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2002 DIGILAW 1746 (RAJ)

State of Rajasthan v. Jag Mohan Singh

2002-10-23

GYAN SUDHA MISRA, M.R.CALLA

body2002
JUDGMENT 1. The respondent, who was the original petitioner in the writ petition, had joined the service of the State of Rajasthan as a Constable in the year 1959; was promoted as Head Constable and thereafter, as Sub-Inspector of Police in the year 1973. In contemplation of a disciplinary enquiry he was placed under suspension on 10th March, 1987 and was subjected to charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, "the CCA Rules") on 23rd June, 1987. The Additional Superintendent of Police, who was appointed as the Enquiry Officer, held the enquiry against the respondent and he gave the findings that none of the allegations levelled against the petitioner were proved, nay, the Enquiry Officer commented against the conduct of the U.P. Police from Bundelshahar. However, the enquiry report was considered by the Disciplinary Authority and the disciplinary authority issued a show cause notice dated 8th August, 1989 under Rule 16(10)(1) of the CCA Rules. While the copy of the enquiry report was enclosed with this show cause notice the disciplinary authority i.e. the Deputy Inspector General of Police, Bharatpur Range Bharatpur mentioned in this show cause notice that he was not in agreement with the findings arrived at by the Enquiry Officer and, therefore, a major penalty was proposed against him. However, it is very clear from the reading of the contents of Annexure-4 that is the show cause notice that the disciplinary authority has not recorded any reasons for dis-agreement with the findings of the Enquiry Officer. It was open for the disciplinary authority to agree or not to agree with the findings recorded by the Enquiry Officer, but the obligation which has been caste upon the disciplinary authority under Rule 16(9) of the CCA Rules is that he has to consider the record of the enquiry and record his findings on each charge. Rule 16(9) is reproduced as under: "Rule 16(9)-The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its finding on each charge. (The Disciplinary Authority may while considering the report of the Inquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/de-novo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other)" 2. (The Disciplinary Authority may while considering the report of the Inquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/de-novo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other)" 2. Therefore, the consideration of the record of enquiry and recording of the findings on each charge must precede the issue of show cause notice after due and active application of mind by the Disciplinary Authority on the findings recorded by the Enquiry Officer. What is the record of the enquiry has also been defined under Rule 16(8) of the CCA Rules and the record of the enquiry includes six item as under: "(i) the charges framed against the Government Servant and the statement of allegations furnished to him under sub-rule (2); (ii) his written statement of defence, if any; (iii) the oral evidence taken in the course of the inquiry; (iv) the documentary evidence considered in the course of the enquiry; (v) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry; and "(vi) a report setting out the findings on each charge and the reasons therefore." 3. A conjoint reading of Rule 16(8) and 16(9) makes it very clear that in case the disciplinary authority itself is not the enquiry authority it has to consider the six items of record as mentioned in Rule 16(8) and thereupon he has to record his own findings on each charge. Further, it is clear from the language of Rule 16(10) that the decision of the Disciplinary Authority has to be with reference findings to his own findings on the charges and the opinion formed on that basis and thereafter, he has to take a decision with regard to any of the penalties under Rule 16(11) of the CCA Rules. 4. We called upon learned counsel for the appellant to show as to how the procedure prescribed under Rule 16(9) has been followed by the Disciplinary Authority and the learned counsel for the appellant was at pains to again and again refer to Annexure-4 that is the show cause notice and Annexure-9 that is the order dated 29th September, 1989 as had been passed by the Disciplinary Authority. He made a pointed reference to the order dated 29th September, 1989 and submitted that in this order the Disciplinary Authority has given reasons for dis-agreement with the findings of the enquiry officer and, therefore, absence of such reasons for dis-agreement while issuing show cause notice is not material. In this regard we may advert to the order dated 29th September, 1989 to find that the material which has been pointed out as the reasons for dis-agreement hardly constitutes any material on the basis of which an opinion could be formed to disagree with the findings of the Enquiry Officer. No evidence of contemporaneous nature or otherwise whether oral or document has been referred to on the basis of which the findings arrived at by the Enquiry Officer could be differed or assailed or could be said to be wrong on facts or unbelievable on an objective appraisal of evidence. In absence of any other evidence in support of the charges, the evidence which was in favour of the delinquent officer i.e. the respondent-petitioner could not be disbelieved and discarded simply by saying that the witnesses were interested particularly when no motive was imputed against any witness. In sum & substance in our opinion the grounds on which the Enquiry Officer's findings are said to be dis-agreed could not at all be the reasons for disagreement and in the facts of the present case cannot be said that there was any basis before the Disciplinary Authority so as to dis-agree with the findings of the Enquiry Officer and in fact there are no reasons cogent or germane on the basis of which the Enquiry Officer's findings could be disbelieved or discarded or disagreed. 5. Besides this, it is transparently clear rather an admitted position that while giving the show cause notice no tentative reasons were recorded and conveyed to the delinquent officer. There is total absence of reasons for dis-agreement while issuing the show cause notice, whereas such reasons are required to be conveyed to the concerned delinquent officer so that he may represent before the ultimate finding is recorded. There is total absence of reasons for dis-agreement while issuing the show cause notice, whereas such reasons are required to be conveyed to the concerned delinquent officer so that he may represent before the ultimate finding is recorded. Even if the show cause notice with regard to actual proposed penalty is not given, by supplying the copy of the enquiry report with the tentative reasons for dis-agreement with the findings of the Enquiry Officer it is a condition precedent and prerequisite for a valid, order of punishment and such reasons given, by the Disciplinary Authority are also required to be conveyed to the delinquent officer, it is the trite law that non furnishing of the reasons to the delinquent officer at this stage itself is fatal to the validity, correctness and propriety of the enquiry proceedings and such failure on the part of the Disciplinary Authority vitiates the ultimate order of punishment. In case of S.B.I. and others v. Arvind K. Shukla reported in 2001 AIR SCW 2472 the Supreme Court has held that when the Disciplinary Authority itself disagrees with the conclusions and findings arrived at by the Enquiry Officer, the Disciplinary Authority is required to record its tentative reasons for disagreement and give the same to the delinquent officer so as to afford an opportunity to him to represent before ultimate findings are recorded by the Disciplinary Authority. This law as has been laid down by the Supreme Court on consideration of several other decisions rendered by the Supreme court in past makes the position clear on the point involved in this case. 6. In our opinion the learned Single Judge has rightly allowed the writ petition and the punishment order dated 29th September. 1989 and the appellate order dated 26th April, 1999 have rightly been held to be violative of the rules and the principles of natural justice and the same have been rightly quashed and set aside. 7. The upshot of the aforesaid discussion is that appeal fails and the same is hereby dismissed. The order of punishment has been rightly quashed and set aside. 7. The upshot of the aforesaid discussion is that appeal fails and the same is hereby dismissed. The order of punishment has been rightly quashed and set aside. The respondent herein shall be treated to be continuous in service till the date on which he attained the age of superannuation and all the consequential benefits shall also be paid to him as if the impugned order of his compulsory retirement by way of penalty had never been passed against him. It was given out before us that the respondent is 72 years old man now and has suffered the agony of punishment for all these years, we, therefore, expect that the appellant shall pay the entire dues of the respondents at the earliest. 8. Dr. PC. Jain has very candidly stated before us that all the dues of the respondent including the retrial benefits shall be paid to him within a period of two months from the date the certified copy of this order is made available to the concerned authorities. We order accordingly. 9. The appeal is dismissed. No order as to costs.Appeal Dismissed. *******