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2024 DIGILAW 368 (RAJ)

Magh Raj Sharma v. State of Rajasthan

2024-02-28

ARUN MONGA

body2024
ORDER : 1. The petitioner herein, inter alia, has twofold grievance i.e. (i) the impugned order dated 14.12.2001 (Annexure-P/18), proposing to cause recovery from him, ostensibly for causing loss to the department, was issued by an official not competent in law, and in any case, it is in violation of the applicable service Rules; (ii) without issuing any punishment order or providing an opportunity to the petitioner to contest the punishment, an adverse entry cannot be made in the petitioner's service book imposing a punishment of stoppage of two annual increments with cumulative effect. 2. Relevant facts of the case are as follows: 2.1 The petitioner was working as Village Level Worker -cum-Secretary (a class-III post) of Gram Panchayat Sakdar. A charge-sheet dated 31.05.1996 (Annexure-P/1) was issued to the petitioner by the Vikas Adhikari, Panchayat Samiti. Allegation against him was of misappropriation of money qua an incident, of year 1993-94. Charge sheet was issued under the Rajasthan Panchayat Samiti and Zila Parishad Rules, 1961 (referred to as ‘Rules of 1961’). 2.2 An audit was conducted on 20.04.1994, when the petitioner was posted at Gram Panchayat, Sarota. No objections were raised regarding his work. No discrepancies were identified by the audit party as mentioned in the charge-sheet dated 31.05.1996. 2.3 However, the petitioner was placed under suspension by an order dated 17.06.1996 (Annexure-P/2) in connection with the aforementioned charge-sheet. 2.4 The statement of allegations dated 29.08.1996 (Annexure-P/4) was provided to the petitioner thereafter. Upon receiving it, he submitted an application dated 01.10.1996 (Annexure-P/5) requesting the documents forming the basis of the charges against him. When no response was received to this application, the petitioner filed a reply to the charge-sheet on 10.10.1996 (Annexure-P/6). 2.5 Later, after receiving petitioner’s reply to chargesheet, the suspension was revoked by the respondents through an office order dated 02.11.1996 (Annexure-P/3). 2.6 As it turned out, by a letter dated 01.01.1997 (Annexure-P/8) issued by respondent No.3, the petitioner was informed of being held guilty in the departmental inquiry, and the said letter was forwarded for the petitioner's personal hearing. 2.7 Based on the Inquiry Report dated 27.08.1997 (Annexure-P/9), notices dated 02.09.1997 and 14.05.1998 were issued to the petitioner for the recovery of the amount of Rs. 29,565/-. 2.8 Subsequently, the petitioner, vide a letter dated 01.03.1998 (Annexure-P/13), requested respondent No.3 to provide a copy of the inquiry report. However, it was not provided. 2.7 Based on the Inquiry Report dated 27.08.1997 (Annexure-P/9), notices dated 02.09.1997 and 14.05.1998 were issued to the petitioner for the recovery of the amount of Rs. 29,565/-. 2.8 Subsequently, the petitioner, vide a letter dated 01.03.1998 (Annexure-P/13), requested respondent No.3 to provide a copy of the inquiry report. However, it was not provided. Without the copy of the inquiry report, the petitioner could not effectively defend himself before the competent authority. 2.9 Relying on the inquiry report dated 27.08.1997, an entry was made in the service record of Petitioner. Respondent No.4 also issued a recovery letter against the petitioner on 14.12.2001 (Annexure-P/18), forcing the petitioner to deposit the recovery amount. 2.10 The petitioner, aggrieved by the actions of the respondents, has thus filed the instant writ petition. 3. The stand taken in the reply on merits is that if the petitioner had any grievances regarding the inquiry, he should have raised objections upon receiving the letter dated 01.09.1997 for a personal hearing. However, no such objections were raised. 3.1 The inquiry was conducted properly, and the findings regarding the charges are well-reasoned. 3.2 Order dated 14.12.2001 (Annexure-P/18) was validly issued by the Vikas Adhikari of the Panchayat Samiti, Pali, for the recovery of Rs. 26,356/-. 4. In the aforesaid backdrop, I have heard learned counsel for the petitioner and perused the case file. 5. I am of the view that the grievance of the petitioner on both the counts, as enumerated in the opening paragraph of the instant order, is justified. He has been wronged on both counts, and the actions of the respondents are not sustainable. Let us see how. 6. Adverting first to the second part of the grievance i.e. whether major punishment could have been awarded to the petitioner in the manner respondents have done in the present case? The answer to the question is in the negative. In fact, said answer has been given by the respondents themselves in their reply to the petition. Reference may be had to Para 18 of the writ petition and the corresponding response given thereto in the reply filed by the respondents. 6.1 Para 18 of the writ petition is reproduced herein below :- “18. In fact, said answer has been given by the respondents themselves in their reply to the petition. Reference may be had to Para 18 of the writ petition and the corresponding response given thereto in the reply filed by the respondents. 6.1 Para 18 of the writ petition is reproduced herein below :- “18. That as per the provisions of the Rule-16(10) of the Rules of 1958, the respondent no.3 is duty bound to make an order in writing imposing the penalty upon the petitioner recording its own finding on each charge on the basis of the enquiry report. Without making an order in writing imposing major penalty upon the petitioner, the respondent no.3 has no authority to record the major penalty in his service record. As per Rule-161 of the Rajasthan Service Rules penalty in the service record only can be recorded on the basis of the order of penalty, in the absence of such order, no such entry can be made in the service book of the petitioner. The relevant portion of the service book in which the penalty stopping the two grade increments with cumulative effect has been recorded as well as the entry regarding the amount is annexed herewith and marked as Annexure-17.” 6.2 In response to above Para 18, corresponding para of the reply is also reproduced hereunder :- “18 & 19. In reply to averments made in paras 18 & 19 of the writ petition it is respectfully submitted that as provided u/s 91 of Rajasthan Panchayati Raj Act, 1994 the punishment of withholding of increment may be inflicted on the person with the approval of the Chairperson of the concerned Panchayat samiti if such persons hold their appointment under panchayat samitis. Accordingly, entry has been made in the service record of the petitioner by the Vikas Adhikari in pursuance of the decision/order of punishment passed vide resolution no.5 dated 12.6.98 of the standing committee (Administrative & Establishment) headed by the chairperson of Zila Parishad. A copy of the proceeding/order dated 12.6.98 alongwith the copy of the Resolution no. 5 dated 12.6.98 is being filed herewith and marked as ANNEXURE R/1. A copy of the proceeding/order dated 12.6.98 alongwith the copy of the Resolution no. 5 dated 12.6.98 is being filed herewith and marked as ANNEXURE R/1. Thus, the action against the petitioner has been taken in accordance with the provisions of Sec.91 of the Act of 1994 and as per provision of sub-sec (4) of it an appeal may be preferred against an order made by the Vikas Adhikari Panchayat Samiti to the District Establishment Committee. Thus, if the petitioner had any grievance he could have filed the appeal provided under the statute.” (emphasis supplied) 6.3 A perusal of the aforesaid, reveals that there is an admission, though implicit, on the part of the respondents that indeed no actual punishment order was ever passed. It was merely on the basis of the resolution passed by the Standing Committee of the Panchayat Samiti that the petitioner was awarded the punishment of stoppage of two annual increment with cumulative effect. 7. Moreover, it transpires that it is not even the stand of the respondents that the aforesaid resolution, which formed the basis of awarding the punishment to the petitioner, was either served on him or he was never accorded an opportunity to defend himself before passing such a resolution. 8. Be that as it may, even if such an opportunity was granted, the Standing Committee of the Panchayat Samiti was not competent to award such a punishment to the petitioner by passing a resolution. More of it later. 9. Pertinently, petitioner has specifically averred in para 22 grounds II and III, thereof that, the inquiry that was conducted against him is in violation of Rule 16 of CCA Rules 1958. He was never either asked to adduce any evidence or put under any notice of the inquiry. Even subsequent thereto, he was not even supplied copy of the inquiry report dated 27.08.1927. Furthermore, it is his case that no penalty can be imposed under Rule 16(10) of CCA Rules without their being specific punishment order in writing. In fact, it would be rather apposite to reproduce the aforesaid two grounds as well as the corresponding response given thereto in the reply which is as below : Grounds:- “(ii). That the entry regarding service book has been made by the respondent no.3 on the basis of the Enquiry Report dated 27.8.97. In fact, it would be rather apposite to reproduce the aforesaid two grounds as well as the corresponding response given thereto in the reply which is as below : Grounds:- “(ii). That the entry regarding service book has been made by the respondent no.3 on the basis of the Enquiry Report dated 27.8.97. This enquiry has not made as per the provisions of rule-16 of the CCA rules , 1958. The petitioner has never informed who has been appointed as an Enquiry Officer, he was never asked to produce the evidence before the Enquiry Officer as per the provisions of the CCA rules, 1958. Whole the enquiry was made violating the provisions of rule-16 (6) (a), Rule-16 (7) (8) of the rules, hence the enquiry deserves to be quashed, as it is not a enquiry report in the eyes of law and no penalty can be imposed on the basis of such an enquiry report. The enquiry report and the order made on behalf of the said enquiry report is illegal and are liable to be quashed. (iii). That as per the rule 16(10) of the CCA rules, no penalty can be imposed without order in writing in this respect. The respondent no.3 has not made any order in writing imposing the major penalty with holding the two grade increments with the cumulative effect and no such order has been served upon the petitioner. He has no authority to make the entry in this respect in the service book without making an order in writing imposing the penalty upon the petitioner. Hence the action of the respondents is against the rule-16 (10) of the C.C.A. rules, 1958 as well as Rule 161 of the Rajasthan Service Rules, 1951, hence the order impugned deserves to be quashed.” Corresponding Reply to grounds :- “(ii) That the contention made in this para are not tenable as the chargesheet was issued to the petitioner. The Enquiry officer was appointed and enquiry has rightly been done. But the petitioner did not extended his cooperation in conducting the enquiry despite the fact that the opportunity was provided to him. Thus, by enquiry report is quite legal, just and proper. (iii) That the contention made in this para are not tenable. The Enquiry officer was appointed and enquiry has rightly been done. But the petitioner did not extended his cooperation in conducting the enquiry despite the fact that the opportunity was provided to him. Thus, by enquiry report is quite legal, just and proper. (iii) That the contention made in this para are not tenable. As already stated hereinabove of the foregoing paras of the reply the entry of punishment was made in the service book of the petitioner in accordance with the decision/order of punishment made against him by resolution dated 12.6.98 passed by the Standing Committee (Adm.& Est.) Institution.” Thus, in the reply filed by the respondents, a very evasive stand has been taken qua the specific averments/grounds contained in the petition. In the premise, adverse inference has to be drawn that the factual averments of the petition are correct and deemed to be admitted. 9. The service conditions of the petitioner are governed by provisions of Rajasthan Panchayati Raj Act, 1994 and the Rules framed there under viz. Rajasthan Panchayati Raj Rules, 1996 read with Rajasthan Service Rules, 1951 read with Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958. 10. On perusal of the applicable statutory provisions, what emerges is that not only there is violation of Section 91 of the Act of 1994, but even that of Rules 299 and 300 of the Rules, 1996 framed there under. Said section 91 of the Act as well as the Rules 299 and 300 are extracted here in below : Section 91 of Act of 1994 : “91. Disciplinary proceedings against and punishments inflicted on staff of Panchayat Samitis and Zila Parishads.– (1) The conduct of disciplinary proceedings that may be started against, and the punishments that may inflicted in such proceedings on, the officers and servants of Panchyat Samitis and Zila Parishads, other than officers referred to in Secs. 79 and 82 shall be governed and regulated by rules made by the State Government in this behalf. 79 and 82 shall be governed and regulated by rules made by the State Government in this behalf. (2) Subject to such rules– (a) x-x-x-x (b) the punishment of censure or withholding of increment or promotion may with the approval of the Chairperson of the concerned Panchayati Raj Institutions be inflicted on all persons holding appointments to posts encadred in the services constituted under Sec. 89– (i) by the Vikas Adhikari of a Panchayat Samiti, if such persons hold their appointment under the Panchayat Samiti; and (ii) by the Chief Executive Officer of the Zila Parishad, if they hold their appointment under that Zila Parishad. (3) All other prescribed punishments may be inflicted on the persons holding appointments on the posts encadred in the Service in a Panchayat Samiti or Zila Parishad by the District Establishment Committee. (4) An appeal may be preferred– (a) against an order made by the Vikas Adhikari/Block Elementary Education Officer of the Panchayat Samiti or the Chief Executive Officer/District elementary Education Officer of the Zila Parishad to the District Establishment Committee constituted under Sec. 90; and (b) against an order made by the District Establishment Committee under Sub-sec. (3) to the State Government. (5) An appeal may be preferred under Sub-sec. (4) within a period of 90 days from the date of the order appealed from and the time taken for obtaining a copy of such order shall be excluded from the said period.” (emphasis supplied) Rules 299 and 300 of the Rules of 1996: “Rule 299. Penalties. – (1) All or any of the prescribed punishment on Class IV employees and minor penalties on all persons holding appointments to posts encacdred in the service constituted under Sec. 89 of the Act may be imposed by Vikas Adhikari/Chief Executive Officer as provided in Sub-sec. (2) of Sec. 91 of the Act. (2) Major penalties shall be imposed only by District Establishment Committee as provided in Sub-sec. (3) of Sec. 91. (3) Provisions contained in Rule 14 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 shall apply mutatis mutandis in this respect. Rule 300. Procedure for imposing penalties. (2) of Sec. 91 of the Act. (2) Major penalties shall be imposed only by District Establishment Committee as provided in Sub-sec. (3) of Sec. 91. (3) Provisions contained in Rule 14 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 shall apply mutatis mutandis in this respect. Rule 300. Procedure for imposing penalties. – Procedure of enquiry as laid down in Rules 16, 17 18 and 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 shall be followed in this respect.” 10.1 A reading of above reveals that the minor punishments for individuals holding appointments to posts encadred in the services constituted under Sec. 89 of the Panchayati Raj Institutions i.e. Panchayat Samiti or Zila Parishad are censure or withholding of increment or promotion. 10.2 The Vikas Adhikari of a Panchayat Samiti is authorized to inflict minor punishment on individuals holding appointments under the Panchayat Samiti. 10.3 The Chief Executive Officer of the Zila Parishad holds the authority to inflict minor punishment on individuals holding appointments under the Zila Parishad. 10.4 However, the aforesaid punishments of censure or withholding of increment or promotion requires the approval of the Chairperson of the concerned Panchayati Raj Institutions. 10.5 These provisions thus outline the hierarchical structure and delineates the authority responsible for disciplinary actions within the Panchayati Raj Institutions. Approval from Chairperson, before imposing the specified punishments is a must. The provisions thus ensure proper oversight and approval from competent official. 11. Other than censure or withholding of increment or promotion, all other prescribed major punishments can be awarded to the persons holding appointments on the posts encadred in the Service in a Panchayat Samiti or Zila Parishad, only by the District Establishment Committee. 11.1 Major punishment/penalty can be imposed only by passing a specific punishment order after following the due procedure. So that, appeal if resorted can be filed by the aggrieved before the State Government. 11.2 As against the same, respondent No.3 herein made an entry of the punishment/penalty imposed on the petitioner at his own level by recording the same in the service book of the petitioner. No specific punishment order of major penalty was passed by competent authority. The said action is thus completely non-est, not sustainable in law, and is liable to be declared invalid. 12. No specific punishment order of major penalty was passed by competent authority. The said action is thus completely non-est, not sustainable in law, and is liable to be declared invalid. 12. The provisions contained in Rule 14 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 applies mutatis mutandis in the present case. Aforesaid provisions outline the division of authority for imposing penalties, distinguishing between minor and major punishments, and also specify the application of relevant Rules. 13. In the light of Rule 14 ibid, there is also noncompliance of Rule 16 sub rule (10) of Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, which, for ready reference, are reproduced hereunder :- “16. Procedure for imposing major penalties.– (1) to (5) xxxx xxxx xxxx (10) The disciplinary authority shall forward a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority to the Government Servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days.” 14. In accordance with the aforesaid, the disciplinary authority is mandated to the forward of the report of the inquiry to the concerned government servant for his response. If the disciplinary authority is not the inquiring authority, he is obligated to provide a copy of the report of the inquiring authority to the concerned government servant. The opportunity for the government servant to submit his written representation or submission is crucial as it allows him to present his side of the matter and provide any relevant information or defense in response to the findings of the inquiry. This process ensures that government servant has the opportunity to review the report of the inquiry and respond to it, thereby facilitating a fair and transparent disciplinary process. 15. De-hors above, even mandate of the Rule 161 of Rajasthan Service Rules, 1951 has not been complied with. Said Rule is as under :- “Rule 161. (i) Every step in a Government servant’s official life must be recorded in his Service Book and each entry must be attested by the Head of Office or if he is himself the Head of office by his immediate superior. Said Rule is as under :- “Rule 161. (i) Every step in a Government servant’s official life must be recorded in his Service Book and each entry must be attested by the Head of Office or if he is himself the Head of office by his immediate superior. The Head of Office shall see that all entries are neatly made and properly attested under his signature. There should be no erasers or over-writings. The erasers and over-writing should be crossed and correction neatly made again under proper attestation. (ii) Every period of suspension from employment and interruption of service shall be recorded with full details of duration in the relevant column and attested by the Attesting Officer. The reference of the order under which a Government servant has been suspended and subsequently reinstated shall be entered in the Service Book with full details indicating whether the period of suspension would count for the purpose of increment, leave, pension etc. or not. Likewise if a Government servant is reduced to a lower post or grade or a lower stage in time scale of pay full details with reasons of reduction may be briefly stated. Orders passed by the competent authority in respect of stoppage of increments as penalty may also be indicated in the Service Book.” 16. From perusal of the aforesaid, it is clear that entry in service book should be attested by the Head of Office or the immediate superior. Furthermore, Punishment order passed by the competent authority in respect of stoppage of increments as a penalty should be specifically indicated in the Service Book. 17. To conclude, a perusal of Section 91 read with Rules 299 and 300 ibid., clearly reveals that as far as minor punishments are concerned, the same can be awarded by Vikas Adhikari/Chief Executive Officer, as the case may be. However, major penalties can only be imposed by District Establishment Committee. It is also borne out that Rule 14 of CCA Rules 1958 shall apply mutatis mutandis and the procedure for inquiry shall be governed by Rule 16 to 19 of the said Rules of 1958. 18. However, major penalties can only be imposed by District Establishment Committee. It is also borne out that Rule 14 of CCA Rules 1958 shall apply mutatis mutandis and the procedure for inquiry shall be governed by Rule 16 to 19 of the said Rules of 1958. 18. In the present case, conceded position that emerges from the pleadings and the record is that it was just a resolution that was passed by the Panchayat Samiti, which at best can be considered as a prior consent, if at all, but by no stretch of imagination, the same is either a punishment order passed by Vikas Adhikari or for that matter by District Establishment Committee. Assuming the Vikas Adhikari had passed such an order, which though is not the case, the same would in any case lack the legal sanctity. He is not competent to do so in the teeth of Section 19 (1) (3) read with Rule 299 (2) to award major punishment, as stoppage of annual increments with cumulative effect is a major penalty. The said order could have only been passed by the District Establishment Committee. Thus, on both counts, i.e., factually as well as legally, the punishment of stoppage of two annual increments with cumulative effect is not sustainable i.e. (i) There is no order of punishment. (ii) The said order even if assumed to have been passed is by Vikas Adhikari and who lacks the legal competency to do so. 19. Adverting now to the first grievance, the incident in question for which the recovery has been made pertains to year 1994, qua which the petitioner was put under notice after more than two years by way of serving a statement of allegations dated 29.08.1996 (Annexure-P/4). It is rather intriguing as to what stopped the respondents to take an earlier action since the so-called loss and/or embezzlement, if any, would have come to its notice at the end of the financial year when the audit was carried out. 20. Not only that, record reveals that after the audit, no legal infirmity or loss was ever reported by the auditors. Even the inquiry which was conducted before causing the recovery was ex-parte, as the petitioner was never put to notice qua the same. Such a self-serving, one-sided inquiry does not meet the requirements of the law. 21. 20. Not only that, record reveals that after the audit, no legal infirmity or loss was ever reported by the auditors. Even the inquiry which was conducted before causing the recovery was ex-parte, as the petitioner was never put to notice qua the same. Such a self-serving, one-sided inquiry does not meet the requirements of the law. 21. As an upshot, in view of the aforesaid discussion, I am of the view that the petitioner has been put to undue harassment and hardship by the respondents. As a result, petition is allowed. 22. The service entry made vide Annexure-P/17 in the service book of the petitioner is declared as invalid. It is accordingly directed that the same be deleted from the service book of the petitioner. 23. Furthermore, the impugned recovery order dated 14.12.2001 (Annexure-P/18) is also quashed with consequences to follow. Arrears of the dues be paid to the petitioner along with admissible interest, as per the applicable service Rules. 24. Needful exercise be carried out within a period of four months of the petitioner approaching the respondents along with web print of the instant order. 25. Pending applications, if any, shall stand disposed of.