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2011 DIGILAW 334 (RAJ)

Vandana Devi Vyas v. State of Rajasthan

2011-02-14

GOVIND MATHUR

body2011
JUDGMENT 1. - Shri Chandra Mohan Vyas husband of petitioner No.1 was in employment of the respondents as Compounder and was subjected to disciplinary proceedings under a memorandum dated 5.3.1987 issued by the disciplinary authority while exercising powers under Rule 16 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. The memorandum was supported by a charge-sheet and a statement of allegations relating to 13 misconducts. An explanation was submitted by the delinquent employee and after considering the same, under an order dated 24.2.1992, an Enquiry Officer was appointed to enquire into the allegations levelled. 2. The delinquent employee submitted several representations to the disciplinary authority as well as to enquiry officer with the assertion that he was facing criminal charges too for the same allegations as under adjudication in disciplinary action, therefore, the disciplinary proceedings be kept in2 abeyance till completion of the criminal case. The demand made by the delinquent was not accepted and the Enquiry Officer after going through certain official record, submitted his report to the disciplinary authority on 15.12.1999. After a lapse of about six years, the enquiry report aforesaid was supplied to the delinquent employee under a letter dated 6.6.2006 with the instruction to tender explanation, if any, relating to the findings given by the Enquiry Officer. The delinquent submitted a detailed note objecting the findings given and also submitting his explanation relating to the charges, for which he was held guilty. The disciplinary authority under an order dated 21.9.2006 accepted the findings given by the Enquiry Officer and imposed a penalty of compulsory retirement with proportionate pension. By the same order, the disciplinary authority also ordered that the petitioner shall not be entitled for payment of salary for the period he remained under suspension beyond the subsistence allowance already paid and that period shall also be not taken into consideration for determining pensionary benefits. A sum of Rs. 57,605.04/- too was ordered to be recovered from the petitioner's gratuity. 3. The delinquent preferred an appeal as per the provisions of Rule 23 of the Rules of 1958 before the next higher authority and that too came to be rejected on 5.8.2008. Unfortunately, the delinquent employee died on 11.3.2009 while on tour to3 Uttarakh , hence, this petition for writ to challenge the entire disciplinary action is preferred by his legal representatives. 4. Unfortunately, the delinquent employee died on 11.3.2009 while on tour to3 Uttarakh , hence, this petition for writ to challenge the entire disciplinary action is preferred by his legal representatives. 4. It is submitted that the entire disciplinary proceedings were conducted behind the back of delinquent employee and, therefore, the same is nothing but in flagrant violation of the doctrine of reasonable opportunity and principles of natural justice. It is further submitted that the violation of principles of natural justice is apparent as the Enquiry Officer has not at all considered the explanation tendered by the delinquent employee and also that the Enquiry Officer prescribe findings without consideration of each and every charge independently. 5. According to the learned counsel for the petitioner, the enquiry report is also not speaking one as required to be as per the law laid down by Hon'ble Supreme Court in the case of Anil Kumar v. Presiding Officer, reported in AIR 1985 SC 1121 . The order passed by the disciplinary authority is also questioned with the assertion that the same is in violation of the provisions of Rule 16(9) of the Rules of 1958. While depicting the order of appellate authority bad, it is submitted by learned counsel for the petitioner that the same is not in accordance with Rule 30 of the Rules of 1958. 6. A reply to the writ petition has been filed on behalf of the respondents emphasising that the delinquent employee was not at all co-operating with the enquiry proceedings, therefore, the Enquiry Officer relying upon the evidence adduced by the prosecution through Presenting Officer gave a definite finding. It is also stated that the disciplinary authority at its own considered the enquiry report and being in agreement with the findings, choose to impose a penalty of compulsory retirement with proportionate pension, that is commensurating to the guilt established. 7. It is also stated that though the reasons given by the disciplinary authority are sufficient, however, even if it is assumed that no finding against each and every charge is given, then too it do not make the order impugned bad as the order passed by the disciplinary authority is nothing but an order of concurrence. 8. 7. It is also stated that though the reasons given by the disciplinary authority are sufficient, however, even if it is assumed that no finding against each and every charge is given, then too it do not make the order impugned bad as the order passed by the disciplinary authority is nothing but an order of concurrence. 8. It is also submitted that as the delinquent employee was found guilty for a serious misconduct, the authority competent exercised powers under Rule 54(3) of the Rajasthan Service Rules, 1951 and decided not to make payment of salary for the period of suspension beyond the subsistence allowance. 9. Heard learned counsel for the parties. 10. The delinquent employee as per the averments contained in the writ petition was placed under suspension on 19.6.1982 and a memorandum under Rule 16 of the Rules of 1958 was served upon him on 5.3.1987. The Enquiry Officer was appointed on 24.2.1992. The Enquiry Officer submitted his report to the disciplinary authority on 15.12.1999 but a copy of the same with a notice demanding explanation was served upon the delinquent on 6.6.2006. 11. The facts stated above, clearly shows that the disciplinary action proceeded against the delinquent employee with excruciating sluggish pace. I fail to understand as to why the memorandum under Rule 16 was served upon the petitioner after a lapse of more than five years from the date of placing him under suspension. Even after issuance of the memorandum, the disciplinary authority took another five years in appointing the Enquiry Officer to make a probe in the matter. The Enquiry Officer took more than seven years in completion of enquiry, as his report was submitted to the disciplinary authority on 15.12.1999. Even after submission of the enquiry report on 15.12.1999, a copy of the same was issued on the delinquent employee on 6.6.2006 i.e. after a lapse of about 61/2 years. The disciplinary action to arrive at this stage consumed good 14 years. The sole anxiety for referring the facts above is that the fundamental principal for initiating disciplinary action is that6 a Government servant guilty of misconduct should be dealt with strenuously at the earliest and at the same time a Government servant be not victimised or be not allowed to face the agony of disciplinary action for an indefinite period. The sole anxiety for referring the facts above is that the fundamental principal for initiating disciplinary action is that6 a Government servant guilty of misconduct should be dealt with strenuously at the earliest and at the same time a Government servant be not victimised or be not allowed to face the agony of disciplinary action for an indefinite period. A disciplinary action remaining under process for a period of 14 years is nothing but an action arbitrary, unjust and against the public interest also. Such delay in disciplinary action is having adverse effect to the material which may be used by either of the party to reach an objective decision. Effective use of discipline maintaining mechanism with adequate speed is not vital only to the credibility of any administrative set up but also to the well being of public governance. 12. The delay caused in the disciplinary action in the present case as a matter of fact resulted into a subsequent hurried action as that appears with the order passed by the disciplinary authority. As per Rule 16(9) of the Rules of 1958, the disciplinary authority is required to consider entire material available on record. In the instant matter, the disciplinary authority has given reference of the enquiry report but not of the record. Under the Rules of 1958, the Enquiry Officer is required to forward his report along with the record of enquiry to the disciplinary authority. This means that the disciplinary authority is required to satisfy himself with the findings given by Enquiry Officer by examining the record. Simple acceptance or7 examination of the enquiry report without going through the record is contrary to the spirit of the Rules of 1958. As a matter of fact, the non-examination of the findings given in the enquiry report through cross-checking of the record is in violation of the doctrine of reasonable opportunity and also in general violation of principles of natural justice. The order of the disciplinary authority, in the present case, nowhere refers that the record was at all examined. 13. Besides the above, the order of the disciplinary authority is bad as he has not given his own finding against each and every charge. The order of the disciplinary authority, in the present case, nowhere refers that the record was at all examined. 13. Besides the above, the order of the disciplinary authority is bad as he has not given his own finding against each and every charge. The disciplinary authority as per the Rules of 1958 is under an obligation to provide his own finding to every charge that could have been done only by going through the record with the aid of the report given by the Enquiry Officer, however, as already stated earlier, the disciplinary authority has examined the enquiry report only and, as such, the natural flow of the error is that no findings against each and every change, as required are given. 14. Though after holding the order of disciplinary authority itself bad, it was not necessary to examine the validity of the order passed by the appellate authority, however, I have examined that too in view of the fact that ultimately the original order stood merged with the order of appeal. Rule 30 of the8 Rules of 1958 prescribes a procedure to consider an appeal preferred as per Rule 23 of the Rules of 1958. Rule 30 puts an embargo upon the appellate authority to keep several considerations in mind while examining the appeal and those are:- " RULE 30 Consideration of Appeals - (1) .................................................... (2) In the case of an appeal against an order imposing any of the penalties specified in Rule 14, the appellate authority shall consider:- (a) Whether the procedure prescribed in these rules has been complied with and if not whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice. (b) Whether the facts on which the order was passed have been established; (c) Whether the facts established afford sufficient justification for making an order; (d) Whether the penalty imposed in excessive, adequate or inadequate; [ after giving a personal hearing to the Government Servant to explain his case, if he desires so] and after consultation with the Commission if such consultation is necessary in the case, pass order - (i)setting aside, reducing, confirming or enhancing the penalty; or (ii)remitting the case to the authority which imposed the penalty or to any9 other authority with such direction as it may deem fit in the circumstances of the case :" 15. In the instant case, the appellate authority acted in most mechanical manner. The order of the appellate authority nowhere discloses as to how he reached at the conclusion that the disciplinary authority adhered the procedure prescribed for holding the enquiry and what was the material available to establish the facts giving credal to the findings. The important consideration before the appellate authority is that to examine justification of choosing a specific penalty from amongst various penalties given under Rule 14 of the Rules of 1958 and this consideration aforesaid acquires much importance for the reason that the punishment imposed at the one hand must be commensurate to the guilt established and at the same time should be reasonable also. In the instant case, the appellate authority failed to consider the appeal of the delinquent, from this aspect also though in the memo of appeal the delinquent employee referred and agitated the question of disproportionate penalty also. For the reasons given above, I am satisfied that the order passed by the appellate authority is also bad being in violation of Rule 30 of the Rules of 1958. 16. In view of the discussion made above, this petition for writ deserves acceptance. Accordingly, the same is allowed. The10 order passed by the disciplinary authority dated 21.9.2006 and also the order passed by the appellate authority dated 5.8.2008 are declared illegal and, therefore, the same are quashed. The delinquent employee thus is required to be treated in employment till his death or the date of his retirement on attaining the age of superannuation, whichever is earlier. The petitioners being the legal representatives of deceased Government servant are entitled for all consequential benefits.No order as to costs.Writ Petition Allowed - Delinquent Treated in Service Till His Death or Date of Retirement and Consequential Benefits be Given Being The Legal Representative. *******