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2012 DIGILAW 640 (RAJ)

Hari Gopal v. Rajasthan High Court, Jodhpur

2012-03-14

A.M.SAPRE, DINESH MAHESHWARI

body2012
JUDGMENT 1. - This intra-court appeal by the petitioner-appellant is directed against the order dated 07.09.2001 whereby the learned Single Judge of this Court dismissed the writ petition (CWP No.479/2001) and declined to interfere in the orders dated 23.03.1999 (Annex.14) whereby the District & Sessions Judge, Jaisalmer, in his capacity as the Disciplinary Authority, had imposed on the petitioner the penalty of removal from service; and dated 12.10.2000 (Annex.16) whereby the Appellate Committee had dismissed the appeal filed by the petitioner and affirmed the penalty so imposed. 2. The learned Single Judge of this Court dealing with the writ petition found no illegality in the impugned orders as passed against the petitioner-appellant in the disciplinary proceedings so as to call for interference under Article 226 of the Constitution of India; and proceeded to dismiss the writ petition with a short order that, in its entirety, reads as under:- "In this petition, under Article 226 of the Constitution of India, the petitioner is praying for quashing and setting aside of the Annexures 16 and 14 dated 12.10.2000 and 23.3.99 respectively. Having heard learned counsel for the parties and gone through the impugned orders, I am satisfied that there is no merit in this petition. Looking to the past service record of the petitioner, I am satisfied that no lenient view is called for in the matter. On enquiry under Rule 17 of the CCA Rules, 95, he was visited with punishment of "censure" in the year 1990. In 1992, he was again given a written warning on conclusion of enquiry under Rule 16. In 1993 he was punished by a penalty of stoppage of one increment without future effect. In 1995 penalty of stoppage of two increments with cumulative effect was inflicted. Which was on appeal modified to stoppage of one increment. In 1996 in another enquiry, he was punished with penalty of stoppage of three increments. The petitioner was transferred by the order dated 5.2.98 from Special Judge A.C.D. Cases, Jodhpur to Jaisalmer Judgeship. He was relieved from duty on 4.3.98. Inspite of the fact that he was relieved on 4.3.98, he did not join his duties at Jaisalmer. A notice was sent to him for this misconduct of not complied with the order dated 5.2.98. In the enquiry he adopted an attitude of non co-operation and rightly ex parte proceedings were taken against him. Inspite of the fact that he was relieved on 4.3.98, he did not join his duties at Jaisalmer. A notice was sent to him for this misconduct of not complied with the order dated 5.2.98. In the enquiry he adopted an attitude of non co-operation and rightly ex parte proceedings were taken against him. The petitioner failed to furnish any explanation for his act of non compliance of the order of his transfer. I do not find any illegality in the impugned order which call for any interference of this Court under Article 226 or 227 of the Constitution of India. As result of the aforesaid discussions, this writ petition fails and same is dismissed. In the facts of this case, no order as to costs." 3. In brief, the relevant facts and background aspects, in their feasible chronology, could be taken into comprehension as follows: The disciplinary proceedings leading to the writ petition had their genesis in an order dated 05.02.1998 whereby the High Court transferred the petitioner, who was working on the post of Upper Division Clerk in the Court of the Special Judge, ACD Cases, Jodhpur, to Jaisalmer Judgeship with immediate effect. The petitioner made a representation to the Registrar General of the High Court for cancellation of his transfer on 17.02.1998 (Annex.2) and allegedly proceeded on leave on 26.02.1998. According to the petitioner, while on leave, he was served with the relieving order on 04.03.1998. 4. The petitioner-appellant approached this Court by filing a writ petition (CWP No. 1096/1998) against the transfer order aforesaid. The learned Single Judge of this Court disposed of the said writ petition on 06.04.1998 (Annex.3) with directions to the Registrar General to decide the representation of the petitioner by a speaking order expeditiously and after giving an opportunity of hearing. The case of the petitioner has been that the certified copy of the order dated 06.04.1998 was presented in the Office of the Registrar General with a written request (Annex.4); and he presented himself for personal hearing on 04.05.1998 but no hearing took place as the Registrar General was not available at Jodhpur. The petitioner, however, averred that ultimately, the hearing took place on 13.07.1998; and the Registrar General passed an order on 18.09.1998 in rejection of his representation. 5. The petitioner, however, averred that ultimately, the hearing took place on 13.07.1998; and the Registrar General passed an order on 18.09.1998 in rejection of his representation. 5. At this juncture, worthwhile it is to notice that according to the respondents, the petitioner was relieved from the Court of Special Judge, ACD Cases, Jodhpur but he did not comply with the transfer order and did not join the duties at the transferred place and, instead, sent certain telegrams for leave and extension of leave. According to the respondents, ultimately, the notices were sent to the petitioner on 24.07.1998 that were returned with the endorsement of refusal and hence, treating the service complete, an order was passed for initiating disciplinary proceedings against the petitioner under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958; and that memo and charge-sheet were sent to the petitioner on 12.08.1998 that too were returned with the endorsement of refusal. The respondents submit that in the aforesaid circumstances, the charge-sheet was published in the newspaper in order to provide the petitioner with another opportunity for making submissions. In this regard, the petitioner has averred that the memo of charges was published in the daily newspaper Jalte Deep on 30.08.1998; that he came to know about the said proceedings on 02.09.1998 and made a request for keeping such proceedings in abeyance until the order was passed by the Registrar General on his representation. 6. As noticed, the Registrar General had rejected the petitioner's representation on 18.09.1998. 7. The respondents have pointed out that after rejection of representation, further notices were sent to the petitioner until 21.10.1998 but the same were now returned with the endorsement that the addressee was 'not found'. In any case, it is an admitted position of the parties that on 21.11.1998, the petitioner-appellant did receive a notice from the respondents. 8. The case of the petitioner is that at the time of receiving the said notice on 21.11.1998, his only son, about 4= years of age, was struggling with life and he made a request for time on the copy of this notice itself; and that on 28.11.1998, while leaving for Mumbai for the purpose of treatment of his son, he made another representation to the Hon'ble Chief Justice for re-transferring him to Jodhpur and the Disciplinary Authority was also requested to postpone the inquiry. 9. 9. The respondents admit having received the aforesaid application of the petitioner for postponement of the inquiry but submit that he did not state the date for his appearance and in the circumstances, the hearing was fixed for 18.12.1998 and the petitioner was informed accordingly but he did not appear. The petitioner, on the other hand, submits that he sent the adjournment requests to the Disciplinary Authority from Mumbai on 16.12.1998 and then, on 03.01.1999. 10. The aforesaid exchanges of communications and stand of the respective parties make out that while the respondents had been sending repeated notices for appearance in the inquiry proceedings, the petitioner, in the first place, did not appear and at the later stage, prayed for adjournments, essentially on the ground of ailment of his son. 11. It is not in dispute that on 14.01.1999, the petitioner's son breathed his last at Mumbai. 12. The case of the petitioner is that the matter was fixed for personal hearing on 28.01.1999 and though he sent a telegram requesting for adjournment as his only son had expired on 14.01.1999 but the authority concerned, without regard to the cause shown by him and to his adverse circumstances, proceeded to pass the ex parte order; and the findings were communicated to him for imposition of penalty on 05.03.1999 (Annex.11). 13. The petitioner has averred that he reported on duty on 08.03.1999 and submitted his joining report but was not allowed to join the duty. The petitioner has further averred that he submitted a reply on 22.03.1999 (Annex.13) and prayed for an opportunity of hearing. However, according to the petitioner, the authority did not accept his prayer for setting aside ex parte proceedings and proceeded to pass the impugned order on 23.03.1999 (Annex.14). The petitioner has further pointed out that he submitted an appeal on 02.07.1999 but the same was also rejected by the order dated 12.10.2000 (Annex.16). 14. Essentially, the charges against the petitioner in the disciplinary proceedings had been of absenteeism and of not joining the duty pursuant to the transfer order dated 05.02.1998. The Disciplinary Authority considered the record of the case and found the misconduct amply established; and there being no plausible explanation on the part of the petitioner for not joining the duties at the new place of posting despite being relieved on 04.03.1998, the Disciplinary Authority found the petitioner not interested in rendering the services. The Disciplinary Authority considered the record of the case and found the misconduct amply established; and there being no plausible explanation on the part of the petitioner for not joining the duties at the new place of posting despite being relieved on 04.03.1998, the Disciplinary Authority found the petitioner not interested in rendering the services. The Disciplinary Authority, accordingly, imposed the penalty on the petitioner of removal that would not be a disqualification for future employment. The Appellate Committee further considered the record of the case with reference to the submissions of the petitioner and found no case for interference. 15. The petitioner preferred the writ petition leading to this appeal with the submissions that the Disciplinary Authority concerned proceeded in breach of the principles of natural justice and that his request for adjournment was declined without regard to the adversity suffered by him due to the demise of his son. As noticed, the learned Single Judge found no case for interference and dismissed the writ petition by the impugned order dated 07.09.2011. Aggrieved of the order aforesaid, the petitioner-appellant has preferred this intra-court appeal. 16. It is contended on behalf of the petitioner-appellant that he could not appear before the Disciplinary Authority on 28.01.1999 for a rather unfortunate reason that his only son expired on 14.01.1999 at Mumbai. It is submitted that the petitioner-appellant made a request for setting aside the ex parte proceedings and for giving him a chance for participation in the inquiry proceedings but his request was declined without regard to the facts and the reasons. It is also pointed out that fact of the petitioner having made a request for adjournment under the telegram was duly taken note of by the learned Single Judge while issuing notices in the writ petition on 05.02.2001 but such an aspect was neither replied to by the respondents nor considered by the learned Single Judge while dismissing the writ petition. It is further submitted that when the appellant was not given any opportunity to explain and defend his acts, the learned Single Judge has committed an error of law in dismissing the writ petition for want of explanation for non-compliance of the transfer order; rather the learned Single Judge has failed to appreciate the position that the proceedings were taken against the petitioner in his absence and further the learned Disciplinary Authority unreasonably refused to set aside the ex parte proceedings. It is also submitted that the petitioner has stated all his explanations on the alleged imputations but the same have neither been considered by the authorities dealing with the disciplinary matter nor by the learned Single Judge. The learned counsel for the petitioner-appellant also made the submissions in the alternative for sympathetic consideration of the case as the petitioner has lost his only son during the period in dispute and urged that for the misfortune befalling the petitioner, on humanitarian ground, the penalty deserves to be converted into that of compulsory retirement on proportionate pension. 17. Per contra, the learned counsel for the respondents has duly supported the orders impugned and submitted that the Appellate Committee has dismissed the appeal by a detailed and reasoned order and there had not been any denial of basic principles of natural justice. On the contrary, according to the respondents, the petitioner himself avoided to carry out compliance of the transfer order and then avoided the disciplinary proceedings. 18. After having given anxious consideration to the rival submissions and having examined the material on record including the detailed and considered orders passed by the Disciplinary Authority and the Appellate Committee, we are not persuaded to consider interference in this matter. 19. A comprehension of the background aspects makes it clear that the petitioner chose not to carry out compliance of the order of transfer as issued on 05.02.1998. The petitioner has referred to the adverse and unfortunate circumstance of ailment of his son in the month of September 1998 and then, demise of his son on 14.01.1999. These aspects have definitely been taken note of in the appellate order; but it has been found that there was no explanation for the petitioner's absence during the period between March 1998 to August 1998. These aspects have definitely been taken note of in the appellate order; but it has been found that there was no explanation for the petitioner's absence during the period between March 1998 to August 1998. Even when we feel concerned about the unfortunate demise of petitioner's son, we are unable to find any fault in Appellate Committee's order that this unfortunate circumstance cannot be co-related with the long and unexplained absence from March 1998 to August 1998. 20. The Appellate Committee has also pointed out, and in our opinion rightly so, that with reference to the representation made by him and with reference to the observations made by this Court in the order dated 06.04.1998, for consideration of his representation, the petitioner could not have avoided joining at the new place of posting. The Appellate Committee has considered all the relevant aspects of the matter and has pointed out the reasons for not taking any lenient view in the following:- "6. It is next contended that he could not attend the duties on account of illness of his son. It is submitted that ultimately. He lost his son and, as such, even on humanitarian ground, the punishment of removal from service is disproportionate. We do not find any substance in this contention also. According to the appellant. His son became ill in September, 1998 but there is no explanation for his absence for the period March, 1998 to August, 1998. It is stated that he has challenged the order of transfer by way of writ petition before the High Court. The petition was disposed of with the liberty to make a representation before the Registrar General. The representation was decided by the Registrar General in September 1998. In our view, simply because as representation was pending before the Registrar General, the appellant could not have refused to join at the fresh place ofposting. We are not inclined to take a lenient view in the matter of wilful absence because such persons are having strong source of influence on the general discipline in the cadre of ministerial staff. which ultimately affects the working of the courts. A linient view in such a matter will adversely affect the general moral and discipline in the ministerial staff especially the young employees. which ultimately affects the working of the courts. A linient view in such a matter will adversely affect the general moral and discipline in the ministerial staff especially the young employees. Invariably persons who have adopted casulness in their life style do not perform their job well, it is in the larger interest that such persons are weeded out as early as possible because it is not only a disease but an epedemic. Such persons not only adversely affect the smooth working of the court but also unnecessarily keep engaged the authorities in chronic indiscipline case impinging on time, which can otherwise be utilised for constructive activity. The overal contribution of such persons in service is negligible. 7. It is submitted that the appellant has a large family to support and removal from service will be too harsh, as good as civil death. It is not possible for us to show any sympathy as the entire creation is of the appellant himself. We are not inclined to create a bad precedent by taking him in service of giving him any pensionary benefit at the cost of public exchequer. The appellant cannot get premium for the callous way of life, which he has adopted. 8. Incidentally, at this stage, we have also looked into his service record. We are satisfied that there are no chances of improvement in way of life in service which he has adopted. On enquiry under Rule 17 he was visited with punishment of "censure" in the year 1990. In 1992, he was again given a written warning on conclusion of enquiry under Rule 16. In 1993 he was punished by a penalty of stoppage of one increment. In 1995 penalty of stoppage of two increments with cumulative effect was inflicted which was on appeal modified to stoppage of one increment. In 1996 in another enquiry, he was punished with penalty of three increments this clearly shows that throughout in his service career, he has kept the authorities busy in enquiries against him. There is more material against him in service record which need not be stated" 21. We are unable to find any infirmity in the observations aforesaid; rather we are at one with the observations so made by the Appellate Committee. 22. There is more material against him in service record which need not be stated" 21. We are unable to find any infirmity in the observations aforesaid; rather we are at one with the observations so made by the Appellate Committee. 22. In the aforesaid facts and circumstances, the suggestion that the petitioner did send some communication for adjournment on 28.01.1999 appears not carrying much relevance because he had earlier avoided to join pursuant to the transfer order and then, even avoided to accept the notices sent to him for the inquiry proceedings wherefor ultimately, the memo was required to be published in the newspaper. 23. Apart from the above and in the interest of justice, we have yet gone through the submissions as made by the petitioner in his reply-cum-application dated 22.03.1999 to consider if the petitioner had any relevant, cogent, and substantial ground to urge in his defence. However, we are unable to find anything of substance on the part of the petitioner. Therein, the petitioner alleged that the order of relieving was issued on 04.03.1998, which was sent at his residence through post but the formality of physical taking over of charge was not completed. The petitioner also alleged that he could not attend on duty for being unwell since 26.02.1998 and for that very reason, could not appear before the Disciplinary Authority. Yet further, the petitioner referred to the order as passed by the learned Single Judge in CWP No.1096/1998 and then, referred to the ailment of his wife from 06.04.1998 to 30.09.1998. The petitioner further referred to the want of proceedings in the office of Registrar General earlier and ultimately, the Registrar having informed him of rejection of the representation by the letter dated 18.09.1998. The petitioner, then, referred to the ailment of his son who, as noticed, expired on 14.01.1999. The petitioner further submitted that for bereavement in the family and for his adverse mental condition, he could not remain present in the month of February 1999 and could not keep the promise as made in the telegrams sent but, ultimately, he did appear on 08.03.1999. The petitioner further submitted that for bereavement in the family and for his adverse mental condition, he could not remain present in the month of February 1999 and could not keep the promise as made in the telegrams sent but, ultimately, he did appear on 08.03.1999. The petitioner submitted that he kept on sending the telegrams earlier in the belief that until completion of the formality of handing over charge, his leave would be sanctioned; that he also waited for the decision on his representation pursuant to the order of the High Court but in the meantime, the information about the departmental proceeding was published in the newspaper whereafter he kept on sending telegrams and representations. The petitioner submitted that he could not appear because of the aforesaid circumstances and in any case, had appeared before passing of the final order and, therefore, ex parte proceedings be set aside. 24. After having gone through the aforesaid reply-cumapplication dated 22.03.1999 as submitted by the petitioner, we are unable to find anything of substance which could justify the petitioner's long avoidance of compliance of the transfer order dated 05.02.1998. The petitioner though attempted to rely on the unfortunate aspects relating to the ailments of himself, his wife and his son but in an overall comprehension of the factual scenario, we are unable to find any fault or shortcoming in the observations of the Disciplinary Authority and the Appellate Committee that there had not been any plausible explanation for his long absence during the period March 1998 to August 1998. 25. In the aforesaid view of the matter, the authorities cannot be faulted in having imposed the punishment of removal from service that would not be a disqualification for future employment. In the overall circumstances of the case, with a clear case of absenteeism and non-compliance of the order of transfer, the authorities concerned cannot be faulted in passing such orders nor the learned Single Judge has committed any error in dismissing the writ petition. 26. In the overall circumstances of the case, with a clear case of absenteeism and non-compliance of the order of transfer, the authorities concerned cannot be faulted in passing such orders nor the learned Single Judge has committed any error in dismissing the writ petition. 26. We have yet pondered over the alternative submissions made by the learned counsel for the petitioner-appellant about converting the penalty into that of compulsory retirement on proportionate pension but, having regard to the overall circumstances and then, the petitioner's consistent adverse service record as taken note of in brief by the learned Single Judge, we are not persuaded to take any such view in this matter as to convert the order of removal into any lesser penalty. 27. In the result, the appeal fails and is, therefore, dismissed. However, in the circumstances, there shall be no order as to costs.Appeal Dismissed. *******