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2018 DIGILAW 2116 (RAJ)

Manohar Lal v. State of Rajasthan

2018-10-23

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. No one appeared despite the matter called twice. 2. The writ petition is pending since 1991. It was dismissed by a coordinate bench vide order dated 13.12.2005. However, the Division Bench has remand the matter back vide order dated 17.1.2018 on the ground that the contentions were not dealt with earlier. 3. From the perusal of the writ petition, it is noticed that while the petitioner was holding the post of Patwari, he was serviced with the charge sheet on 8th June, 1984 under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, wherein allegations were levelled against him of helping Bishan Lai Sunariaiya in receiving bribe from villagers money from 4 villagers. The bribe was claimed to have been received by Shri Bishan Lai Sunariaya for a sum of Rs. 12,600/- and on the agitation of the villagers, the amount was returned back by Shri Sunariaya and thus it was alleged that the petitioner was in collusion with him to receive the amount of bribe for the purpose of allotment. The joint enquiry was conducted against the petitioner and Shri Bishan Lal Sunariya and one Trilok Chand Jain, the then Niab Tehsildar. While Trilok Chan Jain was exonerated of the charges, the charges against the petitioner as well as Shri Bishan Lal Sunariya were found proved. The Chairman of Board of Revenue vide its order dated 5.4.1989 held them guilty. Both the Tehsildar and the petitioner were dismissed from service vide order dated 5.4.1989. 4. The petitioner preferred an appeal before the Appellate Authority under Rule 23 of the CCA Rules 1958 and he was given opportunity. However, the Appellate Authority rejected the appeal. 5. The contention of the petitioner is that the Enquiry Officer has not conducted the enquiry in consonance with the CCA Rules as he was not given an opportunity to cross examine the witnesses. It is further contended that the main allegation of receiving the bribe was against Bishan Lal Sunariya while the allegation against the petitioner was that he was instrumental of passing the bribe to Bishan Lal Sunariya and that he was a person who refunded the amount to agriculturalist. It is further contended that the main allegation of receiving the bribe was against Bishan Lal Sunariya while the allegation against the petitioner was that he was instrumental of passing the bribe to Bishan Lal Sunariya and that he was a person who refunded the amount to agriculturalist. However, the enquiry officer has wrongly held the petitioner to have received the bribe and also held the petitioner to have refunded the amount of bribe, while there was no such charge against the petitioner of having received the amount of bribe. 6. It is also submitted that Bishan Lal Sunariya, against whom the allegation was of receiving the bribe through the petitioner, has been exonerated by the Appellate Authority and there fore the order of punishment of dismissal as against Bishan Lal Sunariya was set aside and he was only charged of not getting the record properly maintained, but the same Appellate Authority rejected the appeal of the petitioner. The petitioner in his writ petition has also pointed out that while witnesses in the departmental enquiry were allowed to be cross-examined by the other co-delinquent through pleaders in order to defend their case, however, the petitioner was not given any such legal assistance. It is submitted that the enquiry was not conducted in fair manner and the Disciplinary Authority as well as the Appellate Authority have punished the petitioner for the charge which were not alleged against him. 7. No one has put in appearance on behalf of the respondents to support the orders passed by the respondents. 8. A look at the reply filed by the respondents makes it clear that some persons led by one Jagmal Singh Yadav, Advocate, had come at the Tehsil premises of Tijara on 3.12.1983 and demanded that the money taken by the Tehsildar Shri Bishan Lal Sunariya through the petitioner for allotment of custodian land to them should be refunded back. It is also stated that the said person rescind from his earlier statement and it is mentioned as under: “It is true that the application submitted by Shri Jagmal Singh Yadav, Advocate, on 09.12.1983 before ADM, the complainant had amitted that they have not taken any bribe and had only given the cost of I and to Shri Manohar Patwari i.e. petitioner and had lodged an complaint because of some misunderstanding. They also deposed that they have got their money from Shri Bishan Lal Sunaria and the money was lying with Shri Manohar Lal petitioner. It is also correct that Shri Manohar Lal petitioner was appointed as Patwari at the relevant time and Shri Matadin was appointed as Patwari at Sarheta. On 25.6.1983 17 persons had submitted an application for allotment of land before Tehsildar-Tijara and Shri Matadin Yadav Patwari had made a report on 02.07.1983, on this application it was written that the applicants were poor and allotment should be made to them. Subsequently the Tehsildar Tijara made allotment on 08.07.1983 to 17 persons but out of these 17 persons only 5 deposited the cost of land amounting of Rs. 11875/-. It is true that according to the statement of patwari Shri Umar Mohd. Sarpanch and a few persons who was the relatives of Shri Deen Mohd. It is incorrect to say that at the time of allotment the custodian clerk had made any complaint to the report to Tehsildar Tijara stating that the applicants were of the same family and were relatives of Deen Mohd. Sarpanch.” 9. It was further mentioned that the enquiry officer came to the conclusion that the petitioner had taken bribe for allotment of custodian land and subsequently refunded the amount of bribe. 10. Having noted the contentions of the petitioner and the contents of the reply of the respondents, it is noticed that the charge sheet against the petitioner was not for having taken bribe for allotment of custodian land and having subsequently returned the amount, whereas the charge against him was of his being instrumental in getting the amount of bribe for Shri Bishan Lal Sunariya from the agriculturalists. Thus, it appears that the enquriy officer held the petitioner guilty for the charge for which no charge sheet was issued. There was no such charge. Apparently the petitioner has not been given opportunity to defend with regard to allegations for which enquiry officer held him guilty. It is also noticed that the petitioner was not given opportunity to cross examine the witnesses. Legal assistance, which was provided to other co-delinquents, was also not provided to him. Thus, there has been denial of fair opportunity to the petitioner. The main allegation was against the Tehsildar Shri Bishan Lal Sunaria of having obtained bribe from agriculturalists and that a sum of Rs. Legal assistance, which was provided to other co-delinquents, was also not provided to him. Thus, there has been denial of fair opportunity to the petitioner. The main allegation was against the Tehsildar Shri Bishan Lal Sunaria of having obtained bribe from agriculturalists and that a sum of Rs. 10,000/- was returned by Bishan Lal Sunariya, however, the Enquiry Officer has exonerated Bishan Lal Sunariya from the charge of having received the bribe and thus he was imposed with the penalty of censure by the Disciplinary Authority. However, this court finds that the Appellate Authority has not taken into consideration the facts in that perspective as regards the petitioner. When the charge as against Bishan Lal Sunariya is not found to be proved of having received bribe, the charge against the petitioner of being instrumental therein ought to have been held to be not proved. The Enquiry Officer has found the petitioner guilty of the new charge of having received bribe by himself, which was not ‘he part of the charge sheet issued to the petitioner. Thus viewed, the oraer of dismissal passed against the petitioner is vitiated. 11. In the case of “Sawai Singh v. State of Rajasthan” reported in 1986 (3) SCC 454 it has been held by the apex Court that the principles of natural justice are required to be followed in departmental enquries entailing consequences like loss of job which nowadays means loss of livelihood. There must be fair play in action that is there must be investigation to the charges consisting with the requirement of the situations in accordance with the principles of natural justice. 12. The view laid down by the apex Court in the case of “Surath Chandra Chakrabarty v. State of W.B.” reported in 1970 (3) SCC 548 and in the case of “State of A.P. v. S. Sree Ram Rao” reported in AIR 1963 SC 1723 was followed while delivering the aforesaid judgments in the case of Sawai Singh (supra). 13. In the case of “Khem Chand v. Union of India” reported in 1958 SCR 1080 , it has been held that in domestic fairness in the procedure is part of the principal of natural justice. 14. 13. In the case of “Khem Chand v. Union of India” reported in 1958 SCR 1080 , it has been held that in domestic fairness in the procedure is part of the principal of natural justice. 14. In the case of State of Assam v. Mahendra Kumar Das 1970 (1) SCC 709 , It was held that the enquiry officer is not permitted to collect any material from outside source during conduct of the enquiry. 15. In the case of “Mohd. Yunus Khan v. State of Uttar Pradesh” reported in 2010 (10) SCC 539 , it has been held as under: 33. We are of the considered opinion that the initiation of disciplinary proceedings against the appellant and the conclusion thereof by the imposition of the punishment by the Commandant, who had himself been a witness, was in flagrant violation of the principles of natural justice and thus, stood vitiated. “Principles of natural justice are to some minds burdensome but this price-a small price indeed-has to be paid if we desire a society governed by the rule of law.” All other consequential orders passed in appeal etc. remained inconsequential. More so, a protest/disobedience against an illegal order may not be termed as misconduct in every case. In an appropriate case, it may be termed as revolting to one's sense of justice. In view of the above, we are of the considered opinion that the protest raised by the appellant against the punishment imposed for his absence could not give rise to a cause of action for initiating the disciplinary proceedings. 34. The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge sheet should contain such an article or at least he should be informed of the same at the stage of the show cause notice, before imposing the punishment. 16. Similar view has been taken in the case of “Union of India (UOI) v. Bishamber Das Dogra” reported in (2009) 13 SCC 102 . 17. Thus, it is settled principle that enquiry officer cannot travel beyond the charges level against delinquent at and it would be against the principle of natural justice if a punishment is imposed on the basis of findings which was not the subject matter of charge. 17. Thus, it is settled principle that enquiry officer cannot travel beyond the charges level against delinquent at and it would be against the principle of natural justice if a punishment is imposed on the basis of findings which was not the subject matter of charge. The action would be illegal. In the result, the writ petition is allowed. The order dated 5.4.1989 (Annexure-21) of the disciplinary authority qua the petitioner and the order dated 11.03.1991 (Annexure-23) of the appellate authority, are quashed and set aside.