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2004 DIGILAW 668 (RAJ)

Vinod Bharti v. State of Rajasthan

2004-04-26

SUNIL KUMAR GARG

body2004
JUDGMENT 1. - This writ petition under Article 226 of the Constitution of India has been filed by the petitioner on 13.2.2001 against the respondents with a prayer that by an appropriate writ, order or direction, order dated 10.10.2000 (Annex P/1) by which the petitioner was directed to deposit the amount of Rs. 56,440/-, order dated 16.8.2000 (Annex.P/12) passed by the Executive Engineer, City Division, PHED, Jodhpur, and order dated 11.8.2000 (Annex.P/13) passed by the Dy. Secretary-II, PHED by which workman Bhanwar Singh was paid the amount of arrears by debiting the same in petitioner's misc. advance account and order dated 17.10.2000 (Annex.P/14) passed by the Executive Engineer, PHED, City Division, Jodhpur by which the petitioner was directed to deposit a sum of Rs. 56,440/- and order dated 16.1.2001 (Annex. P/18) passed by the Superintending Engineer, Circle Pali (respondent No. 4) by which an amount of Rs. 56,400/- was ordered to be recovered from the salary of the petitioner in installments starting from Jan., 2001 be quashed and set aside. 2. The facts of the case as put forward by the petitioner are as under : i) That the petitioner was a permanent employee of the respondent- Department. When the petitioner was posted at Jodhpur in Production and Distribution Div. 1st as Assistant Engineer (Vigilance), he was directed by his superior to take the additional charge of Assistant Engineer, PHED, Production and Distribution, City Sub. Div. III, Fatehsagar by order dated 12.5.1993 of the Executive Engineer. In pursuance of order dated 12.5.1993, the petitioner took the additional charge on 13.5.1993. ii) Further case of the petitioner is that the petitioner handed over the additional charge when regular Assistant Engineer reported to join on 27.7.1993. iii) Further case of the petitioner is that after 7-8 months, he was transferred from the Vigilance Section to the City Sub Div. III, Fatehsagar as Assistant Engineer by order dated 8.2.1994 and he joined the duties on 10.2.1994 and remained there till 12.9.96. iv) Further case of the petitioner is that one Shri Bhanwar Singh Panwar was said to be working on daily wages from 8th May, 1984 to 20.7.85 on Gulab Sagar Chowki in the Fateh Sagar Office. To this effect, one certificate was issued by the then Assistant Engineer to him and later on Shri Bhanwar Singh raised the industrial dispute before the Conciliation Officer, Jodhpur. To this effect, one certificate was issued by the then Assistant Engineer to him and later on Shri Bhanwar Singh raised the industrial dispute before the Conciliation Officer, Jodhpur. v) Further case of the petitioner is that on failure of conciliation proceedings, the Conciliation Officer sent its failure report to the Government. Government after considering the failure report referred the Dispute to the Labour Court, Jodhpur and Labour Case No. 1/93 was registered. vi) Further cases of the petitioner is that in that Labour Dispute, the Executive Engineer, PHED, City Division, Jodhpur and the Assistant Engineer, Production and Distribution Sub Div. III, PHED, Fateh Sagar (respondent No. 3) were made as party and in that case the present petitioner was appointed as Officer-incharge. vi) Further case of the petitioner is vide order dated 9.6.1993, ex parte proceedings were initiated against the Executive Engineer and vide order dated 20.10.94 ex parte proceedings were initiated against the Assistant Engineer (respondent No. 3) and thereafter the Labour Court passed ex parte award through judgment and award dated 28.4.1995 (Annex.P/2) by which order of termination of services of Bhanwar Singh Panwar by order dated 20.7.85 was set aside and he was ordered to be reinstated in servicer with full back wages. vii) Further case of the petitioner is that against the judgment and award dated 28.4.1995 (Annex.P/2) passed by the Labour Court a writ petition was filed in this Court and through order dated 12.2.1999 (Annex.P/5) the learned Single Judge modified the award and quashed the order of back wages and directed reinstatement of workman Bhanwar Singh and back wages would be payable from the date of award. viii) Further case of the petitioner is that after the order dated 12.2.99 (Annex.P/5) passed by this Court, a letter dated 22.4.99 (Annex.P/6) was issued to the petitioner by the Superintending Engineer by which explanation of the petitioner was called about the ex parte award dated 28.4.1995 (Annexure.P/2) passed by the Labour Court. ix) Further case of the petitioner is that he submitted reply dated 1/5/99 (Annex.P/7) to the letter dated 22.4.99 (Annex.P/6). x) Further case of the petitioner is that the Chief Engineer (respondent No. 1) by its letter dated 27.10.99 (Annex.P/8) called the petitioner to submit his reply within three days and the reply was submitted by the petitioner on 2.11.99 (Annex.P/9). x) Further case of the petitioner is that the Chief Engineer (respondent No. 1) by its letter dated 27.10.99 (Annex.P/8) called the petitioner to submit his reply within three days and the reply was submitted by the petitioner on 2.11.99 (Annex.P/9). xi) Further cases of the petitioner is that when he came to know that he going to be punished, he submitted written reply dated 5.8.2000 (Annex.P/10). xii) Further case of the petitioner is that when compliance of the order dated 12.2.99 (Annex.P/5) was not made, Bhanwar Singh (workman) filed a contempt petition and thereafter a sum of Rs. 56440/- were paid to Bhanwar Singh (workman) after being sanctioned by the Chief Engineer, PHED, Jodhpur (respondent No. 1) and the Finance Department of Government of Rajasthan. xiii) Further case of the petitioner is that through letter dated 10.10.2000 (Annex.P/11) an amount of Rs. 56440/- was ordered to be recovered from the petitioner. xiv) Further case of the petitioner is that along with letter dated 10.10.2000 (Annex.P11), copies of letters dated 16.8.2000 (Annex.P/12) issued by Executive Engineer and 11.8.2000 (Annex.P/13) issued by Dy. Secretary-II, PHED were also made available to the petitioner by which the amount of arrears was ordered to be paid to workman Bhanwar Singh by debiting in petitioner's misc. advance account. xv) Further case of the petitioner is that thereafter vide letter dated 17.10.2000 (Annex.P/14), issued by the Executive Engineer, the petitioner was asked to deposit Rs. 56,440/-. xvi) Further case of the petitioner is that through order dated. 25.3.2000 (Annex.P/17), the Chief Engineer (respondent No. 1) sanctioned Rs. 41,560/- for payment to Shri Bhanwar Singh as arrears and by letter dated 18.5.99, Superintending Engineer, City Circle, Jodhpur (respondent No. 2) was appointed as enquiry officer of fix the liability of erring officer/employee and the Superintending Engineer, PHED, City Circle, Jodhpur (respondent No. 2) gave its report on 7.1.2000. xvii) Further case of the petitioner is that through order dated 16.1.2001 (Annex.P/18) passed by the Superintending Engineer, Circle, Pali (respondent No. 4) an amount of Rs. 56,440/- was ordered to be recovered from the salary on the petitioner in installments starting from Jan., 2001. Hence, this writ petition with the abovementioned prayer. 3. xvii) Further case of the petitioner is that through order dated 16.1.2001 (Annex.P/18) passed by the Superintending Engineer, Circle, Pali (respondent No. 4) an amount of Rs. 56,440/- was ordered to be recovered from the salary on the petitioner in installments starting from Jan., 2001. Hence, this writ petition with the abovementioned prayer. 3. In this writ petition, the main case of the learned counsel for the petitioner is that the petitioner is a Government servant and a Government servant can be punished after holding enquiry under the provisions of Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Rules of 1958) and since no enquiry under Rules 16 and 17 of the Rules of 1958 was initiated against the petitioner, therefore, the so called recovery is illegal and it cannot be effected and so far as enquiry report dated 8.9.99 (Annex.R/1) submitted by Superintending Engineer, PHED, City Circle, Jodhpur (respondent No. 2) is concerned, it is preliminary enquiry report and on the basis of that preliminary enquiry report dated 8.9.99 (Annex.R/1), a charge-sheet is issued and in absence of that charge-sheet and holding regular enquiry, the petitioner cannot be punished. 4. Reply to the writ petition was filed by the respondents and their case is that since there was fault on the part of the petitioner being officer- incharge of the case, therefore, he was responsible for that payment. It was further submitted by the learned counsel for the respondents that through enquiry report dated 8.9.99 (Annex.R/1) of the Superintending Engineer, PHED, City Circle, Jodhpur (respondent No. 2) submitted to the Chief Engineer (respondent No. 1) it was held that ex parte judgment and award dated 28.4.95) (Annex. P/2) was passed because of dereliction of duty on the part of the petitioner and thus, this writ petition be dismissed. 5. Heard and perused the record. 6. In my opinion, the argument raised by the learned counsel for the petitioner appears to be reasonable as through enquiry report dated 8.9.99 (Annex.R/1) submitted by the respondent No. 2 (Superintending Engineer, PHED, City Circe, Jodhpur), it can be said that a preliminary enquiry was conducted by the Superintending Engineer (respondent No. 2) and the petitioner was found prima facie responsible, but since the petitioner was regular Government Servant, a regular enquiry under Rule 16 or 17 of the Rules of 1958 should have been initiated. In absence of regular enquiry under Rule 16 or 17 of the of the Rules of 1958, the petitioner cannot be punished. 7. For the reasons mentioned above, the writ petition filed by the petitioner is liable to be allowed and the order dated. 10.10.2000 (Annex.P/11) by which the petitioner was directed to deposit the amount of Rs. 56,440/-, order dated 16.8.2000 (Annex.P/12) passed by the Executive Engineer, City Division, PHED, Jodhpur, and order dated 11.8.2000 (Annex.P/13) passed by the Dy. Secretary- II, PHED by which workman Bhanwar Singh was paid by the amount of arrears by debiting the same in petitioner's misc. advance account and order dated 17.10.2000 (Annex.P/14) passed by the Executive Engineer, PHED, City Division, Jodhpur by which the petitioner was directed to deposit a sum of Rs. 56,440/- was ordered to be recovered from the salary of the petitioner in installments starting from Jan., 2001 are liable to be quashed and set aside.Accordingly, the present writ petition is allowed and order dated 10.10.2000 (Annex.P/11) by which the petitioner was directed to deposit the amount of Rs. 56,440/-, order dated 16.8.2000 (Annex.P/12) passed by the Executive Engineer, City Division, PHED, Jodhpur, and order dated. 11.8.2000 (Annex.P/13) passed by the Dy. Secretary-II, PHED by which workman Bhanwar Singh was paid the amount of arrears by debiting the same in petitioner's misc. advance account and order dated 17.10.2000 (Annex.P/14) passed by the Executive Engineer, PHED, City Division, Jodhpur by which the petitioner was directed to deposit a sum of Rs. 56,400/- and order dated 16.1.2001 (Annex.P/18) passed by the Superintending Engineer, Circle Pali (respondent No. 3) by which an amount of Rs. 56,440/- was ordered to be recovered from the salary of the petitioner in installments starting from Jan., 2001 are quashed and set aside. Cost made easy.Petition allowed. *******