a representation the same may be sent within a period of 15 days. The petitioner was also intimated that if he is desirous of a personal hearing the same may also be intimated. The petitioner submitted his desire for personal hearing and also sent his representation. The petitioner submitted that the enquiry was held under Rule 16 of the C.C.A. Rules, 1958 but the procedure mentioned in the above rules was not followed. The petitioner is alleged to have failed in providing with the necessary details regarding the past appointments. But the same is not true because the petitioner had submitted a list of 27 Class IV employees who were appointed by adopting the same procedure which also included the cases of appointment of the relatives but unfortunately an opportunity of inspecting and getting the copies of the abovementioned record was dismissed. (10). The petitioner claims that the Honble Enquiry Authority was predetermined so as to hold the petitioner guilty. It is a settled principle that the Enquiry Authority should be neutral and should accord equal opportunity to the prosecution and the delinquent. However in this case nothing was carried by the prosecution and except for a few documents. It was only the Honble Enquiry Authority which was drawing conclusions and carrying the case forward on behalf of the prosecution without considering the various defence taken by the petitioner. The settled principles are that the enquiry authority should afford full opportunity to the prosecution and the delinquent. The petitioner had denied the charges and pleaded not guilty. The Enquiry Authority was bound to give an opportunity to give his statement and to lead other evidence to the petitioner but unfortunately no such opportunity was accorded to the petitioner. In any case, in the facts and circumstances of the case, the whole incident does not travel beyond a minor irregularity even if all the charges are established. (11). In his representation the petitioner has claimed protection under Article 14 of the Constitution of India. The petitioner has also explained as to how the punishment was also extremely harsh. The appointment was made by the petitioner under compelling circumstances. (11). In his representation the petitioner has claimed protection under Article 14 of the Constitution of India. The petitioner has also explained as to how the punishment was also extremely harsh. The appointment was made by the petitioner under compelling circumstances. It was family circumstances of petitioners sister which forced him to make the appointment and pleaded for sympathetic approach and the punishment was harsh. The petitioners request for personal hearing was rejected by the Full Court. It has been ordered to revert the petitioner from the post of Civil Judge (Sr. Division) & Additional Chief Judicial Magistrate to the post of Civil Judge (Jr. Division) & Judicial Magistrate. This order did not mean the reduction in all the scales earned by the petitioner and refixation has been erroneously done by the respondents. The petitioner represented against the refixation and his representation was rejected and this is amounted to double jeopardy. The petitioner has claimed that reduction in post never meant that the petitioner was required to be demoted from the earned scales because from scale to scale there is a promotion involved as per the decision of the Honble Supreme Court. (12). This has been claimed by the petitioner that in case of reversion the delinquent can only be reverted from the post he was last promoted. In this way the petitioner could have either been demoted from a higher post to a lower post or from higher scale to lower scale. Reversion in both i.e. in post as well as scale is not permitted as it amounts to double jeopardy. In refixing the petitioner there is a wrong implementation of the order of fixation of pay scales. The petitioner has claimed that his case was plain and simple. There is no practice and procedure required to be adopted for appointment to the post of Class IV category on urgent and temporary basis. The appointment was made after permission from the learned Sessions Judge. Giving appointment to a close relative is not against any law. Therefore, it could not be a ground for prosecution. (13). The petitioner had also not pleaded guilty and, therefore, he was required to be provided fair opportunity of defending himself by holding a trial in accordance with the rules. The Enquiry Authority has wrongly construed that the petitioner has pleaded guilty. Therefore, it could not be a ground for prosecution. (13). The petitioner had also not pleaded guilty and, therefore, he was required to be provided fair opportunity of defending himself by holding a trial in accordance with the rules. The Enquiry Authority has wrongly construed that the petitioner has pleaded guilty. The Enquiry Authority has cited many Supreme Court decisions which do not relate to temporary and urgent appointments. The Enquiry Authority should have asked the respondents to place the record of such appointment so that the Honble Enquiry Authority could have got the actual position regarding the appointment made in such circumstances. In any case the quantum of punishment was excessive. (14). The aforesaid facts were pleaded by the petitioner in the writ petition. In the documents submitted alongwith the writ petition the petitioner has mentioned that procedure adopted in the appointments made in the sessions division in question on the posts of Class IV employees were the same as has been followed by the petitioner. The petitioner was required to be afforded an opportunity to inspect the files of such appointments and provided with copies. Such plea of the petitioner was not accepted by the respondents. In his representation the petitioner has submitted that the petitioner had followed the procedure prescribed for urgent and temporary appointments and, therefore, the charge was not correct. (15). The petitioner has averred in his reply to the charges that it is not denied that Basant Kumar was appointed by the petitioner. It is admitted that he was a close relative of the petitioner. But appointing his close relative of the petitioner. But appointing his close relative was not a misconduct. Had this been a misconduct then hundreds of judicial officers of the State could have been charge-sheeted for committing such a misconduct. The petitioner had submitted that he was not desirous of naming such officers in his reply but if need be he will make this available. Such relatives are not only appointed as Class IV employees but have also been appointed as Clerks and Stenographers. Appointments of close relatives have either been made through other judicial officers. Such appointments have never been construed as misconduct by the respondents. Any complaint made in this regard was neither processed nor any charge-sheet was ever issued in such cases. Therefore, the appointment made by the petitioner is not in any way a misconduct. (16). Appointments of close relatives have either been made through other judicial officers. Such appointments have never been construed as misconduct by the respondents. Any complaint made in this regard was neither processed nor any charge-sheet was ever issued in such cases. Therefore, the appointment made by the petitioner is not in any way a misconduct. (16). However, the petitioner, in reply to the charge-sheet has admitted that the appointment was made in favour of Basant Kumar who is his sisters son. He was appointed only on urgent and temporary basis. No advertisement was necessary under the rules and in this back-ground no advertisement was given. Since it was considered as urgent temporary appointment the appointment was made on the same day. It has been claimed by the petitioner that no illegality has been committed by the petitioner in making such appointment. The petitioner has claimed that since the circumstances were so acute that the family of Basant Kumar was placed in situation of dying of hunger. Therefore, the petitioner made the appointment in question. (17). The Enquiry Authority in its enquiry report has considered that the delinquent has admitted that he has given appointment to his nephew Basant Kumar but his contention is that offering of appointment to a close relative is not a misconduct, if he fulfils the other eligibility conditions prescribed under the rules. The Enquiry Authority has followed the law laid down by the Honble Supreme Court and has held that no post under the State should be filled up in any manner which may not give chance to an eligible candidate to apply. In the instant case, admittedly no advertisement was issued nor names had been requisitioned from the Employment Exchange, therefore, the appointment was not a proper appointment. (18). Basant Kumar submitted application to the delinquent officer on the same day pointing out that he came to know through reliable source that there was a vacancy of class IV post. The appointment letter was issued to him on the same day. He was referred to for medical examination the same day which was conducted on the same day and he joined the duties on the same day. The appointment letter was issued to him on the same day. He was referred to for medical examination the same day which was conducted on the same day and he joined the duties on the same day. The Enquiry Authority has observed that filling up the vacancy in such a manner amounts to playing fraud on the statutory powers and must be termed as colourable exercise of power in view of the judgments in State of Punjab vs. Gurdial Singh (1). (19). The Enquiry Authority further observed that abuse of power has always been treated as misconduct for the purpose of disciplinary proceedings and has relied upon a Supreme Court decision rendered in M.H. Devendrappa vs. Karnataka State Small Industries Development Corporation (2). The respondents in their reply have submitted that memorandum was served upon the petitioner as alleged. The respondents have submitted that the petitioner submitted an application for seeking the record of the persons given appointment under Class IV category. Such application was rejected by the Enquiry Authority by observing that such an application is not permissible for the reason that Art. 14 is not meant to perpetuate an illegality. If the delinquent has such grievances he can take such a plea and the matter may be referred to the High Court for removal of so appointed employees and taking action against the erring officers but such a defence is not permissible. Hence prayer was rejected. Thus, the Enquiry Authority was of the opinion that Article 14 of the Constitution of India cannot be pressed into service in these circumstances. (20). The Enquiry Authority found that before passing the order of supply of documents it has to be seen as to whether those documents are relevant for the defence to be taken or not. The defence proposed to be taken was not permissible to be taken and, therefore, the documents to prove that other employees had also been appointed illegally were not allowed to be summoned and supplied. After rejection of the application the petitioner submitted a detailed reply and requested to be heard in person. He also pleaded that Shri B.N. Bhatt be permitted to defend him. Shri Bhatt was permitted to defend the petitioner but he showed his inability. (21). After rejection of the application the petitioner submitted a detailed reply and requested to be heard in person. He also pleaded that Shri B.N. Bhatt be permitted to defend him. Shri Bhatt was permitted to defend the petitioner but he showed his inability. (21). The Enquiry Authority has observed that it is not disputed that the District and Sessions Judge vide his order dated 1.10.1999 authorised the petitioner to fill up the vacancy on temporary basis. The rules providing for appointment of Class IV employee on temporary basis do not prescribed any specific procedure. But that does not mean that authority competent to make appointment can fill it up in any arbitrary manner. The petitioner is a judicial officer having sufficient legal experience and is expected to know the basic law of employment in public officer. The Enquiry Authority has further found that it is true that rule 29 of the Rules of 1999 does not prescribed any specific procedure for appointment of class IV employees on temporary basis yet there must be a notice published in appropriate manner calling for applications and all those who apply in response thereto should be considered fairly. (22). The petitioners defence that other officers had appointed persons in the same manner has not been accepted by the Enquiry Authority on the ground that there is no allegation that in such appointments a close relative was involved. No such details have been furnished by the petitioner in this regard. The respondents have contended that giving appointment to close relative amounts to misconduct of a grave nature as it definitely amounts to nepotism and corruption. Though there is no express provision in the statute prohibiting such employment, the manner in which the petitioner has appointed his own nephew is arbitrary and violative of the mandate of Articles 14 and 16 of the Constitution of India. (23). The petitioner has submitted before the Enquiry Authority that he did not want to furnish any name, number of complaints etc. or disclose name of any officer who has committed similar misconduct. Once this stand is taken by the petitioner it tantamount to lead no evidence on record. The petitioner made oral submissions to the extent that High Court has never treated such appointments as misconduct. The petitioner was personally heard at the enquiry. or disclose name of any officer who has committed similar misconduct. Once this stand is taken by the petitioner it tantamount to lead no evidence on record. The petitioner made oral submissions to the extent that High Court has never treated such appointments as misconduct. The petitioner was personally heard at the enquiry. The rulings cited by him were seen by the Enquiry Authority and discussed the same thoroughly. (24). The respondents have claimed that the appointment of Basant Kumar was admitted by the petitioner. He was his sisters son. This fact was also admitted by the petitioner. No notice was given advertising the post. This was also admitted. The whole case of the prosecution was, therefore, admitted by the petitioner. Therefore, the Presenting Officer did not lead any other evidence. When the enquiry was taken up on 25.8.2000 the petitioner himself appeared and made statement that he did not want to lead any evidence. So only the legal questions remains to be decided by the Enquiry Authority. The denial of the petitioner was to the extent that the appointment to a close relative was not misconduct and the post could be filled up without inviting applications or calling the names from the Employment Exchange. Since there were purely questions of law, the Enquiry Authority at the request of both the parties proceeded further without recording the evidence. The order-sheet dt.25.8.2000 reads as under :- ``25.8.2000 HONBLE Dr. JUSTICE B.S. CHAUHAN (Enquiry Judge) Delinquent officer present in person. Mr. A.R. Patwardhan, Departmental Representative (Presenting Officer) 31. The delinquent officer submits that he does not want to furnish any name, number of complaint etc. or disclose name of any officer who has committed similar misconduct, therefore, no evidence further is to be recorded. 32. However, delinquent officer has made oral submissions to the extent that High Court had never treated such delinquency as misconduct and whenever there was a complaint of this nature, High Court has dropped the inquiry and no proceeding against such delinquent, considering it to be a misconduct, had been initiated. 33. Whether this act amount to misconduct or not and whether, discharging persons similarly situated, committing similar misconduct, can be a defence, is a question of law and not of facts. 34. 33. Whether this act amount to misconduct or not and whether, discharging persons similarly situated, committing similar misconduct, can be a defence, is a question of law and not of facts. 34. In support of his submission, the delinquent officer has placed reliance upon judgment of Honble Supreme Court in Sanghara Singh vs. State of Punjab & Ors., AIR 1984 SC 1499 . 35. The other submissions delinquent officer has made on facts are personal in nature i.e. to the extent that his sister was not in good economic condition & was needing support and, considering her family circumstances, the appointment was offered. 36. Inquiry stands concluded. 37. Report will be submitted. Sd/- (25). The enquiry was concluded after hearing the petitioner. At that point of time the petitioner has not raised any question regarding violation of principles of natural justice. The facts of giving appointment to a close relative without adopting any fair procedure was an admitted fact. Therefore, none of the parties led evidence. (26). The case of the petitioner regarding grievance in relation to fixation was denied by the respondents by saying that the petitioner has been reverted to the post of Civil Judge (Jr. Division) & Judicial Magistrate and as a consequence it was but necessary for the answering respondents to refix the pay of the petitioner in the pay scale that was admissible to him as per Rule 33 of the RSR. There is no illegality in refixing the pay of the petitioner because the pay scales are attached with rank, which carries with reduction of pay scale also. The respondents have claimed that the order of punishment has been passed after conducting the enquiry in accordance with the prescribed procedure and after affording ample opportunity to the petitioner. No grounds were available to the petitioner to invoke the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. (27). We have heard the learned counsel for the parties and have also perused the record of the case so also the proceedings of the enquiry placed before us by the respondents. (28). The first charge against the delinquent petitioner is that he appointed Basant Kumar against the Rules and without observing the due process prescribed. By doing this the delinquent failed to act otherwise than in his best judgment in exercise of the power conferred upon him. (28). The first charge against the delinquent petitioner is that he appointed Basant Kumar against the Rules and without observing the due process prescribed. By doing this the delinquent failed to act otherwise than in his best judgment in exercise of the power conferred upon him. This act of the delinquent amounted to gross misconduct. (29). The second charge against the delinquent petitioner was that without observing the rules prescribed for appointment he has given appointment to one of his close relative i.e. sisters son. By doing this he encouraged nepotism. This act of the delinquent reflected his nepotism character. (30). The third charge against the delinquent was that without advertising the vacancy the proceedings for appointment were completed in one day. This was done to favour his close relative and thus, the delinquent acted in an improper manner and encouraged nepotism. (31). In relation to the aforesaid charges the stand of the delinquent-petitioner has been that Basant Kumar was appointed by him. The appointment was made in one day. The appointed employee was his sisters son. Having meted out all these facts, the delinquent officer has pleaded that for making an urgent temporary appointment no procedure is prescribed. The appointment was to be made for urgent and immediate need. Therefore, it was made with urgency. The appointment of a close relative is not prohibited and is not a misconduct. The delinquent officer has pleaded that the appointments made in the sessions division i.e. Jodhpur are in the same fashion in which the petitioner has made the appointment. Therefore, he has committed no illegality in making the appointment. The petitioner sought certain documentary evidence. This was to demonstrate that the appointment made by him was in consonance withe the practice followed in the courts under the supervision of the respondent-Court. An application in this regard was made before the Enquiry Authority and the Enquiry Authority rejected such application by observing that such an inspection is not permissible for the reason that Art. 14 is not meant to perpetuate an illegality. If the delinquent has such grievance he can take such a plea and the matter may be referred to the High Court for removal of such appointees and for taking action against the erring officers, but such a defence is not permissible. Hence prayer rejected. (32). In the aforesaid back-ground, the arguments led by the petitioner have to be judged. If the delinquent has such grievance he can take such a plea and the matter may be referred to the High Court for removal of such appointees and for taking action against the erring officers, but such a defence is not permissible. Hence prayer rejected. (32). In the aforesaid back-ground, the arguments led by the petitioner have to be judged. The petitioner has firstly challenged the enquiry on the ground of procedural irregularities. His second ground of challenge is quantum of punishment. Apart from these two points, no other point was urged before us by the learned counsel for the petitioner. (33). Firstly, we will take up the ground of procedural irregularities. (34). The foremost ground in his pleadings and oral arguments/submissions has been that there had been consistent practice under the supervision of the respondent Court to make appointment in the fashion in which the petitioner has made the appointment. In his reply to the allegations of charges, the petitioner has submitted as under : ^^pwafd izkFkhZ dks mDr fu;qfDr djus ls iwoZ bu rF;ksa dh tkudkjh Fkh & fd tks/kiqj U;k; {ks= esa rFkk jktLFkku ds vU; U;k; {ks=ksa esa vU; U;kf;d vf/kdkfj;ksa }kjk Hkh vius fudV lEcfU/k;ksa dks mijksDrkuqlkj fu;qfDr;ka iznku dh xbZ gS@djkbZ xbZ gS rFkk ekuuh; jktLFkku mPp U;k;ky; us bl izdkj fu;qfDr;ka fd;s tkus dks dHkh xEHkhjrk ls ugha fy;k gS rFkk bl dk;Z ds fy;s mDr vU; vf/kdkfj;ksa dk dHkh nqjkpj.k ugha ekuk gS cfYd ,slh fu;qfDr;ksa ds laca/k esa mu vf/kdkfj;ksa ds fo:) izLrqr dh xbZ fkdk;rs Hkh fcuk fdlh dk;Zokgh ds MªkWi dh gSa] blfy;s ;g ekurs gqos fd vius lEcU/kh dks fu;qfDr iznku fd;k tkuk nqjkpj.k ugha gS] izkFkhZ us vius mDr lEcU/kh tks mDr in ds fy;s lHkh vko;d ;ksX;rk,a j[krk Fkk] rHkh ftlds ifjokj esa dekuk okyk dksbZ vU; ugha gksus ls mlds ifjokj ds yksxksa ds fy;s Hkw[kksa ejus dh ukScr vk xbZ Fkh] dks p-Js-d- ds in ij ek= nks ekg ds fy;s fu;qfDr iznku dj nhA ;fn ekuuh; jktLFkku mPp U;k;ky; }kjk iwoZ esa vU; vf/kdkfj;ksa }kjk dh xbZ ,slh fu;qfDr;ksa ds laca/k esa mDr vU; vf/kdkfj;ksa ds fo:) dksbZ dk;Zokgh dh xbZ gksrh rks izkFkhZ mDr fu;qfDr djus dk dHkh lkgl ugha djrkA (35). This stand of the petitioner is clothed in the protective umbrella of Article 14 of the Constitution of India. This stand of the petitioner is clothed in the protective umbrella of Article 14 of the Constitution of India. The petitioner has claimed that the proceedings against him for such an action, is a case of hostile discrimination. (36). We have to judge whether such is the practice prevailing in the respondent Court and if so whether the action of the petitioner can be justified on this count. (37). To establish his stand, the petitioner in his reply submitted that he will submit the details of such appointment at an appropriate time. The petitioner before us is making a grievance that he was not afforded an opportunity to examine the witnesses and lead his defence and, therefore, he has been prevented from contesting the allegations levelled against him. (38). For examining the correctness of the allegations of the petitioner, the record of the enquiry was examined by us. The Enquiry Authority while dealing with the application of the petitioner for supply of documents in relation to the defence put forward by the petitioner, observed that such a defence is not permissible to be taken because the illegality can not be permitted to be perpetuated. Further the Enquiry Authority on 27.7.2000 has observed in para 28 as under : ``28. The Presenting Officer is directed to file list of witnesses and list of documents within ten days and the copies of the same may be given to the delinquent officer. Admission/denial were done by the parties. (39). After this we dont find from the record that any application was made by the petitioner to request the Enquiry Authority for summoning any witness. There is an application filed by the petitioner on record dated 24.5.2000 presented on 27.5.2000 wherein the petitioner has submitted that : ^^vko;drkuqlkj izkFkhZ viuh izfrj{kk esa xokgku rfkk nLrkostkr isk djsxk] ftudh lwfp dk iw.kZ fooj.k izkFkhZ mfpr LVst ij izLrqr djsxkA (40). The delinquent officer has, thus, submitted in writing that he will submit the application for summoning the witnesses etc. subsequently. But we do not find from the record any application or request on the part of the delinquent officer/petitioner to seek any requisition for any defence witnesses in his defence. The delinquent on 25.8.2000 has submitted before the Enquiry Authority as follows:- ``31. The delinquent officer submits that he does not want to furnish any name, number of complaint etc. But we do not find from the record any application or request on the part of the delinquent officer/petitioner to seek any requisition for any defence witnesses in his defence. The delinquent on 25.8.2000 has submitted before the Enquiry Authority as follows:- ``31. The delinquent officer submits that he does not want to furnish any name, number of complaint etc. or disclose names of any officer who has committed similar misconduct, therefore, no evidence further is to be recorded. (41). In the face of this position, we have to examine whether the grievance raised by the petitioner is in fact a grievance or a mere ploy to frustrate the enquiry. (42). The allegations contained in the charge-sheet are in a very narrow compass. In a vacancy to be filled in on urgent and temporary basis an appointment was made by the petitioner without advertising the post. The person appointed was his close relative. The process of appointment was completed in one day. The stand of the delinquent is that neither the rules prescribe for advertisement of the post nor there is any practice. The situation required that the appointment was to be made immediately and he has sought the permission from his immediate superior to make such appointment. Since the rules had not laid any guidelines, the petitioner acted in consonance with the practice prevailing in the respondent Court and, thus, no misconduct has been committed by him. (43). The Enquiry Authority has found that in the rules there are no guidelines to make such appointments. The delinquent has not alleged any specific instance that a close relative of any judicial officer was appointed by him, in the manner in which the petitioner has made the appointment. The petitioner was asked to give the details of such appointments but the delinquent has backed out from giving any names of such officers. The statement of the petitioner has been quoted hereinabove wherein he has stated that he does not want to furnish any name, number of complaint etc. This stand of the petitioner does not establish that the defence which he wanted to take had any solid foundation. (44). He bravely contended in his representation that there are many appointments made like the one made by him but when he was to specify them he declined to do the same. This stand of the petitioner does not establish that the defence which he wanted to take had any solid foundation. (44). He bravely contended in his representation that there are many appointments made like the one made by him but when he was to specify them he declined to do the same. In the aforesaid back-ground it appears that the delinquent officer had a misplaced sense of self rightness when he claimed parity with other officers in making appointment. When it came to substantiate his stand he backed out. (45). Further, the Enquiry Authority has observed that if any illegality is being committed then such an illegality cannot be permitted as a defence. A wrongful practice cannot give right to any one to defend himself on the basis of such a practice. Any appointment in public office cannot be made arbitrarily. There is uniformity in the judicial pronouncements regarding following a fair procedure even for temporary appointments. Thus, the learned Enquiry Authority has held that the petitioner cannot claim protection of Article 14 of the Constitution of India. We think that the Enquiry Authority was right in observing that the protection of Article 14 of the Constitution of India is not available to the delinquent officer. The Officer has himself submitted that he does not want to give the names of such officers who had committed the same kind of mistake which has been pressed into service against him. By this stand of the petitioner, the whole defence which the delinquent wanted to establish was given up. In this back-ground, the petitioner failed to make use of calling the witnesses etc. giving names before the Enquiry Authority. He could summon the witnesses, as ordered by the Enquiry Authority, but he did not make any such request. (46). If in the aforesaid back-ground the witnesses were not examined then it is very difficult to say that the Enquiry Authority had committed an error in not examining the witnesses. giving names before the Enquiry Authority. He could summon the witnesses, as ordered by the Enquiry Authority, but he did not make any such request. (46). If in the aforesaid back-ground the witnesses were not examined then it is very difficult to say that the Enquiry Authority had committed an error in not examining the witnesses. If at all the petitioner was serious about examining the witnesses then on 25.8.2000 when in his presence the Enquiry Authority noted that no evidence further is to be recorded, he could have moved/made an application before the Enquiry Authority that he wants to submit the evidence but no such step was taken by the delinquent officer, it may be for two reasons; firstly, he had no names available with him and secondly, he may be thinking of taking this defence in the writ petition as has been done by him. (47). The aspect of procedural irregularities/illegalities has been emphasised by the learned counsel for the petitioner with great vehemence. According to him the principles of natural justice have been violated and the Enquiry Authority has proceeded on the premises that the allegations have been admitted by the delinquent officer. The allegations have been quoted hereinabove and replies of the petitioner have also been quoted hereinabove. It is no doubt true that the petitioner has claimed that he wants to defend the charges but the basic fact of appointment of a close relative without inviting applications was admitted by the petitioner. The defence set up by him that such is the practice in the different courts was not sought to be established by him by him stand taken before the Enquiry Authority on 25.8.2000. In such circumstances, what could be done by the Enquiry Authority is a very important question? (48). In departmental enquiries strict rules of procedures are not pressed into service. Substantial compliance has always been considered to be sufficient. In the instant case, the petitioner was afforded an opportunity on 27.7.2000 to file the list of witnesses. No such list was filed and on 25.8.2000 he submitted that he does not want to name any witness then by mere saying in his statement of defence that he wants to contest the charges goes to show that he wanted to make a brave front but then he has no defence to lead. (49). No such list was filed and on 25.8.2000 he submitted that he does not want to name any witness then by mere saying in his statement of defence that he wants to contest the charges goes to show that he wanted to make a brave front but then he has no defence to lead. (49). The petitioner has claimed that the Enquiry Authority should have summoned the record and examine itself that such was a practice was prevalent in the respondent Court. Such a plea tantamounts to shifting the burden on the Enquiry Authority to make a fishing enquiry. Such enquiry has been sought by the petitioner of allegations which have not been sought to be established by the petitioner himself. Having refused to name officers who had committed illegalities in appointment, the delinquent has diluted his defence. If the petitioner delinquent officer has felt himself shy of naming such officers then what could be said is that he has only raised a plea for the sake of taking a defence but he has nothing to substantiate the same. (50). The law on the point of making public appointment, even on temporary basis, is very clear that as and when any public appointment is made all those who are desirous of seeking employment should be afforded a fair opportunity. In the instant case, the appointment was made without any one else other than the person appointed knowing that any appointment is going to be made. The appointment was made in favour of a close relative. Favouring a close relative has been held by the learned Enquiry Authority to be a corrupt practice and rightly so because this clearly speaks of nepotism and nepotism has never been seen by the judicial courts to be one incidence which could found favour in judicial courts. Thus, from over all account of the facts and circumstances of the case involved in the case in hand we have a feeling that the delinquent officer has misused his authority in making appointment in favour of his close relative. No notice was given to the public at large just to acquire this position for his nephew which according to him was in a dire need to seek employment as his financial position was precarious. Thus, we feel that the stand taken by the Enquiry Authority that a misconduct has been committed by the petitioner, is not wrong. No notice was given to the public at large just to acquire this position for his nephew which according to him was in a dire need to seek employment as his financial position was precarious. Thus, we feel that the stand taken by the Enquiry Authority that a misconduct has been committed by the petitioner, is not wrong. No illegality has been committed by the respondents in treating the delinquent guilty. The charges levelled against the delinquent officer (petitioner) were clearly established by the department. (51). Now we take up the question of punishment. The delinquent in his reply has taken a very bold stand that he has only followed the practice prevailing in the court. The delinquent has failed to substantiate such allegations. The allegations of commission of an illegality against the entire courts is a serious matter. It becomes more serious when it only remains an allegation and no proof comes forward. The petitioner himself has felt shy of substantiating the same. Though he has shown braveness of making such allegations but had no support available with him to substantiate the same. Even in reply to the second show cause, petitioner made the allegation that Enquiry Judge acted as a prosecutor and not as an arbitrator as for holding him guilty, reliance was placed upon a very large number of Supreme Court judgments, suo moto by him, though not a single judgment had been cited by the Department. Such an allegation was baseless for the reason that as the facts remained undeniable/undisputed, only legal issues were to be adjudicated upon and for that purpose, such a course was necessary. Learned counsel for the petitioner did not make any submission to the effect that the judgments relied upon by the Enquiry Authority were not attracted in the facts of the present case. In such circumstances, the petitioner is not entitled to any leniency in the matter of awarding punishment to him. The respondent Court had already considered his case with sympathy and reduction in rank was awarded to the petitioner, though notice was given for dismissal from service. We feel that the petitioner has not been given any unfavourable treatment. (52). Thus, in the result, there is no force in this writ petition and the same is, therefore, dismissed.