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2018 DIGILAW 1094 (RAJ)

Akaram Banjara v. Board Of Revenue

2018-04-26

PUSHPENDRA SINGH BHATI

body2018
JUDGMENT Pushpendra Singh Bhati, J. - The petitioner has preferred this writ petition under Article 226 of the Constitution of India claiming the following reliefs: "(a) The record of the case may kindly called for. (b) The impugned order dated 28.03.2018 (Annex.21) passed by the District Collector, the respondent No.2, may kindly be set aside and quashed. (c) The enquiry report dated 16.03.2018 (Annex.23) may kindly be declared illegal and arbitrary. (d) The respondents may kindly be directed to re-instate the petitioner and grant all consequential benefits. (e) Any other appropriate writ or order or direction which is favourable to the petitioner in the facts and circumstances of the case may kindly be granted to the petitioner. (f) Costs of the litigation be allowed in favour of the petitioner." 2. The brief facts of this case as noticed by this Court are that the petitioner was initially appointed as Patwari on 28.12.1999. The petitioner was given a memorandum of charges on 23.10.2017 under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as 'the Rules of 1958'). In pursuance of the said memorandum of charges, the petitioner sought some documents vide his applications dated 23.11.2018 and 30.11.2018. 3. Thereafter, the petitioner was permitted inspection of the documents vide order dated 13.12.2017. The petitioner submitted a reply on 01.01.2018 denying the charges. A letter was issued on 03.01.2018 asking the petitioner to submit his reply to the charge sheet, even when the reply dated 01.01.2018 was already on record. The petitioner again sought the record on 15.01.2018. On 17.01.2018, the SDO, Revdar was appointed as Enquiry Officer and Tehsildar (Land Record) Collectorate Officer, Sirohi was appointed as Presenting Officer of the Department by the respondent No.2, the Disciplinary Authority. 4. On 30.01.2018, the petitioner received a letter from SDO Revdar, to appear before him on 07.02.2018 to adduce his evidence. The petitioner continued to seek documents and thereafter, moved another application for changing the enquiry officer on 20.02.2018, which was refused by the respondents. The respondents passed an order dated 06.03.2018, requiring the petitioner to appear before the Enquiry Officer on 13.03.2018, on his failure to do so, the proceedings against him shall be conducted ex-parte. 5. The petitioner submitted another application on 06.03.2018 before the Enquiry Officer seeking some documents and list of witnesses. The respondents passed an order dated 06.03.2018, requiring the petitioner to appear before the Enquiry Officer on 13.03.2018, on his failure to do so, the proceedings against him shall be conducted ex-parte. 5. The petitioner submitted another application on 06.03.2018 before the Enquiry Officer seeking some documents and list of witnesses. On 13.03.2018, the petitioner was assigned vital duties of Ratrichopal and Day Court, thus, he sought an adjournment on 13.02.2018 vide his application dated 09.03.2018. However, without giving any adjournment, the ex- parte enquiry was completed and without furnishing any report to the petitioner, a letter dated 21.03.2018 was sent to him whereby he was required to appear before the disciplinary authority regarding the enquiry report. The enquiry report was however, was not provided to the petitioner until then. 6. Learned counsel for the petitioner now states that all the necessary documents and enquiry report have been provided to the petitioner. 7. Learned counsel for the petitioner has referred to Rule 16(6) of the Rules of 1958, which reads as follows: "(6) (a) Where the Government Servant has pleaded not guilty to the charges, at the commencement of enquiry, the Inquiring Authority shall ask the Presenting Officer appearing on behalf of the Disciplinary Authority to submit the list of witnesses and documents within 10 days, who shall also simultaneously send a copy to the Government Servant. Delinquent Officer, within ten days of the receipt of the lists of prosecution witnesses and documents, shall submit the list of documents required by him for his defence. The Inquiring Authority shall then summon the documents of both sides and ask the parties to admit or deny them. It shall then summon such evidence as is necessary, giving opportunity to the presenting officer for examination-in-chief and also to the Government Servant or his assisting officer, whosoever may be present, for cross-examination. The Presenting Officer shall be entitled to re-examine the witnesses on any point on which they have been cross-examined but not on any new matter, without the leave of the Inquiring Authority, after the close of the prosecution evidence the Government Servant shall be called upon to submit the list of the witnesses within 10 days which he would like to produce in his defence. The Inquiring Authority after considering the relevancy of the witnesses and the documents shall summon only the relevant witnesses and the documents and record the evidence thereof, while giving opportunity of Examination-in- Chief and cross-examination/re-examination to the parties and then close the evidence. The Inquiring Authority shall consider the relevancy of the witnesses and the documents called for by both the parties and in case of his refusal to summon any witnesses or documents, he shall record the reasons in writing. The Inquiring Authority may also put such questions to the witnesses of the parties, as it thinks fit, in the interest of justice. An opportunity for hearing the arguments shall be given to the parties. Note:- If the Government Servant applied orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub- rule(6) (a), the Inquiring Authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the Disciplinary Authority." 8. Learned counsel for the petitioner has also referred to Rule 16(6)(D) of the Rules of 1958, which reads as follows: "(6) (D) In case of joint departmental enquiry under rule 18 or in the case of enquiry under rule 16 of these rules, the Government Servant/s fail/fails to appear without sufficient cause on the date fixed for the hearing of which he had the notice, the Inquiry Authority, may proceed with the enquiry in the absence of such Government Servant(s)." 9. Learned counsel for the petitioner has further referred to Rule 16(10) of the Rules of 1958, which reads as follows: "(10) The disciplinary authority shall forward a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority to the Government Servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days." 10. Learned counsel for the petitioner Mr. Learned counsel for the petitioner Mr. Kuldeep Mathur has pointed out that as per the Rule 16(6) of the Rules of 1958, sufficient time was not given to the petitioner for producing his witnesses and documents i.e. 10 days after the witnesses and documents of the prosecution are produced. 11. Learned counsel for the petitioner further averred that as per the Rule 16(6)(D) of the Rules of 1958 for ex-parte hearing, the petitioner showed sufficient cause but inspite of that, the adjournment was not granted and the ex-parte proceedings were initiated. 12. Learned counsel for the petitioner has further shown that as per the Rule 16(10) of the Rules of 1958, the disciplinary authority was required to forward a copy of the inquiry report, which has not been done in the present case and thus, the impugned order which has been passed in a mechanical manner, suffers from the basic violation of the aforesaid provisions. 13. Learned counsel for the petitioner has relied upon the judgment of the Hon'ble Apex Court in Satwati Deshwal Vs. State of Haryana and Ors. reported in (2010) 1 Supreme Court Cases 126. The operative portion of the judgment is reproduced hereunder: "8. Apart from that, on a cursory look of the statutory provision of the Constitution of the Parishad Working Committees, it would be clear that before imposing any major penalty against an employee, namely, an order of termination of service, an inquiry must be held in the manner specified in the statutory rules by which the disciplinary authority shall frame definite charges on the basis of allegations on which an inquiry shall be proposed and opportunity must be given to the employee to submit a written statement stating therein whether he/she desires to be heard in person and no order of termination also can be passed without the approval of the Managing Committee. On this count alone, therefore, the High Court was, in our view, in grave error in dismissing the writ petition of the writ petitioner." 14. Learned counsel for the respondents Dr. Pratistha Dave is not in a position to refute the submissions that the enquiry report was not provided in consonance with the Rule 16 (10) of the Rules of 1958. Learned counsel for the respondents Dr. Pratistha Dave is not in a position to refute the submissions that the enquiry report was not provided in consonance with the Rule 16 (10) of the Rules of 1958. Further the learned counsel for the respondent has also not shown the consideration made regarding the application of the petitioner seeking one or more dates before the ex-parte proceedings could be initiated in accordance with the Rule 16(6)(D) of the Rules of 1958. 15. Learned counsel for the respondents further states that the conduct of the petitioner is such that it does not call for any leniency and sympathy of the Court. Learned counsel for the respondents has also shown from the record that the sufficient opportunities were given to the petitioner to participate in the enquiry by producing his documents and witnesses. 16. After hearing learned counsel for the parties as well as perusing the record of the case alongwith the precedent law cited at the Bar, this Court finds that the petitioner is seeking limited adjudication for violation of Rules 16(6), 16(6)(D) and 16(10) of the Rules of 1958. 17. This Court is aware that normally during the enquiry or even at the culmination thereof, the direct jurisdiction of the writ should not be exercised. However, since on the face of it, learned counsel for the petitioner, from the record, has been able to satisfy this Court that the provisions of Rules 16(6)(D) and 16(10) of the Rules of 1958, have not been adhered to by the respondents, therefore, without commenting on the merits of the case, this Court deems it appropriate to quash and set aside the impugned order dated 28.03.2018 passed by District Collector, Sirohi and the matter is remanded back to the respondents to reconduct the proceedings subsequent to Rule 16(6)(D) of the Rules of 1958. Thus, the respondents shall give a fresh date for enquiry to the petitioner within a period of 7 days from the date of receipt of certified copy of this order. The petitioner shall be required to appear before the respondents on the same date. The learned counsel for the petitioner assures that whatever date shall be given, the petitioner shall present himself for the enquiry and cooperate wth same. The petitioner shall be required to appear before the respondents on the same date. The learned counsel for the petitioner assures that whatever date shall be given, the petitioner shall present himself for the enquiry and cooperate wth same. It is further observed that on the next date given by the respondents, the enquiry shall commence afresh at the post charge sheet stage and thereafter, after providing copy of the enquiry report in accordance with the Rules of 1958, fresh order shall be passed.