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2001 DIGILAW 440 (RAJ)

Ramesh Chand Arya v. State of Rajasthan

2001-03-19

J.C.VERMA

body2001
JUDGMENT 1. - The petitioner had joined the service on the post of Lower Division Clerk (LDC) in the year 1969 in Public Works Department. He was also given promotion to the post of Upper Division Clerk (UDC) on which he joined on 30th January, 1982. Initially, he proceeded on two days casual leave w.e.f. 5th March, 1982 as per his application Annexure R-1. He was informed vide (Annexure-R2) on 16th March, 1982 that the petitioner was absent from duty/office without submitting any leave application which was not justified and therefore, he was asked to submit his explanation within seven days, failing which, a disciplinary action under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, herein after referred to as the CCA Rules, could be taken. According to the respondents, the letter was not replied too. He was so informed time and again and ultimately, a publication was made and even charge-sheet was issued to him. The Chief Engineer, vide its order (Annexure-R9) dated 14th August, 1984 had informed him that his reply is not being received and therefore, action under Rule 86 of the Rajasthan Service Rules and Rule 19 of the CCA Rules, was contemplated to be taken against him. The petitioner acknowledged the same vide (Annexure-R/11) on 20.10.84. He was issued a notice (Annexure-R/12) dated 15.10.1985, that in case, he did not join the duty he would be removed from service under Rule 19 of the CCA Rules. He presented himself, vide (Annexure-R/13) on 22.11.1985 and was given the posting. Even though, he was asked to join his duty, it seems vide (Annexure-R/14), the petitioner had not joined the duties. 2. The impugned order (Annexure-11) dated 11.2.1986, was passed against the petitioner wherein the fact have been stated about his absence. It is also mentioned in the said order that he was asked to join his duty vide order (Annexure-R/13) dated 22.11.1985 and posted at Sub Division, Bheem but he had failed to join his duty till 24.12.1985 at Bheem. He was removed from service w.e.f. 5.3.1982, which order is said to have been passed after invoking the provisions of Rule 19 of the CCA Rules, by dispensing with the enquiry. 3. He was removed from service w.e.f. 5.3.1982, which order is said to have been passed after invoking the provisions of Rule 19 of the CCA Rules, by dispensing with the enquiry. 3. The petitioner is challenging the impugned order and all other connected orders on the ground that it was a mandatory duty of the respondents to hold a departmental enquiry in which the petitioner could have justified his absence or would have proved that he was not absconding and his absence was not willful. It is further submitted that in any case, the petitioner was entitled to an opportunity to be heard and especially when in response to the directions given by the respondents, he had submitted his joining report on 28.11.1985 which fact stands admitted. For the reason that the enquiry itself was dispensed with, the department did not appoint any enquiry officer. Learned counsel for the petitioner has placed reliance on a decision rendered in the case of Union of India and Ors. v. Tulsi Ram Patel and Ors., 1985 LIC (2) 1393 : [1985(2) SLR 576 (SC)] , wherein the Apex Court had discussed the scope of dispensing of the enquiry under Sub-clause (2) of Article 311 of the Constitution of India, of which Rule 19 is analogous. A disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry or because the Department's case against the Government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the Court so far as its power of judicial review is concerned and in such a case, the Court will strike down the order dispensing with the inquiry as also the order imposing penalty. 4. However, the fact is not denied that the petitioner had been absenting from duty and whether he absented with prior permission or had been submitting the application or was absent without intimation was a matter which required consideration by the Disciplinary Authority to determine by holding an inquiry as argued by the learned counsel for the petitioner. 4. However, the fact is not denied that the petitioner had been absenting from duty and whether he absented with prior permission or had been submitting the application or was absent without intimation was a matter which required consideration by the Disciplinary Authority to determine by holding an inquiry as argued by the learned counsel for the petitioner. Even though, there is a force in the submission made by the learned counsel for the petitioner, but for the reason that the petitioner had been absenting from duty for years together, a question mark is put on the utility or futility of such an enquiry even if it was held. It is no doubt true, that it was not a circumstance to warrant the disciplinary authority to have dispensed with the enquiry as there was no reasonable circumstance prevailing for such dispensing of the enquiry. The alternative argument of the learned counsel for the petitioner is that in the circumstance, even if the absence is admitted, the Competent Authority, after holding an enquiry could have inflicted some lesser punishment i.e. stoppage of increments, stoppage of promotion or even for compulsory retirement of the petitioner. If at all the petitioner was not to be retained in service, the compulsory retirement was the appropriate punishment. 5. I fully agree with the submissions made by the learned counsel for the petitioner. The petitioner had put in more than 15 years of service, when the impugned order was passed. The punishment imposed upon the petitioner is very excessive and as suggested it needs to be considered for imposing the lesser punishment including that of compulsory retirement with the retiral benefits proportionate to his service which may be made admissible. 6. Learned counsel has placed reliance upon the decision rendered in the case of U.P. State Transport Corporation v. Mahesh Kumar Mishra, 2000(3) SCC 451 [ 2000(2) SLR 435 (SC)] , wherein it has been held as under : "A review of the above legal position which establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive powers to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the powers of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." Similarly, the Apex Court in the case of Colour Chem. Ltd. v. A.L. Alaspurkar, 1998(3) SCC 192 : [1998(1) SLR 757 (SC)] , has also laid down the same proposition and had held that if the punishment imposed is shockingly disproportionate to the charges had proved against the employee, it will be open to the Court to interfere. 7. In the case of U.P. Transport Corporation v. Mahesh Kumar Mishra (supra), the substitution of the punishment by the High Court, for dismissal and reinstatement with 25% of back wages was held to be justified and within the powers of the High Court. 8. For the above said discussions and reasons, the writ petition is allowed and stands disposed of with the direction that the petitioner who had already put in to twenty years of service shall be considered for imposing the lesser punishment of compulsory retirement with all retiral benefits proportionate to service which may be made admissible under the Rules and the order of removal shall be converted in to order of compulsory retirement as a punishment.Petition allowed. *******