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2009 DIGILAW 1026 (RAJ)

J. S. Sidhu : J. S. Sidhu v. State of Rajasthan

2009-04-15

VINEET KOTHARI

body2009
JUDGMENT 1. - Heard the learned counsels. 2. The present writ petition has been filed by the petitioner J.S. Sidhu, an Executive Engineer working in Ground Water Department against the order Dated 5.5.1995 imposing punishment of compulsory retirement from service after holding enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. The impugned order has been passed by the Dy. Secretary of the State Government under the order of Governor on 5.5.1995. 3. This writ petition is second round litigation and the petitioner had approached this Court on an earlier occasions also by way of earlier writ petition No. 1533/1991 which came to be disposed of by this Court on 3.5.1991. The said writ petition was directed against the earlier punishment order dated. 27.11.1990 imposing the same punishment of compulsory retirement from service and payment if proportionate pension. Though the said order dated. 27.11.1990 was challenged on various grounds as observed by the Learned Single Judge in para 4 of the order that "though several questions were agitated by the learned counsel for the petitioner, but the present writ petition can be disposed of only on the point i.e. what will be the effect of non-supply of copy of report of enquiry officer to the delinquent before the decision was taken by the Disciplinary Authority imposing punishment of compulsory retirement when the Disciplinary Authority and the Enquiry Officer are two different persons and therefore I do not thing it necessary to consider other points raised by the, learned counsel for the petitioner." The learned Single Judge then proceeded to allow the writ petition quashing impugned punishment order dated. 27.11.1990 and directed the respondents to respondents supply copy of enquiry report to the petitioner in following terms:- "In the result, this writ petition, filed by the petitioner is allowed and the order Annexure 1 dated, November 27, 1990 imposing the punishment of compulsory retirement against the petitioner is set aside but the Disciplinary Authority will be at liberty to proceed with an enquiry proceeding against the petitioner from the stage of supply of the copy of the enquiry report to the petitioner and this decision will not in any way preclude the disciplinary authority to proceed with the enquiry and to pass appropriate order in accordance with law after following the principle of natural justice. S/d. (B.R. Arora) J." 4. S/d. (B.R. Arora) J." 4. In compliance with the said decision of this Court, the respondents supplied copy of enquiry report along with their letter dated, 20.12.1991 and the petitioner was asked to make his representation within 15 days thereof. According to para 3 of the writ petition which has been admitted in reply filed by the respondents, the petitioner came to know that prosecution has produced 15 documents before the Enquiry Officer, but the copies of these documents were not made available to the petitioner before initiating enquiry and during the enquiry as per para 4 of the writ petition, these documents were supplied to the petitioner on 10.6.1994 and the petitioner was asked to give reply. Thereafter the Petitioner again asked vide his letter dated. 22.6.1995, Ex. P/4 to supply to him the complete copy of Ex. P/10 document, which was also supplied to him the petitioner vide letter dated, 19.7.1994. The petitioner inform the respondents that he would file his final representation against the show cause notice for punishment before 15.8.1994. According to the petitioner, he sent this representation dated, 11.8.1994 by registered A.D. Post vide dispatch No. 49, dated 11.8.1994 as stated in pare 8 of the writ petition. According to the learned counsel for the petitioner since the impugned order of punishment of compulsory retirement was passed on 5.5.12995 (Ex.P/9) without considering the said representation of the petitioner, the said order was liable to be quashed being in breach of principles of natural justice. 5. Mr. H.S. Sidhu, learned counsel for the petitioner making his vehement and lengthy arguments took the Court through various annexures and enquiry report as well as impugned order dated 5.5.1995 (Annex.P/9) and urged the following in support of the writ petition with a prayer to quash the impugned punishment order (Annex.P/9) dated. 5.5.1995 and his arguments can be summarised as under : i) Since the representation of the petitioner dated. 11.8.1994 Annex. P/7 has not been considered while passing the impugned order on 5.5.1995 imposing punishment of compulsory retirement, there is breach of principles of natural justice and the impugned order deserves to be quashed. Mr. 5.5.1995 and his arguments can be summarised as under : i) Since the representation of the petitioner dated. 11.8.1994 Annex. P/7 has not been considered while passing the impugned order on 5.5.1995 imposing punishment of compulsory retirement, there is breach of principles of natural justice and the impugned order deserves to be quashed. Mr. Sidhu drew the attention of the Court towards internal page of the impugned order in which it is noted that the petitioner has failed to submit any representation in pursuance of show cause notice after the enquiry report was supplied to him and therefore, discussing the contents of enquiry report and giving reasons and agreeing with the findings of the enquiry report, the Disciplinary Authority has passed the said order without application of mind. ii) Since 15 documents in question were never supplied to him prior to initiation of enquiry or during the course of enquiry, the petitioner has been deprived of his right to defend in the enquiry and rebut adverse material used against him in the enquiry and therefore, I the impugned punishment order deserves to be quashed. iii) Charges pertain to the year 1985 and since then long period of approximately 25 years has passed and therefore, instead of remanding the case back to the impugned order deserves to be quashed and the petitioner deserves to be reinstated back in service with all consequential benefits. Mr. Sidhu submitted that even though the petitioner who was 52 years of age in the year 1995 when he filed the present writ petition may have attained the age of superannuation by now, he would be entitled to monetary and other consequential benefits. iv) The preliminary enquiry against the petitioner was also held without any participation by the petitioner and no documents were supplied to him during the course of preliminary enquiry and since the finding in the regular enquiry the enquiry officer's itself deserves to be quashed and if the enquiry report is held to be illegal, the impugned order of punishment is bound to fall on the ground. v) Initially, one Mr. F.M. Golani was appointed as Presenting Officer to conduct enquiry against petitioner against whom the petitioner had litigation pending in this Court about seniority and therefore, the said P.O. Mr. v) Initially, one Mr. F.M. Golani was appointed as Presenting Officer to conduct enquiry against petitioner against whom the petitioner had litigation pending in this Court about seniority and therefore, the said P.O. Mr. Golani was biased against him and therefore, the enquiry in question cannot be said to be fair enquiry and consequently both the enquiry report as well as the impugned punishment order deserve to be quashed. Mr. H.S. Sidhu relied on several decisions, in support of his submissions, reference to which may be made here : i) 2008(8) SCC 236 - in support of the contention that where other documents are supplied to the delinquent after the enquiry is vitiated. ii) 1972 AIR (SC) 330 - in support of the intention that the case of no evidence against the delinquent, finding of enquiry, holding him guilty cannot be sustained. iii) 1981 WLN (UC) 1981 : 1985(3) SCC 120 and 1985(3) SCC 378 - in support of the contention that where the enquiry report is held to be bad in law, no penalty can be imposed. iv) 2006(5) SCC 88 - in support of the contention that findings of enquiry report are contrary to the charges. v) 2007(4) Service Case Today 50. - in support of the contention that the disciplinary authority to himself apply his mind independently. To the same effect he also relied upon on the judgments reported in 1991(2) RLR 630 , 1989(1) RLR 99 , 1986(3) SCC 229 , 1989 RLR 587 . vi) 2008(3) CDR 1709 in support of the contention that after long lapse of period of 5 years, no remand or fresh enquiry can be permitted. vii) 2007(4) SCC 92 in support or the contention that the Court can invoke extraordinary jurisdiction under Article 226 of the Constitution of India and quash the enquiry report. viii) 1992 WLR 378 in support of the contention that where the documents are not supplied, preliminary enquiry is liable to be quashed. 6. Thus Mr. Sidhu submitted that in the present case, there has been serious breach of principles of natural justice and the enquiry report as well as impugned punishment order deserves to be quashed and the petitioner is entitled to all consequential benefits. 7. These arguments are vehemently opposed by the learned counsel Mr. B.S Bhati, Addl. Govt. 6. Thus Mr. Sidhu submitted that in the present case, there has been serious breach of principles of natural justice and the enquiry report as well as impugned punishment order deserves to be quashed and the petitioner is entitled to all consequential benefits. 7. These arguments are vehemently opposed by the learned counsel Mr. B.S Bhati, Addl. Govt. Counsel appearing for the respondents who vehemently urged that the petitioner has not come to this Court with clean hands and has made false averments and statements in the present writ petition and the writ petition itself deserves to be dismissed with exemplary costs and the petitioner is not entitled any relief in the present matter. With the help of original record produced before this Court. Mr. Bhati made the submissions which can be summarised as under: i) After the order dated 3.5.1991 was passed by this Court disposing of the earlier writ petition No. 1573/1991 of the petitioner directing the respondents to supply copy of enquiry report to the petitioner as the same was not supplied prior to passing of earlier punishment order dated 27.11.1990, the respondents immediately supplied him the same along with letter dated. 20.12.1991 and requested the petitioner to make his representation or reply within 15 days of the said dated 20.12.1991, but the petitioner did not respond. Many and constant reminders were sent to him on 6.4.1992, 4.9.1992, 29.4.1994, 10.6.1994 and 4.7.1994 for doing so but he did not file any reply or representation against the how cause notice for punishment in pursuance of the enquiry report as permitted by the Court. Thus, for atleast 2 and years despite constant reminders from the respondent's side the petitioner failed to make any representation and deliberately sat tight over the matter. ii) Vide letter dated 19.7.1994 (Ex. P/6) the petitioner committed that he would positively file his written representation before 15.8.1994, even that the did not file his representation on or before 15.8.1994. iii) With the help of record, Mr. B.S. Bhati submitted that the said representation dated 11.8.1994 claimed to have been sent vide registered A.D. Post produced as Annex. P/7 with the writ petition which bears on the top page of the said representation the remark "Regd. A.D." was not in fact sent by registered A.D. Post vide dispatch No. 49 dated. B.S. Bhati submitted that the said representation dated 11.8.1994 claimed to have been sent vide registered A.D. Post produced as Annex. P/7 with the writ petition which bears on the top page of the said representation the remark "Regd. A.D." was not in fact sent by registered A.D. Post vide dispatch No. 49 dated. 11.8.1994 at all, but the said re-presentation was produced by the petitioner Personally on 23.8.1994 and was forwarded to the Department of Personnel at Jaipur which was received there vide inward No. 6585 dated, 26.8.1994. Mr. Bhati also, denied the contents of Ex. P/8 alleged dispatch register which is said to have been maintained by the office of the petitioner himself and submitted that the said representation was never sent by registered AD post as claimed by the petitioner and in fact, the petitioner has made false statement in the writ petition before this Court and alleged non consideration of this representation is the ground of attack against the impugned penalty order compulsory retirement, therefore, the said conduct of petitioner disentitles him from any relief in the extraordinary jurisdiction under Article 226 of the Constitution of India. iv) Mr. Bhati further submitted that the of the learned counsel for the petitioner that 15 documents were not supplied to the petitioner during the course of enquiry and he came to know of the said documents are being supplied copy of the enquiry report in pursuance of this Court's direction on 3.5.1991 is also absolutely false. He produced before this Court a copy of letter dated 1.8.1986 given by the petitioner himself that he has inspected the entire record of the enquiry proceedings in the chamber of Dy. Secretary, Department of Personnel, Rajasthan Jaipur between 30.7.1986 to 31.7.1986. Vide letter dated. 30.8.1986 of the petitioner, the petitioner is further said to have received copies of records on the basis of which charges were framed against him and in the order-sheet dated 11.4.1988. In his written statement and arguments dated 11.4.1988 the petitioner has clearly admitted in the first para itself that in support of the charges, he has been supplied 9 documents and list of three witnesses, namely, Sh. Bhanwar Nath, LDC, Bhura Lal Patidar, LDC and Vivek Prakash Mathur, Chief Engineer for charge No. 1 and for charge No. 2, other 6 documents and aforesaid list of three witnesses was supplied to him. Mr. Bhanwar Nath, LDC, Bhura Lal Patidar, LDC and Vivek Prakash Mathur, Chief Engineer for charge No. 1 and for charge No. 2, other 6 documents and aforesaid list of three witnesses was supplied to him. Mr. B.S. Bhati, therefore, submitted that all the 15 documents in question, which are referred to in the enquiry report were already supplied to the petitioner during the course of enquiry itself and he has himself admitted so in his written statement dated 11.4.1988. Therefore, his averment that he came to know of these 15 documents only after supply of enquiry report in pursuance of this Court's direction on 3.5.1991 is absolutely false statement to his knowledge and since the petitioner has sought to mislead, the court on this issue therefore, the writ petition deserves to be dismissed. v) Charges against the petitioner were serious and the enquiry officer after holding regular enquiry had found the petitioner guilty for both the charges and therefore, the punishment of compulsory retirement imposed upon the petitioner is not required to be interfered with by this Court. The charges against the petitioner were that while working is Executive Engineer, DPAP, the Ground Water Department, Dungarpur, the petitioner had withdrawn a sum of Rs. 2500/- as advance from the State Government and for adjustment of the said advance, he has produced forged vouchers, bills of purchase of 744 liters of diesel and has thus embezzled Government money and has caused financial loss to the Government. The charge No. 2 against the petitioner was that while working on the said post on 17.2.1982 for purchase of petrol and mobile oil, the petitioner had withdrawn the money from imprest but did not pay the said, the said conduct amounted to lowering the image of the Department and misuse of his office. vi) The next contention of Mr. B.S. Bhati, learned Additional Government Counsel was that the present petition is also barred by the principles of constructive res judicata as the same contentions were raised at the time of earlier writ petition No. 1573/1991 which was disposed of by this Court on 3.5.1991 and therefore, the said contentions cannot be raised at this stage. vii) Mr. B.S. Bhati, learned Additional Government Counsel was that the present petition is also barred by the principles of constructive res judicata as the same contentions were raised at the time of earlier writ petition No. 1573/1991 which was disposed of by this Court on 3.5.1991 and therefore, the said contentions cannot be raised at this stage. vii) Mr. B.S. Bhati, learned counsel for the respondent also relied upon a catena of judgments in support of his detailed submissions which may be noticed as under : a) AIR 1997 (SC) 2148 - in support of the contention that after full-fledged regular enquiry defect in preliminary enquiry loses its significance. b) AIR 1960 SC 1727 - in support of the contention that if the disciplinary authority agrees with the findings of the enquiry officer, no separate reasons are required to be assigned by him. c) AIR 1976 (SC) 1080 and AIR 1999 (SC) 2407 - in support of the contention that strict rule of evidence cannot the applied to the disciplinary proceedings. d) AIR 1965 (SC) 1103 - in support of the contention that under Article 226 of the Constitution of India the Court cannot sit as appellate authority over the disciplinary authority. e) AIR 1996 (SC) 484 to the effect that the Court cannot be substitute its own punishment in place of punishment imposed authority. f) AIR 1965 SC 1150 and 2008(2) SCC 19 - on the contention of constructive res judicata and the present writ petition being barred by the same. 8. Mr. e) AIR 1996 (SC) 484 to the effect that the Court cannot be substitute its own punishment in place of punishment imposed authority. f) AIR 1965 SC 1150 and 2008(2) SCC 19 - on the contention of constructive res judicata and the present writ petition being barred by the same. 8. Mr. B.S. Bhati learned counsel for the respondents also vehemently submitted that since detailed enquiry was held against the petitioner and charges were held proved and the petitioner was guilty of serious charges, punishment of compulsory retirement with principles pension is just and proper punishment and the pies of natural justice have been duly anti fully complied with holding regular enquiry against the petitioner under Rule 16 of Rules of 1958 and mere mention though Inadvertently in the 14 impugned order dated 5.5.1995 that the petitioner has failed to make such representation was received in the office of respondents on any representation does not alter the position in any case because such representation was received in the office of respondents on 23.8.1994 and not sent by the registered AD post as on 11.8.1994 as claimed by the petitioner which was immediately forwarded to the Rajasthan Public Service Commission where the recommendations of the compulsory retirement of the petitioner was sent for approval and after consideration of such representation and after approval by the RPSC only the said impugned order was passed on 5.5.1995. He submitted that not only the petitioner failed to make any representation right after 20.12.1991 when copy of a enquiry report was supplied to him in pursuance of directions of this Court dated. 3.5.1991 while disposing of his earlier writ petition and the petitioner took more than 2 and years and the defence of the petitioner was fully considered by the Enquiry Officer with whom the disciplinary authority agreed as would appear from the impugned order, there was no reason to assign separate reasons and discuss the representation received on 23.8.1994 separately which the petitioner delinquent did not furnish within time despite several reminders to him and his own commitment to file the same on or before 15.8.18994 vide Ex.P/6 dated. 19.7.1994. He prayed for dismissal of the writ petition with exemplary costs. 9. I have heard the learned counsels at length and perused the record of the case and the case laws cited at the Bar. 19.7.1994. He prayed for dismissal of the writ petition with exemplary costs. 9. I have heard the learned counsels at length and perused the record of the case and the case laws cited at the Bar. In the considered opinion of this Court, them writ petition filed by the petitioner has no force and deserves to be dismissed. The reasons are as follows. 10. The principles of natural justice, breach of which is claimed to be the main ground for attacking the impugned punishment is not an argument well founded by the petitioner. From the record, it appears that the petitioner has not only participated in the enquire proceedings but was supplied copies of the documents which he claims to have not received until after supply of copy of the enquiry report in pursuance of directions of this Court but he also deliberately withheld and did not file his reply or objection to the show cause notice of the purposed punishment of compulsory retirement even notice after supply of said enquiry report for well over 2 and years despite several reminders by the respondents. In these circumstances, who should be held guilty of breach of principles of natural justice is anybody's guess. The Hon'ble Supreme Court in the case of Board of Mining Examinations v. Ramdeen reported in, AIR 1977 (SC) 965 , held that the principles of natural justice is neither unruly horse nor lurking mine nor judicial cure all. 11. This Court also takes exception to the apparently wrong statement made by the petitioner that he sent representation dated. 11.8.1994 by registered AD post vide dispatch No. 49 dated. 11.8.1994 to the respondents whereas no such registered postal receipt has been produced by the petitioner. The respondents produced this letter on record which does not bear the remark "Regd D.P as shown on Annex. P/7 produced by the petitioner with the writ petition. It appears that since the petitioner in previous letter Ex. A/6 dated 19.7.1994 had undertaken to file a representation on or before 15.8.1994, he produced this representation dated, 11.8.1994 claimed to have been sent by registered AD post on the same date so as to show that the same was filed before 15.8.1994, Whereas the fact is that he submitted the same by hand on 23.8.1994. A/6 dated 19.7.1994 had undertaken to file a representation on or before 15.8.1994, he produced this representation dated, 11.8.1994 claimed to have been sent by registered AD post on the same date so as to show that the same was filed before 15.8.1994, Whereas the fact is that he submitted the same by hand on 23.8.1994. This is after lapse of the period of 2 and years which the petitioner took and allowed to lapse by not filling his representation of objections to the show cause notice after the copy of the enquiry report was supplied to him in pursuance of directions of this Court dated, 3.5.1991 at least with letter dated, 20.12.1991 in which he was asked to give his is representation within 15 days thereof. For what reason this period of 2 and years till 23.8.1994 was taken by the petitioner is anybody's guess. The person who delays disciplinary action against him for over 2 and years in this manner by not submitting his representation despite several reminders by the respondent-authority cannot cry wolf form the rooftop on the house of principles of natural justice. The Alleged breach of principle of natural justice in such matters cannot act like magic wand which will undo entire disciplinary action against him be that finding holding him guilty on the bases of evidence of serious Charges of embezzlement or a detailed order of punishment passed by the disciplinary authority agreeing with the findings of Enquiry officer that too with the approval of independent body like Rajasthan Public Service Commission. The petitioner was holding a responsible position of Executive Engineer in the Ground Water Works Department and this Court is at loss to understand what prevented him from immediately filing his representation after receipt of enquiry report once his earlier writ petition came to be allowed on 3.5.1991 directing the respondents to supply copy of enquiry report and in absence of which the earlier punishment order of the same nature dated, 27.11.1990 came to be quashed by this Court. As this was a second round of disciplinary action from that stage only as directed by this court against the petitioner, he could have very well immediately furnished his representation and allowed the disciplinary authority to pass his appropriate orders. As this was a second round of disciplinary action from that stage only as directed by this court against the petitioner, he could have very well immediately furnished his representation and allowed the disciplinary authority to pass his appropriate orders. In view of this conduct of the petitioner, this Court cannot invoke its misplaced sympathy in favour of the petitioner to strike down and quash the impugned order merely on the ground of so called breach of principles of natural justice, which in the opinion of this Court, cannot be said to have been breached by the respondents in any manner. Mere inadvertent mention in the impugned order dated, 5.5.1995 that the petitioner failed to make such representation, dies not render the said order illegal and void. The respondents made their breast clean by clearly admitting before this Court that such representation was received by hand though not by registered AD post as claimed by the petitioner on 23.8.1994, and the impugned order cannot be said the have been vitiated. 12. The claim of the petitioner that 15 documents in question were never supplied to him during the pendency of enquiry also falls flat on the ground by his own admission in the written statement dated, 11.4.1988 as would appear from the record produced before this Court that he had admitted that he not only inspected the entire record, but received these 15 documents in respect of two charges and therefore, he did not require any further document. The learned counsel for the petitioner failed to point out that these 15 documents were different than those already received by him. Therefore, this argument raised by the learned counsel for the petitioner is also a bogey of breach of natural justice, which cannot be sustained Likewise, the contention of the learned counsel for the petitioner that during preliminary for fact finding inquiry also, there was a breach of natural justice, has no force. The regular enquiry held thereafter with due participation by the delinquent obliterates any such objection during the course of preliminary enquiry. 13. The regular enquiry held thereafter with due participation by the delinquent obliterates any such objection during the course of preliminary enquiry. 13. In view of settled legal position stated by the learned counsel for the respondents that this Court cannot sit as Court of appeal or tinker with the quantum of punishment imposed on the delinquent, this Court is not inclined to interfere in the present writ petition in the impugned order of compulsory retirement with proportion the pension passed against the petitioner. The judgment relied upon by the learned counsel for the petitioner, without any dispute to the legal propositions laid down in them, are of little help to the petitioner as the facts established in the present case do not make out any ground for quashing the enquiry or the impugned punishment order in favour of the petitioner. 14. Consequently, this writ petition is liable to be dismissed and the same is accordingly dismissed with no order as to costs. WRIT PETITION NOS. 4045/1995 15. Since this writ petition has been filed by the petitioner for quashing the order dated 4.9.1993 Annex.P/3 by which for the period between 27.11.1990 to 20.11.1991, the petitioner was treat to placed under suspension as per Rule 13(4) of the CCA Rule. The writ petition also cannot be allowed in view of clear provision of Rule 13(4) the CCA Rules, which speaks of deemed suspension of said period where the petitioner was reinstated in service in pursuance of directions of this Court dated 3.5.1991 allowing this writ petition No. 1573/1993 quashing earlier punishment order dated, 27.11.1990. The Rule 13(4) of the CCA Rules reads as under : "13. Suspension : (1)... (2)..... (3).... (4) Where a penalty of dismissal, removal or compulsory retirement from service imposed upon a Government servant is set aside or declared or rendered void in consequence or by a decision of a Court of law and the disciplinary authority, a consideration of the circumstances of the case, decides to hold a further inquiry against him on penalty of dismissal, removal or compulsory retirement was originally servant shall be deemed to have been placed under suspension by the Appointing Authority from the date of the original order of dismissal, removal or compulsory retirement and shall continue to remain under suspension until further orders." 16. In view of the above, this writ petition also deserves to be dismissed and the same is accordingly dismissed, with no order as to costs.Petition dismissed. *******