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2001 DIGILAW 871 (RAJ)

Radhey Shyam Sharma v. State of Rajasthan

2001-05-14

J.C.VERMA

body2001
Honble VERMA, J.–The petitioner Radhey Shyam, now dead, was employee of the UIT, Ajmer, having been appointed as Munshi in the year 1968. He was promoted as LDC in the year 1979. (2). The petitioner was charge-sheeted on 25.1.1986 on the allegation that he had remained wilfully absent from duty from 19.12.1985 to 31.12.1985 and that he was on regular habit of delayed visiting to the office and he was negligent in his duties. Ultimately one Mahesh Chand Sharma was appointed as Enquiry Officer on 8.8.1986. The Enquiry Officer had given a finding against the delinquent official; a tentative decision of imposing penalty of removal was taken against the petitioner. While imposing the punishment, the Secretary, UIT had taken into account that he had come to the office late on 1.7.1986, 21.7.1986, 22.7.1986 and again four days in the month of August 1986 and then about a few days in the months of December 1986 but after attending the office for sometime, he had left the office. He was ordered to be removed from service on 18.3.1987 vide order dated 18.3.1987, copy of which is attached as Annexure-2 to the writ petition. Appeal filed against such order was rejected by one line order Annexure-3. The petitioner filed the present writ petition. (3). Challenge was made to the order of removal and the appellate order on the ground that he was not wilfully absent but rather he had applied for leave and he had proceeded after applying for leave. Other allegations were also denied stating, therein, that the petitioner was never kept himself idle but doing the work with best of his efficiency. He had also challenged the exparte enquiry but in any case for the absence of about 12 days, the extreme penalty of removal ought out have been given when he had already put in all about 20 years of service. The Enquiry Officer had found that in the month of September and October 1985 for certain dates of September and October 1985 for certain dates the petitioner had attended the office late whereas from 19.12.1985 to 31.12.1985 he was absent without sanction of leave. The Enquiry Officer had found all the charges to be proved. The Enquiry Officer had found that in the month of September and October 1985 for certain dates of September and October 1985 for certain dates the petitioner had attended the office late whereas from 19.12.1985 to 31.12.1985 he was absent without sanction of leave. The Enquiry Officer had found all the charges to be proved. It is the case of the respondent that the action was taken in accordance with the rules and all the formalities required under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 were complied with. The allegations were given on 15.1.1986. (4). Record was called. (5). From the record it seems that the petitioner was suspended on 1.1.1986 for being absent from 19.12.1985. He was charge- sheeted vide order dated 25.1.1986 with the statement of allegations that the petitioner was issued letter of explanation for his absence on certain days from September 1985 to December 1985 and that though he was suspended on 1.1.1986, but he was absent for 15 days after the date of suspension that he had been leaving for Jaipur without permission i.e. leaving Head-quarter and that he was a habitual late comer. The petitioner had stated that last time he had gone to Jaipur was about 8 months that also for attending the secretariat under the orders of the officers. For the reason that no house was made available to him, he was daily commuter and had prayed that his suspension order be withdrawn. Vide order dated 25.6.1986 he was reinstated pending enquiry. He was not being paid the salary for which he had been pressing hard during the period of suspension of enquiry. (6). For the reasons that the petitioner had challenged the enquiries itself, the original record of enquiry proceedings had been produced for perusal. (7). The Enquiry Officer was appointed vide order dated 25.6.1986 when one Shri Niranjan Kumar was appointed as Enquiry Officer vide letter Memo No. 86/224 dated 25.6.1986. No enquiry proceedings were taken till 8.8.1986 when Enquiry Officer was changed and instead the Mahesh Chand Sharma was appointed as Enquiry Officer vide letter dated 8.8.1986. (8). Vide letter dt.11.8.86 at page 61 of the file, the Enquiry Officer had fixed 21.8.86 as the date of enquiry. There are no proceedings of enquiry for 21.8.86 on the file. (9). No enquiry proceedings were taken till 8.8.1986 when Enquiry Officer was changed and instead the Mahesh Chand Sharma was appointed as Enquiry Officer vide letter dated 8.8.1986. (8). Vide letter dt.11.8.86 at page 61 of the file, the Enquiry Officer had fixed 21.8.86 as the date of enquiry. There are no proceedings of enquiry for 21.8.86 on the file. (9). On 22.8.1986 at page 62, there is a note of the Enquiry Officer to produce the establishment clerk. (10). At page 67 there is a note of the Inquiry Officer on 26.8.1986 that he had recorded the statement of only one witnesses Mahendra Patni and he had adjourned the enquiry proceedings to 28.8.1986 for the defence evidence. (11). At page 68 there is a statement of P.W.-1 Mahendra Kumar Patni which is signed by him and the enquiry officer. There is no signature of the petitioner on the statement nor it is stated by the Enquiry Officer that any opportunity or cross-examination was given. (12). Even though on 26.8.1986 it is mentioned that only statement of one witness was recorded, but there is another statement of PW-2 of some UDC on 26.8.1986 itself. After such two statements, the Enquiry Officer had submitted the enquiry report which is dated 6.11.1986. (13). Photo-stat copies of the PW-1 and PW-2, proceedings of 26.8.1986 at page 68, 69, 70 and 72 have placed on record. (14). From the above facts so far proceedings of the Enquiry Officer are concerned, the following facts are clear; (1) there was no date fixed as 26.8.1986 but still there were two statements of 26.8.86 which seems to have been only counter signed by the Enquiry Officer; (2) No opportunity has been given on the said date to the petitioner to cross examine the witness; (3) the Enquiry Officer in his report had discussed PW-1 & PW-2; (4) from the enquiry proceedings even though 28.8.1986 was fixed for defence evidence, but there are no proceedings ever held on 28.8.1986, nor there is any mention in the enquiry proceedings that the prosecution had closed its evidence or that any other date was fixed for defence or that the petitioner was willing to produce defence or not. Thus, no opportunity of defence seems to have been given by the Enquiry Officer. (15). Thus, no opportunity of defence seems to have been given by the Enquiry Officer. (15). Faced with this situation as per record, as discussed above, this court had though it proper to list the case once again under the heading `to be mentioned for seeking clarification from the respondents and also with the intention to enable the respondent to produce any other record if at all there was any such record available other than the record already produced as discussed above. (16). Counsel for the respondent who had produced the record was not able to explain, justify the manner in which the enquiry proceedings were being held or conducted nor any of the record except the above was available with him. (17). Even though in the written statement it has been stated that the rules of holding enquiry have been properly followed and no illegality was committed during the course of enquiry and that major punishment given to the petitioner was justified, but from the proceedings of the enquiry it seems that the Enquiry Officer was not aware of the rules of conducting the proceedings of enquiry; or affording an opportunity of cross examination of the witness and was acting totally in violation of the set principles of conducting the enquiry and, therefore, ultimately order of respondent awarding punishment on the petitioner cannot be held to be inconsonance with the principles of natural justice. (18). Counsel for the petitioner submits that even though the allegations/charge-sheet was for remaining absent from 19.12.1985 to 31.12.1985 for about 12 days, but the competent authority had even taken into consideration the so called date of absence on 1.7.1986, 21.7.1986, 22.7.1986 and again in August 1986 and December 1986 when the petitioner was under suspension and, therefore, the respondent has even based the impugned orders beyond the enquiry report and the charge sheet, which fact is correct from the bare reading of the orders. (19). For the above-said discussion and reasons, it is held that the impugned order dated 18.3.1987 cannot be sustained in the eyes of law being contrary to the principles of natural justice and violative of the rights of the petitioner to produce his defence and that on the reasons that the disciplinary authority had even travelled beyond the allegations as mentioned in the charge-sheet and, therefore, orders are quashed. The petitioner shall be deemed to be continuing in service with all consequential benefits of seniority etc. etc. (20). For the reasons that the impugned order itself is being quashed, there is hardly any necessity to go into the submission made by the parties for consideration of imposing a lesser punishment. (21). The writ petition is allowed with a cost of Rs. 1000/-.