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2020 DIGILAW 241 (RAJ)

Madhur Behari Mathur v. State of Rajasthan

2020-01-24

NARENDRA SINGH DHADDHA, SABINA

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JUDGMENT : 1. Appellant has filed this appeal challenging order dated 23.08.2004 passed by the learned Single, whereby, writ petition filed by the appellant was dismissed. 2. Learned Senior Advocate appearing on behalf of the appellant has submitted that the learned Single Judge has erred in dismissing the writ petition filed by the appellant. Enquiry Officer, after holding enquiry, found that the charges levelled against the appellant were not proved. Disciplinary Authority vide order dated 05.05.1986 remanded the case to the Enquiry Officer for holding a de-novo enquiry. Order dated 05.05.1986 was a non-speaking order. Enquiry Officer had conducted enquiry after following due procedure of law. Hence, the order dated 05.05.1986 was liable to be set aside. In support of his arguments, learned Senior Advocate has placed reliance on judgment of the Hon'ble Supreme Court in Mohd. Abdul Aleem, v. Director, Survey Training Institute (C.S.T. and M.P.) Survey of India, Uppal, Hyderabad, 1975 LAB. I.C. 1682 wherein it was held as under: "6. There is yet another infirmity in that order and that is that it has not recorded its reasons for directing a fresh inquiry. What all is stated in the impugned order is that there are grave lacunae and procedural defects in the inquiry previously held. No other reason is even attempted to be given. By no stretch of imagination, it can be said that there are reasons required to be recorded in writing by Rule 15 (1). Simply saying that there are grave lacunae and procedural defects, is not assigning reasons for setting aside an inquiry and its report. Rule 15 (1) clearly requires reasons to be given which could only mean cogent reasons. Otherwise the very purpose of Rule 15 (1) would be defeated. When a further inquiry is ordered the order should be speaking one, giving cogent reasons for ordering further inquiry. These are absent in the impugned order and for this reason also it has a grave and fatal defect." 3. Learned Senior Advocate has next placed reliance on judgment of Delhi High Court in Inspector/Exe. Vinod Gill Vs. Union of India (UOI) and Ors. [WP (C) No. 12621/2005 decided on 31.08.2006] wherein it was held as under: "8. We have already discussed that in the impugned order of the appellate authority, no reason whatsoever has been stated for directing a de-novo enquiry. Vinod Gill Vs. Union of India (UOI) and Ors. [WP (C) No. 12621/2005 decided on 31.08.2006] wherein it was held as under: "8. We have already discussed that in the impugned order of the appellate authority, no reason whatsoever has been stated for directing a de-novo enquiry. Further we are of the considered view that no jurisdiction is vested in the appellate authority even upon the liberal construction of the above provisions to direct de-novo enquiry, particularly in the manner in which it has been done. To keep the disciplinary action against delinquent official within the prescribed limitation of law and rules, holding of fresh enquiry on same article of charges where the enquiry has already been held twice over and there is concurrence between the disciplinary authority and the enquiry officer, it would not be normally permissible to hold de-novo enquiry. The concept of de-novo enquiry is the effect of completely wiping out the earlier enquiry as a whole. Unless rules specifically permit and there are circumstances justifying invoking of such powers, the de-novo enquiry cannot be permitted. 15. The disciplinary authority and for that matter even the appellate authority must have sufficient reasons even if it wishes to direct further of fresh enquiry. Until and unless there are circumstances, which affects prejudicially the rights of the parties and there is apparent violation of rules and principles of natural justice, there can hardly be any occasion for the authorities to direct further or fresh enquiry. The authorities are expected to act objectively and with due application of mind. No exceptions as stated by the Supreme Court in the case of Union of India v. P. Thayagarajan AIR 1999 SC 449 have been made out in the present case." 4. Learned Senior Advocate has further placed reliance on judgment of the Hon'ble Supreme Court in Kanailal Bera Vs. Union of India (UOI) & Others, (2007) 11 SCC 517 ; judgment of Division Bench of this Court in State of Rajasthan & Another Vs. Dr. R.P. Gaur (D.B. Special Appeal Writ No. 786/2009 decided on 12.05.2017), State of Rajasthan Vs. Amolak Chand Sanghi (D.B. Civil Special Appeal No. 37/1975 decided on 01.12.1962), Judgment of Single Bench of this Court in Shyamlal Vijayvargiya Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No. 6836/2007 decided on 19.01.2017) and Om Prakash Vs. Dr. R.P. Gaur (D.B. Special Appeal Writ No. 786/2009 decided on 12.05.2017), State of Rajasthan Vs. Amolak Chand Sanghi (D.B. Civil Special Appeal No. 37/1975 decided on 01.12.1962), Judgment of Single Bench of this Court in Shyamlal Vijayvargiya Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No. 6836/2007 decided on 19.01.2017) and Om Prakash Vs. State of Rajasthan & Others (S.B. Civil Writ Petition No. 90/1999 decided on 02.08.2017). 5. Learned State counsel has opposed the appeal and has submitted that as per Rule 16(9) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the Rules'), the Disciplinary Authority had the power to remand the case for further/de-novo enquiry, in case it was found that the enquiry already conducted was laconic in some respect or the other. Order dated 05.05.1986 was a self explanatory order. Thereafter, enquiry was conducted afresh in accordance with law. Hence, it could not be said to be a case inviting judicial review. In support of her arguments, learned State counsel has placed reliance on judgment of the Hon'ble Supreme Court in Lalit Popli Vs. Canara Bank & Others, (2003) 3 SCC 583 , wherein it was held as under: "16. It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rule governing the enquiry and trial are conceptually different. (See State of Rajasthan v. B.K. Meena, (1996) 6 SCC 417 ). In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct." 6. Facts in the present case are not in dispute. Appellant joined the Irrigation Department as Assistant Engineer in the year, 1963 and was promoted as Executive Engineer in the year 1974. Enquiry was initiated against the appellant. Facts in the present case are not in dispute. Appellant joined the Irrigation Department as Assistant Engineer in the year, 1963 and was promoted as Executive Engineer in the year 1974. Enquiry was initiated against the appellant. Enquiry Officer vide its report dated 10.01.1986 held that the charges levelled against the appellant were not proved. Matter came up before the Disciplinary Authority. Disciplinary Authority vide order dated 05.05.1986 held that the Enquiry Officer was expected to afford an opportunity to both, i.e., the prosecution and the delinquent officer, to present their cases in a proper manner and should have recorded its findings on the basis of evidence adduced by both the sides and sent it to the Disciplinary Authority. Since the procedure had not been followed, the case was sent back for de-novo enquiry. 7. Thereafter, de-novo enquiry was held against the appellant and the charges levelled against the appellant were held to be duly established. Vide order dated 10.12.1987, punishment of stoppage of three annual grade increments with cumulative effect was imposed on the appellant. Said punishment was reduced to stoppage of two annual grade increments with cumulative effect vide order dated 16.08.1989 passed in a review petition filed by the appellant. 8. The first question that requires consideration is as to whether order dated 05.05.1986 passed by the Disciplinary Authority was in accordance with law. 9. Rule 16(9) of the Rules reads as under: "16. Procedure for imposing major penalties: (1) xxxxxxxx (2) xxxxxxxxx (3) xxxxxxxxx (9) The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge. [The Disciplinary Authority may while considering the report of the Enquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/de-novo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other.]" 10. Thus, as per the above rule, Disciplinary Authority had the power to order de-novo enquiry in a case where it was of the opinion that the enquiry already conducted was laconic in some respect or the other. 11. Thus, as per the above rule, Disciplinary Authority had the power to order de-novo enquiry in a case where it was of the opinion that the enquiry already conducted was laconic in some respect or the other. 11. A perusal of the order dated 05.05.1986 reveals that the Disciplinary Authority, after considering the enquiry report, felt that the Enquiry Officer was expected to afford an opportunity to both, i.e., the prosecution as well as the delinquent officer, to present their cases in a proper manner and should have recorded its findings on the basis of evidence adduced by both the sides and sent the same to the Disciplinary Authority. However, after going through the enquiry report, it transpired that the procedure had not been followed and hence, the case was sent for de-novo enquiry. Thus, from order dated 05.05.1986, it is evident that the Disciplinary Authority had gone through the enquiry proceedings and had found that the procedure had not been followed and had ordered de-novo enquiry. 12. Hence, we are of the opinion that order dated 05.05.1986 had been passed by the Disciplinary Authority while exercising jurisdiction vested in it and the same calls for no interference. 13. Learned Senior Advocate appearing on behalf of the appellant has failed to point out violation of any rule or principles of natural justice in the de-novo enquiry. 14. It is settled preposition of law that disciplinary authority and on appeal, the appellate authority are the fact finding authorities and have the exclusive power to consider the evidence with a view to maintain discipline. Courts, while exercising their power of judicial review, do not sit as an appellate authority and cannot reappreciate the evidence. Courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the basis of material on record. If the enquiry has been fairly and properly conducted and the findings are based on evidence, the question of adequacy of evidence or reliable nature of the evidence would not be a ground to interfere with the findings in departmental enquiry. Courts will only interfere with the finding of fact recorded in the departmental enquiry only when the said findings are based on no evidence or when they are clearly perverse. Courts will only interfere with the finding of fact recorded in the departmental enquiry only when the said findings are based on no evidence or when they are clearly perverse. The court will interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, mala-fide, capricious or based on extraneous considerations. This Court, while exercising power of judicial review, cannot normally substitute its own conclusion with regard to penalty and impose some other penalty unless it shocks the conscience of the Court. 15. After carefully going through the entire record, we are of the considered opinion that present case does not warrant any judicial review. Order dated 05.05.1986 was passed by the Disciplinary Authority in terms of Rule 16(9) of the Rules. Thereafter, de-novo enquiry was conducted as per rules and punishment order was passed against the appellant. Hence, it cannot be said to be a case where principles of natural justice had not been complied with, warranting interference by this Court. 16. We have carefully gone through the judgments relied upon by learned Senior Advocate appearing on behalf of the appellant but the same fail to advance the case of the appellant as they are based on different facts. 17. No ground for interference by this Court is made out. 18. Dismissed.