S.K. Mal Lodha, J.
1. By this appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, the State of Rajasthan (appellant) questions the correctness of the order dated December 11, 1974 of the learned single Judge of this Court by which he allowed the petitioner-respondent's petition under Article 226 of the Constitution and quashed the order Ex. 5 dated September 17, 1965 by which the penalty of stoppage of two grade increments with cumulative effect was imposed upon the petitioner-respondent.
2. Shri Amolak Chand Sanghi who is respondent in this appeal and was petitioner in the writ petition will hereinafter be referred as the petitioner. While the petitioner was posted as an Assistant Engineer, Irrigation, Jaipur, he was served with the following charge:
That the said Shri Amolak Chand Sanghi, while functioning as Assistant Engineer, Irrigation at Baran and Kalisote Project during the period from 1954 to 1959 abused his official position by authorising, making and claiming unauthorised payments through fabrication of records with a view to cheating the Government thereby causing wrongful loss thereto, as indicated in the statement of allegations.
The charge was accompained by the statement of allegations. A perusal of the statement of allegations shows that the petitioner had employed one Naney Khan as a driver for his private Car No. RJL-2851, and instead of paying him from his own pocket prepared false vouchers showing that Naney Khan was employed as Chowkidar-cum-Beldar and Mistry and arranged payments of his salary from the Irrigation Department though he had never worked as Chowkidar-cum-Beldar and Mistry during the relevant period. Three vouchers were mentioned in the statement of allegations: one voucher was for the month of February 1958 by which Naney Khan was paid Rs. 45/- second voucher was for the month of August 1958 by which Naney Khan was paid Rs. 45/- and third voucher was for the month of December 1958 by which Naney Khan was paid Rs. 60/-Besides that there was a further allegation that the petitioner had not undertaken a tour from Ghatti to Nahargarh on July 9, 1959 yet he had charged his T.A. The petitioner denied the charge as well as the allegations against him. The departmental enquiry was held by the Commissioner of Departmental Enquiries, In support of the allegations, six witnesses viz., P.W, 1 Punjilal, Circle Inspector, P.W. 2 Gopal Lal, Retired Overseer, P.W. 3 Naney Khan, P.W, 4 Surendra Khan, Assistant Engineer, P.W. 5 Ram Kishan Sarpanch of Nahargarh and P.W. 6 Jairam Dass, Chemist Ramganj Mandi were examined. In defence, the petitioner examined Kailash Pd. Sharma, U D C. in the Office of the Assistant Engineer, Minor Irrigation Works, Bundi, who had worked as L.D.C. in the Office of Assistant Engineer, Kalisote Sub-Divisional Office in July 1952. The Enquiry Officer submitted his report Ex. 6 dated September 26, 1964. He recorded the following findings:
1. Point No. 1; that Naney Khan did not do any Government work during the months of February and March, 1958 and his salary was wrongfully drawn and paid to him by the petitioner in collusion with Gopal Lal, Overseer and that it is just possible that he may have arranged this payment by way of reward of gift to him or he may have paid his salary for two months by deducting Rs. 90/- which were paid from Government funds.
Point No. 2: that Naney Khan was a private servant of the petitioner for the months of February, March and December, 1958 and that he arranged drawal of Rs. 150/- from Government funds by preparing false records.
Point No. 3: that it has not been proved that the petitioner charged T.A. for the journey from Ghatti to Nahargarth and back on July 9, 1959 when he actually did not perform this journey.
3. In view of the aforesaid findings on the charges the Enquiry Officer reached the following conclusion'
My finding on this charge as stated above is that it is established that Rs. 150/- were down by Shri Sanghi false drawa's of pay in the name of Shri Niney Khan who was Shri Sanghi's private servant causing wrongful loss to the Government to that extent as Shri Naney Khan never did Govt. work and thus, he abused his official position. The charge of drawing false T.A. has not been established beyond doubt.
Before I part with this case, I would like to mention that it is a matter of common experience and knowledge that a large number of officers placed on field duties take private work from Govt. Class IV servants. Taking private work from Govt. servant is not inherently different from the instant case. In the circumstances when all fishes slink it is idle to select one and say that stank This is, however, a matter for the Government to consider when the question of punishment comes up.
On the basis of the enquiry report, the Government passed the order Ex. 5 dated September 17, 1965, the material portion of which is as under:
Government have considered your written statement along with the report of the Enquiry Officer. It has been held that Rs. 150/-were falsely drawn by you as pay in the name of Shri Naney Khan who was your private servant but was paid from Government funds. You thus abused your official position. This is quite a serious thing for which Government have been pleased to order that the penalty of stoppage of two grade increments with cumulative effect be imposed upon you.
The petitioner preferred a review petition which was rejected as is clear from the letter Ex. 7 dated June 16, 1956. Thereafter, the petitioner filed the writ petition under Article 226 of the Constitution on April 13, 1970 praying, inter-alia, that the order dated September 17, 1965 imposing the penalty of stoppage of two grade increments with cumulative effect upon the petitioner, of the State Government may be quashed. In the writ petition, the order Ex. 5 was challenged on the following grounds:
(1) that the report Ex. 6 of the Enquiry Officer was never made available to the petitioner for his comments, and when it was made use of without given an opportunity to him to have his say against it and so, there was violation of the principles' of natural justice;
(2) that the finding that was recorded against him is not supported by any evidence;
(3) that the entire approach of the Enquiry Officer was wrong in as-much as he placed the burden of proof of innocence on the petitioner;
(4) that rules 16 and 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short 'the Rules' herein) were not complied with.
4. The State of Rajasthan contested the writ petition. It was refuted that the enquiry was in violation of the principles of natural justice or that it was against the Rules. It was submitted that it was not necessary to have supplied the copy of the enquiry report to the petitioner under the Rules as only minor penalty of stoppage of two grade increments was imposed upon the petitioner. It was pleaded that there was evidence in support of the finding recorded by the Enquiry Officer, which was accepted by the Govern-and, therefore, under Article 226 of the Constitution this Court should not go into the question of finding of fact. The learned single Judge by the impugned order dated December 11, 1974 held that the finding arrived at by the Enquiry Officer was based on no legal evidence or at any rate the conclusion recorded by him was such which could not have been reached by a reasonable person, on the basis of the material that was on record. In view of this, he did not examine the other contentions. He allowed the write petition and quashed the order Ex. 5 and directed that effect should not be given to it. Aggrieved, the State of Rajasthan has filed this appeal as aforesaid.
5. We have heard Mr. H.N. Calla, learned Additional Govt. Advocate and Mr. M. Mridul, learned Counsel for the respondent.
6. Mr. H.N. Calla, learned Additional Government Advocate strenuously contended that the learned single Judge has committed an error in holding that there was no legal evidence in support of the finding arrived at by the Enquiry Officer in as much as the statements of P. W. 2 Gopa Lal & P.W. 3 Naney Khan recorded during enquiry were found to be unreliable and no reliance could be placed as was done by the Enquiry Officer on the statements Ex P.8 dated August 30, 1960 of Gopa Lal, Ex.P.9 of Naney Khan and Ex.P.10 dated April 19, 1960 of Naney khan which were recorded by the Police Officer. According to the learned Additional Government Advocate, the aforesaid oral statements Exs. P.8.9 and 10 are admissible in evidence, this constituted the material before the Enquiry Officer on which he could base his finding. This is contested by the learned Counsel for the petitioner on the ground that P.W.2 Gopal Lal and P.W.3 Naneykhan who were examined during the enquiry were found to be unreliable and, therefore, the previous statements Exs.P 8, 9 and 10 which were recorded by the Police Officer during the investigation of a criminal case could not form the basis for the finding recorded by the Enquiry Officer.
7. In view of the rival contentions the question that emerges for consideration is whether the learned single Judge was right in holding that the Enquiry Officer could not rely on the oral statements Exs.P. 8,9 and 10 after holding that their statements recorded by the Enquiry Officer are unreliable.
8. It will be relevant here to notice Rule 16(6)(a) of the Rules which existed then:
Rule 16(6)(a) The Inquiring Authority shall, in the course of the inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material in regard to the charges. The Government servant shall be entitled to cross-examine witnesses examined in support of the charges and to give evidence in person. The person presenting the case in support of the charges shall be entitled to cross-examine the Government servant and the witness examined in his defence. If the Inquiring Authority declines to examine any witness on the ground that his evidence is not relevant or material, it shall record its reasons in writing.
According to Rule 16(1), the Enquiy Officer is required to record the statements of the witnesses in the presence of the delinquent officer/official and the delinquent officer/official is to be provided full opportunity to cross-examine them A perusal of the enquiry report Ex. P.6 shows that P.W. 2 Shri Gopal Lal was examined. In that statement, he admitted that the statement Ex. P. 8 which he gave before the Police bore his signatures. He also admitted to have read the statement Ex. P.8. His attention was drawn to the portion marked with red pencil in regard to which he stated that ' during those days there was marriage of his daughter and, therefore, in confusion of it, he might have stated as written in that portion. It was further admitted by him that Naney Khan was the same person who had been working as driver of the petitioner. He also admitted that Naney Khan was paid Rs. 60/-for the month of December 1958 vide voucher Ex. P. 4 and the pay of this voucher also was disbursed by the petitioner. Thus, during the statement which was recorded by the Enquiry Officer, P. W. 2 Gopal Lal admitted his statement Ex. P. 8 dated August 30, 1960 which he gave before the Police. This statement, thus formed part of the oral evidence that was recorded by the Enquiry Officer.
9. P.W. 3 Naney Khan was also examined by the Enquiry Officer. He admitted that the statement Ex. P. 9 was the statement recorded by the Police and it was read over to him and it was correct and bore his thumb impressions Ex. P. 10 dated August 19, 1960 was another statement of P.W 3 Naney Khan which was recorded by the other Police Officer. This statement was also read over to him and he admitted it to be correct It is clear from the statements Ex. P. 9 and 10 that he worked as Chowkidar cum Beldar or Mistry. The statements Exs P. 9 and 10 thus formed part of the oral evidence of P.W. 3 Naney Khan which was recorded by the Enquiry Officer. The statements of P.W. 2 Gopal Lal and P.W. 3 Naney Khan were recorded in the presence of the petitioner and he had opportunity to cross-examine them. The Enquiry Officer in view of the statements Ex.P. 8 of Gopal Lal & Exs. P. 9 and 10 of P.W. 3 Naney khan refused to place reliance on the statements during enquiry and acting on the statements Exs. P. 8,9 and 10 came to the conclusion that Nanekhan was a private servant of the petitioner in the months of February and March, 1958 and that the petitioner arranged for drawal of Rs 150/- from Government Funds by preparing false records. In view of this conclusion, he held the charge to be proved. The Disciplinary Authority agreed with the findings of the Enquiry Officer and passed the order Ex.5 dated September 17, 1965 and ordered for imposition of penalty of stoppage of two grades increments with cumulative effect upon the petitioner. The learned single Judge posed the question whether after holding the two main witnesses P.W. 2 Gopal Lal and P.W. 3 Naney Khan unreliable, the Enquiry Officer could fall back on their earlier statements recorded by the Police namely, Exs. P. 8,9 and 10 and came to the conclusion that Exs. P. 8,9 and 10 are not substantive evidence in the enquiry and that even a reasonable man could not have arrived at the findings to which the Enquiry officer reached on the basis of this evidence.
10. It has been stated in De Smith's Judicial Review of Administrative Action, Fourth Edition at page 205 under the head Judicial and Official Notice' as under:
Statutory tribunals are set up because they already have or can be expected to acquire specialised expertise. Clearly they are entitled to use their expertise to draw inferences from evidence. If a tribunal is as under obligation to observe the rules of evidence it cannot use its own expert opinion as a substitute for evidence, though it may still be able to reply on an extended concept of judicial notice to supplement evidence. But a number of special tribunals ate not bound by the strict rules of evidence. They are charged with the task of actively finding the material facts by any appropriate means; they may be permitted to adopt inquisitorial procedures, under take unaccompanied inspections consult experts and use their own technical and local knowledge and their past experience which may be based on evidence given in previous cases; their final decision may, in some cases, be based on broad considerations of public policy. They are nevertheless obliged to act in accordance with natural justice. And this means that, in the absence of contrary intendment, they must not place a party at a disadvantage by depriving him of an adequate opportunity of commenting on material relevant to their decision if it is gleaned from an outside source or in the course of their own investigations or from evidence given in earlier cases. In other words, one may expect the doctrine of 'official notice' to be more readily applicable where the information relied upon is drawn from the general, accumulated experience of the decision-maker, rather than from an identifiable source upon which he has relied, whether it be another person, particular documents or specific prior events.
H.W.R. Wade on Administrative Law, Fourth Edition under the head 'Hearings, Evidence, Precedent' at page 767 has stated as follows:
A statutory tribunal is not normally bound by the legal rules of evidence. Thus in industrial injuries case the Commissioner was entitled to receive evidence at the hearing about previous medical reports which technically would have been inadmissible under the rule against hearsay. Even a court of law, when acting in an administrative capacity in hearing licensing appeals, is not bound by the legal rules; for otherwise it might have to decide of different evidence from that which was before licensing officer. Nor need a tribunal's decision be based exclusively on the evidence given before it; it may rely on its own knowledge and experience, since one of the reasons for specialized tribunals is that they may be able to do this. But this does not entitle it to make use of an independent expert's reports without disclosing it.
In State of Mysore v. Shivadasappa : (1964)ILLJ24SC , Clause (8) of Section 545 of the Bombay Police Manual laying down the procedure to be followed in enquiries came up for consideration. The statements of the witnesses were recorded in the absence of defaulter. The witnesses were called and their statements were read over in defaulter's presence. He had opportunity to cross-examine them. In those circumstances, the question which arose before the Supreme Court was whether the rule of natural justice have been violated. In that connection, Venkatarama Aiyar, J. speaking for the Court made the following observations:
When the evidence is oral, normally the examination of the witness will in its entirety, take place before the party charged, who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him and admitted in evidence, a copy thereof is given to the party, and he is given an opportunity to cross examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word & sentence by sentence, is to insist on bare natural justice are matters not of form but of substance. In technicalities & rules of sufficiently complied with when previous statements given by witnesses are read over to them marked on their our opinion they are admission, copies there of given to the person charged, and he is given an opportunity to cross-examine them.
In State of U.P. v. O.P. Gupta : AIR1970SC679 a contention was raised that the enquiry was vitiated because the enquiry officer had relied on the statements given of the witnesses behind his back In that connection. K. S. Hegde, J. by some speaking for the Court expressed as under:
This Court has repeatedly laid down that the fact that the statements of the witnesses taken at the preliminary stage of the enquiry were used at the time of the formal enquiry dose not vitiate the enquiry if those statements were made available to the delinquent officer and he was given opportunity to cross examine the witnesses in respect of those statements.
State of Mysore's case : (1964)ILLJ24SC and State of U.P.'S case : AIR1970SC679 were relied on in K.L. Shinde v. State of Mysore : 3SCR913 when in a contention was raised that the Superintendent of Police was wrong in relying on the statements of the witnesses recorded before the charge was framed against the delinquent officer and in re-assessing the evidence contrary to the conclusion arrived at by the Enquiry Officer who held that there was no evidence to substantiate the charge against the delinquent officer. It was held that the enquiry is not vitiated if the statements taken at the preliminary stage of enquiry are made available to the delinquent officer and he is given an opportunity to cross-examine the witnessees in respect of those statements.
11. From the aforesaid decisions of the Supreme Court, it is amply clear that at the departmental enquiry, reliance can be placed on the previous statements given by the witnesses if they are proved and that the person against whom such statements are sought to be used has an opportunity to cross-examine them. In this case, the statement Ex.P. 8 was admitted by P W. 2 Gopal Lal and it contained his signatures and that it was read over to him So, also, P. W. 2 Naney Khan has admitted that Ex P. 9 and Ex. P. 10 are signed by him and that they were correct. Exs. P. 8. 9 and 10 have been proved by the persons who gave the statements, namely, P. W. 2 Gopal lal and P.W. 3 Naney Khan. These previous statements were tendered in evidence before the Enquiry Officer The petitioner had opportunity to cross-examine P. W. 2 Gopal Lal and P. W. 3 Naney Khan. The statements Exs. P 8, 9 and 10 which were recorded behind the petitioner were put to the witnesses and they were admitted by them. These statements having been put to P. W. 2 Gopal Lal and 3 Naney Khan, thus, form part of the oral evidence recorded by the Enquiry Officer. The Enquiry Officer was right in relying on those statements given by the aforesaid two witnesses in preference to the statements that were given at the enquiry. The Enquiry Officer did not commit any error of law in view of the aforesaid decisions of the Supreme Court when he relied on the previous statements Exs. P. 8, 9 and 10. The learned single Judge was, therefore, not right in holding that Exs. 8, 9 and 10 are not substantive evidence in the case. These statements are admissible and there is no bar for holding that these did not constitute legal evidence in support of the charge, We, therefore, disagree with the learned single Judge in this connection and accept the first contention of the learned Additional Government Advocate and hold that the previous statement Exs. P. 8, 9 and 10 were admissible and they constitute legal evidence in the case and further that there has been no breach of Rule 16(6) (a) of the Rules.
12. The learned single Judge in view of the conclusion to which he arrived at did not examine the other contention raised before him on behalf of the petitioner viz., effect of non-supply of the copy of the enquiry report to the petitioner or to the nature of discussion disclosed in the findings.
13. Mr. M. Mridul, learned Counsel for the respondent strenuously contended before us that the order Ex P. 5 imposing the penalty of stoppage of two grades increments with cumulative effect is not in accordance with law in as much as while discharging the quasi-judicial functions, it has not given reasons in support of the order. In other words, he submitted that it is not a speaking order, and also it cannot be said to be in accordance with Rules 14 16 (9) and (11) of the Rules. Various decisions were cited in support of this contention. We shall refer a few of them.
14. It will be useful to quote the material portion of Rule 14 of the Rules.
14. Nature of Penalties--The following penalties may, for good and sufficient reasons, which shall be recorded and as hereinafter provided be imposed on a Government servant namely:
(ii) with holding of increment or promotion;
It provides that it is only after recording good and sufficient reasons that penalty specified in it can be imposed. According to this rule, it should appear from the order imposing penalty that the Disciplinary Authority has applied its mind by recording good and sufficient reasons before imposing it. Rule 16(9) of the Rules is as under:
Rule 16(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 Inquiring 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.
Under it, the Disciplinary Authority is required to examine the record and to apply its mind and, thereafter to record specific finding on each charge.
15. In The Steel Ltd. v. N.M. Desai : AIR1970Guj1 . a Full Bench of the Gujarat High Court held that every Administrative Officer exercising quasi-judicial functions should make speaking orders notwithstanding that he is not a tribunal within the meaning of Articles 136 and 227 of the Constitution It was observed as under:
The administrative authorities having a duty to act judicially not, can therefore, decide on considerations of policy or expediency They must decide the matter solely on the facts of the particular case, solely on the material before them and apart from any extraneous considerations by applying pre-existing legal norms of factual situations. Now, the necessity of giving reasons is at important safeguard to ensure observance of the duty to act judicially. It introduces clarity checks the introduction of extraneous or irrelevant considerations and exculdes or at any rate, minimises arbitreariness in the decision making process.
Another reason which compels making of such an order is based on the power of judicial review which is passed by the High Court under Article 226 and the Supreme Court under Article 32 of the Constitution. These courts have power under the said provisions to quash by certiorari a quasi judicial order made by an Administrative Officer and this power of review can be effectively exercised only if the order is a speaking order. In the absence of any reasons in support of the order, the said courts cannot examine the correctness of the order under review.
(Emphasis is ours)
In Mahavir Pd. v. State of U.P. : 1SCR201 , it was laid down as under:
Opportunity to a party interested in the dispute to present his case on questions of law as will as fact, ascertainment of fact from materials before the Tribunal after disclosing the materials to the party against who it is intended to use them, and adjudication by a reasoned judgment upon a finding of the facts in controversy and application of the law to the facts found, are attributes of even a quasi-judicial determination. It must appear not merely that the authority quasi judicial authority has reached a conclusion on the problem before him; it must appear that he has reached at conclusion which is according to law and just, and for ensuring that end he must record the ultimate mental process heading from the dispute to its solution. Satisfactory decision of a disputed claim may be reached only if it be supported by the most cogent reasons that appeal to the authority. Recording of reasons in support of a decision on a disputed claim by a quasi judicial authority ensures that the decision is reached according to law & is not the result of caprice or whim or fancy or reached on grounds of police or expediency. A party to the dispute is ordinarily entitled to know the grounds on which the authority has rejected his claim. If the order is subject to appeal, the necessity to record reasons is greater, for without recording reasons the appellate authority has no material on which it may determine whether the facts were properly ascertained, the relevant law was correctly applied and the decision was just.
(Emphasis is ours)
In Mahindra & Mahindra Ltd. v. Union of India AIR 1979 SC 798, it was held that the order is clearly vitiated by an error of law apparent on the face of the record; if it contains only the final and operative order made by the Commission and does not record any reasons whatever in support of it
16. In Rama Verma Bharathan Thampuram v. State of Kerala : 1SCR136 , it was held that the administrative bodies having quasi-judicial powers must comply with natural justice and give reasons for their conclusions.
17. This Court in Kuldeep Singh v. Union of India while dealing with a case under Article 311 of the Constitution held that the order of Disciplinary Authority should be a speaking order and not merely an order consequent
18. It follows from the rules referred to above as well as the decisions of the Supreme Court and this Court the Disciplinary Authority before imposing any one of the penalties specified in Rule 14 of the Rules should record reasons in support of it so that the Courts may be able to examine its correctness No reasons what so ever have been given by the Government in support of the order Ex. 5. The explanation of the petitioner has also not been considered. There does not appear to be any application of mind by the Disciplinary Authority to the record and enquiry report. The order Ex. 5 dated September 17, 1965 is not in accordance with Rules 14 and 16(9) of the Rules. We agree with the learned Counsel for the respondent that in the absence of any reasons having been recorded, the order Ex. 5 dated September 17, 1965 is vitiated.
19. In view of the discussion made here in above, we have reached the conclusion that the order of the learned single Judge dated December 11, 1974 cannot be sustained on the grounds given by him and the order Ex.P 5 dated September 17, 1965 of the Government imposing the penalty of stoppage of two grade increments on the petitioner being not in accordance with law cannot be upheld for the reason that it is a con-speaking order.
20. The order Ex. 5 dated September 17, 1965 is maintained. It is, however, made clear that the Disciplinary Authority will not be precluded from passing any fresh orders in the disciplinary proceedings against the petitioner keeping in view the Rules and the observations made above on the basis of the material on record in accordance with law after giving an opportunity of being heard to the petitioner.
21. With the observations made herein above, the special appeal is dismissed. In the circumstances of the case, there will be no order as to costs.