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Rajasthan High Court · body

2001 DIGILAW 688 (RAJ)

R. C. Jain v. State of Rajasthan

2001-04-23

J.C.VERMA

body2001
Honble VERMA, J.–The petitioner was a Junior Engineer in the Irrigation Department, was charge-sheeted on 15.12.1983 on the allegations mentioned in Annexure-1. An Enquiry Officer was appointed vide Annexure-6. During the pendency of the enquiry, the petitioner was reinstated vide order dated 16.11.1987. The Enquiry report was submitted on 16.10.1987. The petitioner was punished with stoppage of five annual grade increments with cumulative effect on 21.9.1988, copy of which is attached as Annexure-7. For the reason that the enquiry report was not given to the petitioner, he had applied for supply of the report on 24.1.1989 which was made available to him on 23.8.1989, copy of which is attached as Annexure-8. From the enquiry report it was revealed that none of the charge had been proved and he had been totally exonerated. (2). It is also submitted that initially on the same allegations, enquiry was proposed against Shri O.P. Yadav Executive Engineer but enquiry against him was dropped by Annexure-9 on 29.3.1989. The petitioner is challenging the order Annexure-7. Challenge is made on the following grounds; (1) that the enquiry ought to have been initiated by the Chief Engineer who is appointing authority/Head of Department and no enquiry was initiated by the disciplinary authority, rather it was initiated by the appellate authority i.e. the respondent State; (2) that none of the charge had been proved as per enquiry report Annexure-8 and the petitioner had been exonerated and in case the competent authority wanted to dis-agree with the finding of the enquiry officer, it was mandatory for him to give a note of disagreement which has not been given; (3) that on similar charges as against the petitioner, an enquiry of Shri O.P. Yadav, Executive Engineer had been dropped. (3). The allegations as contained in the statement of allegations were (i) that the muster roll did not appear to have been maintained from day to day; (ii) daily labour report did not appear to have been prepared from day to day; (iii) thumb impressions were un-identifiable: (iv) under part I of the muster roll the details of the material used are not given; (v) loop- holes for misappropriation of cement are thus left; (vi) the muster rolls are more or less false. (4). The allegations in regard to muster roll No. 412 and 549 caused a loss of Rs. 5784/-. The petitioner had asked for as many as 45 documents. (4). The allegations in regard to muster roll No. 412 and 549 caused a loss of Rs. 5784/-. The petitioner had asked for as many as 45 documents. He had submitted an interim reply. The enquiry officer after going through the evidence as attached as Annexure- 8 had found that none of the allegation had been proved. (5). Admittedly, no enquiry report was supplied to the petitioner, however, in the impugned order Annexure-7, the authority while inflicting the punishment had disagreed with the finding of the enquiry. (6). Counsel for the petitioner submits that the order is in violation of the principles of natural justice as it was incumbent and obligatory for the competent authority to have issued show cause notice and should have given reasons for disagreement with the finding of the enquiry and only after giving such opportunity to the petitioner, the order could have been passed. It is also not denied that no report of the enquiry was given to the petitioner and, therefore, there was no proper opportunity ever given to the petitioner to reply to the show cause. (7). The petitioner is governed by the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 and relies on Rule 16(9) and (12) which read as under:- `16(9)- The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge. The Disciplinary Authority may while considering the report of the Enquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/denovo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other. 16(12)-Orders passed by the Disciplinary Authority shall be communicated to the Government servant who shall also be supplied with a copy of the report of the Inquiring Authority and where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons of disagreement, if any, with the findings of the Inquiring Authority, unless they have already been supplied to him, and also a copy of the advice, if any, given by the Commission and, where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non- acceptance. It will, however, not be necessary to furnish a copy of the report of the Enquiry Officer in the case where any of penalties specified in clauses (i) to (iii) of rule 14 is imposed on the Government servant. (8). Reliance is placed on 1998 (7) SCC 84 (1). 1997(7) SCC 739 (2), 1993(3) WLC 579 (3), 1989 RLR 99 (4), 1997 (3) WLC (Raj.) 277 (5) and the counsel for the respondent relies on a judgment reported in 2000(1) SCC 416 (6). (9). In the case of Yoginath D. Bagde vs. State of Maharashtra & Anor. (supra), relying on Punjab National Bank vs. Kunj Behari Misra (supra), it was held that the requirement of affording opportunity of hearing as laid in Kunj Behari Misra case, being in consonance with Art. 311(2) and being a constitutional right to be heard, has to be read into a rule which does not make specific provisions to this effect. Disciplinary Authority before forming its final opinion, has to convey to charged employee its tenta- tive reasons for disagreeing with the findings of the Enquiry Officer. Mere issuance of show cause notice to the delinquent official with regard to proposed punishment could not meet the requirement of law because final decision to disagree with the Enquiry Officer had already been taken before issuing show cause notice. It was held that the post decisional hearing was of no avail, atleast, in the circumstances of the case. (10). In the case of Punjab National Bank (supra), it was held that the principle of natural justice as enunciated in B.Karunakar case (7) require such opportunity to be given to the officer. It was held that the principles of natural justice have to be read into Regulation 7(2) though it is silent on this aspect. Regulation 7(2) of the Punjab National Bank Officer Employees (Discipline and Appeal) Regulations, 1977 provides that whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The Supreme Court in Kunj Behari Misras case had held that the disciplinary enquiry is divided into two stages; the first stage ends when the disciplinary authority arrives at its conclusions on the basis of evidence, enquiry officers report and the delinquent employees reply to it; second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. The first stage of the enquiry is not completed till the disciplinary authority has recorded its findings. The principles of natural justice would demand that the authority which proposes to decide against the delinquent officer must give him a hearing. When, like in the present case, the enquiry report is in favour of the delinquent officer but the disciplinary authority proposes to differ with such conclusions then that authority which is deciding against the delinquent officer must give him an opportunity of being heard, for otherwise he would be condemned unheard. (11). It was further held that the principles of natural justice will have therefore to be read into Regulation 7(2). Whenever the disciplinary authority disagrees with the enquiring authority on any article of charge then before it records its findings on such charge, it must record its tenantive reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its finding will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. (12). While considering merits of Rule 16(9), 16(10) and 16(12) Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 this court in the case of Mahendra Dixit vs. State of Rajasthan & Ors. (supra), had held that the copy of the report and the reasons for disagreement had not been made available to the petitioner and relying in Hari Narain Goyal vs. R.S.W.H. Corporation & Others (8), wherein it was held that where the disciplinary authority disagrees with the finding of `not guilty recorded by the inquiry officer, it must record reasons for its disagreement and communicate the same to the delinquent and give an opportunity of submitting explanation to the delinquent in regard to those reasons for disagreement. It was held that every quasi judicial authority is under an obligation to furnish all adverse materials to a party against whom an order affecting his/its civil rights is passed. The party against whom the order is sought to be made has a right to know about the adverse material and to offer his/its explanation. If the disciplinary authority disagrees with the findings recorded by the inquiry officer which are favourable to the delinquent, it has to record its reasons. If the disciplinary authority imposes the punishment without communicating those reasons to the delinquent, the disciplinary authority will be held to have acted on the basis of adverse circumstances without giving an opportunity of explanation to the delinquent. Even in cases, where the statutory Rules are not applicable, compliance of the principles of natural justice is implicit and in the present case, apart from the rules of natural justice, even the bare requirement of rule 16(9) warrants that the disciplinary authority must consider the record of inquiry as referred to in Rule 16(8) and record its findings on the charges levelled against the delinquent together with its reasons for disagreement. (13). A Division Bench of this court in the case of Vasudeo K. Hardasani vs. The State of Raj. & Anr. (supra), had held that the disciplinary authority who had not considered whole of the record including defence of petitioner and also failing to record finding on each charge had violated the mandatory rules of 1969. (14). In the case of D.L. Chauhan vs. State of Rajasthan & Ors. (supra), it was held that the competent authority had passed the impugned order without following the basic principles of natural justice. He had not applied his mind to the report of the Enquiry Officer, nor he had given any reasons for disagreement with the report of the Enquiry Officer. It was held that it was not sufficient for the disciplinary authority to say that he disagrees with the enquiry officers report. Because of the fact that no reasons for disagreement have been given either in the show cause notice or in the impugned order and thus it was held by the High Court that the basic order imposing punishment was not held to be valid in the eyes of law. (15). Because of the fact that no reasons for disagreement have been given either in the show cause notice or in the impugned order and thus it was held by the High Court that the basic order imposing punishment was not held to be valid in the eyes of law. (15). In the case of High Court of Judicature at Bombay vs. Shashikant S. Patil and another (8), it was held by the Supreme Court as under:- `The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole Judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution. (16). It was further held that the findings of the inquiry officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry Officer. But it is not necessary that the disciplinary authority should discuss materials in detail and contest the conclusions of the Inquiry Officer. Otherwise, the position of the disciplinary authority would get relegated to a subordinate level. But it is not necessary that the disciplinary authority should discuss materials in detail and contest the conclusions of the Inquiry Officer. Otherwise, the position of the disciplinary authority would get relegated to a subordinate level. In the case of High Court of Judicature at Bombay (supra), the Full Court of all Judges of Bombay High Court which had authorised the disciplinary Committee of five Judges of that High Court to exercise the functions of the High Court in respect of punishment of judicial officers; the Disciplinary Committee enumerated all the reasons in its pro- ceedings for dissenting from the inquiry officers conclusions, which reasons had been set out in the notice issued by the Disciplinary Committee to the first respondent requi- ring him to show cause why the conclusions of the Inquiry Officer be dissented from. (17). The petitioner has specifically stated in this writ petition that neither the inquiry report nor the disagreement giving reasons were not given. The inquiry report was given to the petitioner after passing of the impugned order, which was a post decisional action. (18). Similar were the allegations against Shri O.P. Yadav, Executive Engineer, but inquiry against him was dropped. (19). It has also been brought on record that one Shri R.K. Verma, Junior Engineer who was initially involved in the joint inquiry on the same charges had been exonerated on appeal preferred by said R.K. Verma. The allegations against the petitioner Shri O.P. Yadav were similar that while holding the post of A.En. and X.En. they were found negligent in discharge of duties on supervisor and preparing of false muster rolls. The Governor of Rajasthan had accepted the representation of R.K. Verma vide order dated 21.9.1998 (Annex. 6 attached in Writ Petition No. 3729/92) and, therefore, the petitioner submits that on the same analogy the petitioner is also entitled to the relief of quashing of impugned order Annexure-7. (20). The Governor of Rajasthan had accepted the representation of R.K. Verma vide order dated 21.9.1998 (Annex. 6 attached in Writ Petition No. 3729/92) and, therefore, the petitioner submits that on the same analogy the petitioner is also entitled to the relief of quashing of impugned order Annexure-7. (20). After hearing learned counsel for the petitioner and in view of the facts that the petitioner had been exonerated in the inquiry held against him but the disciplinary authority had not agreed with the findings of the inquiry, but without complying with the mandatory provisions and in violation of the principles of natural justice had without issuing any show cause notice of disagreement with reasons, punished the petitioner, which punishment order cannot be sustained in the eyes of law being violated of principles of natural justice as has been settled in the principles laid down by the Apex Court and by this court and as such the order Annexure-7 is quashed. (21). For the reasons that Annexure-7 is being quashed, I do not find any necessity to go into other aspects of the case as advanced. (22). For the reasons that Annexure-7 stands quashed and during the period when departmental proceedings were pending, if the petitioner had been deprived of any promotion or that his case had not been considered and his juniors have been promoted to any of the respective promotional post over and above the petitioner, it goes without saying that the petitioner shall be entitled to such promotion if any of his junior has been so promoted. The petitioner should be given the notional promotion from the due date when his juniors were so promoted along with all other consequential benefits. (23). The writ petition is allowed. No. order as to costs.