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2019 DIGILAW 1511 (RAJ)

Rajendra Sahu v. Rajasthan High Court, Jodhpur

2019-05-15

SANDEEP MEHTA, VINIT KUMAR MATHUR

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JUDGMENT : SANDEEP MEHTA, J. The petitioner, being a member of the Rajasthan Judicial Services, has approached this court by way of this writ petition, while 35 invoking the extraordinary writ jurisdiction conferred upon by this court by Article 226 of the Constitution of India for assailing the charge-sheet dated 20.11.2015 (Annex. 8) and the communication/order dated 07.06.2017 (Annex. 12), whereby the petitioner herein was held guilty in an enquiry instituted against him under Rule 17 of the Rajasthan Civil Services 40 (Classification, Control and Appeal) Rules, 1958 (for short, hereinafter referred to as ‘the Rules of 1958’) and was handed down a penalty of withholding of one annual grade increment without cumulative effect. 2. Though numerous other previous charge-sheets, instances of disciplinary action against the petitioner are referred in the writ petition, but 45 the order dated 07.06.2017, which is assailed in this writ petition is founded on the memorandum No. R/V/JD/DE-5/2015/451 dated 20.11.2015 (Annex. 8), which was served upon the petitioner herein under Rule 17 of the Rules of 1958. The sole charge as framed by the Hon'ble the Enquiry Judge against the petitioner, which formed the foundation of the enquiry is reproduced here-in-below for ready reference :— “That Mr. Rajendra Sahu, while working as Civil Judge (Jr.Div.) & Judicial Magistrate, Dudu at relevant time, attested bail bonds of accused Kayyum on 27.08.2010 in the matter arising out of F.I.R. No. 146/2010 registered at Police Station, Dudu. Mr. Hanif who is father of accused Kayyum submitted an application on the same day i.e. 27.08.2010 praying therein to send release order of accused Kayyum by special messenger to Sub-Jail at Sambharlake. Mr. Sahu rejected the said application while mentioning that all the employees and Class-IV employees are engaged in protecting files from seepage of water and no other employee is available and ordered to send the release order by post. Accordingly, the release order was sent by post but it could not reach to Sub-Jail at Sambhar Lake till 03.09.2010; resultantly the accused Kayyum had to remain in jail unnecessarily. Mr. Rajendra Sahu, in this way, ordered to send the release order of accused Kayyum by post against the provisions of Rule 71 of General Rules (Criminal), 1980; though on 27.08.2010 as many as Six Class-IV employees were present in the Court. The said Mr. Mr. Rajendra Sahu, in this way, ordered to send the release order of accused Kayyum by post against the provisions of Rule 71 of General Rules (Criminal), 1980; though on 27.08.2010 as many as Six Class-IV employees were present in the Court. The said Mr. Rajendra Sahu has thereby failed to maintain devotion to duty which tantamounts to violation of Rule 3(1)(ii) of Rajasthan Civil Services (Conduct) Rules, 1971.” 3. The petitioner submitted his reply/representation against the memorandum, whereby he denied the charges attributed to him and claimed exoneration. He took a plea that the Judicial Magistrate's court at Dudu was functioning in a dilapidated building and water used to seep into it during rains. The charge that the petitioner intentionally avoided transmission of the release order of the accused Kayyum to the Sub-Jail Sambhar Lake by a special messenger was refuted and it was mentioned that he requested the Assistant Nazir to send any Class-IV staff member to the Sub-Jail with the release order. The Nazir submitted a written report expressing his inability to do so, assigning a reason that all the staff members including Class-IV employees of the court were engaged in protecting the court files and record, which were at a risk because of seepage of water. In his representation dated 08.01.2006, the petitioner denied the fact that the accused had to remain in jail unnecessarily because the release order was sent by post. It was mentioned that the High Court granted bail to the accused vide order dated 15.07.2010, but the documents for attestation of bail bonds were submitted before the court as late as on 25.08.2010. 4. Be that as it may. Consanguine documents to establish the fact that the court building of the Judicial Magistrate, Dudu was in a dilapidated state; that the District and Sessions Judge, Jaipur District had directed the Presiding Officer vide communication dated 31.07.2010 (Annex. 10) to shift the record to the adjoining community building, and the order-sheets of the case adverting to the Assistant Nazir's report were annexed with the reply. 10) to shift the record to the adjoining community building, and the order-sheets of the case adverting to the Assistant Nazir's report were annexed with the reply. The disciplinary authority, however, did not agree with this representation of the writ petitioner and after hearing him and the departmental representative, concluded the enquiry vide report dated 29.07.2016 holding the delinquent officer, i.e. the petitioner herein, guilty of the charge that he failed to maintain devotion to duty, which tantamounted to violation of Rule 3(1)(ii) of the Rajasthan Civil Services (Conduct) Rules, 1971. 5. The Full Court considered the enquiry report and unanimously resolved to impose penalty of withholding of one annual grade increment without cumulative effect against the petitioner. In furtherance of this resolution of the Full Court, the Registrar General, Rajasthan High Court issued the abovementioned communication dated 07.06.2017 to the petitioner, whereby he was apprised of the order imposing penalty. The said order is assailed in the instant writ petition. 6. Mr. Sajjan Singh Rathore, learned counsel representing the petitioner, vehemently and fervently urged that the proceedings of enquiry initiated against the petitioner are arbitrary and perverse. The petitioner had faced two previous enquiries on virtually the same allegations and was exonerated therein as the same were dropped. He urged that the present enquiry is nothing but repeated enquiry on the same facts and allegations. He further urged that the representation of the petitioner was not properly considered by the Hon'ble Enquiry Judge as well as the disciplinary authority being the Rajasthan High Court and thus, the order impugned is liable to be struck down. During the course of arguments, the fervent and pertinent assertion of Mr. Rathore was that no reasons whatsoever have been assigned in the communication dated 07.06.2017 for holding the petitioner guilty of the charge and imposing the penalty aforestated and thus, the impugned order, apart from being laconic and non-speaking, also amounts to a gross abuse of the principles of natural justice and fair play. He, thus, implored the court to accept the writ petition and set aside the impugned communication and exonerate the petitioner of the charge and quash the penalty imposed upon the petitioner with consequential benefits. 7. Per contra, Mr. He, thus, implored the court to accept the writ petition and set aside the impugned communication and exonerate the petitioner of the charge and quash the penalty imposed upon the petitioner with consequential benefits. 7. Per contra, Mr. Manoj Bhandari, learned counsel representing the respondent Rajasthan High Court, vehemently and fervently opposed the submissions advanced by the petitioner's counsel and urged that the Hon'ble Enquiry Judge assigned detailed reasons for upholding the charge against the petitioner. The Full Court, unanimously accepted the enquiry report dated 29.07.2016 in its meeting dated 20.05.2017 and recommended the penalty of stoppage of one annual grade increment without cumulative effect against the petitioner, which was conveyed to him by the impugned communication/order. Thus, as per Mr. Bhandari, the impugned communication does not suffer from any illegality and infirmity whatsoever. 8. To this submission, Mr. Rathore submitted in rejoinder that neither the copy of the enquiry report was provided to the petitioner nor has the Full Court assigned any reasons for recommending the penalty aforestated against the petitioner. Thus, as per him, the resolution of the Full Court as well as the communication, whereby the same was conveyed to the petitioner, deserve to be struck down. 9. We have given our thoughtful consideration to the submissions advanced at bar and have gone through the material filed with the pleadings as well as the original record provided by Shri Bhandari. The contention advanced by Shri Sajjan Singh Rathore, learned counsel for the appellant, that the present enquiry is a repeated enquiry on same allegations is per se untenable. The earlier complaints which were submitted against the petitioner were general complaints of misbehaviour etc. made by the Bar Association and in these complaints, a passing reference was made to the incident, on the basis whereof, the instant charge-sheet was served to the petitioner. The Hon'ble Enquiry Judge objectively considered this aspect in the enquiry report and negated the same. We have also independently perused the previous complaints filed against the petitioner by the Bar Association, Dudu and find that only vague allegations have been levelled in these complaints regarding the presiding officer not forwarding the bail release orders through a court messenger. Thus, we conclude that this contention of the petitioner's counsel is bereft of merit. We have also independently perused the previous complaints filed against the petitioner by the Bar Association, Dudu and find that only vague allegations have been levelled in these complaints regarding the presiding officer not forwarding the bail release orders through a court messenger. Thus, we conclude that this contention of the petitioner's counsel is bereft of merit. The sole charge attributed to the petitioner in the present case was to the effect that he did not accept the application filed by Hanif to transmit the release order of his son, the accused Kayyum to the prison by a special messenger. The justification offered by the petitioner in this regard was that one Class-IV employee had gone for service of notice in the Halka, one was posted as Chowkidar and the rest of the staff were working for protecting the files. There is no dispute regarding the fact that as per Rule 71 of the General Rules (Criminal), 1980, which reads as below, the transmission of release order of an accused by a special messenger is the mandate of law:— “When a person confined in jail is admitted to bail by order of a Court, the Presiding Officer shall see that the order of release is entered in a letter delivery book in the prescribed form (Reg. 3) and sent through one of the Courts peons to the officer-in-charge of the jail whose signatures should be obtained in the letter delivery book in token of delivery of the release order to him. Such orders should in no case be made over to private persons for delivery to jail authorities.” 10. The Rules of 1980 do not provide India Post as one of the means of transmission of a bail order. The Hon'ble Enquiry Judge considered the representation of the delinquent officer (petitioner), heard the arguments and assigned the following reasons in the detailed enquiry report dated 29.07.2016 for discarding the representation of the delinquent officer and holding him guilty of the charge:— “Rule 71, supra thus clearly states that the release order shall be sent through one of the Court's peons to the officer-in-charge of the jail and that in no case such order shall be delivered by private persons to the jail authorities. There is thus no procedure prescribed in the Rules to send the release order through postal department. There is thus no procedure prescribed in the Rules to send the release order through postal department. Moreover, postal department though is an instrumentality of Central Government, but since it is not related to Courts, it is treated as an private person in the eye of law and sending release order through postal department (private person) was prohibited under the aforesaid Rule. Thus there is clear violation of Rule 71 of the Rules of 1980. Moreover, it is an admitted fact that as per the report of Assistant Nazir and attendance register of August, 2010, on the fateful day, there is sufficient strength of Class-IV employees in the Court, i.e. 8(1 was working as security guard, 1 was engaged in service of process and 6 were engaged in shifting of files) and therefore rejecting the application for sending release order by special messenger on the ground of non-availability of staff is not at all justified. The ground that all staff were engaged in protecting files from seepage of water, is not a sufficient ground to escape from the liability of provisions made in Rule 17, supra. The delinquent officer might depute a single Class-IV employee as a special messenger, out of 6 engaged in shifting of files for sending the release order to jail authorities concerned as per Rule 71, supra.” 11. There is no pleading whatsoever in the entire writ petition that the enquiry report was not communicated to the petitioner. Reference of the enquiry report is given in the reply, but no rejoinder was filed by the petitioner. 12. We now proceed to elaborate upon the submission advanced by the petitioner's counsel that the enquiry was not held in accordance with the Rules of 1958 and that the petitioner was not provided appropriate opportunity to counter the allegations levelled against him in the charge-sheet and that the impugned order is bad in the eye of law because no reasons have been assigned therein. 13. The Rules of 1958 deal with the procedure to be adopted in the matter of holding disciplinary proceedings against a Government servant, that is to say that a person, who is member of a service or holds a civil post under the Government of Rajasthan. 13. The Rules of 1958 deal with the procedure to be adopted in the matter of holding disciplinary proceedings against a Government servant, that is to say that a person, who is member of a service or holds a civil post under the Government of Rajasthan. These do not lay down an absolute mechanism for conducting a disciplinary enquiry against an officer in the Rajasthan Judicial Services as their appointment is made upon the recommendation of the Rajasthan High Court under the Rajasthan Judicial Service Rules. Manifestly, an officer in the cadre of the Rajasthan Judicial Services would not be ipso facto covered by these rules. However, the Rajasthan High Court has adopted these Rules with certain alterations for dealing with the delinquencies of subordinate judicial officers. In the matter of enquiries under Rule 16 and 17 of the Rules of 1958, the following adaptations have been approved by the Full Court “(i) The Administrative Judge or the Judge nominated by the Chief Justice shall have the power to issue charge sheet and to conduct enquiry under Rule 16 & 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 and to submit the Enquiry Report to the Chief Justice for placing it before the Full Court.” (ii) The Enquiry Report submitted by the Administrative Judge or the Judge nominated by the Chief Justice shall be placed before the Full Court. The Full Court after considering the Report, may agree or disagree with it and may exonerate the delinquent officer or may impose suitable punishment on him following the procedure prescribed by the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958.” 14. In light of the above resolution, the Administrative Judge or the Judge nominated by Hon'ble the Chief Justice has power to issue charge-sheet and to conduct enquiry against a subordinate judicial officer under Rule 16 and 17 of the Rules of 1958. After conducting an enquiry in accordance with the procedure provided under the Rules of 1958, the Hon'ble Enquiry Judge would be required to draw his conclusions and submit the same to Hon'ble the Chief Justice, who in turn, shall direct that the same be placed for consideration of the Full Court. Thus, for all practical purposes, the Judge nominated by the Chief Justice is the disciplinary authority of the delinquent judicial officer. Thus, for all practical purposes, the Judge nominated by the Chief Justice is the disciplinary authority of the delinquent judicial officer. The powers of the Judge nominated have only been curtailed on the aspect of quantum of punishment to be awarded, which discretion has been left to the Full Court. 15. An Hon'ble Judge of this Court upon being nominated by Hon'ble the Chief Justice to conduct an enquiry against a judicial officer exercises delegated powers of the Rajasthan High Court, which is the disciplinary authority, while conducting such enquiry. 16. In the present case, the Hon'ble Judge nominate (the Enquiry Judge) issued the memorandum of allegations/charge-sheet to the petitioner, took his explanation, heard him in person and thereafter submitted the enquiry report to Hon'ble the Chief Justice with the conclusions reproduced infra. Manifestly, thus, there is no merit in the contention of Mr. Sajjan Singh Rathore, learned counsel representing the petitioner, that the petitioner was not provided appropriate opportunity to defend himself in the enquiry proceedings or that he was penalized without reasons being assigned. The enquiry report submitted by the Hon'ble Judge nominate set out detailed reasons for which the defence of the petitioner was not accepted and he was held liable for the charge punishable under Rule 17 of the Rules of 1958. This report was admittedly issued after providing opportunity of hearing to the petitioner. The petitioner has not raised any grievance whatsoever in the writ petition that the copy of the report was not provided to him. No criticism has been offered by the petitioner in the pleadings of the writ petition regarding the conclusions drawn by the Hon'ble Judge nominate in the enquiry report. Otherwise also, we find that the reasons assigned by the Hon'ble Enquiry Judge in the enquiry report while holding the petitioner liable for the delinquency attributed to him are cogent, germane and well-founded. 17. The most significant finding, which is reflected from the Hon'ble Enquiry Judge's report, is that the c-accused Abid Hussain, who too was granted bail by the Hon'ble Supreme Court by the very same order dated 15.07.2010, was released on 01.09.2010, i.e. on the very same day on which his bail bonds were attested. 17. The most significant finding, which is reflected from the Hon'ble Enquiry Judge's report, is that the c-accused Abid Hussain, who too was granted bail by the Hon'ble Supreme Court by the very same order dated 15.07.2010, was released on 01.09.2010, i.e. on the very same day on which his bail bonds were attested. There is a specific allegation to this effect in the complaint, which the petitioner Judicial Officer did not deny and thus, apparently, he acted with manifest discrimination and arbitrariness while dealing with the cases of the accused Kayyum and co-accused Abid Hussain in the matter of forwarding of the release orders. It cannot be accepted even for a moment that out of six available court staff, the petitioner could not spare even a single one for transmission of the release order to the prison as per the Rules of 1980. The reasons assigned by the Hon'ble Enquiry Judge in the enquiry report are germane and cogent. 18. The detailed reasons so assigned by the Hon'ble Enquiry Judge were deliberated upon in the Full Court meeting of the Rajasthan High Court convened on 20.05.2017, which unanimously agreed with these conclusions and imposed the penalty aforestated against the petitioner considering the fact that because of the petitioner's reluctance in forwarding the release order of the bailed out accused to the jail through special messenger, he was kept confined in prison for almost 8 days. The Full Court accepted the report after thorough deliberation and imposed the penalty afore-stated against the petitioner, which was communicated to him by the communication dated 07.06.2017. Thus, we feel that the penalty imposed upon the petitioner is not excessive or out of proportions. As such, we find no justification whatsoever to interfere in the impugned order, whereby the penalty afore-stated was imposed upon the petitioner while approving the findings in the enquiry report. As a result of the above discussion, we find no merit in the writ petition, which is dismissed as such. No order as to costs.