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2003 DIGILAW 157 (RAJ)

Dr. (Mrs. ) Sumitra Bora v. State of Rajasthan

2003-02-03

PRAKASH TATIA

body2003
JUDGMENT 1. - Heard learned counsel for the parties. 2. The brief facts of the case are that the petitioner who serving as Assistant Professor in Department of Gynaecology in Medical College and Associated groups of Hospitals was served with a charge sheet, copy of which is placed on record as Annex.1 alongwith the statement of allegations. The allegation against the petitioner was that she remained absent from duty from 27.8.89 to 23.11.89 from 26.11.89 to 25.3.90 and from 30.3.90 to 17.7.90. The second part of the charge sheet was that she wilfully disobeyed the orders and directions. The petitioner submitted brief reply to the allegations, but ultimately detailed reply was submitted, copy of this reply is [Annex.6] placed on record. The Inquiry Officer, after considering the allegations of wilful absent from duty for the period commencing from 27.8.89 to 23.11.89, is not proved against the petitioner. For absence from duty from 26.11.89 to 25.3.90, the Inquiry Officer held that charge stands partially proved, but for the period only commencing from 25.11.89 to 3.12.89, which is period of only 8 days. For third part of the charge for absent from duty commencing from 30.3.90 to 17.7.90, the Inquiry Officer found this charge also proved partially to the extent of absence from duty from 29.3.90 to 14.4.90, period of 17 days only. It appears from the inquiry report that though the allegations of charge of absent from the duty for various periods were bifurcated in three parts, but for other charge i.e. disobedience of the orders and directions by the petitioner, no separate heading was given in the inquiry report. The finding recorded by the Inquiry Officer is also to the extent of holding petitioner guilty of absenting herself from the duty without obtaining leave on two occasions. It is also held that there appears to be no specific finding in the Inquiry report with respect to any disobedience of the order and directions of any higher authority. 3. After receipt of the Inquiry Report by the Disciplinary Authority issued notice dated 23.7.94 to the petitioner copy of which is placed on record as Annex. 7 calling upon the petitioner to submit any representation, if she wishes, within a period of 15 days and in case of failure of submitting any representation by her, the matter will be proceeded further. 7 calling upon the petitioner to submit any representation, if she wishes, within a period of 15 days and in case of failure of submitting any representation by her, the matter will be proceeded further. In reply to the above notice dated 23.7.94 the petitioner submitted representation [Annex.8]. It appears that after considering the inquiry report and the representation of the petitioner the impugned order dated 31.1.95 [Annex.9] was passed by the Disciplinary Authority holding petitioner guilty of all the charges levelled in the charge sheet [Annex.1]. [Though the Inquiry Officer did not record finding against the petitioner for all the charges in full]. By this order, the petitioner was found guilty for remaining absent from duty from 27.8.89 to 23.11.89, 26.11.89 to 25.3.90 and from 30.3.90 to 17.7.90 and was punished with stoppage of five annual grade increments with cumulative effects. This order dated 31.1.95 [Annex.9] is under challenge by the petitioner in this writ petition. 4. According to the learned counsel for the petitioner, the Inquiry Officer exonerated the petitioner from Part 1 of the charge relating to the allegation of absent from duty commencing from 27.8.89 to 23.11.89. The Inquiry Officer held petitioner guilty for absent from duty only for a short period commencing from 25.11.89 to 3.12.89 [for 8 days] and remaining absent from 29.3.90 to 14.4.90 [for 17 days]. The petitioner was provided copy of the inquiry report alongwith notice [Annex.7] dated 23.7.94. The petitioner was supposed to give representation against the findings recorded by the Inquiry Officer. Since petitioner was exonerated from Part 1 of the charge and was held guilty for remaining absent for shorter period on two occasions from 25.11.89 to 3.12.89 and for period commencing from 29.3.90 to 14.4.90, she submitted representation against the above findings only of the Inquiry Officer. The petitioner was never called upon and could not have been called upon to submit any representation against the finding which has been recorded in favour of the petitioner. It is also submitted that the Disciplinary Authority in gross violation of not only procedure but also mandate of law, in view of the judgment of Hon'ble Apex Court without recording any reasons of disagreement straightaway passed the impugned order holding the petitioner guilty for the charges which were not found proved against the petitioner by the Inquiry Officer. It is also submitted that the Disciplinary Authority in gross violation of not only procedure but also mandate of law, in view of the judgment of Hon'ble Apex Court without recording any reasons of disagreement straightaway passed the impugned order holding the petitioner guilty for the charges which were not found proved against the petitioner by the Inquiry Officer. It is submitted that the Disciplinary Authority may have jurisdiction to disagree with the findings recorded by the Inquiry Officer but it could have been done by passing the order of disagreement with reasons, conveying it to the petitioner so that petitioner could have submitted representation satisfying the Disciplinary Authority that the reasons for disagreement are either factually wrong or illegal or not sustainable in law. Therefore, the order of Disciplinary Authority deserves to be set aside only on this ground. 5. Learned counsel for the petitioner placed reliance upon the judgments of the Hon'ble Apex Court delivered in cases of Punjab National Bank v. Chief Personal [Disciplinary Authority] reported in AIR 1998 SC 2713 and judgment delivered in case of State of Bank of India & Ors. v. Arvind K. Shukla reported in JT 2001[4] SC 415 . 6. Learned counsel for the respondent vehemently submitted that, as per Rule 59 of the Rajasthan Civil Services Rules, 1951 no employee can claim leave as a matter of right. Not only this but as per Rule 86 of the Rules of 1951, if a Government servant remain absent from duty without leave or before leave applied has been sanctioned by the Competent Authority, it is required to be treated that employee remained wilfully absent from the duty and such absence shall amount to interruption in service involving forfeiture of past services. As per the sub-rule [3] of Rule 86, if a Government Servant remained absent from duty for a period exceeding one month and if the charge of wilful absence is proved against him, he may be removed from service. Therefore, according to the learned counsel for the respondent the Disciplinary Authority has not committed any illegality in passing the impugned order of stoppage of five annual grade increments with cumulative effects against the petitioner. 7. Therefore, according to the learned counsel for the respondent the Disciplinary Authority has not committed any illegality in passing the impugned order of stoppage of five annual grade increments with cumulative effects against the petitioner. 7. Learned counsel for the respondent submitted that a look at the facts recorded in the order of the Disciplinary Authority clearly show that a finding has been recorded against the petitioner that she remained absent from duty wilfully and it was mentioned on the application of the petitioner herself that leave was not sanctioned and it was decided by the Head of Department to forward the matter of the petitioner for appropriate action. Therefore, this amounts to clear disobedience of order passed by the higher authorities. Learned counsel for the respondent also submitted that the disciplinary authority has recorded reasons and the scope of interference by this Court in domestic inquiry matter is very limited. It is also submitted that a standard of proof in criminal proceedings are different from the standard of proof required in a domestic inquiry. Learned counsel for the respondent placed reliance upon judgments, High Court of Judicature at Bombay v. Udai Singh, 1997(3) SCT 273 (SC) : 1997 SCC [L&S] 1132 wherein Hon'ble Apex Court held that standard of proof in criminal trial and departmental inquiry are different and cannot be compared with. In another judgment Indian Oil Corporation Ltd. & Anr. v. Ashok Kumar Arora reported in 1997(2) SCT 52 (SC) : 1997 SCC [L & S] 636 Hon'ble Supreme Court held that when the findings have been recorded in domestic inquiry, the High Court does not exercise the power of appellate court or appellate authority. It is also submitted by the learned counsel for the respondent that even if any of the charges found not proved against the petitioner but some of the charges found proved and in case such punishment can be justified for that misconduct then it is not necessary to interfere in the order of punishment and the order of punishment can be justified as held in the case of Senior Superintendent of Post Offices Pathanamthitta & Ors. v. A. Gopalan, 1998 SCC [L & S] 124 . v. A. Gopalan, 1998 SCC [L & S] 124 . Learned counsel for the respondent yet has placed reliance upon another judgment of this court delivered in case of Babu Lal v. State of Raj., reported in 1995[3] WLC [Raj.] 237 and submitted that this Court had occasion to examine Rule 86 of Rules of 1951 and in the said judgment, removal from service of a Government Servant on the ground of remaining absent from duty for more than one month's period was upheld by this Court, as this punishment can be imposed under sub-rule [3] of Rule 86 of the Rules of 1951. So far as legal position with respect to requirement of recording of reasons by the Disciplinary Authority in case of disagreement from the finding recorded by the Inquiry Officer as well as a notice is required to be given to the delinquent officer disclosing the reasons for disagreement are concerned, the learned counsel for the respondent could not dispute that these are the essential requirements in the matter of domestic inquiry. 8. After careful consideration of the entire record and submissions made by the learned counsel for the parties, it emerges out that the petitioner was served with charge sheet. The charge against the petitioner was in two folds; one is for wilfully remained absent from the duty and second is of disobedience of the orders and directions obviously of higher authorities. Charge of remaining absent from duty was having three parts. The allegation of charge discloses allegation of absence from duty [1] from 27.8.89 to 23.11.89 [2] 26.11.89 to 25.3.90 [3] 30.3.90 to 17.7.90. The Inquiry Officer exonerated the petitioner from the part one of the charge i.e. for remaining absent from duty from 27.8.89 to 23.11.89. The Inquiry Officer also found petitioner not guilty for charge for remaining absent from duty from the period commencing from 4.12.89 to 25.3.90 and also found not guilty for the charge of remaining absent from duty from 15.4.90 to 17.7.90. The Inquiry Officer has not recorded any finding holding the petitioner is guilty for disobedience of any order and directions issued by any higher authorities. There is no discussion by the Inquiry Officer except mentioning certain facts, which were necessary to find out whether the petitioner remained absent from duty wilfully and without sanction of the leave. The Inquiry Officer has not recorded any finding holding the petitioner is guilty for disobedience of any order and directions issued by any higher authorities. There is no discussion by the Inquiry Officer except mentioning certain facts, which were necessary to find out whether the petitioner remained absent from duty wilfully and without sanction of the leave. The Inquiry Officer has not recorded any finding that the petitioner was directed to do certain things which she has not done. It appears that the disciplinary Authority, without passing any order of disagreement issued notice to the petitioner on 23.7.94, calling upon the petitioner to submit representation against the inquiry report only. A bare perusal of the order dated 31.1.95 passed by the Disciplinary Authority clearly shows that the petitioner was held guilty even for the misconduct of absence from duty for the period, for which the inquiry officer found petitioner not guilty. The Disciplinary Authority held petitioner guilty for all the misconduct as well as recorded finding of absence from duty for [1] Remaining absent from 27.9.89 to 23.11.89 [2] 26.11.89 to 25.3.90 [3] 30.3.90 to 17.7.90. As per the law laid down by the Hon'ble Supreme Court in judgment of Punjab National Bank v. Chief Personal [Disciplinary Authority] (supra) and in judgment of State Bank of India v. Arvind K. Shukla (supra) it is clear that whenever the Disciplinary Authority disagree with the inquiry authority on any article of charge then before it records its own findings on such charges it must record its tentative reason for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The Hon'ble Supreme Court further held that it will be most unfair and iniquitous that where the charged officers succeed before the Inquiry Officer they are deprived of representing to the Disciplinary Authority before that Authority differs with the inquiry officer's report and while recording a finding of guilt, imposes punishment on the officer. The Hon'ble Supreme Court also held that in such a situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed and this is required to be done as a part of the first stage of inquiry. The Hon'ble Supreme Court also held that in such a situation the charged officer must have an opportunity to represent before the Disciplinary Authority before final findings on the charges are recorded and punishment imposed and this is required to be done as a part of the first stage of inquiry. Here in this case, admittedly, the Disciplinary Authority has not recorded any reason for disagreement and it is also clear that the petitioner had no occasion to know about the reasons for disagreement and it is also clear that the petitioner was not afforded an opportunity to meet with the reasons if they were there in the mind of the Disciplinary Authority. It appears from the order of the Disciplinary Authority that straightaway, without affording any reason the Disciplinary Authority passed the order holding the petitioner guilty for remaining absent for duty for the period for which the petitioner was exonerated by the Disciplinary Authority. 9. So far as Rule 59 and Rule 86 relied upon by the learned counsel for the respondent are concerned, have no relevance at all in the facts of the present case. The petitioner is not claiming leave as a matter of right in contravention of the provisions of Rule 59 nor it is the case of the petitioner that a Government servant cannot be proceeded with the departmental inquiry for punishing a Government servant in the case of the Government servant remaining absent from duty without leave or without sanction of leave and it is not the case of the petitioner that punishment as provided under Sub-rule [3] of rule 86 cannot be imposed if the misconduct is proved to that extent. Other judgments relied upon by the learned counsel for the respondent also have no application to the facts of this case because the principle that scope of interference by this Court in the matter of domestic inquiry is very limited, there is no quarrel for that. The petitioner nowhere challenges the disciplinary proceeding on the basis of any wrong conclusion drawn by the Disciplinary Authority nor the petitioner has submitted before this Court that on the basis of evidence some other conclusion is possible and this Court may take a different view or on merit this Court may take a different view. The petitioner nowhere challenges the disciplinary proceeding on the basis of any wrong conclusion drawn by the Disciplinary Authority nor the petitioner has submitted before this Court that on the basis of evidence some other conclusion is possible and this Court may take a different view or on merit this Court may take a different view. The contention of the learned counsel for the petitioner is totally based upon the violation of the principles of natural justice and by not following the law laid down by the Hon'ble Supreme Court which is binding, therefore, the judgments cited by the learned counsel for the petitioner have no relevance.The writ petition is therefore, allowed and order dated 31.1.985 [Annex. 9] is quashed and set aside. The petitioner will be entitled for all consequential benefits. Petition allowed. *******