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2017 DIGILAW 1207 (RAJ)

Daulal Khatik v. State of Rajasthan

2017-05-11

NIRMALJIT KAUR

body2017
JUDGMENT : NIRMALJIT KAUR, J. The prayer in the present petition is for setting aside the order dated 08.09.1999 vide which the petitioner was dismissed from service, the order dated 01.08.2001 whereby the appeal preferred by the petitioner was rejected as also the order dated 05.01.2004 dismissing the review petition. 2. The petitioner was appointed on the post of Constable in the year 1992. There was no complaint whatsoever till a charge sheet was issued against him on 01.10.1997 under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, which was served upon him on 03.10.1997 along with the Memorandum and the statement of allegations. 08 charges were levelled against him. All the charges were pertaining to the same incident dated 24.06.1997, whereby the basic allegation against him was with regard to supporting and taking side of one lady Constable Smt. Sarla who too was issued a similar charge sheet pertaining to the same incident along with the other allegations and a total of 13 allegations were levelled against her. A joint enquiry was held for both the delinquents and completed on 29.07.1997. The petitioner was held guilty for all the allegations except for the allegation No. 2. He was issued a show cause notice dated 16.08.1999 along with the Enquiry Report. The respondent No. 3 while disagreeing with the report of Enquiry Officer on Charge No. 2, passed an order dated 08.09.1999, whereby the petitioner was ordered to be dismissed from service holding him guilty of all the allegations levelled against him. Co-delinquent Smt. Sarla was also held guilty for all the 13 allegations but in spite of this, only a penalty of stoppage of 03 Annual Grade Increments with cumulative effect was imposed upon her. The petitioner preferred an appeal before the Dy. Inspector General of Police, Udaipur on 24.01.2001. The same too was dismissed by the respondent No. 2 vide his order dated 01.08.2001 on account of limitation. The petitioner preferred a review petition under Rule 34 of the CCA Rules, 1958 before the Governor on 16.10.2003. However, the same too was rejected on 05.01.2004 on account of the Review too not filed within the period of limitation. 3. While praying for setting aside the order dated 08.09.1999 passed by the Disciplinary Authority dismissing the petitioner from service, the order dated 01.08.2001 passed by the Dy. However, the same too was rejected on 05.01.2004 on account of the Review too not filed within the period of limitation. 3. While praying for setting aside the order dated 08.09.1999 passed by the Disciplinary Authority dismissing the petitioner from service, the order dated 01.08.2001 passed by the Dy. Inspector General of Police dismissing the appeal as also the order dated 05.01.2004 dismissing the review petition, learned counsel for the petitioner raised the following arguments: (A) The order passed by the Disciplinary Authority is a non-speaking order. No reason has been given while passing the order of dismissal. No finding has been recorded on the charges proved against him by the Enquiry Officer. (B) The petitioner was not supplied the documents relied upon by the Enquiry Authority against him and nor the copy of the statement taken by the Enquiry Officer was supplied to him. The statements of the witnesses were given to the petitioner only after passing the dismissal order. Hence, the petitioner could not properly defend himself against the proposed punishment given to him by the Disciplinary Authority. (C) Not only this, the petitioner was not made aware that there shall be a joint Enquiry. The Memorandum of charges and allegations having been supplied separately, the petitioner remained under the impression that the evidence being adduced in the enquiry was qua Sarla and not him. As a result, the petitioner did not even cross-examine the witnesses during the enquiry proceedings, which seriously prejudiced the petitioner. (D) The appeal was dismissed by the Appellate Authority on the ground of limitation. The petitioner in his appeal had specifically given the details as to why the said appeal could not be filed by him on time. He submitted in his appeal that he was suffering from chronic depression and was under treatment at Ahmedabad. The treatment came to an end on 27.01.2001. A Certificate dated 27.01.2001 was also issued by the Doctor. It is contended that in case the petitioner was physically and mentally fit, there was no reason for not filing the appeal on time. The punishment was like a civil death. As soon as the petitioner was able to cope up with the situation, he immediately filed the appeal after he recovered from his problem after a long drawn treatment. All this should have been taken into consideration while deciding the appeal and the delay should have been condoned. The punishment was like a civil death. As soon as the petitioner was able to cope up with the situation, he immediately filed the appeal after he recovered from his problem after a long drawn treatment. All this should have been taken into consideration while deciding the appeal and the delay should have been condoned. It should not have been dismissed mere on technicalities. He had sufficiently explained the delay. Similarly, the review was also dismissed on the ground of delay. (E) It is submitted that provisions and power of review have been enumerated in Rule 34 of the Rules of 1958 and a bare perusal of Proviso (iii) of Rule 34 of the Rules of 1958 will reveal that the limitation for filing of review petition is three years. The appellate order was passed on 01.08.2001 and the review was filed on 16.10.2003 by the petitioner. Thus, the review petition filed by the petitioner was within limitation, but still it was dismissed on the ground of limitation. 4. Reply has been filed. In the reply, it is admitted that the petitioner was charged for supporting the lady constable Smt. Sarla, whereas Smt. Sarla is a beneficiary of the stand taken by the petitioner in her favour. It is, however, stated that the incident was same but the act of the petitioner as well as Smt. Sarla were still not identical as was claimed by the petitioner in the writ petition. In view of this, the petitioner cannot compare his case with the lady Constable Smt. Sarla, who got the benefit as a result of the act of the petitioner charged with. Thus, the imposition of penalty of stoppage of three annual grade increments to Smt. Sarla (Lady Constable) cannot be compared to the case of the petitioner. Further, the charge sheet was issued on him under Rule 16/18 of the Rajasthan CCA Rules, 1958 for conducting a joint enquiry and therefore, the petitioner cannot raise the argument that he was not aware that a joint enquiry was likely to be held. Heard. 5. The order of the Disciplinary Authority has been perused by this Court. Further, the charge sheet was issued on him under Rule 16/18 of the Rajasthan CCA Rules, 1958 for conducting a joint enquiry and therefore, the petitioner cannot raise the argument that he was not aware that a joint enquiry was likely to be held. Heard. 5. The order of the Disciplinary Authority has been perused by this Court. The said order is of 17 pages but it is a reproduction of the respective charges of both the petitioner and the lady Constable Smt. Sarla with whom the joint enquiry was held and the reply of the co-delinquent Smt. Sarla has been reproduced but no reason for agreeing with the charges has been mentioned. Thus, two different punishment orders have been passed qua both delinquents by a non-speaking order. 6. The argument that there was no need to give any reason or pass a speaking order as the authorities agreed with the enquiry report is not tenable as held by this Court in the case of Prabhu Dayal v. State of Rajasthan reported in RLR 1993 (1) 592. The Apex Court while relying on various judgments of the Apex Court, set aside the punishment of removal from service and substituted with stoppage of two grade increments without cumulative effect on noticing that the order passed by the punishing authority and the appellate authority was a non-speaking order. Para 15 of the said judgment reads as under:— “15. Yet another important aspect of the matter, which has been completely lost sight by the disciplinary authority, is that it was its duty to record good and sufficient reasons for imposing the impugned penalty on the petitioner. Rule 14 of 1958 Rules, which confers jurisdiction on the competent authority to impose any of the penalties specified in that Rule, begins with the following words: “MAY, FOR GOOD AND SUFFICIENT REASONS, WHICH SHALL BE RECORDED, AND…” These opening words of Rule 14 clearly impose a mandatory duty on the competent authority to record reasons and above all, such reasons must be good and sufficient. There can be no manner of doubt that the action of the disciplinary authority under the Rules of 1958 is quasi judicial and the order passed by it is also quasi judicial. Therefore, even in the absence of a requirement by the statute, it would have been imperative for the disciplinary authority to record reasons. There can be no manner of doubt that the action of the disciplinary authority under the Rules of 1958 is quasi judicial and the order passed by it is also quasi judicial. Therefore, even in the absence of a requirement by the statute, it would have been imperative for the disciplinary authority to record reasons. Fulfillment of this requirement of recoding of reasons in support of the order, is a part and parcel of the requirement of following the principles of natural justice. Passing of reasoned order has been treated as an obligatory duty of every quasi judicial authority except in cases where there is an express exclusion of the requirement of recording of reasons. The law on the subject has been lucidly discussed in Testeels Ltd. v. N.M. Desai, by a Full Bench of Gujrat High Court headed by P.N. Bhagwati, J. (as he then was). In S.N. Mukherjee v. Union of India, a Constitution Bench of the Supreme Court has referred to the legal position regarding the requirement of passing of a speaking orders as obtaining in Australia, England, United States of America as also in India and after making reference to almost all other decided cases on the subject, the Supreme Court has held that quasi judicial authority is duty bound to record reasons in support of its order as a part of its obligation to follow the principles of natural justice. The matter has been examined by this Court also in a recent decision in Vijay Singh v. R.S.R.T.C. and it has been held that a mandatory duty is cast on the competent authority to record reasons in support of its order. The scheme of the Rules of 1958 reinforces the necessity of giving of good and sufficient reasons which is certainly over and above the basic requirement of passing of a speaking order. The rule making authority has designedly thought it proper to incorporate the requirement of recording good and sufficient reasons. This requirement, contained in Rule 14, carries with it another requirement of communicating those reasons to the affected person. The rule making authority has designedly thought it proper to incorporate the requirement of recording good and sufficient reasons. This requirement, contained in Rule 14, carries with it another requirement of communicating those reasons to the affected person. Requirement of communication of reasons can be read as implicit in the Rule from the fact that an aggrieved government servant not only has a right to file appeal or review under the Rules of 1958 but has a constitutional right to challenge the order of punishment before the High Court by way of writ under Article 226 of the constitution. Neither the appellate authority not the reviewing authority nor the High Court will be in a position to make an adjudication on the merits of the punishment awarded to a delinquent employee if it was not in a position to know as to what are the reasons for imposition of a penalty. When the rule requires that reasons to be recorded in support of an order of punishment must be good and sufficient, it is open to the court to examine those reasons and consider for itself whether the reasons are good and sufficient. Thus, even the sufficiency of reasons is open to scrutiny not only by the appellate and reviewing authorities but also by the courts of law. The order passed by the disciplinary authority is, however, singularly laconic. In this respect there is a total absence of reasons as to why the disciplinary authority has chosen to impose the extreme penalty of removal from service on the petitioner. The order passed by the disciplinary authority does not make any reference to the service record of the petitioner, entries in his service roll etc. It has not been shown that the petitioner has been punished in the past for an act of delinquency. Thus, the order of the disciplinary authority depicts a total non-application of mind on this aspect of the matter.” 7. Thus, the absence of reasons while recording the order of punishment is a sufficient ground to set aside the order. 8. It is also true that the appellate authority dismissed the appeal on the ground of limitation. No doubt, there was a long delay. As per Rule 25 of the CCA Rules, 1958, the Appellate Authority can look into the explanation offered for the delay and condone the same, if explained it satisfactorily. 8. It is also true that the appellate authority dismissed the appeal on the ground of limitation. No doubt, there was a long delay. As per Rule 25 of the CCA Rules, 1958, the Appellate Authority can look into the explanation offered for the delay and condone the same, if explained it satisfactorily. Rule 25 of the Rajasthan CCA Rules, 1958 reads as under: “Rule 25. Period of limitation for appeals.—No appeal under this part shall be entertained unless it is submitted within a period of three months from the date on which the appellant receives a copy of the order appealed against: Provided that the Appellate Authority may entertain the appeal after the expiry of the said period, if it is satisfied that the appellant had sufficient cause for not submitting the appeal in time. 9. The petitioner in the present case had filed his Memorandum of Appeal after a long delay. In his Memorandum of Appeal, he submitted that he was under depression and also undergoing treatment. The necessary certificate of the doctor was also filed. The appellate authority should have taken into consideration the explanation offered for the delay in its appeal. In case, the said explanation was found to be valid, it was incumbent upon the appellate authority to ignore the delay and pass the order on merits. It was incumbent upon the appellate authority to consider the same before abruptly dismissing the appeal on the ground of limitation without passing a speaking order. 10. The argument that the notice under Rule 18 of the CCA Rules, 1958 was sufficient for the petitioner to know that it shall be a joint enquiry may be technically correct but it appears that the petitioner somehow remained under misconception and as a result, neither he filed his reply nor he cross-examined the witnesses and nor led his defence. He kept thinking all the while that the evidence led by petitioner was in the charge sheet issued to the co-delinquent as the charges although same were issued vide separate charge sheet. 11. The petitioner specifically stated in para 8 of the petition that the petitioner was not supplied copy of the statements of all the 21 witnesses produced by the Department. The copy of the said statements were given after passing of the order dismissing him from service. 11. The petitioner specifically stated in para 8 of the petition that the petitioner was not supplied copy of the statements of all the 21 witnesses produced by the Department. The copy of the said statements were given after passing of the order dismissing him from service. It is further stated that the documents relied on by the Department were never given to the petitioner. This fact has not been denied in the reply to the para 8 of the writ petition. Thus, the petitioner was not able to respond to the show cause notice against the proposed punishment given to him by the Disciplinary Authority causing him great prejudice. 12. The Apex Court in the case of Bilaspur Kshetriya Gramin Bank v. Madanlal Tandon reported in (2015) 8 SCC 461 dismissed the appeal and upheld the order passed by the High Court vide which the order of punishment was set aside only because the documents on which the reliance was placed by the Enquiry Officer for holding various charges were not supplied to the delinquent employee. It has been consistently held that non-supply of the documents causes prejudice and is breach of Rule of natural justice. Para 37 of the judgment rendered in the case of State of U.P. v. Saroj Kumar Sinha reported in (2010) 2 SCC 772 read thus: “37. We may also notice here that the counsel for the appellant sought to argue that respondent had even failed to give reply to the show cause notice, issued under Rule 9. The removal order, according to him, was therefore justified. We are unable to accept the aforesaid submission. The first enquiry report dated 3.8.2001, is clearly vitiated, for the reasons stated earlier. The second enquiry report can not legally be termed as an enquiry report as it is a reiteration of the earlier, enquiry report. Asking the respondent to give reply to the enquiry report without supply of the documents is to add insult to injury. In our opinion the appellants have deliberately misconstrued the directions issued by the High Court in Writ Petition 937/2003. In terms of the aforesaid order the respondents was required to submit a reply to the charge sheet upon supply of the necessary document by the appellant. In our opinion the appellants have deliberately misconstrued the directions issued by the High Court in Writ Petition 937/2003. In terms of the aforesaid order the respondents was required to submit a reply to the charge sheet upon supply of the necessary document by the appellant. It is for this reason that the High Court subsequently while passing an interim order on 7.6.2004 in Writ Petition No. 793/2004 directed the appellant to ensure compliance of the order passed by the Division Bench on 23.7.2003. In our opinion the actions of the enquiry officers in preparing the reports ex-parte without supplying the relevant documents has resulted in miscarriage of justice to the respondent. The conclusion is irresistible that the respondent has been denied a reasonable opportunity to defend himself in the enquiry proceedings.” 13. There is also merit in the argument that both the delinquents were charge sheeted for the same incident with same charges but still different punishment has been imposed qua the duo. In the present case, a perusal of the impugned order dated 08.09.1999 shows that total 08 charges were levelled against the petitioner and 13 charges were levelled against the lady constable Sarla. The 08 charges were identical. The witnesses were also same. The finding too was same. The enquiry was also joint. The lady constable had refused to go on duty. It is alleged that the present petitioner had supported her stand but different punishment were passed. The punishment of stoppage of 03 Annual Grade Increments with cumulative effect was imposed upon her in spite of the fact that she was found guilty of all the charges. Whereas, the petitioner was dismissed from service for those very charges for which even the enquiry and the witnesses were identical. The same is not only arbitrary but highly discriminatory. The order of dismissal deserves to be quashed on this ground alone. Whereas, the petitioner was dismissed from service for those very charges for which even the enquiry and the witnesses were identical. The same is not only arbitrary but highly discriminatory. The order of dismissal deserves to be quashed on this ground alone. The Apex Court in the case of Lucknow K. Gramin Bank (Now Allahabad, U.P. Gramin Bank) v. Rajendra Singh (Special Leave Petition (Civil) No. 10025 of 2012) decided on 29.07.2013 laid down the principles to be followed while dealing with the quantum of sentence as under: “The principles discussed above can be summed up and summarized as follows: (a) When charges of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities; (b) The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority; (c) Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court; (d) Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case. (e) The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co-delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable. 14. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable. 14. Similarly, the Apex Court in the case of Rajendra Yadav v. State of M.P. reported in (2013) 3 SCC 73 , while reinstating the appellant in the said case and giving him the same treatment as was given to the co-delinquent, observed that the doctrine of equality applies to all who are equally placed, even among persons who are found guilty and that the punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. 15. The facts of the present case as discussed above satisfies the exception in para (e) to the principle laid down in the case of Lucknow K. Gramin Bank (supra) that the quantum of punishment is the prerogative of the Department. There is no dis-similarity between the petitioner and the co-delinquent lady Constable Sarla. In fact 13 charges were levelled against her and 08 charges were levelled against the petitioner and those 08 charges were identical. The punishment of stoppage of 03 Annual Grade Increments with cumulative effect was imposed upon the co-delinquent the lady Constable in spite of the fact that she was found guilty of all the charges. Whereas, the petitioner was dismissed from service for those very charges for which even the enquiry and the witnesses were identical. The same smells of discrimination and violation of the doctrine of equality. 16. In view of the above, the present writ petition is allowed and the orders dated 08.09.1999, 01.08.2001 and 05.01.2004 are set aside. This Court would have normally sent the matter back or modified the punishment and impose the same punishment as imposed on the co-delinquent Smt. Sarla to maintain the parity in the facts of the present case. 16. In view of the above, the present writ petition is allowed and the orders dated 08.09.1999, 01.08.2001 and 05.01.2004 are set aside. This Court would have normally sent the matter back or modified the punishment and impose the same punishment as imposed on the co-delinquent Smt. Sarla to maintain the parity in the facts of the present case. However, taking into account that the petitioner has been kept out of service since 08.09.1999 and has not only suffered sufficiently enough but more than the punishment imposed upon the co-delinquent, he is reinstated in service with consequential benefits but taking into account that there was delay in filing the appeal as also approaching this Court, no arrears of salary shall be paid from 08.09.1999 till the passing of this order. He is accordingly ordered to be reinstated with immediate effect. Petition allowed.