1. This Is a writ petition by Balbir Singh under Article 228 of the Constitution challenging his order of dismissaldated 28 October 1964, Ex. 6.
2. The petitioner was posted as helper under the Executive Engineer, Rajasthan Canal Project, Mechanical Division 1, Hanumangarh. It is not disputed before us that as such he was a workcharged employee of the Irrigation Department. According to the petitioner, Baldeo Singh and Heeralal, overseers, were his immediate superiors. On 9 October 1964, the petitioner was found to have carried a dibba or a container from the workshop where he used to work. This dibba contained an electric meter and a piece of rexine cloth. The case of the petitioner was and is that the gate-keepers wanted to check the dibba at the exit gate whereupon Heeralal who was accompanying the petitioner told him that it belonged to him-Heeralal-and therefore, the petitioner was allowed to take it away. The petitioner's further case is that when he had carried the dibba outside the workshop Heeralal again met him and told him to leave the same with Harisharan & Co. While he was so carrying it, one Lakhmir Singh, an electric foreman, met him and asked him what was contained in the dibba. The petitioner told Lakhmir Singh that Heeralal had given it to him and so he was taking it to Harishavan & Co., as desired by Heeralal. It appears that Baldeo singh reported the matter to the Assistant Engineer whereupon the latter called the petitioner when he told the whole story. The Assistant Engineer in Ms turn appears to have reported the matter to the Superintending Engineer who also sent for the petitioner when the latter narrated to him the same story. The petitioner's grievance is that thereafter an order dated 6 November 1964, under the signature of the Executive Engineer, Rajasthan Canal Project, Mechanical Division 1, had been served on him on 9 November 1964, informing him that he had been dismissed from service with effect from 27 October 1964 afternoon. It was mentioned in this order that the order of dismissal was passed by the Superintending Engineer as a result of an inquiry conducted by him regarding the alleged misappropriation of an electric meter and some rexine cloth from the workshop.
3. The petitioner has attacked the order of dismissal on the following main grounds:
(1) that this order of dismissal having been obviously passed for a charge of misconduct, he was entitled to the benefit of the provisions of Article 311 of the Constitution which has been flagrantly violated in his case, and, in the alternative;
(2) that even if it was held what Article 311 was not attracted to the case of the dismissal of a work-charged employee like him, his case was certainly governed by the rules called the Rajasthan Public Works Department (Buildings and Roads) including Gardens, Irrigation, Water Works and Ayurvedic Departments Work-charged Employees' Service Rules, 1964 (hereinafter called the rules of 1964), and that the provisions of Rule 29 of these rules had also been breached in his case inasmuch as no inquiry had been made into his conduct and no proper opportunity of defence had at all been furnished to him.
4. The petitioner, therefore, prayed that the order of his dismissal be quashed as being illegal.
5. The State has completely traversed the allegations made by the petitioner and contends that a proper inquiry had been made into the alleged misconduct of the petitioner, that witnesses had been examined in his presence and that he was given the opportunity of cross-examining them and further that a show-cause notice was also served on him as to why he be not dismissed for his misconduct, but the petitioner had failed to submit any reply thereto, and, therefore, the order of dismissal passed against him is perfectly legal and proper. In support of its submission, the State has also filed copies of the inquiry papers relating to the matter in question. It has also been contested by the State that provisions of Article 311 have no application to the case of the petitioner inasmuch as it cannot be postulated of an employee like him that he is a member of the civil service of this State, or that he held a civil post there under within the meaning of that article.
6. Now we may state at once that we do not propose to go into the last-mentioned question for the purposes of the present case as in our opinion it is not strictly necessary to decide that controversial question. We do think, however, and it is not disputed before us on behalf of the State that the petitioner's case properly falls to be governed by the rules of 1964. Part VII of these rules deals with discipline and specifies the various acts and omissions on the part of work-charged employees, which shall be treated as misconduct. Rule 28 then prescribes the penalties which may for good and sufficient reasons toe imposed on such an employee and reduction to a lower post or removal from service or dismissal there from are what may be called the major penalties which can be inflicted under this rule. Rule 29 is the principal rule with which we are concerned, inasmuch as it lays down the procedure which has to be followed to fore the three abovementioned penalties can be inflicted. We propose to read this entire rule at this place:
29. Procedure for imposing panalties.- (1) No order imposing any of the penalties specified in Clauses (v), (vi) and (vii) of Rule 28 shall toe passed except after-
(i) the employee is informed in writing, where possible to do so, of the proposal to take action against him and of the allegations on which it is proposed to be taken ;
(ii) the employee is, as far as possible, given an opportunity to explain the circumstances alleged against him;
(iii) such explanation, if any, is taken into consideration : Provided that no person shall be dismissed without the orders of the competent authority:
Provided further that it shall not be necessary to do so, where the head of department finds it necessary to remove an employee from service on the grounds of security of the State. (2) An order in writing referred to in sub rule (1) above shall take effect immediately on delivery to the employee, and in the event of refusal by the employee to accept delivery of the said order served upon him, on the affixing of the same on a notice-board of the establishment will be deemed to be sufficient service on him.
7. The principal question for determination before us is whether the procedure outlined in Rule 29 has been substantially followed in the case of the petitioner.
8. Now in order to enable us to answer this question properly, we shall refer to the broad nature of the inquiry which is alleged to have been conducted against the petitioner. The first paper in this connexion which has been brought to our notice is the statement of the petitioner which was recorded by Baldeo Singh, overseer, Workshop. In this statement the petitioner stated that overseer Heeralal had given a dibba to him which in the first instance he asked him to carry to his (Heeralals') house and later to the shop of Harisharan & Co. and that he did not know what the dibba contained. Obviously Baldeo Singh having reported the matter to the Assistant Engineer, Workshop, the latter sent for the petitioner and on toeing asked, he substantially gave the same statement as he had made earlier to Baldeo Singh. The Assistant Engineer in his turn reported the matter to the Superintending Engineer. Thereafter, an inquiry regarding the theft of the matter and the rexine cloth was conducted on 27 October 1964 before a board of three members, namely, the Superintending Engineer, the Executive Engineer and the Assistant Engineer, Workshop. See the papers collectively marked as Ex. 4.]
9. We have carefully gone into this material and are unable to hold that up to this stage the petitioner was informed in writing of the allegations made against him, for which he was required to defend himself. A number of persons appear to have been examined including Heeralal and the petitioner, and we cannot help referring to our impression that this inquiry, if at all, was directed into the conduct of overseer, Heeralal. In this connexion we wish particularly to invite attention to the circumstance that Heeralal was afforded the opportunity of cross-examining a number of these witnesses including the petitioner, and at the end of the statements of each of these witnesses, namely, Lakhmir Singh, Arjun Singh, Ganesh Singh, Kalyan Singh and Raghunath Singh, we find it stated significantly enough that Heeralal, overseer was asked to cross examine but he stated that he had no questions to put to any of these witnesses. Again after all these witnesses were examined, strikingly enough, Heeralal was asked whether he pleaded guilty with regard to the theft of the meter from the workshop, to which his reply was in the negative. This took place on 28 October 1964. A day earlier, that is, on 27 instant, it appears that the Superintending Engineer sent a notice to the petitioner saying that the explanations submitted by him to the Assistant Engineer as well as the one given by him during the course of the enquiry had been considered and found to be baseless. It was further stated that the Superintending Engineer was provisionally of the opinion that the petitioner was responsible for misconduct and gross neglect of duty and so it was proposed to dismiss him, and, therefore, he should show cause why action be not taken against him to that effect. The petitioner was further asked to submit his reply to this notice by 2 p.m. on 28 October 1964, failing which it was pointed out that ' it will be assumed that you have nothing to add to your previous statements and explanations.' The petitioner's contention in his rejoinder is that he was not served with this notice at all, although the case of the respondent-State is that this order was served on him. As no reply to the aforesaid notice came from the petitioner, the Superintending Engineer came to the conclusion that the charge of misconduct was amply proved against him and, therefore, he was dismissed from 27 October 1964, afternoon.
10. It is in the light of these facts that we are called upon to determine whether the requirements of Rule 29 of the rules of 1964 have been satisfied in the present case. It is correct that this rule does not lay down any elaborate procedure for an enquiry into the alleged misconduct of any work-charged employee falling within the ambit of these rules where such employee may have to be visited with any of the major penalties. But all the same, the rules do contemplate the fulfilment of certain essential requirements of a departmental enquiry where an employee is sought to be so punished. These requirements appear to us to be (except in cases where it may not be possible to do so):
(1) that the delinquent employee must be informed in writing of the allegation or allegations against him ;
(2) he must be given an opportunity to explain the circumstances alleged against him, or, in other words, he must have an opportunity of defending himself. This would to our mind include an opportunity to lead evidence on behalf of the employee himself or to cross-examine witnesses produced against him, where a case may properly depend on such evidence;
(3) such defence or explanation must be duly taken in consideration; and
(4) he must then be informed in writing of the precise proposal to take action against him before such action is determined.
11. An exception has been provided in the proviso to the rule that this procedure need not be resorted to where it becomes necessary to remove an employee from service on the ground of the security of the State. It Is nobody's case that this proviso is attracted into application in the present case. The only other provision to which attention might be drawn in this connexion is that it has also been made clear that no person shall be dismissed without the order of a competent authority.
12. Now can It be said having regard to the character and the content of the inquiry made by the Superintending Engineer that the petitioner was Informed in writing of the allegations made against him, or even that an inquiry into these allegations had been set afoot wherein he was required to defend himself Again can it be further said that the petitioner had the opportunity to defend himself as contemplated by Rule 29 or to cross-examine the various witnesses who had been examined during the course of the so-called inquiry into his conduct? We regret to have to observe that we are far from satisfied that the requirements of Rule 29 have been substantially fulfilled in the present case so far as the petitioner goes. An Inquiry into the conduct of Heeralal seems to have been equated with an inquiry into the petitioner's conduct. But this is a kind of confusion which we are not prepared to countenance. For the first time, it seems to us that the petitioner was informed of the allegations against him and the action which was proposed to be taken there for by the Superintending Engineer's letter dated 27 October 1964. Time there under was given to the petitioner to submit his explanation or defence against the action of dismissal proposed to be taken against him by 2 p.m. on the next following day without fail failing which it was peremptorily pointed out that it would be assumed that he had nothing further to say in the matter beyond the statements which he had already given during the course of the so-called inquiry to which proceeding we have referred at length above. We feel bound to point out that this was hardly an adequate or fair opportunity of defence to a person who was proposed to be dismissed.
13. In these circumstances, we are entirely unable to accept the submission of the State that any proper inquiry had been made in the present case into the conduct of the petitioner which may be accepted as substantially complying with the requirements of Rule 29. We hold accordingly.
14. For the reasons mentioned above, we allow this application and quash the order of dismissal passed against the petitioner. We might add, however, that this order shall not be construed to preclude the authorities concerned from making a proper inquiry into the conduct of the petitioner and taking such action against him as may be found necessary and according to rules. Under the circumstances, we leave the parties to bear their own costs.