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Rajasthan High Court · body

2019 DIGILAW 2075 (RAJ)

Phool Singh Dhakar v. State of Rajasthan

2019-07-31

SANJEEV PRAKASH SHARMA

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JUDGMENT : Sanjeev Prakash Sharma, J. 1. The petitioner by way of this writ petition assails the action of initiating departmental enquiry against the petitioner under Rule 17 of the CCA Rules, 1958 and also subsequently punishing the petitioner stating that the petitioner has not filed any reply to the charges. 2. Learned counsel for the petitioner submits that the charge sheet issued to the petitioner does not reflect any misconduct in terms of the Rajasthan Civil Service Conduct Rules 1971. Learned counsel submits that from the statement of allegations, it is apparent that the petitioner joined on the post as a Superintending Engineer on 10.4.2010. The allegation levelled is of not having issued show cause notice to one Shri Raj Kumar Nebhnani, the then Executive Engineer for alleged discrepancy committed by him and it is stated that such information was received in the office on 26.2.2010. 3. Learned counsel submits that the petitioner was not holding the office on 26.2.2010 and after joining the petitioner issued shown cause notice to the concerned officer on 10th June, 2010 within a period of two months. It is submitted that there is no action taken by the Department laying down time frame to issue show cause notice in the cases of discrepancy committed by any subordinate Officer. It is further submitted that the petitioner had several times requested the respondents to make available the documents which were not provided. However, he filed a detailed reply and pointed out that the concerned Officer- Raj Kumar Nebhnani had been promoted as a Superintending Engineer and therefore there was a doubt whether the petitioner who was also holding the post of Superintending Engineer, issued show cause notice to him who is officer of the same rank. Be that as it may it is his submission that as there is no circular laying down time frame, the petitioner cannot be said to have committed misconduct and charge sheet could not have been issued to him. 4. Learned counsel further submits that without examining the reply filed by the petitioner, the disciplinary authority proceeded to punish the petitioner with stoppage of one annual grade increment without cumulative effect mentioning therein that the petitioner has not filed any reply. Thus, there is complete negligence at the level of disciplinary authority who has ignored to examine the reply filed by the petitioner. 5. Thus, there is complete negligence at the level of disciplinary authority who has ignored to examine the reply filed by the petitioner. 5. Per contra, learned counsel for the respondents supported the impugned order and submits that the reply was not available before the Disciplinary Authority when he passed the order. 6. I have considered the submissions of the parties. 7. From the pleadings which have come on record it is apparent that the respondents have admitted of having received the written statement of the petitioner but it is stated that the written statement was not available to the DOP and alleged reply could not be examined while passing the penalty order. 8. Learned counsel for the respondents was specifically asked to point out as to whether there is a circular laying down time frame for issuing show cause notice, to which learned counsel pleads ignorance and submits that there is no such mention in the order. 9. Taking into consideration the aforesaid facts, this court cannot go into factual aspects in relation to the departmental proceedings in view of law laid down in the case of " Central Industrial Security Force & Ors. Vs. Abrar Ali" reported in AIR 2017 SC 200 relying in the case of "Union of India & Ors. Vs. P. Gunasekaran" reported in 2015 (2) SCC 610 , wherein Apex Court held as under: "Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether: a. the inquiry is held by a competent authority; b. the inquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience." 10. Keeping in view the aforesaid guidelines, it is a case where no misconduct is found to have been committed in terms of the Rules of 1971, which laid down various misconducts for which the Government servant is liable to be punished. 11. In the case of "Union of India & Ors vs J. Ahmed "reported in 1979 AIR 1022, it has been held as under: "It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. 11. In the case of "Union of India & Ors vs J. Ahmed "reported in 1979 AIR 1022, it has been held as under: "It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railway cabinman signals in a train on the same track where there is a stationary train causing headlong collision; a nurse giving intravenous injection which ought to be given intramuscular causing instantaneous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashes causing heavy loss of life. Misplaced sympathy can be a great evil [see Navinchandra Shakerchand shah v. Manager, Ahmedabad Coop. Department Stores Ltd.]. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty." 12. In view of aforesaid, this court finds that charge sheet issued to the petitioner was wholly unjustified and therefore there cannot be said to have any misconduct on the part of the petitioner in issuing show cause notice to an official after having joined on 10.4.2010 within a period of two months. 13. In view of aforesaid, this court finds that charge sheet issued to the petitioner was wholly unjustified and therefore there cannot be said to have any misconduct on the part of the petitioner in issuing show cause notice to an official after having joined on 10.4.2010 within a period of two months. 13. More so, it is the case of the petitioner that the concerned officer was also holding the same rank as he was holding and because of this specific reason, there was doubt in his mind whether show cause notice can be issued to officer of equal rank and this has been completely ignored by the Disciplinary Authority while passing the order impugned and even the reply has not been considered. 14. Taking into consideration the above, the order impugned cannot be allowed to be sustained. The same is accordingly held to be illegal and is hereby set aside. The petitioner shall be entitled to all consequential benefits. If the same punishment order has been taken into consideration for denial of promotion or any other benefits, the respondents shall review their orders and grant consequential reliefs relating to the petitioner. 15. In the facts and circumstances of the case, there shall be no order as to costs.