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Rajasthan High Court · body

2014 DIGILAW 1413 (RAJ)

Lala Ram Sharma v. State

2014-07-17

MOHAMMAD RAFIQ

body2014
JUDGMENT 1. - This writ petition has been filed by the petitioner-Lalit Sharma, aggrieved by the order dated 7.5.1996 by which penalty of reduction of his pay by five stages and retaining the same at the same level, till his retirement was awarded to him. Petitioner has also prayed for consequential benefits together with interest @ 24% per annum. 2. Petitioner was at the relevant time working as Agricultural Officer in the Agriculture Department of the Government of Rajasthan. The dispute pertains to the period when he was posted on deputation on the post of Development Officer, Panchayat Samiti, Tijara, District Alwar from 7.4.1982 to 9.8.1982 and a charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 was served on the petitioner on 13.11.1984 for certain financial irregularities. Nine witnesses were produced by the department, whereas petitioner apart from him, produced one Daulat Ram Jain as his witness. The enquiry officer concluded the enquiry and submitted report on 9.3.1988 in which he found charges no. 1, 2, 4, 6 and 7 proved and charge no.3 party proved and charge no.5 not proved. The disciplinary authority accepting the finding of the enquiry officer imposed penalty of compulsory retirement of the petitioner vide order dated 3.7.1989 Petitioner then filed review petition before the reviewing authority i.e. His Excellency, the Governor of the State. The reviewing authority by order dates 17.4.1993 allowed the review petition on the ground of non-supplying of copy of enquiry report to the petitioner and while quashing the order of penalty remanded the matter back to the disciplinary authority for fresh decision after supplying copy of the enquiry report to the petitioner. When the report was supplied, he submitted a detailed representation (Annexure-20) to the disciplinary authority. The disciplinary authority by order dated 7.5.1996 (Annexure-21) imposed the penalty as referred to above. 3. Shri Sandeep Taneja, learned counsel for the petitioner has argued that the disciplinary authority has erred in law in disagreeing with the enquiry officer on the findings recorded by him and charge no.3 and 5. The disciplinary authority by order dated 7.5.1996 (Annexure-21) imposed the penalty as referred to above. 3. Shri Sandeep Taneja, learned counsel for the petitioner has argued that the disciplinary authority has erred in law in disagreeing with the enquiry officer on the findings recorded by him and charge no.3 and 5. Referring from the enquiry report at page 119 of the paper book (Annexure-18), learned counsel submitted that the enquiry officer found charge no.3 only partly proved, whereas the disciplinary authority in his report at page 179 of paper book (Annexure-21) has recorded a finding to the effect that this charge is fully proved against the petitioner. The disciplinary authority did not serve upon the petitioner any notice for disagreeing with the findings. Besides the learned counsel referring from the enquiry report submitted that the charge against the petitioner was only to the effect that the Special Secretary cum Director Community Development and Panchayat Department vide his order dated 24.1.1979 directed that the Panchayat Samiti could spent 50% of the education cess for purchase of the stores/material for the schools and remaining 50% for maintenance and repair of the building. The Panchayat Samiti, Tijara has found Rs. 59,536.50 paisa on this head in the month of May 1982, out of which petitioner spent Rs. 58,812.51 paisa on purchase of store/material and in this connection alteration was made in the proposal no. 11 of the Panchayat Samiti dated 30.4.1982 and, therefore, petitioner was guilty of the altering the records of the Panchayat Samiti. Learned counsel however submitted that the enquiry officer did not find the later part of the charge proved that petitioner made alteration in the record, but the disciplinary authority in the order of penalty has even found this charge fully proved even without any notice or notice of dissent being served on the petitioner. This has caused serious prejudice to the petitioner. Similarly, learned counsel has referred to the findings recorded by the enquiry officer on charge no.5 at page 122-125 of the paper book (Annexure-18) and argued that the enquiry officer did not find this charge proved. The charge was to the effect that there were disparities/differences between the rates of the stationery purchased as seen from the comparative chart, which shows that the rates quoted in the chart were different than those offered by the buyers. Three such instances were given in the chart. The charge was to the effect that there were disparities/differences between the rates of the stationery purchased as seen from the comparative chart, which shows that the rates quoted in the chart were different than those offered by the buyers. Three such instances were given in the chart. The enquiry officer did not find this charge proved, but the disciplinary authority at page 180 of his order (Annexure-21) has found this charge partly proved in the terms that the petitioner was guilty of supervisory negligence, it is argued that there was no charge of supervisory negligence and therefore such finding in absence of charge could not be recorded against the petitioner. Even otherwise if the disciplinary authority wanted to differ with the view of the enquiry officer, he ms required to have served upon the petitioner a notice of disagreement and call for his comments. The principle of natural justice have thus been violated. In support of his arguments, learned counsel has relied on the judgment of Supreme Court in Roop Singh Negi v. Punjab National Bank, 2009(1) Supreme 438 , State Bank of India & Ors. v. K.P. Narayanan Kutty, AIR 2003 SC 1100 and judgment of this Court in Gulab Chand v. State & Ors.-2011 (3) WLC (Raj.) . 4. Learned counsel for the petitioner has also submitted that the disciplinary authority has failed to consider the arguments of the petitioner in his representation filed on record especially on charge no.2, 3, 4, 5 and 6. 5. Learned counsel for the petitioner has also argued that the kind of penalty that has been imposed by the disciplinary authority is not envisaged in Rule 14 of the Rules of 1958 in proceedings under Rule 16, especially in clause (iv) to (vii) of Rule 14 can be imposed. Besides, two penalties have simultaneously been imposed upon the petitioner and, therefore, it would tantamount to double jeopardy. Besides, two penalties have simultaneously been imposed upon the petitioner and, therefore, it would tantamount to double jeopardy. Learned counsel submits that as per Rule 16 (1) any one of the penalties out of those specified in clauses (iv) to (vii) of Rule 14 can be imposed and therefore two penalties cannot be simultaneously imposed, it is submitted that language of the Rules 16 of the Rules of 1958 is not so widely worded as would justify the imposition of penalty of reduction of pay of the petitioner by five stages as also retaining of his pay at that level for rest of his service career. 6. Shri B.L. Awasthi, learned Additional Government Counsel opposed the writ petition and submitted that the enquiry officer has found five out of seven charges fully proved against the petitioner and that one of the charges was found partly allowed and only one not proved and, therefore, even if the disciplinary authority has differed with him in respect of two charges namely; charge no.3 and 5, that alone, in any case, cannot be said to have caused any prejudice to the petitioner because the penalty on charges of financial irregularities proved against the petitioner on remaining five charges can be justified. It is argued that ail the arguments raised by the petitioner in his representation filed in response to the record of the enquiry officer have been dealt with by the disciplinary authority. He was not required to deal with them in greater details especially when he is concurred with the opinion of the enquiry officer on most of the charges. Thus, there is no prejudice caused to the petitioner. 7. On hearing learned counsel for the parties and perusing the impugned order, I find that there is no denial of fact that the disciplinary authority while differing with the finding of enquiry officer on charge no.3 and 5 has indeed not served upon the petitioner any notice or note of disagreement so as to invite his objections/comments. While the enquiry officer has found charge no.3 partly proved, the disciplinary authority has recorded a finding that this charge was fully proved. Similarly, charge no.5 was not found proved by the enquiry officer. While the enquiry officer has found charge no.3 partly proved, the disciplinary authority has recorded a finding that this charge was fully proved. Similarly, charge no.5 was not found proved by the enquiry officer. However, the disciplinary authority held that this charge was fully proved.The consideration of the disciplinary authority while passing ultimate order especially with regard to the choice of penalty was thus indeed vitiated for non-service of the notice of disagreement/notice of dissent. 8. The Supreme Court in K.R. Narayanan Kutty, supra has held that where the disciplinary authority disagrees with some findings of the enquiry officer, he has to necessarily provide an opportunity of hearing to the delinquent and in absence of such opportunity, no prejudice was caused to the delinquent, is immaterial in view of mandate of law. 9. The Supreme Court in State of Madras v. A.R. Srinivasan, AIR 1966 SC 1827 has held that the disciplinary authority is free to disagree wholly or partly with the Inquiring Officer since the latter acts as his delegate. When the disciplinary authority agrees with the findings of the Inquiring Authority, it is f not obligatory on his part to give reasons in support of the order. Where it ; does not agree with the findings of the Inquiring authority, it is necessary to indicate reasons for disagreement. 10. In Punjab National Bank & Ors. v. Kunj Behari Misra, AIR 1998 SC 2713 , it was held that principles of natural justice have to be read into relevant rules. Whenever the disciplinary authority disagrees with the enquiry authority on any article of charge then before it records its own findings on such charge, it must record it s tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer should be given an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the records its finding on the charges framed against the officer. 11. The Supreme Court in SBI & Ors. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the records its finding on the charges framed against the officer. 11. The Supreme Court in SBI & Ors. v. Arvind Kumar Shukla, AIR 2001 SC 2398 has held that if the disciplinary authority disagree with the conclusion or the findings arrived at by the enquiry officer, it is required to give reasons for disagreement, which should be furnished to the delinquent enabling him to represent before the ultimate finding is recorded by the disciplinary authority. Non furnishing reasons to the delinquent vitiates the order of dismissal. 12. Since the petition deserves to be succeed on this ground alone, this court does not deem it appropriate to deal with other arguments leaving the question whether two penalties imposed in this case could be awarded in the scope of Rule 14(iv) of the Rules of 1958. It would be however open to the petitioner to submit fresh representation on the finding of enquiry report on all the charges, which shall be considered afresh by the disciplinary authority. 13. The petition, therefore, partly succeeds and is accordingly partly allowed. The order of penalty dated 7.5.1996 is set aside and the matter is remanded back to the disciplinary authority to serve upon the petitioner note of disagreement to enable the petitioner to file his representation and provide him opportunity of hearing before taking final decision including about the proportionality of the penalty that was awarded by the impugned order.Writ Petition Partly Allowed. *******