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2006 DIGILAW 80 (RAJ)

Kusum Kulshrestha v. State of Rajasthan

2006-01-06

GOVIND MATHUR

body2006
Judgment Govind Mathur, J.-Prior to 09.07.1997 the petitioner was a member of Rajasthan Education Service, a service created under Rajasthan Education Service Rules, 1970. 2. While holding the post of District Education Officer (Elementary Education), Bikaner she was served with a memorandum dated 30.07.1994 under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as “the Rules of 1958”) alongwith statement of allegations containing seven allegations of misconduct and was called upon to reply the same. Her reply was found to be unsatisfactory, therefore, an inquiry officer was appointed by the disciplinary authority to hold regular inquiry to inquire into the misconduct alleged under the memorandum dated 30.07.1994. The inquiry officer after holding inquiry submitted report of inquiry to disciplinary authority on 31.03.1996, a copy whereof was given to the petitioner alongwith an officer order dated 30.06.1996. 3. The inquiry officer did not find the petitioner guilty for any charge of misconduct, however, the disciplinary authority being not in agreement with the findings given by the inquiry officer for charges No. 1, 3, 5 and 7 called upon the petitioner to submit her explanation and comments to the note of disagreement given under office order dated 30.06.1996. The disciplinary authority by an order dated 09.07.1997 dismissed the petitioner from service after taking into consideration the explanation and comments submitted by her on 20.08.1996. The disciplinary authority while impsoing penalty of dismissal from service upon the petitioner by order dated 09.07.1997 found her partial guilty for allegations No. 1, 3 and 5 only. 4. The petitioner was permitted by this Court by an order dated 10.05.1999 to withdraw a petition for writ preferred by her giving challenge to the order dated 09.07.1997 with a liberty to avail the remedy of review prescribed under Rule 34 of the Rules of 1958. The review petition preferred thereafter by the petitioner too stood rejected by order dated 15.07.2000 passed by the competent authority, hence the instant petition for writ is preferred by the petitioner assailing validity and propriety of the order dated 09.07.1997 passed by the disciplinary authority and the order dated 15.07.2000 passed by the reviewing authority. 5. The review petition preferred thereafter by the petitioner too stood rejected by order dated 15.07.2000 passed by the competent authority, hence the instant petition for writ is preferred by the petitioner assailing validity and propriety of the order dated 09.07.1997 passed by the disciplinary authority and the order dated 15.07.2000 passed by the reviewing authority. 5. The allegations which stood proved against the petitioner in part reads as follows:- Þvkjksi la[;k ¼1½ ;g fd mä Jherh dlqe dqyJs"B] ftyk f'k{kk vf/kdkjh ¼izk-fk-½ chdkusj mä in ij fnukad 31-07-1991 ls 6@92 rd dk;jr gksrs gq, 74 nSfud osru HkÙkk deZpkfj;ksZa dks fcuk foKkiu fudkys uk i= ds vk/kkj ij vfu;fer fu;ä djus rFkk fcuk vkoao lk{kkRdkj fy, dsoy izkFkZqfVr inksa ds 38 nSfud osru HkÙkk deZpkfj;ksa dks fu;qfä nsus ds fy, nks"kh gSaA vkjksi la[;k ¼3½ ;g fd mä Jherh dqyJs"B mä in ij mä vof/k easdk;jr jgrs gq, 6 v/;kidkasdks ftuesa ls 03 qnku dh A ;g vuqlwfpr tkfr] 02 fodykax ,oa 01 fo/kok dksVs ds vUrxZr vfu;fer fu;fä;ka izfu;fä bUgksaus fnukad 30-12-1991 ls 16-04-1992 ds e/; esa nh FkhA bl izdkj mä Jherh dqyJs"B 6 vfu;fer fu;qfäq;ka djus] fu;eksa dh vogsyuk djus rFkk vius in ds nq:i;ksx djus ds nks"kh gSaA vkjksi la[;k ¼5½ e dqyJs"B us ftyk f'k{kk vf/kdkjh ¼izj esZ ;g fd mä Jherh dqlwkfk½ chdkusa dk;jr jgrs gq, 295 v/;kidksa ds vfu;fefr LFkkukUrj.k dj LFkkukUrj.k uhfr funsZkksa dh vogsyuk dj vko;d fu/kkZfjr vfHkys[kksa dk la/kkj.k gh fd;kAß 6. As stated above, the allegations No 1, 3 and 5 were not found proved by the inquiry officer but the disciplinary authority disagreed with the findings, therefore, note of disagreement was given to the petitioner and in pursuant to that explanation and comments were given by the delinquent employee. The disciplinary authority after considering the comments and explanation so given held the petitioner partial guilty for the charges. 7. The disciplinary authority with regard to allegation No. 1 held that no proper justification was given by the petitioner with regard to the appointments made against 10 posts and as such the allegation No. 1 was found proved in part. The disciplinary authority also held that before making appointments wide publicity with regard to selection proceedings was not given. 7. The disciplinary authority with regard to allegation No. 1 held that no proper justification was given by the petitioner with regard to the appointments made against 10 posts and as such the allegation No. 1 was found proved in part. The disciplinary authority also held that before making appointments wide publicity with regard to selection proceedings was not given. The disciplinary authority held that the appointment to five persons under reserved category creates doubt and, therefore, held the petitioner guilty in part for commission of misconduct under allegation No. 3. The allegation No. 5 was also found proved in part by the disciplinary authority by holding that while effecting transfers the guidelines given by the department were not adhered. 8. The contention of Cousenl for the petitioner while giving challenge to the orders impugned with other contentions is that the penalty imposed upon the petitioner is shockingly disproportionate to the delinquency proved. According to Counsel for the petitioner the petitioner served the respondent with all efficiency but the penalty of dismissal was imposed upon her when she was at the verge of retirement. According to Counsel for the petitioner no allegation of adopting corrupt practice, accepting bribe, illegal gratification or misusing the office for vested interest is proved against the petitioner. Whatever the allegations proved are at the most be termed as irregularities in administrative functioning. It is emphasised by Counsel for the petitioner that from record it is apparent that in administrative functioning of the petitioner there was interference by the then Minister and by certain higher officers of the Education Department, therefore, the allegations proved against the petitioner deserve sympathetic consideration while imposing penalty. 9. Per contra, it is contended by Counsel for the respondents that the disciplinary authority considered the entire record of the disciplinary proceedings and also after considering the explanation submitted by the petitioner with regard to note of disagreement imposed the penalty of dismissal which is the most suitable penalty in present set of facts. 10. Heard Counsel for the parties. 11. It is the position admitted that the petitioner was of the age of 57 years when the disciplinary authority imposed the penalty of dismissal upon her. At the relevant time age of retirement was of 58 years. The petitioner, therefore, was at the verge of retirement. 10. Heard Counsel for the parties. 11. It is the position admitted that the petitioner was of the age of 57 years when the disciplinary authority imposed the penalty of dismissal upon her. At the relevant time age of retirement was of 58 years. The petitioner, therefore, was at the verge of retirement. It reveals from the facts narrated by the disciplinary authority that intereference was made while giving appointments and effecting transfers by higher authorities of the education department and also by the then State Minister for the department of Animal Husbandry. It also appears that to effect transfers of the teachers a huge list was given by the Minister on 20.08.1991. In all 118 transfers were made at the instance of the Minister. The petitioner pointed out all these facts before the disciplinary authority as well as before the reviewing authority. While pursuing review petition the petitioner beside the other contentions pressed in service before the reviewing authority that punishment imposed upon her is shockingly disproportionate to the delinquency proved. The reviewing authority without taking into consideration this contention of the petitioner dismissed the review petition by saying that no new fact is brought into the knowledge by the delinquent employee, therefore, no interference is required under Rule 34 of the Rules of 1958. The petitioner was holding the post of District Education Officer and, therefore, the pressure upon her to accept the wishes of Minister and other higher officers can be understood well. It can be said that the petitioner being a responsible civil servant should have circumvent to the pressure of the higher authorities including the Minister and even any act done by her under the pressure does not bring her out from the misconduct committed. It is true that these circumstnaces cannot bring a civil servant out from the action required to be taken on commission of a misconduct but this can certainly be a consideration while imposing a penalty upon the delinquent employee. 12. Rule 14 of the Rules of 1958 provides various major punishments including the penalty of compulsory retirement, removal, dismissal from service and reduction in rank. The dismissal from service is the severest punishment and it is termed as civil death by Honble Supreme Court. The punishment of dismissal, therefore, should be imposed with all caution and in the cases where retention of civil servant in service is found absolutely undersirable. The dismissal from service is the severest punishment and it is termed as civil death by Honble Supreme Court. The punishment of dismissal, therefore, should be imposed with all caution and in the cases where retention of civil servant in service is found absolutely undersirable. 13. In the present case where the petitioner is found guilty with certain irregularities and she was at the verge of retirement, I am of considered opinion that penalty imposed is excessive and is not in proportion to the delinquency proved. This aspect in fact should have been considered by the disciplinary authority of atleast by the reviewing authority while considering the review petition under Rule 34 of the Rules of 1958. Under the Rules of 1958 a remedy of appeal is provided to a civil servant under Rule 23, if he is aggrieved by the order imposing penalty. Such an appeal is required to be considered in accordance with the procedure prescribed under Rule 30 of the said Rules. Rule 30 of the Rules of 1958 in quite unambiguous terms provides that the appellate authority should, while considering an appeal, take into consideration whether the penalty imposed is excessive, adequate or inadequate, and after giving a personal hearing to the Government servant he may pass an order setting aside reducing, confirming or enhancing the penalty or remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case. The purpose behind such consideration is that the appellate authority may consider the quantum of punishment objectively and in the event it is found excessive it may be reduced. 14. The remedy of appeal as provided under the Rules of 1958 was not available to the petitioner being a member of State service. The only remedy for giving challenge and for reconsideration of the order imposing penalty, available to the petitioner under the Rules of 1958, was by way of filing a review petition as prescribed under Rule 34 before the Governor. In normal course the considerations for deciding an appeal and review petition are totally different. The only remedy for giving challenge and for reconsideration of the order imposing penalty, available to the petitioner under the Rules of 1958, was by way of filing a review petition as prescribed under Rule 34 before the Governor. In normal course the considerations for deciding an appeal and review petition are totally different. However, under the Rules of 1958 when the remedy of appeal is not available to the civil servants of the Government of Rajasthan who are members of the State service, then the review petition preferred by them under Rule 33 or Rule 34, as the case may be, should be considered by the authorities competent as far as possible in accordance with the procedure prescribed under Rule 30 of the Rules of 1958, as it is the only remedy available to them under the statute. The remedy of review under Rule 34 of the Rules of 1958 is given to the Government servants by a rule having the force of law, therefore, same is always required to be decided according to law and the reviewing authority must give reasons to show that the decision was arrived justly and fairly after a due consideration of facts and the law bearing on the matter. Need not to say that it is necessary, not only to maintain clarity, reduce the chances of arbitrariness but also to instill confidence in the minds of the party concerned. 15. In the present case though the petitioner specifically urged before the reviewing authority that penalty imposed upon her is shockingly disproportionate to the delinquency proved but the reviewing authority failed to consider this aspect of the matter. The reviewing authority should have considered this aspect of the matter by taking into consideration all the relevant facts. 16. I have already held that the penalty imposed upon the petitioner is shockingly disproportionate, therefore, I could have remitted the matter to the reviewing authority to decide the review petition afresh to impose a penalty commensurating to the delinquency proved, however, as the petitioner has already acquired the age of superannuation in the year 1998 itself and the entire matter has already been threshed by this Court, therefore, instead of remitting the matter back to the reviewing authority I consider it appropriate while exercising powers under Article 226 of the Constitution of India to suitably modify penalty imposed upon the petitioner. 17. 17. The petitioner was found guilty in part for committing irregularities while making appointment of five persons under reserved category and for effecting transfers in violation of the guidelines prescribed and for not giving wide publicity to the selection proceedings. The petitioner, therefore, certainly deserves to suffer a major penalty. While imposing major penalty it is also required to be taken into consideration that the petitioner served the department for a pretty long time and in the year 1997 she was at the verge of retirement, she was not found guilty for any misconduct with regard to involvement in corruption, acceptance of illegal gratification or bribe, as such the imposition of penalty of compulsory retirement from service with proportionate pension shall be a penalty adequate for her. The appropriate punishment in present set of facts shall be the compulsory retirement from service with stoppage of two annual grade increments with cumulative effect, therefore, the order dated 09.07.1997 imposing penalty of dismissal upon the petitioner is modified and the penalty of compulsory retirement from service and stoppage of two annual grade increments is substituted in place of penalty of dismissal. 18. The writ petition is disposed of accordingly. 19. No order as to costs.