G.M. Lodha, J.
1. The petitioner, Surya Prakash Gothwal, was the peon in the office of the Officer on Special Duty, office of the Conversion of Agricultural Land, Tilaknagar, Jaipur, in Rajasthan. On September 19, 1975, a letter was served on the petitioner intimating him of taking of the disciplinary proceedings under Rule 16 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958 (hereinafter called as 'the Rules of 1958'). A charge-sheet and the statement of allegations were also served on the petitioner. Shri Babu Lal Mittal, S.D.O., was appointed Enquiry Officer to conduct inquiry against the petitioner. After the inquiry, a show-cause notice was served on the petitioner and ultimately the petitioner has been dismissed from service on the ground that mis-conduct has been proved against him on all the three charges for which inquiry was conducted.
2. Mr. Bandhu who appeared for the petitioner in this case has mainly made three fold submissions. Firstly, it is submitted that the list of witnesses and documents were not filed within 10 days as contemplated by Rule 16 of the Rules of 1958. It was then argued that there has been violation of Rule 16(10) of the Rules, in as much as, even though the departmental authority and the Enquiry Officer were different persons, separate finding was not recorded on the report of the Enquiry Officer by the disciplinary authority, ; as would be evident from the show-cause notice. Lastly, it was submitted that the evidence of the department was closed on January 20, 1976 and on the same day; the petitioner was called upon to produce his evidence in defence. No.opportunity whatsoever, was given to him for filing the lists of witnesses and documents within 10 days as required by Rule-16(6)(a) Of the Rules of 1958. Not only that the inquiry was again taken up on January 29, 1976 when the petitioner filed an application that copies of some of the documents have not been given to him and the same should be given. No order was passed in his presence and, laterpn, as it now appears some proceedings have been fabricated having been taken cm 29th and 31st of January and the evidence has been closed on 31st in the absence of the petitioner and without intimating him the date.
3. It has also been argued that while the petitioner was awaiting reply of his application for grant of copies and time, he was served with a show cause notice on February 4, 1976. The petitioner prayed for grant of time by application dated, February 6, 1976, but no time was granted and on February 9, 1976 an order of dismissal was passed and there again earlier conduct of the petitioner was taken into consideration for inflicting extreme punishment of dismissal without providing him an opportunity to say anything against it.
4. Mr. Mathur, appearing for the respondents, has vehemently opposed the writ application. He has not disputed the factual aspect that the department did not file any list of witnesses and documents within 10 days. He also did not dispute that 10 days' time as contemplated by Rule 16(6)(a) of the Rules of 1958 was not granted to the petitioner for filing list of witnesses and documents in his defence. However, his principal contention was that no prejudice, whatsoever, has been caused by all this to the petitioner because, sufficient opportunity was given to him as contemplated by Article 311 of the Constitution. It was argued that since sufficient and reasonable opportunity was given to the petitioner, he cannot be allowed now to submit that the imgugned order of dismissal' should be quashed only on technical ground. So far as the recording of finding is concerned, Mr. Mathur's contention is that in a case where disciplinary authority concurs with the finding of the Enquiry Officer separate finding need not be recorded.
5. I have considered the respective submissions of the learned Counsel for the parties. So far as the first point is concerned, it is true that technically the department is required to file list of witnesses and documents within a period of 10 days. Rules 16(6)(a) of the Rules is as under:
Where the Government servant has pleaded not guilty to the charges, at the commencement of the enquiry, the Inquiring authority shall ask the Presenting Officer appearing on behalf of the Disciplinary Authority to submit the list of witnesses and documents within 10 days, who shall also simultaneously send a copy to the Government servant. The Inquiring Authority on receipt of such list shall summon the relevant evidence as per the list and record the evidence giving opportunity to the Presenting Officer for Examination-in-Chief and also to the Government servant or his Assisting Officer, whosoever may be present for cross-examination. The Presenting Officer shall be entitled to re-examine the witnesses on any points, on which they have been cross-examined, but not on any new matter, without the leave of the Inquiring Authority. After the close of the prosecution evidence the Government servant shall be called upon to submit the list of the witnesses and the documents within 10 days which he would like to produce in his defence. The Inquiring Authority after considering the relevancy of the witnesses and the documents and record the evidence there of while giving opportunity of Examination-in-Chief and cross-examination/re-examination to the parties and then close the evidence. The Inquiring Authority shall consider the relevancy of the witnesses and the documents called for by both the parties and in case of his refusal to summon any witnesses or documents, he shall record the reasons in writing. The Inquiring Authority may also put such questions to the witnesses of the parties as he thinks fit in the interest of justice. An opportunity for hearing the arguments shall be given to the parties.
Note-If the Government servant applied orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in Sub-rule (6)(a), the Inquiring Authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witness on behalf of the disciplinary authority.
6. This rule requires that the Inquiry Authority shall ask the Presenting Officer appearing on behalf of the Disciplinary Authority to submit the list of documents and witnesses within 10 days, who shall also simultaneously send copies to the Government servant. Undoubtedly, this has not been done in the instant case. However, in the facts and circumstances of this case the inquiry cannot be quashed, because, no prejudice has been caused to the employee by technical violation of this rule.
7. Coming to the second point regarding recording of the finding, Rule 16(10) of the Rules of 1958 is as under:
Rule 16(10)(i): If the Disciplinary Authority, having regard to its findings on the charges is of the opinion that any of the penalties specified in Clauses (iv) to (vii) of Rule 14 should be imposed, it shall-
(a) furnish to the Government servant a copy of the report of the Inquiring Authority and where the Disciplinary is not the Inquiring Authority a statement of its finding together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority;
In the instant case, the show-cause notice Annexu're-10 is as under: (In Hindi) This would show, all that the Disciplinary Authority said was that he is in agreement with the report of the Inquiry Officer and proposes to dismiss the petitioner. Undoubtedly, it is not a case where the Disciplinary Authority disagreed with the finding of the Inquiry Officer because, the Inquiry Officer found the petitioner guilty on all the three counts and disciplinary authority agreed with him. In Tarachand v. Delhi Municipality and Ors. : (1977)ILLJ331SC and analogous provision was considered. Regulation 8(10)(a) which is mentioned in para 9 of the above judgment was as under:
(10) If the Disciplinary Authority having regard to its findings on the charges, is of the opinion that any of the penalties specified in Regulation 6 should be imposed, it shall:
(a) furnish to the municipal officer or other municipal employee a copy of the report of the Inquiring Authority and, where the Disciplinary Authority, is not the Inquiring authority a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority;
A similar objection was raised but repelled by Supreme Court in that case also which is as under:
The third contention advanced by Mr. Ramamurthi that the impugned order of the appellant's dismissal from service is vitiated as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by Regulation 8(9) of the Regulations nor has it given its reasons for passing the order cannot also be countenanced as it overlooks the decisions of the court, which fully cover the case.
16. Regarding the first limb of the contention it may be stated that although it may be necessary for the Disciplinary Authority to record its provisional conclusions in the notice calling upon the delinquent officer to show cause why the proposed punishment be not imposed upon him if it differes from the findings arrived at by the enquiring officer with regard to the charge, it is not obligatory to do so in case the Disciplinary Authority concurs with the findings of the enquiring officer. We are supported in this view by two decisions of this court in State of Orissa v. Govinddas Panda; (Civil Appeal No. 412 of 1958) decided on December 10, 1962 (SC) and State of Assam v. Bimal Kumar Pandit : (1963)ILLJ295SC . In Govinddas Panda's case (supra) where the notice issued under Article 311(2) did not expressly state that the State Government had accepted the findings recorded by the enquiring officer against the Government servant in question and where even the nature of the punishment which was proposed to be inflicted on him was not specifically and clearly indicated, this court while reversing the conclusions of the Orissa High Court that the notice was defective and so the provisions of Article 311(2) had been contravened observed:
In the context, it must have been obvious to the respondent that the punishment proposed was removal from service and the respondent was called upon to show cause against that punishment. On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service.
8. The court therefore, observed that the submission that findings were not recorded and copies were not given were found to be untenable. The court has observed as under:
In the instant case, the incorrectness of the first limb of the contention is apparent from a bare reading of the afroesaid order passed by the Deputy Commissioner on May 20, 1969 which clearly states that he agrees with the findings of the enquiring officer. Reading the order as a whole, it becomes crystal clear that the Disciplinary Authority held the charge drawn up against the appeliant as proved.
9. It would thus be seen that when the Disciplinary Authority agrees with the finding of the Inquiry Officer or the Inquiring Authority as the case may be, it is not necessary that any separate finding should be recorded giving reasons for agreement. It is enough if it says that he is in agreement with the finding of the inquiring authority. The case, of course, be different if the Disciplinary Authority dis-agrees, in which case the detailed reasons for disagreement are to be recorded.
10. In view of the above, the objection of Mr. Bandhu on this ground cannot be accepted and consequently rejected.
11. The third contention of the petitioner relates to the opportunity of recording defence evidence Undoubtedly on January 20, 1976 the case was fixed for the evidence of the department and not for the evidence of the petitioner. After the evidence of the department was closed the Inquiry Authority abruptly asked the petitioner to produce his evidence. This was in flagrant disregard and clear violation of Rule 16(6)(a) of the Rules of 1958. Not only this, but further the Inquiring Authority did not allow any opportunity whatsoever, to the petitioner to file list of witnesses and documents so that the same can be called. All that was done was that when the petitioner failed to produce any evidence on that day; as infact, no one placed in his position could have done, the care was fixed on January 29, 1976. The proceedings of January 29, 1976 copies of which have been produced by the State in the form of Annexure R-5, show that the Inquiring Authority received a letter in which a request was made for granting copies of certain documents. In this order-sheet it is written that copies have already been given to the petitioner by order dated December 6, 1975. This factual aspect of the case is contested by the petitioner. The case of the petitioner is that Ex. 44, the report of Tehsildar on the basis of which charge No. 2 of indicipline was held to be proved was one of the important documents copy of which was never given to him. The respondents submit that the order-sheet dated, December 6, 1975 would show that copy of it was given to the petitioner. The Inquiring Officer has noted on January 29, 1976 in his order that the employee is delaying the case enquiry and he was directed on the last hearing to file the list of witnesses within three days. None of the parties has produced the copy of the order dated January 20, 1976 and it is curious that respondents have also not filed this copy which would have shown that what had actually happened on that date. In the absence of this, it is not possible to precisely mention that what had actually happened on January 20, 1976, because, both the parties are riving different version of the proceedings. Even regarding the proceedings of 29th January, whereas the case of the petitioner is that he was never present on that date, the respondents submit that though he was present yet he refused to sign the order-sheet.
12. Be that as it may, the indisputed fact remains that on January 29, 1976. even if it is assumed that the order-sheet of that date as per the version given in Annexure R-5 was correct then also the case was fixed on January 31, 1976, and on that day the evidence was closed. Here again, the respondents have not submitted before this court the copy of the order-sheet dated, January 31, 1976. Whatever happened later on only shows that the Disciplinary Authority was also in hot haste to get rid of petitioner, because, immediately a notice to show cause was served and the request for adjournment for application dated, February 6, 1976 was rejected. It is surprising that on the application dated, February 6, 1976, Annerure R-6, the Disciplinary Authority has mentioned a note that enough time has been granted to the petitioner in the past, and, therefore, no further time can be granted now. Show-cause notice fated, February 3, 1976 was served on February 4, 1976 and on February 6, i.e. within two days, the petitioner applied for time. It is un-intelligible how enough time has been granted to the petitioner to give reply to the show-cause notice and what is the concept of sufficient time which prevailed with the disciplinary authority.
13. Since the impugned order was passed on February 9, 1976, it further shows that the Disciplinary Authority immediately on the expiry of the period given in notice dated, January 31, 1976 passed the order of dismissal.
14. There is thus no doubt that the impugned order has been passed in violation of Rule-16(6)(a) of the Rules. This rule requires that after close of the petitioner's evidence Government servant shall be called upon to submit list of witnesses, and documents within 10 days, which he would like to produce in his defence. Instead of granting 10 days time to file list of witnesses, in the instant case, the Inquiring Authority completed the inquiry and did not allow reasonable opportunity to the petitioner to produce the defence evidence. Disciplinary proceedings against the Government servant under Rule 16 can bring and has brought premature termination of the services of an employee resulting in permanent deprivation from the service. In addition to this it also casts a serious stigma on his conduct and character as a Civil servant. It is on account of this, that on the one hand constitutional guarantee has been provided under Article 311 of the Constitution, on the other hand, the State has framed the detailed rules and rule-16 provides elaborate procedure for providing full opportunity to the Government servant.
15. In Ramshai v. Board of Revenue for Raj. 1976 Weekly Law Notes 369 (Per Rajender Sachar, J.) This Court observed that Rule 16(10) is mandatory and earlier judgment, S.N. Misra v. State of Rajasthan 1970 R.L.W. 287, (Per Kan Singh J.) was relied upon. It is not necessary to multiply the precedents to emphasize that the provisions contained in Rule-16 are by and large mandatory. It is true, in a given case a mere technical violation of a particular Sub-rule of Rule 16 may not cause any prejudice to an employee; as I have already held earlier while dealing with the case of the list of the witnesses within 10 days, but those are exceptional cases.
16. By and large, this Rule is mandatory, because, it is intended to provide full real, effective and reasonable opportunity to a Government servant to defend himself against the charges levelled against him in case, where major penalty is imposed upon him. This rule has been framed to give effect to the constitutional mandate contained in Article 311(2) of the Constitution, and therefore, it is to be treated on that high pedestral. That being so, I am not at all impressed by contention of Mr. Mathur that as opening words of Rule-16 mentions 'as far as may be', this rule is directory. The phrase 'as far as may be' only means that the application of sub-clause or part of it, as the case may be, depending upon the nature of the charge and other conditions and circumstances.
17. 'As far as may be' cannot be treated to mean that it gives a discretion to the Disciplinary Authority or to the Inquiring Authority either to ignore any of the clause of this rule or to act in clear violation and flagrant dis-regard of it. If any Inquring Authority or Disciplinary Authority chooses to act in violation of this rule, he can do so at his own peril, because as I have mentioned above, this rule is nothing but State's mandate to implement and effectively carry-out the wishes expressed under Article 311 of the Constitution. It would be a mockery of justice and denial of reasonable opportunity if Rule-16 is held to be directory, and Disciplinary Authority or the Inquiring Authority is allowed to flout it with impunity.
18. In the case of Union of India v. S.B. Chatterjee D.B. Special Appeal No. 47/1969 decided on January 17, 1980 a Division Bench of this Court has emphasized the importance of Article 311 of the Constitution and held that it is a protective constitutional umbrella provided to the Civil Servants against the unscrupuious actions of the employers. It was held '(per G.M. Lodha J.)'
If Dictionaries cannot be dicators, equally 'words' cannot 'veto' and 'form' cannot 'fool' or 'befool' any one. How the form stop judical review by Courts who are expected to be 'Watchdogs of the Constitution containing; Article 311 of the Constitution, which is as pious, great, important and protector to a 'Civil Servant' as Bible to clergymen, Kuran to the Mullas and the great 'Geeta' to Arjuna of Mahabharat. Abraham Lincon, though in different context said 'For forms of Government, let fools contest'. True, it was a statement of political philosophy, but how forms can stop our search for truth and justice in temples of justice? We have, therefore, held that 'words' cannot 'veto' and the plethora of precedents mentioned above only confirms our views in the matter that 'form is not final' and we can lift the veil.
19. The above observations of this court would only show that, the importance of Rule-16 and various procedural opportunities provided to a Civil Servant under it, cannot be lightly brushed aside by any Disciplinary Authority or the Inquiring Authority nor the courts can ignore it. In that view of the matter, I am continced that the Inquiring Authority, in the instant case, was highly unfair to the employee; who being a low paid peon, lowest in the ladder was handicapped in the very nature of his small status, by asking him to produce the defence evidence then and there.
20. The Inquiring Authority and the Disciplinary Authority should know that under the rule of law, where the constutitional safeguards have been provided to the civil servants, they should act dispassionately, impartially, independently; without having any bias in favour of the department or the departmental bosses, who may be able to do any favour to them. They should discharge their functions, which are statutory in nature, having constitutional sanctity, in a most up-right manner, keeping in view that not only they comply with the rules, procedure safeguards provided, but they should be liberal in their approach to see that no civil servant is punished only because of un-conscious and undisclosed bias. This way alone, they can become instrumental in enforcing rule of law and constitutional mandate provided under Article 311 and the Rules of 1958.
21. The fact that the petitioner was only a peon should have further placed the Inquiring Authority on guard and he should have allowed much more time than what is normally required under the rules, because in the very nature of things, though, it is not impossible, but it is certainly a difficult task for a peon to arrange for production of evidence in defence against-departmental bosses. I am, therefore, convinced that there has been gross violation, flagrant disregard and clear contravention of Rule 16(6)(a) of the Rules of 1958 and that has resulted in serious failure of justice and prejudice to the petitioner.
22. Lastly, the Disciplinary Authority has taken notice of the previous conduct of the petitioner while awarding punishment, of dismissal. Admittedly, this has been done without providing any opportunity to the petitioner. In Ramshai v. Board of Revenue 1976 Weekly Law Notes 369, it was observed by this court in Para No. 4, 'But the Collector was apparently not satisfied with this finding alone and therefore before imposing the penalty of dismissal took into account the previous service record of the petitioner but without at any time having informed the petitioner that his past record will be taken into account in inflicting punishment on him. Neither in the charge sheet nor in the show cause notice in the first instance or second time was ever a reference made that the previous service record of the petitioner will be considered by the Disciplinary Authority at the time of imposing punishment. That such a lacuna makes the order of dismissal unsustainable was settled in State of Mysore v. Manehs Gowda : 4SCR540 .'
23. In the instant case also, neither in the charge-sheet, statement of allegations, first show-cause notice or the second show-cause notice any where directly or indirectly, the petitioner was not intimated or informed that his previous service record would be considered for the purposes of consideration of the penalty to be imposed. That being so, it is obvious that the disciplinary authority was not authorised and entitled to consider the previous conduct or service record of the petitioner for imposing the major penalty of dismissal. The facts of the instant case in this respect are identical to Ramshai's case mentioned above, which is based on the judgment of Hon'ble Supreme Court, which has been referred therein. That being so, on this ground also the impugned order of dismissal cannot be sustained.
24. The result is that this writ application succeeds and the impugned order of dismissal is quashed.
25. Having quashed the impugned order of dismissal the question now to be considered is whether a fresh denovo inquiry should be allowed to be conducted against the petitioner in 1980? As mentioned above, the petitioner is a very low paid employee, lowest in the ladder of employees holding a post of the peon. It would really be a great hardship to him if now after about 4 or 5 years he is again required to face a de novo inquiry which may last for another year or two or even more. Undoubtedly, the lapses, lacunas and infirmities pointed out in the impugned order are not due to any in-action or indifference of the petitioner, but it is on account of a clear contravention, flagrant disregard and violation of Rule-16 of the Rules of 1958 by the Inquiring Authority and the Disciplinary Authority. Since that is so, it would be in the interest of justice that the petitioner should not be now asked to face another inquiry after a lapse of about 4 to 5 years. Under the circumstances, since the order of dismissal has been quashed, it is further ordered that the petitioner would be reinstated on his post and would be entitled to all the emoluments of salary and other requisite allowance. The petitioner would also get the costs from the respondents.