Usha Singh, W/o. Dr. A. K. Singh v. State of Rajasthan through the Secretary
2023-04-28
REKHA BORANA
body2023
DigiLaw.ai
ORDER : 1. The present writ petition has been filed against the order dated 3.11.2008 whereby the penalty of withholding of two grade increments with cumulative effect was imposed upon the petitioner. The reliefs as prayed for in the present petition are as under : "(i) By an appropriate writ, order or direction, the present writ petition may kindly be allowed; (ii) By an appropriate writ, order or direction, order passed by the reviewing authority dated 26.10.2010 (Annex.-18) which has been supplied to the petitioner on 08.02.2011, may kindly be declared illegal and be quashed and set aside with all consequential benefits; (iii) By an appropriate writ, order or direction, the order passed by the disciplinary authority 03.11.2088 (Annex.-15) whereby, the penalty of withholding of two grade increment with cumulative effect may kindly be declared illegal and same may kindly be quashed and set aside with all consequential benefits; (iv) By an appropriate writ, order or direction, the charge sheet dated 14.11.2003 (Annex.-6) may kindly be declared illegal and same may kindly be quashed and order dated 26.05.2008 (Annex.-13) passed by the disciplinary authority may also be quashed and set aside with all consequential benefits; (v) By an appropriate writ, order or direction, the respondents be directed to make the payment of salary during the suspension period between 08.08.2003 (Annex.-4) till 17.01.2004 with all consequential period and to regularize the suspension period with all consequential benefit; (vi) Any other appropriate order or direction which this Hon’ble Court may deem fit just and proper in the facts and the circumstances of the case may kindly be passed in favour of the petitioner; and (vii) Costs of the writ petition may kindly be awarded to the petitioner." 2. Brief facts of the case as averred in the writ petition are as under: The petitioner was initially appointed on 11.08.1998 with the Department of Higher Education on the post of Lecturer in Sociology and was later sent on deputation to the Women and Child Welfare Department as Child Development and Project Officer (CDPO) for a period of one year. Vide order dated 09.09.2002, her period of deputation was extended.
Vide order dated 09.09.2002, her period of deputation was extended. The said extension order was not accepted by the Higher Education Department and she was directed to join back the Department of Higher Education but as the petitioner was not relieved by the respondent-Women and Children Welfare Department, she did not join back her parent Department with immediate effect. 3. While working with the respondent-Department, an order dated 08.08.2003 was issued by respondent no.1 whereby the petitioner was suspended from service in contemplation of a Departmental Inquiry under Rule 13 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as ‘the CCA Rules’). She was directed to report at Headquarter at Jaipur during her suspension period. While under suspension, the petitioner was reverted back to her parent Department vide order dated 23.08.2003. 4. On 14.11.2003, a charge-sheet was issued by the respondent no.1-Secretary, DOPT in terms of Rule 16 of CCA Rules, whereby 8 charges were framed against the petitioner. The Inquiry Officer was then appointed and as per the Inquiry Report, the Charges No.1 to 5 were found to be proved and Charges No.6 to 8 were held to be not proved. 5. The Inquiry Report was forwarded to the Disciplinary Authority, who disagreed with the findings of the Inquiry Officer on Charges No.6 & 7 and held the said charges also to be proved against the petitioner. Consequently, vide order dated 03.11.2008, a penalty of stoppage of two grade increments with cumulative effect was imposed on the petitioner and the amount qua the suspension period except the subsistence allowance was also directed to be forfeited. A review petition was preferred by the petitioner against the order dated 03.11.2008, which came to be rejected vide order dated 26.10.2010 by His Excellency the Governor. 6. Aggrieved against the said orders, the present writ petition has been preferred. 7. Mr. Manoj Bhandari, learned Senior counsel appearing for the petitioner raised the following grounds : i) The order dismissing the review petition was passed without any application of mind and was not based on any cogent reasons in so far as it just reiterated the findings of the Disciplinary Authority. ii) The Disciplinary Authority proceeded on to disagree with the findings of the Inquiry Officer on Charges No.6 & 7 without any plausible cause or reason.
ii) The Disciplinary Authority proceeded on to disagree with the findings of the Inquiry Officer on Charges No.6 & 7 without any plausible cause or reason. The arbitrariness of the Disciplinary Authority is clear from the fact that the notice to the petitioner to show cause was issued after his concluding that Charges No.6 & 8 were also proved against her, which itself reflects that the Disciplinary Authority had already reached to a conclusion and just for the sake of formality called upon the petitioner to show cause as to why the charges be not held to be proved against her. The said act of the Disciplinary Authority was totally perverse and therefore, liable to be set aside. iii) The findings as arrived by the Inquiry Officer regarding Charges No.1 to 5 could also not be tenable as the same were based on no evidence. It is clear on record that although the list of witnesses as supplied by the Department included the names of three witnesses, two of them were never examined. So far as the sole witness Sohan Ram who is alleged to have been examined is concerned, he was not even an employee of the Department and therefore, his statements could not have been relied upon by the Inquiry Officer. iv) All the allegations as levelled against the petitioner were at the behest of Smt. Kamla Jawahar, the Project Director who had an ego problem with the petitioner and therefore, to somehow harass the petitioner, managed to get the charge-sheet issued against the petitioner. Smt. Kamla Jawahar was neither a government employee nor an officer superior to the petitioner therefore, even otherwise, the petitioner was not under an obligation to follow her instructions. v) The procedure as required under law had not been complied with during the inquiry proceedings and therefore also the complete proceedings vitiated. The Inquiry Report and the documents as relied upon by the Inquiry Officer were not even supplied to the petitioner and the same was procured by her only through an application under the Right to Information Act. Even her review petition was not decided for over a year and it was only on her serving a demand notice that the same was decided and the copy of the order was also supplied to her after a period of 3 months.
Even her review petition was not decided for over a year and it was only on her serving a demand notice that the same was decided and the copy of the order was also supplied to her after a period of 3 months. Neither the list of witnesses was supplied to her nor was she permitted to examine any witness on her behalf. Therefore, the complete inquiry proceedings vitiated being conducted against the principles of natural justice. vi) So far as the charges levelled against the petitioner are concerned, she had filed a detailed and specific reply to the charges which was sufficient to prove that she could not be held liable for any of the said charges. But the reply as well as the documents submitted by her in support thereof were totally ignored not only by the Inquiry Officer but also by the Disciplinary Authority. A perusal of the Inquiry Report makes it clear that her defence or any document produced by her had not been considered by the Inquiry Officer. Therefore, the findings as arrived at by the Inquiry Officer were totally perverse and liable to be set aside. vii) The petitioner was not paid even the subsistence allowance during the suspension period totally against the specific provisions of law which itself is sufficient to prove that all the proceedings initiated against her were completely biased and malafide. viii) The punishment as imposed amounted to two major penalties which could not have been imposed in terms of Rules of 1958. First penalty of stoppage of annual grade increments with cumulative effect and second penalty of forfeiture of the salary for the suspension period (except the subsistence allowance) amounts to two penalties in pursuance to a single charge-sheet which itself speaks of malafides and arbitrary exercise of powers. 8. In addition to the above grounds, learned Senior counsel submitted that all the 8 charges as levelled against the petitioner were either factually wrong on the face of it or were malafidely held to be proved against the petitioner. In support of his contentions, learned counsel relied upon the following Hon’ble Apex Court judgments : (i) S.N. Mukkherjee Vs. Union of India; AIR 1990 SC 1984 AIR 1998 SC 2713 (iii) Mathura Prasad Vs. Union of India (UOI) and Ors.; (2007) 1 SCC 437 9.
In support of his contentions, learned counsel relied upon the following Hon’ble Apex Court judgments : (i) S.N. Mukkherjee Vs. Union of India; AIR 1990 SC 1984 AIR 1998 SC 2713 (iii) Mathura Prasad Vs. Union of India (UOI) and Ors.; (2007) 1 SCC 437 9. Per contra, learned counsel for the respondents submitted that the inquiry was conducted totally in consonance with the procedure as prescribed under the law and after affording several opportunities of hearing to the petitioner. The documents as and when asked for by the petitioner were supplied to her and she was even permitted to inspect the complete record during the inquiry proceedings. Further, all the charges as levelled against the petitioner were prima facie proved on record and the Inquiry Officer reached to the said conclusions after considering the complete material available on record including the reply as well as the documents submitted by the petitioner. So far as non-production of Smt. Kamala Jahawar in witness box is concerned, it has been submitted that she expired during the inquiry proceedings and therefore, could not be examined. So far as Sohan Ram is concerned, he was examined and he candidly deposed regarding Charge No.1 against the petitioner. So far as the order of punishment passed by the Disciplinary Authority is concerned, learned counsel submitted that a notice of disagreement was very well served upon the petitioner and she was afforded opportunity to submit her reply to the same. The order passed by the Disciplinary Authority was totally in consonance with law and so was the order whereby the review petition as preferred by the petitioner was dismissed. 10. Learned counsel for the respondents also submitted that the scope of judicial review in disciplinary cases is limited and the Courts should be slow in interfering with the decisions of the Disciplinary Authority. In support of his contentions, learned counsel relied upon following judgments : (i) Chairman and Managing Director, United Commercial Bank and Ors. vs. P.C. Kakkar reported in AIR 2003 SC 1571 ; (ii) Union of India vs P. Gunasekaran ; AIR 2015 SC 545 ; (iii) State of UP & Ors vs Nand Kishore Shukla & Anr; AIR 1996 SC 1561 ; (iv) Charan Singh vs State of UP & Ors; Civil Misc. Writ Petition No.34609/2000 (Allahabad High Court) decided on 10.03.2006. 11.
Writ Petition No.34609/2000 (Allahabad High Court) decided on 10.03.2006. 11. Heard learned counsel for the parties and perused the material available on record. 12. Before adverting into the facts of the case, an analysis of the law and scope of judicial review in the orders of punishment passed by the Disciplinary Authority in Departmental/Disciplinary proceedings is essential. 13. In Mathura Prasad’s case (supra), the Hon’ble Apex Court held as under : “When an employee, by reason of an alleged act of misconduct, is sought to be deprived of his livelihood, the procedures laid down under Sub-rules are required to be strictly followed. It is now well settled that a judicial review would lie even if there is an error of law apparent on the face of the record. If statutory authority uses its power in a manner not provided for in the statute or passes an order without application of mind, judicial review would be maintainable. Even an error of fact for sufficient reasons may attract the principles of judicial review.” 14. In M.V. Bijlani vs. Union of India (UOI) and Ors.; 2006(5) SCC 88 , the Hon’ble Apex Court held as under : “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 15. In Punjab National Bank and Ors. vs. Kunj Behari Misra; (1998) 7 SCC 84 , the Hon’ble Apex Court held as under : “22. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2).
In Punjab National Bank and Ors. vs. Kunj Behari Misra; (1998) 7 SCC 84 , the Hon’ble Apex Court held as under : “22. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof whenever the disciplinary authority disagrees with the inquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice, as we have already observed, require the authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” 16. Testing on the touch stone of the principle and ratio as laid down by the Hon’ble Apex Court in above mentioned judgments, it is to be seen whether the same has been followed in the present matter or not and further whether the findings as recorded by the Inquiry Officer as well as the Disciplinary Authority require any interference by this Court or not. 17. Charges no.1, 2, 5, 6 & 7 as framed against the petitioner, in some or the other manner, pertained either to the defiance of the petitioner against the Project Director or to her total disobedience/ non co-operation with the office of the Project Director. The specific allegations were that the petitioner refused to accept any communication/letter issued by the Project Director; refused to attend any of the meetings called upon by the office of the Project Director; refused to provide vehicle for the transportation of the children of Aaganwadi workers to the hospital on their getting sick during the 48 days training programme and refused to submit the compliance report of inspection of Aaganwadi centers to the higher officials. 18.
18. Reply of the petitioner to the above allegations has been firstly that the Project Director, who was an officer of an NGO, was not a government employee and further not an officer superior to her and therefore, she was not under an obligation to comply with her orders. Secondly, the vehicle was not supplied during Aaganwadi training programme because the same was not provided under the Rules. Regarding the non-attending of the meetings as called upon by the Project Director, she submitted that she was busy in other government duties and therefore, could not attend the same. Regarding the other charges, she submitted that she had conducted Pulse Polio Programmes as well as inspection of Aaganwadi centers completely in accordance with law and was never negligent in performance of her duties. 19. A bare perusal of the reply as preferred by the petitioner makes it clear that she was totally adamant not to follow any directions/requests of the Project Director and did not cooperate with her in any of the official functions. The stand taken by the petitioner that the Project Director was not a government officer and she was not obliged to follow her directions itself is sufficient to prove the charge as levelled against her that she totally refused to acknowledge the office/existence of the Project Director. A perusal of the order dated 07.12.1996, the appointment order of the Project Director, placed on record by the petitioner as an appendix to Annexure-11 shows that the said appointment was made by the State Government in terms of the Rajasthan Civil Services (Special Selection and Special Conditions of Service of Project Directors, Project Officers & Other Officers in the Women's Development Project) Rules, 1984 (for short 'the Rules of 1984'). It is no one’s case that the said appointment was dehors any law. Once a person/officer is appointed by the State Government in terms of the provisions of law as provided and the person so appointed assumes the charge of the office, he/she holds the office in the official capacity as such. The said capacity cannot be denied by any employee of the government, whosoever. It is not the case of the petitioner that the Project Director was not empowered to hold meetings, to organise Aaganwadi Training Camps or to coordinate other programmes of Women and Child Welfare Department.
The said capacity cannot be denied by any employee of the government, whosoever. It is not the case of the petitioner that the Project Director was not empowered to hold meetings, to organise Aaganwadi Training Camps or to coordinate other programmes of Women and Child Welfare Department. The only stand of the petitioner is that the Project Director was appointed on contractual basis and was not a government officer. In the specific opinion of this Court, the said ground cannot be said to be tenable as the petitioner being an officer of the same Department, was definitely under an obligation to cooperate with the Project Director of her Department and also to accede to the request of the Project Director as the same pertained to the activities/functions pertaining to the Department only. In the opinion of this Court, the petitioner was no one to question the appointment or the duties/functions of the Project Director once he/she was appointed by the government in terms of law. The fact that the petitioner even refused to accept any communication/letter issued by the Project Director was completely established on record by witness Sohan Ram who made a note in writing that the petitioner refused to accept the letter and further instructed him never to bring any communication/letter of the Project Director to her office. 20. So far as the witness Sohan Ram is concerned, it has been pleaded by the petitioner in para 13 of the writ petition that as per the information supplied to her under the Right to Information Act, the Department has admitted that Sohan Ram was not even an employee of the Department. A perusal of the letter dated 02.03.2009 (Annexure-10) whereby the required information was supplied to the petitioner shows that firstly, the said information was supplied by the College Education Department and admittedly, Sohan Ram was not an employee of the said Department. Secondly, the fact of Sohan Ram being an employee of the Department was not at all denied. The letter only specifies that the application of the petitioner is being forwarded to the Women and Child Empowerment Department of which Sohan Ram was an employee. Therefore, the pleadings as made by the petitioner are also totally misconceived. 21.
Secondly, the fact of Sohan Ram being an employee of the Department was not at all denied. The letter only specifies that the application of the petitioner is being forwarded to the Women and Child Empowerment Department of which Sohan Ram was an employee. Therefore, the pleadings as made by the petitioner are also totally misconceived. 21. Regarding the subsistence allowance during the suspension period having not been paid to the petitioner, reply has been filed by the respondents wherein it has been specifically submitted that the petitioner has already received the subsistence allowance from 23.08.2003 to 19.01.2004 on 09.07.2004. In support the relevant documents have also been annexed. The said fact as submitted in the reply has not been denied by the petitioner in her rejoinder and it has only been submitted that the subsistence allowance was not received by her for long period of time and further that till date she has not been able to verify the same. Therefore, the ground of not being paid the subsistence allowance as raised by the petitioner also is found to be wholly misconceived. 22. A perusal of the inquiry report dated 31.10.2007 makes it clear that each and every charge has been elaborately discussed by the Inquiry Officer and even the complete reply as submitted by the petitioner has been taken note of/reproduced in the report of the Inquiry Officer. Further, a well reasoned finding qua each of the charge has been given by him therefore, it cannot be concluded that the defence as raised by the petitioner was not considered by the Inquiry Officer. 23. The ground of notice of disagreement by the Disciplinary Authority having not been served upon her, also cannot be held to be tenable in so far as the communication dated 26.05.2008 (Annexure-13) clearly shows that the reasons of disagreement had very well been communicated to the petitioner vide the said communication and she was called upon to file response within a period of 15 days. The inquiry report was also annexed with the said communication and was very well served on the petitioner. Moreover, a detailed reply to the same had been filed by the petitioner and therefore, she cannot allege non adherence to the principles of natural justice. 24.
The inquiry report was also annexed with the said communication and was very well served on the petitioner. Moreover, a detailed reply to the same had been filed by the petitioner and therefore, she cannot allege non adherence to the principles of natural justice. 24. In view of above analysis, this court is of the clear opinion that the findings as arrived by the Inquiry Officer as well as the Disciplinary Authority being based on the evidence available on record does not deserve any interference by this Court. 25. So far as the quantum of punishment imposed upon the petitioner is concerned, it is the settled proposition of law that the Court is not a Court of appeal to go into the question of imposition of punishment. It is for the Disciplinary Authority to consider what would be the nature of punishment to be imposed on a government servant based upon the proved misconduct. Its proportionality also cannot be gone into by the Court. The only question to be considered by the Court is : Whether the Disciplinary Authority would have passed such an order? It is the settled law that even one of the charges, if held proved and sufficient for imposition of the penalty by the Disciplinary Authority or by the Appellate Authority, the Court would be loath to interfere with that part of the order. (State of U.P. and Others Vs. Nand Kishore Shukla and another; AIR 1996 SC 1561 ). 26. The scope of judicial review in the matter of punishment is very limited and the general principle of law is that the Court should be very slow in interfering with such orders. In Chairman & Managing Director, United Commercial Bank and Ors. Vs. P.C. Kakkar; AIR 2003 SC 1571 , the Hon’ble Apex Court held as under : “The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator.
In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.” 27. In view of the ratio as laid down by the Hon’ble Apex Court and in view of the analysis of facts of the present matter, this Court does not find any ground to interfere in the present writ petition. The same therefore, being devoid of merits, is dismissed. 28. All the pending applications also stand disposed of.