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2005 DIGILAW 584 (RAJ)

Laxman Singh v. State of Rajasthan

2005-02-21

RAJESH BALIA

body2005
Judgment Rajesh Balia, J.-Heard the learned Counsel for the parties and perused the record of disciplinary proceedings. 2. The petitioner was assigned duty to assist in conducting the examinations, which were being conducted at Government College, Nathdawara where he continued till the end of April, 1985. He was to discharge his duties at Nathdawara from 28th March onwards until the examinations were over. During that period, it was found that he was regularly going to his village Roop Ka Guda without seeking permission from the competent officer and has also remained absent from duty on 29.04.1985 about which report was made to the Dy. S.P. on 30.04.1985 by the Principal of College of Nathdawara. It also transpires that during this period when he was regularly going to his village and he was absent on 29.04.1985 an incident occurred at his village in which a person named Keshar Singh died due to stabbing by his son. The petitioners name was also included in the incident of beating said Keshar Singh. This led to holding of preliminary enquiry. 3. Finally by memorandum of charge dated 21.04.1987, the petitioner was subjected to a departmental enquiry. The memorandum consisted of three charges, firstly that while he was assigned duty at the examination center of Nathdawara from 28.03.1985, he has discharged his duties from time to time but after discharging duty at the examination, he used to go to his village Roop Ka Guda. Charge No. 2 related to the fact that petitioner has left on 28.04.1985 for his village without discharging his duties at Nathdawara and without seeking permission of any competent officer, on that date and incident occurred in which Keshar Singh died as a result of stabbing by Jai Singh and incident of giving beating to Keshar Singh, the Delinquent Officer was also participant alongwith other persons named in the FIR. Charge No. 3 related to his remaining absent from duty on 29.04.1989 about which the Principal of College at Nathdawara had informed on 30.04.1985. 4. After holding the enquiry, all the three charges relating to leaving his place of posting for going to his village without seeking permission of any competent officer were found to be proved against the Delinquent Officer. However, his involvement in the criminal case resulting in death of Keshar Singh was not found proved. 5. 4. After holding the enquiry, all the three charges relating to leaving his place of posting for going to his village without seeking permission of any competent officer were found to be proved against the Delinquent Officer. However, his involvement in the criminal case resulting in death of Keshar Singh was not found proved. 5. Consequently, as a result of the aforesaid findings submitted by the Enquiry Officer and which was accepted by the Disciplinary Authority vide order dated 30.06.1999, the petitioner was subjected to punishment of stoppage of two grade increments with cumulative effect. 6. The petitioner delinquent has remained under suspension since 09.05.1985 until 11.05.1990, during this period, he has remained absent from the place where he was required to remain present. Considering this fact, the period of absence was regularised by treating the same as leave without pay and emoluments of suspension period order were forfeited. The services during absence from duty was also forfeited in terms of Rule 86. 7. On appeal, by order dated 111.1991, the appellate authority viz. DIG Jodhpur Range, Udaipur affirmed the order of punishment imposed on 30.06.1990 by the Disciplinary Authority. 8. The principal contention raised by the petitioner against the impugned order is that before making the order dated 30.06.1990 accepting the finding of the Enquiry Officer and imposing the punishment, the copy of enquiry report submitted by the Enquiry Officer who was not the disciplinary authority has not been furnished to the petitioner, therefore, the impugned orders suffer from breach of principle of natural justice, therefore, the same cannot be sustained. 9. The petitioner relies on Supreme Court decision in Union of India & Ors. vs. Mohd. Ramzan Khan, AIR 1991 SC 471 . He also placed reliance on Judgment of this Court rendered by the learned Single Judge in M.K. Soni vs. State of Raj. & Ors., 1990 (2) RLR 541 and Jagdish Prasad Meena vs. Divisional Commissioner, Ajmer, 1991 (1) RLR, 213 and Nathi Lal Saraswat vs. State of Raj. & Anr., 1993 (1) WLC 64, which in turn followed the earlier decisions referred to above. 10. There may not be any doubt about the contention that the disciplinary proceedings are quashi judicial in nature and attracts the principles of natural justice. & Anr., 1993 (1) WLC 64, which in turn followed the earlier decisions referred to above. 10. There may not be any doubt about the contention that the disciplinary proceedings are quashi judicial in nature and attracts the principles of natural justice. Where the Enquiry Officer conducts enquiry, who is not the disciplinary authority, and the disciplinary authority has to act on the basis of such enquiry, the delinquent officer has a right to know the findings and the reasons given by the Enquiry Officer and to make his submissions before the Disciplinary Authority, before he arrives at his own conclusions about misconduct of the delinquent officer on the basis of enquiry report, which is a part of the principles of natural justice. This is the principle which has been enunciated and accepted by the Supreme Court in Mohd. Ramzans case (Supra). However, the Apex Court made it clear that the decision shall have prospective application and no punishment imposed earlier to the said Judgment shall be open to challenge on this count alone. 11. The aforesaid three decisions cited by the learned Counsel for the petitioner are in respect of the punishments which have been imposed prior to the decision in Mohd. Ramzans case, which was rendered on 20.11.1990. The Court while examining the prospective applicability of the Judgment in Mohd. Ramzans case applied the rule of prospectiveness in cases where the order of punishment attained finality but the cases in which the punishment order was already under challenge and has not become final, it was held not exempted from the proposition on the theory of its prospective operation. The issue was specifically considered in M.K. Sonis case (Supra). The other two decisions have followed the M.K. Sonis case. 12. The learned Counsel for the respondent urged that the decisions relied on by the learned Counsel for the petitioner can no longer be considered as a good law in view of a later decision of the Supreme Court in Managing Director, ECIL¸ Hyderabad & Ors. Vs. B. Karunakar & Ors., 1993 (4) SCC 727 , which has given quietus to the scope and ambit of the prospective operation of the principal enunciated in Mohd. Ramzans case. Vs. B. Karunakar & Ors., 1993 (4) SCC 727 , which has given quietus to the scope and ambit of the prospective operation of the principal enunciated in Mohd. Ramzans case. It was pointed out that the view which has been taken by the learned Single Judge of this Court in M.K. Sonis case had also been taken by the Calcutta High Court in its Judgment dated 12.03.1992. The Division Bench of the Calcutta High Court has taken the view that:- “It is not possible to hold that the law declared by the Supreme Court in respect of furnishing an enquiry report to a delinquent before an order of removal or dismissal is passed shall not be applicable to orders of removal or dismissal which have been challenged and are pending consideration in appeals before authorities or before different High Courts or Supreme Court and which have not attained finality.” 13. The said Judgment of the Calcutta High Court was reversed by the Supreme Court in Commandant, Central Industrial Security Force & Ors. vs. Bhopal Singh, 1993 (4) SCC 785, relying on decision in ECIL case, 1993 (4) SCC 727 . To that extent, the contention of Mr. Bhati, learned Additional Government Advocate appears to be correct that merely on the principle enunciated in Mohd. Ramzans case, in the absence of anything more, the punishment which was imposed in the present case on 30.06.1990 prior to decision in Mohd. Ramjans case 20.11.1990 would not invalidate the order for the reason of not furnishing the enquiry report on general principles. 14. However, the learned Counsel for the petitioner relies on Sub-rules (10) and (12) of the Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (in short CCA Rules) to urge that even if the petitioners case is considered without reference to Mohd. Ramzans case but on the anvil of CCA Rules governing the present case he was entitled to as a matter of procedure laid under the rules to enquiry report before the disciplinary authority records his finding in respect of the charges levelled against him and imposed punishment and such enquiry report is to be furnished subsequently to the delinquent alongwith such findings. In view of the clear provisions of the rules, the right of the petitioner is not rested merely on the general principles of natural justice but on the right conferred on a Delinquent Officer under the rules and it is not tinkered by any judicial pronouncement. He relies on the decision of this Court in Tej Karan Jain vs. State of Raj., 1991 (1) WLC 102. 15. Having given my careful consideration to the contentions, I find force in this contention which merits acceptance on the principle enunciated by the Supreme Court also in ECILs case (Supra). 16. In ECILs case (Supra), the Supreme Court has considered the necessity of furnishing enquiry report before the Disciplinary Authority holds Delinquent Officer guilty of the charges levelled against him and approved the view expressed in Mohd. Rajans with greater emphasis. It has also clarifies the doubts, if any, which has arisen on account of the amendment made in Article 311 by 42nd Amendment. 17. The Supreme Court clearly drew a distinction between the two stages of considering the case of delinquent by the disciplinary authority. It was pointed out that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the Disciplinary Authority arrives at his conclusions on the basis of the enquiry officers report and delinquent officer reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusion. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. 18. The Court further held that the right to represent against the findings in report is part of the reasonable opportunity available during the first stage of the enquiry; namely before the Disciplinary Authority takes into consideration the finding and the report. The right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings and the report and has come to the conclusion with regard to the guilt of the employee and proposes to award on the basis of its conclusion. The first right is right to prove innocence. The second right is to plead for either no penalty or lesser penalty although the conclusion regarding the guilt is accepted. The first right is right to prove innocence. The second right is to plead for either no penalty or lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment. What is dispensed with is opportunity of making representations on the penalty proposed and not of opportunity of making representation on the report of Enquiry Officer. The latter right was always there. All that has happened after the 42nd Amendment to advance the point of time at which the representation of employee against the enquiry officers report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of charges. 19. Significantly, the Court reiterated and reemphasized the law which was always the same and Mohd. Ramzans case had not laid down any proposition which was in contradiction with the view taken by the Supreme Court earlier. The Court also categorically stated that this principle of requirement of furnishing enquiry report to the delinquent where the Enquiry Officer is not a disciplinary authority is not necessarily founded on the service rules. But even in absence of service rules, it would be considered as part of the natural justice required to be followed by any enquiry laying claim to be just and fair. It was so declared by the Supreme Court that even where the rules were to prohibit before disciplinary authority reaches it conclusion, the rules would be invalid. The position can be clear from the following observations:- “A denial of the enquiry officers report before the disciplinary authorities takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.” 20. The enquiry report constitutes the material which have great persuasive force or affection on the action of the disciplinary authority; the supply of the report alongwith the final order is like a post mortem certifying drawing the order on the failure to supply would be posterior in Articles 14 and 311 of the Constitution but beyond the principle of natural justice. 21. 21. With all these fervor, the Court concluded:-“Since, the denial of the report of the enquiry officer is a denial of reasonable opportunity and a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice and, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit the furnishing of the report or are silent on the subject.” 22. It is in the aforesaid perspective and background, the Supreme Court addressed to the prospective operation of the principle enunciated in Mohd. Ramjans case and made it clear that prospective operation would not affect the right of delinquent to challenge the enquiry to be invalid as the ground of non supply of enquiry report, if the rules otherwise required supply of a copy of the report to the employee which is a mandatory requirement. 23. The Supreme Court opined that notwithstanding the law has always been the same regarding the necessity of furnishing a copy of enquiry report containing the offence against delinquent officer before the disciplinary authority reaches at its own conclusion. In spite of this proposition, it was seen in some cases because of the 42nd amendment of the Constitution bringing a change in Article 311 doing away with the necessity of giving a notice of proposed punishment which as noticed above, is a part of the second stage of the issue betrays by the disciplinary authority namely the imposition of punishment. The Court said:- “The decision in Mohd. Ramzan Khan case made the law laid down there prospective in operation i.e. Applicable to the orders of punishment passed after 20.11.1990. The law laid down was not applicable to the orders of punishment passed before that date notwithstanding the fact that the proceedings arising out of the same were pending in Courts after that date. The said proceedings had to be decided according to the law prevalent prior to the said date which did not require the authority to supply a copy of the inquiry officers report to the employee.” However, the Court hastened to add:- “The only exception to this is where the service rules with regard to the disciplinary proceedings themselves made it obligatory to supply a copy of the report to the employee.” 24. With this premise, the Court further directed that the proceedings pending in the Courts/Tribunals arising out of orders of punishment passed prior to 20.11.1990 will have to be decided according to law prior to said Judgment in Mohd. Ramzans case. 25. In this connections, the Court referred to its earlier decision in R.K. Vashisht vs. Union of India & Ors., 1993 Supp. (1) SCC 431, giving effect to Mohd. Ramjans case after 20.11.1990, in a case pending. It made clear:- “It is not clear from the decision whether rules in that case required furnishing of copy and charge-sheet as such.” 26. Thus, keeping in view ratio of Mohd. Ramzans case and keeping in view the ambit and scope of prospectiveness ordained for the operation of ratio in Mohd. Ramzans case, the present case has to be considered not in the light of Mohd. Ramzans case but in the light of requirement of furnishing copy of enquiry report under the relevant service rules. 27. It is not in dispute that the present case is governed by the Rajasthan CCA, Rules. Rule 16(9) lays down the procedure for holding an enquiry for imposing a penalty under Rule 16. The Rules 16(9) and 16(12) relevant for the present purpose, needs to be noticed in full:- “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 Enquiring Authority for just and 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. Rule 16(12):-Orders passed by the Disciplinary shall be communicated to the Government servant who shall also be supplied with a copy of the report of Inquiring Authority and where the Disciplinary Authority is not the Inquiring Authority a statement of its findings together with brief reasons for disagreement, if any, with the findings of Inquiring Authority, unless they have already been supplied to him, and also a copy of the advice, if any given by the Commission and, where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such non-acceptance. 28. 28. The scheme of the two rules read together leaves no room of doubt that it is the duty of the Disciplinary Authority to consider the record of the enquiry and record its finding on each charge levelled before punishment is imposed where it is not the inquiring officer. In recording its own finding, it has to consider all materials including enquiry report and material that has been brought on record in enquiry. Sub-rule 10 as amended has been couched as per the requirement of Article 311 of the Constitution as per 42nd Amendment. Sub-rule 12 ordains that the disciplinary authority shall furnish to the Government servant a copy of the report of the enquiry unless the same having already being supplied earlier and where the Disciplinary Authority is not the enquiry authority, a statement of its finding together with reasons for disagreement with the finding of the Enquiry Officer. It envisages that enquiry report may be submitted alongwith finding if not already submitted. Expression if not already submitted earlier makes it clear that ordinarily the inquiry report is to be submitted before recording the findings. A second opportunity is given to the disciplinary authority to provide enquiry report to the delinquent officer at least alongwith its finding so that he can make effectively his remedical course. However, rule does ordain even where inquiry report is not furnished to give the delinquent a statement of finding of enquiry officer together with brief reasons therefore before he reaches his own conclusion. That is a requirement under the rules and in the context of the rules ad hearing to the principle of natural justice and considering supply of the copy of the enquiry report to the delinquent where the disciplinary authority himself is not a enquiry officer before it reaches the first stage of recoding its own findings on the guilt of the delinquent officer. 29. In this regard we are in agreement with view expressed in Tej Karans case (Supra), and a subsequent decision of this Court in Mahendra Dixit vs. State of Rajasthan & Ors., 1993 (3) WLC 578. The case clearly falls in the exception to the prospective rule of Mohd. Ramzans ratio as admitted by the Larger Bench of the Supreme Court in ECILs case noticed above. 30. The case clearly falls in the exception to the prospective rule of Mohd. Ramzans ratio as admitted by the Larger Bench of the Supreme Court in ECILs case noticed above. 30. The question of prejudice need not detain us inasmuch as the Supreme Court has ordained that non supply of copy of report itself is a matter of great prejudice and post decisional hearing or hearing by appellate authority instead of enquiry report does not cure the defect vitiating the fairness of the inquiry on account of non furnishing of enquiry report as in the present case it is admitted position that notwithstanding requirement of rule, the delinquent officer was not furnished with the report of the enquiry. The enquiry has been conducted in breach of mandatory requirement of the rules and cannot be sustained. Moreover, the prejudice caused to the petitioner is apparent from the fact that the petitioners services for the period has been forfeited notwithstanding that such period has been regularised by grant of leave available to him. Regularisation of period of absence and forfeiture of service of said period cannot stand together. 4.31. It may be observed that the enquiry upto the stage of recording of evidence of prosecution has been conducted ex parte, and, therefore, the petitioner has not been able to cross-examine the witnesses produced by the departmental representative. Obviously if the report and material on which findings of enquiry officer were based had been supplied to the petitioner, he could have made effective representation against holding the enquiry ex parte against him and he could have also shown that because of excluding him from participating in enquiry, he was wrongly deprived of cross-examining the witnesses. Thus, the petitioners case was seriously prejudiced due to non-supply of enquiry report. So also there does not appear to be any warrant for forfeiture of the services during which he remained absent from duty during the pendency of the enquiry. Once the absence from duty was regularised by treating it leave without pay in terms of Rule 86, the services cannot be forfeited. Services can be forfeited only in case the absence without leave has not been regularised by adjusting against the leave due or on account of extraordinary leave of any kind. Once the absence from duty was regularised by treating it leave without pay in terms of Rule 86, the services cannot be forfeited. Services can be forfeited only in case the absence without leave has not been regularised by adjusting against the leave due or on account of extraordinary leave of any kind. Since, in the present case, order of punishment itself states that the absence should be treated as leave without pay as sanctioned, the question of forfeiting services would not arise under the Rule 86 to which reference has been made. This clearly makes out the case of prejudice caused to the petitioner. 5.32. As a result, the petition succeeds and is allowed. The impugned orders Annexures-3 and 5 are quashed. Looking to the fact that the incident relates to year 1985 and even on the findings of the Enquiry Officer, the only misconduct proved against the petitioner is of absence from duty on 29.04.1985 without seeking permission, it would not be conducive now to direct the petitioner to go once again under the rigour of enquiry and hearing from the stage of furnishing enquiry report. The ends of justice would be met if the punishment for absence from duty found to be proved by the respondent on 29.04.1985 is confined to stoppage of two grade increments without cumulative effect and the forfeiture of 10% emoluments during the period of suspension. 1.33. Ordered accordingly 2.34. No order as to costs.