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2002 DIGILAW 1602 (RAJ)

Shiv Prasad Sharma v. State Of Rajasthan

2002-09-16

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. 1. Punishment of dismissal from services was imposed on the petitioner vide order dated 28.1.1977 in a departmental inquiry initiated under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short the CCA Rules). After unsuccessful appeal and review, the petitioner has approached this Court with the prayer to quash his dismissal order and seeking reinstatement in the services with all consequential reliefs. 2. Contextual facts depict that the petitioner was appointed as LDC vide order dated 28.9.1961 and posted in the office of Sales Tax Officer Kota. He was promoted to the post of UDC on ad hoc basis vide order dated 26.9.1975 and reverted to the post of LDC vide order dated 26.2.1976. The petitioner was placed under suspension and charge memo was served on him by the Commercial Taxes Officer Circle A Kota under Rule 16 CCA Rules on 14.4.1976. Since the appointing authority of the petitioner was Deputy Commissioner Commercial Taxes, Kota the charge sheet was served on him vide memo dated 1.10.1976. The petitioner averred that the respondents have neither allowed him to inspect the record nor supplied him the required documents. The petitioner was proceeded ex-parte and held the proceedings in utter haste and all the norms prescribed under the CCA Rules. and the principles of natural justice. The petitioner was denied the opportunity to file reply and even his defence nominee Pratap Lal Gurjar was not informed to appear before the enquiry officer despite his consent. Since the enquiry officer recorded the statements of the witnesses in a capricious manner, Pratap Lal Gurjar shown his inability to appear before the enquiry officer. The petitioner's further request to appoint Shri V.D. Pancholi as his defence nominee was not allowed on the purported ground that he was not a Government servant. 3. The petitioner further averred that on the basis of vitiated enquiry proceedings the disciplinary authority issued a show cause notice dated 24.12.1976 along with the enquiry report stating therein that the disciplinary authority has tentatively decided to dismiss the petitioner from service but before taking proposed action, he was being given an opportunity to show cause. 3. The petitioner further averred that on the basis of vitiated enquiry proceedings the disciplinary authority issued a show cause notice dated 24.12.1976 along with the enquiry report stating therein that the disciplinary authority has tentatively decided to dismiss the petitioner from service but before taking proposed action, he was being given an opportunity to show cause. The petitioner submitted explanation in response to the show cause notice and stated that the FIR had been lodged against him under Sections 409, 467 & 471, Indian Penal Code with the Police Station, Indragarh and the matter was pending in the Court concerned. The petitioner specifically averred before the disciplinary authority that he was denied reasonable opportunity to defend the case and the enquiry was conducted after grossly violating the principles of natural justice. The petitioner submitted that in these circumstances he should not be punished. The disciplinary authority ignoring the reply of the petitioner, passed the punishment order dated 28.1.1977 awarding the punishment of dismissal from service. 4. The petitioner submitted appeal under Rule 23 of the CCA Rules to the Addl. Commissioner Commercial Taxes with a request to provide the opportunity of personal hearing. The Additional Commissioner instead of deciding the matter on merits passed the order dated 8.3.1979 rejecting the appeal by upholding the punishment order ignoring the defence and grounds raised in the appeal. Dis-satisfied with the order of the appellate authority the petitioner preferred another appeal to the Secretary to the Government under Rule 32 of the CCA Rules under the ill-advised but after lapse of more than four years the petitioner was informed vide letter dated 16.3.1983 that under the provisions of CCA Rules there was no provision for second appeal, however it was observed that if so advised, he could file review petition before the Governor of Rajasthan. In compliance to letter dated 16.3.1983 the petitioner filed review petition before the Governor of Rajasthan. 5. The petitioner also averred that the criminal case instituted against the petitioner was quashed by the High Court vide order dated 10.5.1994 under Section 482, Criminal Procedure Code. 6. On 9.7 1994, the petitioner served a notice for demand of justice on the respondents asking them to withdraw the dismissal order dated 28.1.1977 and to reinstate him back in service with all consequential benefits in the changed circumstances. The petitioner thereafter submitted representation/joining report to the Dy. 6. On 9.7 1994, the petitioner served a notice for demand of justice on the respondents asking them to withdraw the dismissal order dated 28.1.1977 and to reinstate him back in service with all consequential benefits in the changed circumstances. The petitioner thereafter submitted representation/joining report to the Dy. Commissioner due to change in circumstances but the Deputy Commissioner vide his letter dated 16.9.1994 apprised him that until the order of dismissal is set aside, he cannot be reinstated back in service. The petitioner was informed vide order dated 29.12.1997 that the Governor of Rajasthan rejected his review petition in May 1983. 7. The respondents submitted return to the writ petition and averred that the petitioner while working at the Check Post of Indragarh from 16.3.1974 to 16.5.1975 did not deposit an amount of Rs. 16,021.50 in the Government Account and kept the amount with him and as such an embezzlement of Rs. 16,021.50 was committed by him. The petitioner was served charge sheet under Rule 16 on 1.10.1976 for this embezzlement. The petitioner was allowed to inspect the relevant record and copies of the relevant papers were made available to him. He was given full opportunity to defend his case. It was submitted that no other person or advocate other than the Government employee could be authorised to assist in the departmental enquiries. An FIR was also lodged at Police Station, Indargarh against him under Sections 409, 467 & 471 Indian Penal Code. On finding guilty in the departmental enquiry the petitioner was dismissed from service after issuing a show cause notice to him which is according to the provisions of law. The appellate authority rejected the appeal of the petitioner on merits after considering all the facts and circumstances of the case. The amount of embezzlement was deposited by the father of the petitioner. The amount was collected by the petitioner at the check post and the fact of not depositing the amount came to the notice on 17.2.1976. The petitioner submitted second appeal and since there was no provision of second appeal the petitioner was informed to submit review petition before the Governor of Rajasthan and the Governor rejected the review petition on 16.3.1983 on merits according to provisions of law after considering all the facts and circumstances of the case. 8. The petitioner submitted rejoinder to the reply reiterating the submissions made in the writ petition. 8. The petitioner submitted rejoinder to the reply reiterating the submissions made in the writ petition. 9. On 7.8.2002 the learned counsel for the respondents was directed to produce the office file relating to the order of March 1983 reference of which was made in the order dated 29.12.1997 (Annex.13) and the matter was directed to be posted on 19.8.2002. On 19.8.2002, Shri G.S. Bapna learned counsel appearing for the respondents informed that the file related to the orders dated March 1983 and 29.12.1997 had been weeded out therefore the said orders could not have been placed before this Court. 10. During the course of arguments the petitioner produced before this Court copy of a letter dated 9.7.1996 of the Dy. Legal Remembrancer written to the Commissioner, Commercial Taxes Rajasthan, Jaipur. In the said letter it was specifically mentioned that the petitioner ought to have been provided an opportunity of hearing in relation to the dismissal order dated 28.1.1977. 11. It is submitted by the petitioner that he was proceeded ex perte in the departmental proceedings and opportunity of hearing was not afforded to him. Even the order of Governor allegedly passed in March 1983 was never conveyed to him. The High Court quashed the criminal case based on the same charges that were levelled against the petitioner therefore the punishment order be set aside. Reliance is placed on M. Paul v. Bharat Gold Mines AIR 1999 Supreme Court 1416 . 12. Mr. G.S. Bapna, learned counsel for the respondents placed before me the original departmental proceedings. 13. I have heard the submissions advanced before me and closely scrutinised the material on record. 14. The tests to be applied to find out whether a departmental enquiry was conducted in accordance with the principles of natural justice and whether the delinquent had reasonable opportunity or not are as follows- (i) Whether an opportunity to deny the guilt and establish his innocence had been given by framing definite charges and by disclosing the allegations on which the charges were based. (ii) Whether opportunity to defend himself by cross-examining the witnesses produced against him and examined in his presence and to examine himself or any other witnesses in support of his defence was given. (ii) Whether opportunity to defend himself by cross-examining the witnesses produced against him and examined in his presence and to examine himself or any other witnesses in support of his defence was given. (iii) Whether any materials had been relied on against the delinquent in the enquiry without his being given an opportunity to explain the same; and (iv) Whether opportunity to make his representation as to why the proposed punishment should not be inflicted upon him, had been given. 15. What is a reasonable opportunity, has not been defined in the Constitution or the General Clauses Act. But the words have acquired a legal meaning and it cannot be left to the vagaries of each individual. The word 'reasonable' must therefore mean according to rules of natural justice which are rules of law. Where orders are to be made against a person it becomes duty of the authority to hear judicially that is to say, in an objective manner, impartially and after giving reasonable opportunity to the person concerned to place his case before it. Passing an order which affects a person, without giving him an opportunity of being heard would be held to be vitiated as being contrary to principles of natural justice. If the safeguards provided by Article 311 of the Constitution are not to be rendered illusory, the words "reasonable opportunity" must be deemed to mean a real and adequate opportunity which is not merely nominal or a shame one. It is well settled that order for removal from service which denied the person reasonable opportunity of defending himself in disregard of protection afforded by Article 311(2) of the Constitution, is a nullity and non-existent in the eye of law. Conclusions of enquiry officer and Disciplinary authority based on statements recorded behind the back of delinquent officer are vitiated on the ground of denial of reasonable opportunity. 16. A careful look at the disciplinary proceeding initiated against the petitioner reveals that there was no material on record which could suggest that the petitioner was supplied with required documents or he was permitted to inspect the record. The petitioner was not afforded proper opportunity to file the reply and the enquiry officer behaved in such a manner that the defence nominee of the petitioner expressed his inability to appear before the enquiry officer. Request of the petitioner to appoint another defence nominee was turned down. The petitioner was not afforded proper opportunity to file the reply and the enquiry officer behaved in such a manner that the defence nominee of the petitioner expressed his inability to appear before the enquiry officer. Request of the petitioner to appoint another defence nominee was turned down. It also appears that Dy. Legal Remembrancer after examining the departmental proceedings of the petitioner wrote a letter to the Commissioner Commercial Taxes Rajasthan Jaipur on 9.7.1996 stating therein that reasonable opportunity was not provided to the petitioner to defend his case. The petitioner was virtually proceeded ex-parte. The respondents also failed to place on record the order passed by the Governor on a review petition filed by the petitioner. 17. It is also borne out from the record that criminal case instituted against the petitioner under Sections 409, 467 & 471 Indian Penal Code was quashed under Section 482, Criminal Procedure Code by the High Court on 10.5.1994. Thereafter on 9.7.1994 the petitioner served a notice for demand of justice on the respondents to withdraw the dismissal order and to reinstate him with all consequential benefits. In M. Paul v. Bharat Gold Mines, (supra) their Lordships of the Supreme Court indicated thus: "The findings recorded by the Inquiry Officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by Police Officers and Panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the Court on a consideration of the entire evidence came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore where the appellant is acquitted by a judicial pronouncement with the findings that the raid and recovery at the residence of the appellant were not proved, it would be unjust unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings to stand. 18. In this situation, therefore where the appellant is acquitted by a judicial pronouncement with the findings that the raid and recovery at the residence of the appellant were not proved, it would be unjust unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings to stand. 18. I am satisfied that conclusions of enquiry officer and disciplinary authority in the case on hand are based on the statements recorded behind the back of the petitioner and the same stand vitiated on the ground of denial of reasonable opportunity. When the petitioner stood discharged in a criminal case based on the same charges as were levelled against the petitioner in the departmental proceedings, it would be unjust unfair and rather oppressive to allow the findings recorded at the ex-parte departmental proceedings to stand. 19. For the foregoing reasons I allow the writ petition and quash the impugned punishment order dated 28.1.1997 and all consequential orders. I direct the respondents to forthwith reinstate the petitioner in the services with continuity of service but as the writ petition was filed by the petitioner after a long delay i.e., after he was discharged from the criminal case, he shall only be entitled to fifty per cent of the back wages from 10.5.1994 onwards (the date when the High Court quashed the criminal case). If during the pendency of the writ petition the petitioner attained the age of superannuation, all retiral benefits shall be paid to him forthwith. The respondents shall ensure compliance of this order within ninety days from today. There shall be no order as to cots.Petition Allowed. *******