Research › Search › Judgment

Rajasthan High Court · body

2008 DIGILAW 1867 (RAJ)

Inder Singh Rajpurohit v. R. S. R. T. C.

2008-08-06

GOPAL KRISHAN VYAS

body2008
Hon ble VYAS, J.—This writ petition is one of the glaring example of disobedience of the orders passed by this Court. The petitioner is repeatedly knocking the doors of this Court for redressal of his grievance. In this writ petition, petitioner is challenging the impugned order of termination dated 1.12.1983 (Annexure 3), order dated 22.2.1984 (Annexure 5) and the order dated 28.6.2006 (Annexure 19) and prayed that the respondent Corporation may be directed to reinstate the petitioner on the post of Driver with all consequential benefits along with full back wages. (2). According to the facts of the case, initially the petitioner was appointed under the Rajasthan State Road Transport Corporation on the post of driver in the year 1978 after due selection and continued on the said post till 1.12.1983. The respondent No. 3 issued a charge-sheet on 7.12.1982 against the petitioner alleging therein the charge with regard to accident due to rash and negligent driving and causing loss of Rs. 8000/- to the respondent Corporation. A reply to the charge-sheet was filed by the petitioner in which the petitioner denied all the charges levelled against him and it was specifically submitted that due to accident he remained in police custody from 9.10.1982 to 14.10.1982 and thus he could not remain present near the bus when Sh. Sheodeva Ram, mechanic came on the spot for repair of the said bus. It is further submitted by him that on 14.10.1982, he handed over the bus to Shri Sheodeva Ram. It was further stated by the petitioner in his reply that as per the report of M.T.O., Bikaner, due to accident, loss caused to the Corporation was to the tune of Rs. 500/- only and Rs. 8000/- as mentioned in the charge-sheet is wrong. In reply, it is specifically stated further by the petitioner that accident was caused due to damage of compressor vaccume pipe because it resulted in major defects in breakes and the petitioner tried his levels best to avoid the accident. After filing reply, one Shri G.C. Saxena was appointed as enquiry officer and enquiry was held at Jaipur. As per the petitioner in that enquiry, no witnesses were examined neither the petitioner was given any opportunity to cross-examine or to produce his defence witnesses and thereafter on the basis of such enquiry, the disciplinary authority terminated the services of the petitioner vide order dated 1.12.1983. As per the petitioner in that enquiry, no witnesses were examined neither the petitioner was given any opportunity to cross-examine or to produce his defence witnesses and thereafter on the basis of such enquiry, the disciplinary authority terminated the services of the petitioner vide order dated 1.12.1983. In the termination order, no reasons and findings were given with regard to allegations against the petitioner for charge of accident and damages caused to the Corporation. (3). Against the said order of termination, as per standing orders, an appeal was preferred by the petitioner and all the grounds were raised with regard to not providing opportunity of hearing and reasons for accident. The appeal filed by the petitioner was dismissed vide order dated 22.2.1984 by the respondent No. 2 in very casual manner by a non-speaking order without application of mind. (4). Against both the orders passed by disciplinary authority as well as the appellate authority, a writ petition being S.B. Civil Writ Petition No. 305/1984 was preferred by the petitioner before this Court. The said writ petition was partly allowed vide order dated 10.7.1986 whereby the order of appellate authority dated 22.4.1984 was set aside and case was remitted to the appellate authority for fresh decision. In the judgment rendered by this Court in the aforesaid writ petition, the appellate authority was directed to pass a detailed speaking order and the petitioner was directed to appear before the appellate authority. Therefore, as per the directions of this Court, the petitioner appeared before the appellate authority on 31.7.1986 but it was informed that still Corporation has not received the order passed by this Court and further, informed to the petitioner by the respondents that he will be informed the next date for the purpose of hearing of appeal. Thereafter repeatedly, the petitioner approached the appellate authority for deciding his appeal but his appeal was not decided by the appellate authority. Therefore, as per legal advise, the petitioner raised an industrial dispute and the said industrial dispute was referred to learned Industrial Tribunal Cum Labour, Jodhpur for deciding the dispute with regard to termination order of the petitioner dated 1.12.1983. (5). Therefore, as per legal advise, the petitioner raised an industrial dispute and the said industrial dispute was referred to learned Industrial Tribunal Cum Labour, Jodhpur for deciding the dispute with regard to termination order of the petitioner dated 1.12.1983. (5). The industrial dispute raised by the petitioner was finally decided by Judge, Labour Court, Jodhpur on 9.4.1999 in which it has been held that in view of the order passed by this Court in S.B. Civil Writ Petition No. 305/1984 dated 10.7.1986, the industrial dispute could not be decided as the same was barred by principle of res judicata and constructive res judicata. (6). Against the aforesaid award, the petitioner preferred a writ petition being SBCWP No. 1976/2000 before this Court, which was dismissed by learned Single Judge vide its order dated 25.4.2000 (Annexure-9). The order dated 25.4.2000 was further challenged by the petitioner by way of filing special appeal being DB Civil Special Appeal No. 470/2000 before Hon ble Division Bench of this Court. The said appeal was disposed of by Hon ble Division Bench vide order dated 29.9.2004 while directing the respondents to decide the appeal filed by the petitioner and further it was directed that the result of the appeal may be communicated to the petitioner. It was also observed by Hon ble Division Bench that the record of the case may be reconstructed and the petitioner shall cooperate the respondents for reconstruction of the record. (7). In pursuance of the directions issued by Hon ble Division Bench of this Court, the petitioner received a communication dated 7.3.2005 and 29.4.2005 stating therein to furnish the details of the appeal filed by him in the year 1986. In pursuance of the aforesaid letters, the petitioner replied to the respondents that he has filed an appeal in the year 1983 and inadvertently in the order passed by Hon ble Division Bench, the year of the appeal had been mentioned as 1986 and a copy of the appeal was filed by the petitioner but vide communication dated 24.8.2005 the petitioner was informed that the appeal filed by him has already been decided vide order dated 22.8.1984, therefore, no appeal is pending. The petitioner filed a DB Civil Misc. Application No. 1. The petitioner filed a DB Civil Misc. Application No. 1. 67/2005 before Hon ble Division Bench wherein a prayer was made for correction in the order of the appeal from 1986 to 1983 and the application filed by the petitioner was allowed by Hon ble Division Bench vide order dated 28.9.2005 and it was directed that the year of appeal in the order dated 22.9.2004 may be read as 1983 instead of 1986. (8). After correction in the order by Hon ble Division Bench, the petitioner filed a representation on 9.12.2005 narrating all the set of facts along with the copies all the copies of the communications and prayed for fresh decision of the appeal filed by him after giving him an opportunity of hearing as directed by this Court in the judgment dated 10.7.1986 passed in S.B. Civil Writ Petition No. 305/1984. In pursuance of his representation, the petitioner received a communication dated 7.1.2006 passed by the respondent No. 2 stating therein that the appeal filed by the petitioner had already been decided vide order dated 22.2.1984, therefore, no proceedings are pending with the Corporation. Thereafter, a legal notice was given by the petitioner through his counsel for initiating contempt proceedings for non-compliance of the order passed by Hon ble Division Bench of this Court. In reply to the said legal notice, it was informed by the respondent-Corporation that you have already been informed vide communication dated 7.1.2006 that no proceedings are pending before the Corporation, therefore, no appeal pending for fresh decision. (9). In view of above facts, a contempt petition was filed by the petitioner and the said contempt petition was registered as DB Civil Contempt Petition No. 125/2006 in which notices were issued by Hon ble Division Bench vide order dated 12.5.2006 and the respondent No. 2 was directed to remain present in the Court. (10). In compliance of the order passed by Hon ble Division Bench of this Court, the petitioner received a communication dated 16.5.2006 passed by the respondent Corporation directing the petitioner to remain present before the respondent No. 2 on 29.5.2006 at around 3.00 pm for personal hearing of his appeal. The petitioner appeared before the respondent No. 2 on 29.5.2006 and submitted his written arguments. As per the petitioner, he was asked as to what he has to say with regard to the quantum of the punishment. The petitioner appeared before the respondent No. 2 on 29.5.2006 and submitted his written arguments. As per the petitioner, he was asked as to what he has to say with regard to the quantum of the punishment. The petitioner was innocent ad the accident occurred due to failure of brakes, therefore, he has prayed for exoneration but prayer of the petitioner was not accepted and vide communication dated 28.6.2006, the appeal filed by the petitioner was dismissed again by non-speaking order in very casual manner and petitioner was held guilty of causing accident of Bus No. RSB-4090 due to his negligence. (11). Learned counsel for the petitioner first of all apprised this Court that in the contempt proceedings initiated by him, the Officer of the respondent Department has been penalized for committing disobedience of the orders of this Court for not deciding his appeal. Although the said order was further challenged by way of filing special appeal by the concerned officer, who was penalized by Hon ble Division Bench of this Court. In this writ petition, while attacking upon the orders impugned, it is submitted that initially in first writ petition decided by this Court vide order dated 10.7.1986, the case was remitted to the appellate authority by learned Single Judge of this Court and the Joint Manager (Traffic), Jaipur (appellate authority) was directed to decide the appeal of the petitioner afresh and impugned order dated 22.4.1984 passed by the appellate authority was set aside and in the order passed by learned Single Judge, it was specifically ordered that the appellate authority shall hear the petitioner and pass a detailed speaking order and shall consider the wisdom of the order of disciplinary authority also. Meaning thereby, the appellate authority was under legal obligation to decide the appeal filed by the petitioner against the termination order because learned Single Judge has quashed the order of the appellate authority and remitted the case to the appellate authority. (12). The contention of the learned counsel for the petitioner is that although the petitioner has approached wrong forum for redressal of his grievance by way of raising industrial dispute but finally Hon ble Division Bench has passed as order on 22.9.2004 in D.B. Civil Special Appeal No. 470/2000 whereby the appellate authority was directed that if appeal has not been decided and still pending then the same may be decided forthwith. It was further directed that the appeal, if decided, the result may be communicated to the appellant. Further, it was ordered that for the purpose of deciding appeal, record may be re-constructed and the petitioner was directed to cooperate with the respondents for reconstruction of the record. Later on, the correction application filed by the petitioner was decided vide order dated 28.9.2005 but appeal of the petitioner was not decided. Then, contempt proceedings were initiated and thereafter, vide impugned order dated 28.6.2006, the appeal filed by the petitioner was decided and upon perusal of the order of the appellate authority, it is revealed that again the appellate authority has passed an order without application of mind and without considering the grounds raised by the petitioner by a non-speaking order which is again in contravention of the directions issued by learned Single judge vide order dated 10.7.1986 whereby while remitting the case back to the appellate authority, a direction was issued to decide the appeal afresh by speaking order, therefore, as per learned counsel for the petitioner, the appeal of the petitioner was to be decided by speaking order and after considering all the grounds taken by the petitioner. (13). Learned counsel for the petitioner while attacking upon the order of appellate authority as well as the order of disciplinary authority urged that both the orders are passed without application of mind and are non-speaking order, therefore, both the orders deserve to be quashed and the petitioner is entitled for reinstatement in service. It is also prayed that the order of termination merged into the order of appellate authority. Therefore, the said order passed by the appellate authority on 28.6.2006 may be set aside. (14). It is argued by learned counsel for the petitioner that controversy involved in this case is covered under the judgment of Constitutional Bench of Hon ble Supreme Court reported in 1990(1)SCC 594. (15). Per contra, the respondents, by way of filing reply, submitted that the petitioner himself is responsible for not approaching the respondents in proper manner. (14). It is argued by learned counsel for the petitioner that controversy involved in this case is covered under the judgment of Constitutional Bench of Hon ble Supreme Court reported in 1990(1)SCC 594. (15). Per contra, the respondents, by way of filing reply, submitted that the petitioner himself is responsible for not approaching the respondents in proper manner. If the appeal was not decided as directed by this Court then there was no occasion for the petitioner to raise industrial dispute but he has raised industrial dispute for non compliance of the directions issued by this Court and in the said industrial dispute an award was passed by Judge, Labour Court and it has been held that there is no ground for deciding the industrial dispute because it is barred by principle of res judicata because there is judgment in favour of the petitioner already passed in S.B. Civil Writ Petition No. 305/1984 filed by the petitioner. Further, it is argued by learned counsel for the respondents that in the special appeal, order was passed for deciding the appeal, if pending. Therefore, since 1986, the petitioner has chosen to approach wrong forum and at last, Hon ble Division Bench of this Court has passed an order for deciding his appeal, if pending. The fact of pendency came to the knowledge of the respondent Corporation when contempt proceedings were initiated against the respondents, therefore, the said appeal was finally decided vide impugned order dated 28.6.2006 by which the appeal filed by the petitioner was rejected. (16). Learned counsel for the respondents argued that the order of the disciplinary authority merged into the order of the appellate authority and the appellate authority has passed an order after taking into account all the facts and grounds into consideration, thus, there is no illegality in the order passed by the appellate authority. It is also argued that the order is speaking order, so also, it has been passed after providing opportunity of hearing to the petitioner. Further, it is argued that from bare perusal of the order passed by the appellate authority, it is abundantly clear that the reasons for rejecting the appeal is incorporated in the operative part of the order, therefore, the order does not suffer from vice of non-speaking order nor it can be said that it has been passed without considering the grounds taken by the petitioner. The misconduct has been proved by the respondents, therefore, no case is made out for interference. Hence, the writ petition may be dismissed. (17). I have considered the rival submission made by the parties and perused the entire record of the case. (18). First of all it is not disputed before this Court that in the first writ petition filed by the petitioner, the case was remitted while quashing order dated 22.4.1984 passed by appellate authority to the appellate authority for deciding his appeal afresh after hearing the petitioner by speaking order and further, it was ordered that the appellate authority will consider the wisdom of the order of the disciplinary authority. The order impugned dated 28.6.2006 again has been passed without considering the grounds and following directions of this Court. Meaning thereby, there is non-compliance of the order passed by learned Single Judge in the first writ petition on 10.7.1986. The appeal of the petitioner was to be decided by the appellate authority within time but admittedly for one or another reasons, although a specific order was passed by learned Single Judge of this Court but the appeal filed by the petitioner was not decided. Thereafter, although the petitioner has chosen to approach the Labour Court by way of raising industrial dispute, which was not proper because this Hon ble Court has already passed an order in the writ petition filed by the petitioner and the case was remitted to the appellate authority, therefore, only option was left with the petitioner either to approach this Court by way of filing contempt petitioner or to hammer the appellate authority to decide the appeal as ordered by this Court but both the opportunities were not availed by the petitioner and another wrong remedy was availed by way of raising industrial dispute, knowingly well that there is an order passed by this Court in his favour whereby the appellate authority was directed to decide the appeal afresh and the order passed by appellate authority was set aside. Therefore, in my opinion, the petitioner s approach for raising industrial dispute was totally unwarranted. (19). The award passed by Judge, Labour Court, Jodhpur was challenged by the petitioner by way of filing fresh writ petition but the learned Single Judge of this Court rejected the said writ petition vide order dated 25.4.2000. Therefore, in my opinion, the petitioner s approach for raising industrial dispute was totally unwarranted. (19). The award passed by Judge, Labour Court, Jodhpur was challenged by the petitioner by way of filing fresh writ petition but the learned Single Judge of this Court rejected the said writ petition vide order dated 25.4.2000. Against the said order of learned Single Judge dated 25.4.2000, the petitioner preferred a special appeal before Hon ble Division Bench of this Court but the Hon ble Division Bench disposed of D.B. Special Appeal No. 470/2005 vide order dated 20.9.2004 filed by the petitioner by way of passing the following order: "Learned counsel for the respondents submits that there is every likelihood of the appeal having been decided upto now. The appeal is said to have been filed in the year 1986 it cannot be expected to remain pending but since the record is not traceable, definite information is not coming forthwith. Learned counsel for the appellant submits that his appeal has not been decided as per his information. In view of the above, if appeal has not been decided, the same may be decided forthwith. It is directed that the appeal if decided, the result may be communicated to the appellant, otherwise, if the same has not been decided the same be decided after reconstruction of the record. The appellant will cooperate with the respondents for reconstruction of the record. With these observations, the special appeal is disposed of." (20). The above order was further corrected by Hon ble Division Bench upon the application filed by the petitioner vide order dated 28.9.2005 whereby the year of appeal was corrected from 1986 to 1983. Meaning thereby after decision of Hon ble Division Bench because the petitioner s appeal was not decided earlier as ordered by this Court in the first writ petition, therefore, the appellate authority was under obligation to decide the appeal filed by the petitioner but again petitioner was compliance of the order passed by the Division Bench on 20.9.2004 and after issuing notice in the contempt petition, vide impugned order Annexure-19, the appeal filed by the petitioner was decided. In my opinion, the order of appellate authority is still non-speaking order and without considering the contentions raised by the petitioner in his appeal. In my opinion, the order of appellate authority is still non-speaking order and without considering the contentions raised by the petitioner in his appeal. Meaning thereby, again the appellate authority has committed disobedience of the order passed by the learned Single Judge in S.B. Civil Writ Petition No. 305/1984 decided on 10.7.1986 by this Court in which the following order was passed: "Mr. Parihar submits that a perusal of both these orders would show that they are absolutely illegal and non-speaking orders. I have perused both the orders, the order of termination as well as order of appellate authority dismissing the petitioner s appeal are non-speaking orders showing total non-application of mind. Since I am remanding this case back to the appellate authority therefore, I need not go into the other arguments raised by Mr. Parihar. It is least expected of the appellate authority that where an appeal is filed against the order of removal rendering the incumbent out of service then the appellate authority should atleast pass a speaking order on the basis of the grounds raised by the incumbent in his memo of appeal. But in Ex.5 dated 22nd April, 1984 the appeal of the petitioner has been disposed of in most cursorily manner without looking into the memo of appeal. Though the order of the disciplinary authority is not a very happy one but I am remanding this case back to the appellate authority to hear the petitioner and pass a detailed speaking order, the appellate authority will consider the wisdom of the order of disciplinary authority also. The writ petitioner is allowed in part and other Ex.5 dated 22nd April, 1984 is set aside and the case is remanded back to the General Manager (Traffic), Jaipur (appellate authority). The petitioner shall appear before the appellate authority on 31st July, 1986. No order as to costs." (21). Upon perusal of the appellate authority s order, it is clear that in casual manner, the appeal filed by the petitioner has been decided whereas in the first writ petitioner, specific order was passed to decide the appeal by way of speaking order and after taking into consideration the grounds taken by the petitioner. Therefore, the order dated 28.6.2006 is violative of principles of natural justice, so also, in contravention of the directions issued by this Court. Therefore, the order dated 28.6.2006 is violative of principles of natural justice, so also, in contravention of the directions issued by this Court. Admittedly, no evidence was recorded in the enquiry and at the time of deciding the appeal, it is observed in the appellate authority s order that ^^pkyd ds c;ku fy;s x;sA** Meaning thereby, at appellate stage, the statement of petitioner was recorded, which is not permissible under law. Upon perusal of the impugned order passed by the appellate authority, it is clear that it is totally without application of mind and without considering the grounds taken by the petitioner and without discussions any evidence. Therefore, the order is totally illegal and have no foundation to stand before eye of law. A bare perusal of the order of dismissal passed by the respondents dated 1.12.1983, it is abundantly clear that the order is not in consonance with the provisions of law. Although the order was passed after taking recourse of disciplinary enquiry but it is nowhere stated in the order that for which misconduct, the petitioner has been penalized. Bare perusal of the order passed by the disciplinary authority, it is revealed that there is no independent finding upon the charges levelled against the petitioner, so also, it is nowhere stated that how the petitioner is guilty of any misconduct. Therefore, the order of disciplinary authority, which is though merged into the order of the appellate authority are totally non-speaking order and without application of mind, so also in contravention of the order passed by learned Single Judge of this Court in the first writ petition filed by the petitioner. Further, both above orders are in contravention of the adjudication made Hon ble Apex Court in case of S.N. Mukherjee vs. U.O.I., reported in 1990 SCC (4) 595 in which the Hon ble Apex Court has held that the disciplinary authority as well as the appellate authority is required to pass speaking order by way of taking into account the material grounds and finding of the enquiry officer into consideration. The Hon ble Apex Court in para No. 36 and 39 of the aforesaid judgment held as follows: "36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. The Hon ble Apex Court in para No. 36 and 39 of the aforesaid judgment held as follows: "36. Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the order considerations, referred to above, which have also weighted with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasijudicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge. 39. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fairplay in action." As pointed out earlier the requirement about recording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding changes of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reasons can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework where under jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that affect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would outweight the salutary purpose served by the requirement to record the reasons. The said requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case." (22). In this view of the matter, both the order passed by disciplinary authority and the appellate authority are not sustainable. Therefore, this writ petition is allowed and both the orders dated 1.12.1983 and 28.6.2006 passed by disciplinary authority as well as the appellate authority respectively are hereby quashed and set aside. The respondents are directed to reinstate the petitioner with all consequential benefits. Therefore, this writ petition is allowed and both the orders dated 1.12.1983 and 28.6.2006 passed by disciplinary authority as well as the appellate authority respectively are hereby quashed and set aside. The respondents are directed to reinstate the petitioner with all consequential benefits. However, the petitioner has not approached the proper forum after earlier decision dated 12.7.1986 and Hon ble Division Bench has passed an order for deciding his appeal on 22.9.2004, therefore, in the interest of justice, the respondents are directed to grant relief of continuity in service to the petitioner right from the date of termination but the petitioner will not be entitled for cash benefits upto 22.9.2004 - the day on which Hon ble Division Bench has passed an order for deciding his appeal. The arrears w.e.f. 22.9.2004 shall be paid to the petitioner after making fixation in the revised pay scale rules right from his initial appointment within two months from the date of submitting certified copy of this order. No order as to costs.