K.S. Lodha, J.
1. The petitioner Miss. Hara roop Chandni was working as LDC in the office of Commercial Taxes Officer, Circle 'B' lodhpur. She was admittedly incharge of certain files pertaining to the Rajasthan goods and Passangers Taxes Act. (hereinafter to as the Act. From the period 3-1-67 till October, 1967. It appears that some complaqints were lodged that a number of files partaing to the said Act. Had beebn tampered with in that department in order to cause wrongful gaim to the varions vehicles owners who were liable to pay the tax under the said Act. And an enquiry was, therefore, made in this respect. That a departmental by order dated 16-10-70 as it appeared that the enquity would take long time. Then a charge-sheet was served on the petitioner on 17-1-70 but the same was later with drawn on 7-4-71
2. Again, a fresh change-sheet was served upon the petitioner on 14-4-72 vide her application Ex. 8 but according to the petitioner she was appointed on 6-572 which is Ex. 11 on the record. He also was to hold a joint enquiry against 11 persons including the petitioner. The petitioner submitted her reply to the charges which were leveled against her vide Ex. 7 on 14-472. It is alleged by the petitioner that the Enquiry Officer did not record any evidence nor the copies of any statements of the witnesses were ever supplied to the petitioner. However, it appears that the enquiry Officer exonerated the petitioner from those changes but the learned Deputy Commissioner (Adm.), Commercial Taxes Department, Joedhpur disagreed with the report of the Enquiry Officer and found the petition guilty of a part of the charge viz, contributory negligence and in responsibility as it was her duty to take the charge in the charge in the proper manner which she did not do and nor did she report the matter to the officer concerned and on this of two grade increments with cumutlative effect against the petitioner vide order dated 23-75 (Ex. 14).
3. The petitioner filled an appeal against this order Before the Commissioner, Commercial' Taxes Jaipur but the same was dismissed and the dismissal was communicated to the petitioner by letter, dated 10-12-76 (Ex. 16). Skill dis-satisfied with it the petitioner filed another appeal to the Finance Secretary to the State off Rajasthan but the same was held not maintainable by the order of the Finance Department dated 3-8-77 (Ex. 18). She has therefore come up to this Court by way of writ petition. The State has filed a reply to the writ petition and has supported the orders of the various authorities referred to above
4. I have heard the learned Counsel far the petitioner. and the learned Deputy Government Advocate and have also gone through the record.
5. The charges framed against the petitioner vide Ex. 77 along with the statement of allegations, are as under:
That the said Miss Hira Roop Chandani while working as L.D.C. in the office of A.C.T.O. Ward C, Jodhpur. In 66-67 took over charge of various assessments records on 3-4-67 while taking over the files it was her legitimate duty to count the pages of each file and report the deficiencies of records pertaining to various files as mentioned in statement of allegation to this charge but she had not done so. The record was in the concerned files at the time of taking over by her. Thus she was negligent in discharging her legitimate duties with the bad motive to help the vehicle owners in tampering the records as mentioned in the statement of allegation and thereby destroying the documentary evidence.
Statement off allegations:
That the said Miss Hira while functioning as L.D.C. in the office of ACTO; RPGH Ward C, Jodhpur during, the year 66-67, took overcharge of various R.P.G.T. assessment files from Shri. Shambhulal; LDC on 3-1-67 in compliance of CTO Jodhpur order No. F2(1)(a) RPGT/66 dated 18-12-66 and the following; files were in her charge it was her legitimate duty to count the pages of each file and report the deficiencies of records, if any, like R.P.G.T. 7 copies of assessment orders applications for C. Cs. furnished by the vehicle owners and wrong challans to the concerned A.C.T.O. but she Had not done so. It was therefore clear that the concerned record was available on the files as the time of taken; over by her.
The she was negligent in discahrging her legitimate duties with the bad motive to help the vehicle owners in tampering the following Govt, records and thereby destroying the documentary evidence.
Vehicle No. Missing records
1. RJQ 1152 Wrong challan and return for the quarter
2. RJQ 1108 Wrong challan, return and application for C
C. for the quarter ending 31-3-63.
3. RJQ 968 Wrong challan, application and return
relating to C.C. No. 87/63 valid upto 31-3-64
4. RJQ 2780 Application for C.C. wrong challan and return
pertainting to C.C. No. 81/68 dated 21-10-63
valid upto 31-12-63 and C.C, No. 89/24 dated
18-1-64, valid upto 31-3-64.
5. RJQ 1149 Application for C.C. Wrong challan and return
pertaining to C.Cs. for the quarters ending
33-3-63, 31-12-62, 30-6-63, 30 6-64,and
6. RJQ 1152 Office copies of assessment order
for 61-62 and 62-63.
6. The report of the Enquiry Officer was not placed on record either by the petitioner or the non-petitioners but the copy of the same has now been shown to ms by the learned Deputy Govt. Advocate. The relevant findings are that 'I have gone through the statements, replies and seized available record and reached to this conclusion that this all have been done by one man only and not all as alleged to have been involved. Logically one or two persons can commit such offence but all cannot. In the findings of the then Deputy Commissioner (Aden.) Commercial Taxes, Jodhpur, he has too held Shri Shambhulal Joshi as culprit for tampering the record. He has already been penalised by the then Commercial Taxes Officer vide order No. 714 dated 6 6-70. Apart from this, there was some procedural defect regarding verification of RCR and GIR. This fact has also been concerned by the departmental representative Shri Gopal Mantri. Due to this lacuna all such happening took place. Most of the delinquents are still working under me and I find that they are working sincerely. They cannot commit such gravity of offence. Moreover, from the statements I do not locate any one reponsible for dis-appearance of challans and returns from files.'
7. While dis-agreeing with this finding, the learned Deputy Commissioner has found the petitioner guilty as stated above. In arriving at that finding, the learned Deputy Commissioner has equated the case of this petitioner with the case of another LDC Shri Mishri Mal, who was also one of the delinquents against whom a joint enquiry has been held. While dealing with the case of the aforesaid Mishri Mal the learned Deputy Commissioner has observed that 'it may be difficult to locate the right culprit but it was certainly the duty of Shri Mishri Mal, LDC to take charge properly, verify the facts from the record and report to the concerned officer about any discrepancy or absence of documents. Hence contributory negligence and irresponsibility are proved as mentioned in the part of the charge against him.'
8. From the above observation, it is clear that the learned Deputy Commissioner was clearly of the opinion that the charges as framed have not been proved against the petitioners and he has merely drawn certain inferences by conjectures and surmises by taking into account the fact that these persons did not take over charge in proper manner and did not verify the facts nor reported any discrepany to their concerned officer. Now this by itself does to show that the basis on which the learned Deputy Commissioner found the petitioner guilty of a part of the charge was entirely different from the one on which the charge itself was based and the Enquiry officer had clearly found the petitioner not guilty on that charge. In these circumstanced, when the learned Deputy Commissioner was dis-agreeing with the finding of the Enquiry Officer, it was his duty to have furnished a copy of the report of the Enquiry Officer, to the petitioner along with the grounds on which the leaned Deputy Commissioner proposed to disagree with that report, so that the petitioner could have set the case sought to be made out against him, as the proceedings against the petitioner has been taken under Rule 16 and not Rule 17 of the Rajasthan Civil Services Classification Control and Appeal Rules (hereinafter referred to as 'the Rules').
9. In this connection, instead of discussing the provisions and the relevant law in greater detail, I would merely refer to a decision of this Court reported in Hari Narain Goyal v. Raj. State Ware-Housing Corpn. and Ors. 1983 RLR 520 in which under similar circumstances it was held that 'in case of disagreement, the reasons for disagreement assume great, importance because where as the Enquiring authority finds the Government servant innocent and exonerates him, the Departmental Authority for the reasons to be recorded finds him guilty and, therefore, he can challenge the finding of the Departmental Authority only when he knows what were those reasons on account of which there was disagreement.' In that case also the Enquiry Officer had exonerated the petitioner from the charges but the Disciplinary Authority dis-agreeing with those findings, found the petitioner guilty and had imposed a penalty of stoppage of three grade increments with cumulative effect. Even if the proceedings are deemed to have been convened under Rule 17 of the Rules; the petitioner was entitled to a notice to that effect so that he could exercise his right of personal hearing under Rule 17(c) of the Rules. But this also was not done and, therefore, the proceedings are vitiated.
10. Not only this, it also appears that as a matter of fact, the finding of the learned Deputy Commissioner that the petitioner did not take charge properly, verify the facts from the record and report to the concerned officer about any discrepancy or absence of documents also 1 appears to be based on no evidence. It does not appear that the Enquiry Officer had taken any evidence. He only appears to have recorded the statements, of so called delinquents, and thereafter toe proceeded to record his findings. The, learned Deputy Commissioner also has not recorded any evidence what so ever. He has also not pointed: out that the files, which, are said to have been, tampered with by he present petitioner were not intact when the same were handed over to Shri Mrishri Mal. LDC is October, 1967 Even if for the, sake of argument, it is assumed that the files, were intact when the petitioner took over, charge. On 3-1-67, as has been assumed by the learned Deputy Commissioner the petitioner, cannot be held guilty of any, negligence unless it is established that the files did not remain, intact while they were in, her custody and they, were tampered with before she-handed them, over to Shri Mishri Mal. It further appears from the Enquiry Report that Shri Shambhu Lal, LDC from, whom the petitioner, had taken over charge on, 3-1-67; has been found guilty/of tampering with the records, and the learned Deputy Commissioner, has also found Mishri Mal guilty, of negligence etc. When Shri Shambhu Lal was found guilty, it necessarily follows, that the files had already been tampered with before they came to the charge oft the petitioner. On the other hand when Shri Mishri Mial has been found guilty, it must follow that the files were intact till they reached Mishri Mal In these, circumstances the two fundings can not stand together. Naturally therefore the petitioner had improperly been held guilty. In any case the finding of guilty arrived, at by the learned Deputy Commissioner, is merely based on, conjectures, and surmises, and) not any clear and concrete evidence. In these circumstances these findings cannot be upheld. Unfortunately the appeal against the order of the learned Deputy Commissioner has also been, disposed of in as summary manner, by the learned Commissioner vide his orders dated 10-12-76 (Ex. 16). That order also is not as speaking order as We quire to be passed, in view of Rule 30 of the Rules, Reference in this, connection may be made to in Kripal Singh v. The State of Rajastkan 1979 WLN 715. These orders deserve to be set-aside and quashed.
11. In view what I have stated above. If need not go into the other contentions, raised by the learned for the petitioner counsel in this write petition. The learned Counsel for the petitioner however urged that no order regarding the emoluments during the period of suspension of the petitioner, has been passed by the Disciplinary Authority, and the petitioner should be allowed full Ray for that period. I am however not inclined to accept this part of the prayer of the petitioner looking to all the circumstances of the case and reject the contention of the petitioners.
12. For the reasons-stated above the writ application is allowed and the order passed by the learned Deputy Commissioner. Commercial Taxes, Jodhpur dated 23-9-75 (Ex. 14) and that of the learned Commissioner, Commercial Taxes, Jaipur dated 10-12-76 Ex. 16 are set aside. Looking call the circumstances, of the case there shall he no order as to costs.