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2005 DIGILAW 2267 (RAJ)

Bheem Singh v. State of Rajasthan

2005-08-26

GOVIND MATHUR

body2005
Judgment Govind Mathur, J.-By this petition for writ, a challenge is given by the petitioner to the order dated 27.03.1995 passed by the Secretary to the Government of Rajasthan, Department of Home (Appeal) under the orders of Governor of Rajasthan exercising powers under Rule 34 of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. The petitioner has also given challenge to the order dated 20.10.1987 passed by the disciplinary authority exercising powers under Rule 16 of the Rules of 1958 and the order dated 110.1992 passed by the Appellate Authority exercising powers under Rule 23 of the Rules of 1958. 2. While arguing the petition, the Counsel for the petitioner has mainly emphasised that the order dated 110.1992 passed by the Appellate Authority is not an order in consonance with the provisions of Rule 30 of the Rules of 1958. The order passed by the Appellate Authority is also not a speaking and reasoned order as the contentions raised by the petitioner in memo of appeal has not been taken into consideration. 3. I have perused the order dated 110.1992 passed by the Appellate Authority. 4. From perusal of it, it is quite clear that the procedure prescribed under Rule 30 of the Rules of 1958 of consider an appeal imposing punishment has not been adhered by the Appellate Authority. The Appellate Authority at the first instance, reproduced the charges levelled against the petitioner and thereafter reproduced the entire memo of appeal submitted by the petitioner. After reproduction of memo of appeal, the Appellate Authority has given his conclusion without dealing with the contentions raised by the appellant in memo of appeal. In view of it, the order passed by the Appellate Authority is not at all a speaking and reasoned order, it does not show any application of mind by the Appellate Authority. The order passed by the Appellate Authority is also in violation of the provisions of Rule 30 of the Rules of 1958 which prescribes procedure for deciding the appeal. The Appellate Authority even not cared to examine the enquiry report and other record of the enquiry. The Appellate Authority has not considered the factum as to whether the punishment imposed was adequate or inadequate and whether there was a good and sufficient reason to impose the penalty upon the petitioner. 5. The Appellate Authority even not cared to examine the enquiry report and other record of the enquiry. The Appellate Authority has not considered the factum as to whether the punishment imposed was adequate or inadequate and whether there was a good and sufficient reason to impose the penalty upon the petitioner. 5. It is contended by the Counsel for the respondents that the order of Appellate Authority stood merged with the order of reviewing authority, therefore, any illegality in the order passed by the Appellate Authority is of no consequence. I do not find any force in the contention for the reason that if an order suffers from an inherent lacuna, then that cannot be cured by appellate or reviewing authority. 6. In view of it, I am having no hesitation in holding that the order passed by the Appellate Authority deserves to be quashed being in violation of the Rule 30 of the Rules of 1958 and also being an order without having any reason. 7. Accordingly, the writ petition is allowed. The order passed by the Appellate Authority is quashed with a direction to Appellate Authority to decide the appeal preferred by the petitioner in accordance with Rule 30 by dealing with all the contentions raised by the petitioner in memo of appeal within a period of three months from the date the petitioner serves a certified copy of this order upon the Appellate Authority. I have not considered the contentions raised in the petition giving challenge to the order passed by the disciplinary authority as all these contentions are required to be dealt with by the Appellate Authority while deciding the appeal as ordered above. 8. No order as to costs.