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2002 DIGILAW 1621 (RAJ)

Ram Niwas Joshi v. State of Rajasthan

2002-09-19

SHIV KUMAR SHARMA

body2002
JUDGMENT 1. - The petitioner got retired on January 31, 1992 from the post of Deputy Director Ayurved. On the date of retirement as many as six departmental enquiries initiated under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short CCA Rules) were pending against the petitioner. While exonerating the petitioner in two enquiries the Inquiry officer in other four, had given finding that no allegations were proved against the petitioners. Disagreeing with the findings of the Inquiry officer disciplinary authority passed four orders Ex. 13G, Ex. 14F, Ex. 15F and Ex. 16F on July 27, 1997 whereby punishment of withholding 20% pension was imposed on the petitioner in each case. In the instant writ petition the petitioner has assailed these punishment orders. 2. Contextual facts depict that the petitioner came to be appointed as Vaidya Grade 'C' on August 1, 1958. Thereafter on November 6, 1985 he was given promotion on the post of Dy. Director Ayurved. From 1958 till 1987 service record of the petitioner was absolutely clean and meritorious. The petitioner submitted S.B. Civil Writ Petition No. 2796/88 for including his name in the zone of consideration for Directorship. This Court passed interim order on September 21, 1988 and the writ petition was decided on July 27, 1995. On January 3, 1989 charge sheet was served upon the petitioner and the DPC was not convened. The petitioner challenged the enquiry proceedings by filing S.B. Civil Writ Petition No. 5131/1989 which was dismissed on July 27, 1995. During the pendency of the writ petition Amba Lal Trivedi was promoted and his promotion was challenged by the petitioner through writ petition No. 5402/1990 and that writ petition was decided on July 27, 1995. On June 20, 1990 the petitioner filed civil suit against the apprehension for being placed under suspension. The suit was dismissed. 2 The petitioner preferred first appeal No. 449/1990 which was allowed on May 17, 1991. On April 24, 1991 the petitioner was placed under suspension. The petitioner submitted writ petition No. 6158/1991 assailing his suspension order. This Court stayed the operation of the suspension order. Vide judgment dated May 28, 1997 the writ petition was decided as having become infructuous due to retirement of the petitioner on January 31, 1992. Before his retirement six charge sheets were issued to the petitioner in the year 1991 and 1992. This Court stayed the operation of the suspension order. Vide judgment dated May 28, 1997 the writ petition was decided as having become infructuous due to retirement of the petitioner on January 31, 1992. Before his retirement six charge sheets were issued to the petitioner in the year 1991 and 1992. The Inquiry officer exonerated the petitioner in two enquiries and in other four it was observed that no allegations against the petitioner were proved. Thereafter the disciplinary authority disagreed with the report of the Inquiry Officer and passed the impugned punishment orders as indicated herein above. 3. The petitioner in the writ petition, incorporated the details of the charge sheets and reports of the Inquiry Officer. The main contention of the petitioner is that in order to defeat his just claim for Directorship the departmental enquiries were initiated against him. It is also contended that in the notice dated July 22, 1996 the disciplinary authority has not given a single reason disagreeing with the finding of the Inquiry officer and merely narrated that the charges are proved against the petitioner. According to the petitioner the disciplinary authority was predetermined to punish the t petitioner and the notice was issued as a matter of empty formality. The petitioner submitted representation and stated that the findings recorded by the Inquiry officer was correct and the disciplinary authority was not satisfied with the findings and simply observed that the petitioner may be proceeded denovo but that would be futile exercise as he has keeping bad health and may not survive during denovo proceedings. Without considering the representation of the petitioner in a fair and reasonable manner the respondent State had passed the impugned orders on May 27, 1997 withholding 20 per cent pension for five years in each case. The petitioner also pleaded that there was no allegation against the petitioner that he had r caused pecuniary loss to the Government therefore the provisions contained under Rule 170 of the RSR were attracted. It is further averred that notice of disagreement was issued without application of mind. The record of the petitioner till 1989 was meritorious and when the High Court issued directions to include the name of the petitioner in the zone of the consideration for the post of Director six enquiries were initiated against the petitioner one after another. It is further averred that notice of disagreement was issued without application of mind. The record of the petitioner till 1989 was meritorious and when the High Court issued directions to include the name of the petitioner in the zone of the consideration for the post of Director six enquiries were initiated against the petitioner one after another. Before issuing the charge sheet no preliminary enquiry was conducted in order to carve out prima facie case and the petitioner was subjected to uncalled for litigation and hardship of facing prolonged departmental proceedings and the petitioner was deprived from the promotion post of Director and during the pendency of litigation and enquiry less meritorious and ineligible persons were given promotion. 4. The respondent submitted reply to the writ petition and averred that upon investigation by the Anti Corruption Department although delinquencies were found against the petitioner but he was not proceeded in a criminal case and disciplinary proceedings were started. The respondents denied that the charge sheet were issued to the petitioner just to harass and humiliate him. It was averred that six charge sheets were issued to the petitioner out of which he was exonerated in relation to two charge sheets vide order dated April 5, 1991 and January 24, 1992 and was punished in relation to charge sheets dated January 3, 1989, April 5, 1991, January 4, 1992 and January 30, 1992. This goes to show that there was no bias and malafide but there was objective consideration of the facts of each case. The petitioner tried his best to get the enquiry and suspension set aside at very initial stage with a view to avoid facing the detailed enquiry but all the cases were decided against him except that the suspension order was stayed by judgment dated May 17, 1991. The petitioner filed two writ petitions for quashing of the two charge sheets but the same was dismissed on May 28, 1998. The petitioner challenged four orders in single writ petition and thus the same is liable to be dismissed for misjoinder of cause of action. In the writ petition dismissed on May 28, 1997 this Court held that the proceedings in the present case could be continued even after retirement of the petitioner even if no pecuniary loss has been caused. The petitioner challenged four orders in single writ petition and thus the same is liable to be dismissed for misjoinder of cause of action. In the writ petition dismissed on May 28, 1997 this Court held that the proceedings in the present case could be continued even after retirement of the petitioner even if no pecuniary loss has been caused. In three charge sheets the punishment order was passed withholding 20% pension for five years in each case and in one matter 20% pension has been withheld for 10 years. It has been further averred in the reply that the petitioner appointed 23 Ward boys against 12 posts and committed many irregularities in constitution of the selection committee. The respondent averred that reasons for disagreement with the report of the Inquiry officer were given in the note of disagreement. The respondent further averred that a perusal of petitioner's reply to the show cause notice shows that nothing was stated on merits and there was nothing new to be added in the punishment order. It was stated that the orders of punishment require to be read with the note of disagreement. 5. I have pondered over the rival submissions and closely scanned the report of Inquiry Officer and the impugned punishment orders. 6. In order to resolve the controversy raised before me in the instant case I deem it necessary to refer to the principles emerged from the judgments rendered by their Lordships of the Supreme Court in A.N.D. Silva v. U.O.I. ( AIR 1962 SC 1130 ) , State of A.R v. S. Sree Rama Rao ( AIR 1963 SC 1723 ) , U.O.I. v. H.C. Goyal ( AIR 1964 SC 364 ) B.C. Chaturvedi v. U.O.I. ( AIR 1996 SC 484 ) and High Court of Judicature at Bombay v. Shashikant S. Patil ( AIR 2000 SC 22 ) . Their Lordships laid down the following principles : (i) Neither the findings of the Inquiry officer nor his recommendations are binding on the punishing authority. The Government may agree with the report or may differ, either wholly or partially, from the conclusion recorded in the report. (ii) It is not the function of the High Court under Article 226 of the Constitution to sit as a Court of appeal over the decision of the authorities holding departmental enquiry against a public servant. The Government may agree with the report or may differ, either wholly or partially, from the conclusion recorded in the report. (ii) It is not the function of the High Court under Article 226 of the Constitution to sit as a Court of appeal over the decision of the authorities holding departmental enquiry against a public servant. The High Court should not review the evidence and to arrive at an independent finding on the evidence. (iii) The findings of the Inquiry Officer are only his opinion on the materials, therefore the disciplinary 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 conclusion of the Inquiry Officer." (iv) 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. 7. Bearing in mind the afore-quoted principles I proceed to consider the submissions canvassed before me by Mr. R.C. Joshi learned counsel for the petitioner. The learned counsel at the outset contended that in the notice dated July 22, 1996 the disciplinary authority has not given a single reason disagreeing with the findings of the Inquiry Officer and merely narrated that the charges are proved against the petitioner because the disciplinary authority was predetermined to punish the petitioner and the notice was empty formality. I have carefully perused the notice referred by the learned counsel. I do not find any merit in the submission of the learned counsel. It was not necessary to assign any reason in the notice as to why the disciplinary authority disagreed with the conclusion of the Inquiry Officer The disciplinary authority after invoking the principles of natural justice provided opportunity of hearing to the petitioner before taking final decision. I am of the view that serving the said notice was not the empty formality. 8. The second contention of the learned counsel is that the representation of the petitioner was not properly considered. This submission is also devoid of any merit. The disciplinary authority objectively considered the representation of the petitioner and imposed punishment only in four enquiries out of six. 8. The second contention of the learned counsel is that the representation of the petitioner was not properly considered. This submission is also devoid of any merit. The disciplinary authority objectively considered the representation of the petitioner and imposed punishment only in four enquiries out of six. From the record it is not established that the disciplinary authority had any bias and mala fide against the petitioner. As already stated it was not necessary for the disciplinary authority to assign the reasons for disagreement. The disciplinary authority had to bear in mind the view expressed by the Inquiry Officer and could have arrived at its own independent conclusion. It was not necessary for the disciplinary authority to discuss the material in detail and contest the conclusion of the Inquiry Officer. 9. In State of Orissa v. Kalicharan Mohapatra ( AIR 1996 SC 684 ) , their Lordships of the Supreme Court indicated that disciplinary proceedings can be continued for grave misconduct even if no pecuniary loss has been caused to the Govt, by such misconduct. Thus, the interpretation given to Rule 170 RSR by the learned counsel for the petitioner is also devoid of merit. 10. For the afore-quoted reasons, I do not find any substance in the writ petition it stands accordingly dismissed without any order as to costs.Writ Petition Dismissed. *******