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2007 DIGILAW 2102 (RAJ)

Ramesh Chand Tripathi v. State of Rajasthan

2007-10-30

P.B.MAJMUDAR

body2007
JUDGMENT 1. - Admit. Learned Dy. G. A. Mr. B. K. Sharma waives service of notice of admission on behalf of respondents, therefore, service is complete. 2. Considering the fact that the matter is pending for admission since the year 1999, with the consent of both the learned advocates, this writ petition is taken up for final hearing today. 3. By filing this writ petition, the petitioner has challenged the order passed by the Divisional Commissioner. Kota dated 1-10-1999. which is Annexure-11 in the writ petition, which is placed on record along with Annexure-10 placed at page No. 77 of the compilation. By the aforesaid order, the Divisional Commissioner. Kota has set aside the order of penalty passed by the District Collector (Land Record). Sawai Madhopur and passed the order of dismissal of the petitioner from service. 4. At the relevant time, the petitioner was serving as Patwari. While the petitioner was in service, he was subjected to departmental proceedings on the ground that he has committed irregularities by recording false entries in the Revenue record with ulterior motive. An enquiry officer was appointed in this behalf and after conclusion of the enquiry. the disciplinary authorities, i.e. the District Collector, Sawai Madhopur awarded penalty of withholding of two grade increments with cumulative effect and also forfeited the balance amount of suspension allowance for the period between 5-4-1988 to 25/29-9-1988. Aggrieved by the aforesaid penalty order. the petitioner preferred an appeal before the appellate authority, i.e. the Divisional Commissioner, Kota. The appellate authority, at the time of hearing the appeal. came to the conclusion that the penalty awarded by the disciplinary authority is not adequate and considering the facts and circumstances of the case, a major penalty of dismissal from service was required to be passed and he accordingly set aside the penalty order passed by the District Collector, Sawai Madhopur and substituted the same by order of dismissal from service. It is the aforesaid order of the Divisional Commissioner. Kota, which is impugned in the present writ petition at the instance of the petitioner. 5. Learned advocate for the petitioner submitted that against the order of penalty passed by the District Collector. Sawai Madhopur, by which two grade increments of the petitioner were withheld, the petitioner had preferred an appeal and in the aforesaid appeal, the appellate authority enhanced the order of punishment. 5. Learned advocate for the petitioner submitted that against the order of penalty passed by the District Collector. Sawai Madhopur, by which two grade increments of the petitioner were withheld, the petitioner had preferred an appeal and in the aforesaid appeal, the appellate authority enhanced the order of punishment. It is submitted that, however, before passing the aforesaid order of enhancement of penalty, a show cause notice was not given to the petitioner asking him to show cause as to why the penalty order passed against him should not be enhanced. It is further submitted that under Rule 30(2) proviso (it) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, 'the Rules of 1958'), a procedure is prescribed for enhancement of the penalty and the same has not been followed and therefore, the order impugned is contrary to law as well as contrary to the principles of natural justice. 6. Learned Dy. G. A. Mr. B. K. Sharma on the other hand submitted that it is true that no show cause notice was issued as contemplated by the aforesaid provision of law however, at the time of hearing of appeal of the petitioner, he was also given hearing regarding penalty in question and therefore, the order in question may not be interfered with by this Court. 7. I have heard both the learned counsel and I have also gone through the record and proceedings of the case. It is pointed out by the learned counsel for the petitioner that during the pendency of the present writ petition, the petitioner has reached the age of superannuation and the District Collector (Land Records), Karauli, by his order dated 5-10-2005 has allowed the petitioner to retire from service on attaining the age of superannuation. The said order is also shown to the learned Dy. G. A. Mr. Sharma and the same is taken on record. It seems that the petitioner was continued in service during the pendency of this writ petition by virtue of the interim order of this Court by which the order of the appellate authority, i.e. the Divisional Commissioner, Kota, dismissing the petitioner from service was stayed and perhaps in view of the same, now ultimately on attaining the age of superannuation the petitioner is now permitted to retire from service. 8. 8. The principal question which requires consideration is whether the impugned order passed by the Divisional Commissioner, Kota is sustainable or the same is in violation of the provisions of law and principles of natural justice. In this behalf reference is required to be made to Rule 30(2) proviso (ii) of the Rules of 1958. The aforesaid provision provides as under : "30(2) ..... Provided that- (i) ........ (ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty." 9. It is not in dispute that the said rule was not complied with by the appellate authority, as the petitioner was not subjected to any show cause notice asking him as to why the penalty of withholding two grade increments with cumulative effect should not he enhanced and as to why he should not be dismissed from service. As per the said provision, the said procedure is mandatory so that the petitioner can give his reply and point out the circumstances as to why the penalty is not required to be enhanced. The appellate authority was required to follow the said procedure especially when the appeal was preferred by the petitioner against the order of the District Collector, Sawai Madhopur imposing the penalty of stoppage of two grade increments with cumulative effect. In the affidavit in reply, it is pointed out that at the time of hearing of the appeal, the petitioner was given full opportunity to argue his case. However, in my view, that is not the requirement of law. The appeal was ultimately filed by the petitioner and in his appeal he was required to argue only regarding the penalty imposed upon him by the District Collector, Sawai Madhopur unless his attention was drawn specifically on the aspect that it is decided to enhance the penalty. Considering the aforesaid aspect. simply because the petitioner was given opportunity of hearing regarding penalty in the appeal, it cannot be said that compliance of provisions of proviso (ii) to Rule 30(2) of the Rules of 1958 has been made. Before enhancing the penalty, the appellate authority was bound to follow the said procedure and admittedly that has not been done. 10. simply because the petitioner was given opportunity of hearing regarding penalty in the appeal, it cannot be said that compliance of provisions of proviso (ii) to Rule 30(2) of the Rules of 1958 has been made. Before enhancing the penalty, the appellate authority was bound to follow the said procedure and admittedly that has not been done. 10. Alternatively, it is submitted by the learned counsel for the petitioner that the period prescribed for preferring the appeal is 30 days and therefore, the appellate authority could have issued show cause notice for enhancement of penalty only within that period of limitation. However, this point was not taken either before the appellate authority or in this writ petition. Therefore, it is not necessary to examine the said point in this writ petition as even otherwise the order of the appellate authority is required to be set aside in view of the fact that the provision of proviso (ii) to Rule 30(2) has not been followed before enhancing the penalty. 11. Considering the aforesaid aspect of the matter, the impugned order dated 1-10-1999 is quashed and set aside and the order passed by the District Collector (Land Records), Sawai Madhopur dated 21-6-1993 is restored. Learned counsel for the petitioner has fairly submitted that now the petitioner is not making grievance against the order passed by the District Collector, Sawai Madhopur dated 21-6-1993 by which the petitioner was subjected to penalty of withholding of two grade increments with cumulative effect and the said order of penalty shall, remain in force. Since the petitioner has now retired from service, the respondents shall calculate the pension and other retiral benefits of the petitioner taking into account the penalty of withholding of two grade increments with cumulative effect. On that basis whatever amount is required to be paid to the petitioner, the same shall be paid to him and his pension should be calculated accordingly. This exercise shall be done within a period of three months from today. 12. With the aforesaid directions. this writ petition is owed. No order as to costs.Petition allowed. *******