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Gurucharan Singh Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService;Civil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 2002 of 1971
Judge
Reported in1975WLN(UC)299
AppellantGurucharan Singh
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredState of Madras v. A.R. Srinivasan
Excerpt:
.....rajasthan civil service (classification control & appeal) rules, 1938 - rule 16--penalty--state government not to be record reasons in every case.;(e) rajasthan civil services (classification, control & appeal) rules 1958 - rule 16--adjournment not granted for want of sufficient cause--ex-parte order passed by enquiry officer not unjustified.;(f) rajasthan civil service (classification, control & appeal) rules, 1958 - rules 18 & 16--state government is complent to discharge functions of the governor in impoing penalty.;the government in the appointment department was empowered to deal with the matters relating to disciplinary enquiries. such authority, therefore, was quite competent to discharge the functions of the governor in respect of the imposition of penalty..........and mansingh. a memorandum, charge sheet and statement of allegations were issued by the state government to the petitioner on february 16, 1965. it was considered propos that a joint enquiry under rule 18 of the rajasthan civil services (classification; control and appeal) rules, 1958 (hereinafter referred to as 'the rules') be held against the petitioner and massingh in respect of the aforesaid matter and the governor of rajasthan passed an order on august 17, 1965 directing a joint enquiry against the two delinquent officers. the additional commissioner of departmental enquiries was designated as the enquiry officer to conduct the joint enquiry against the petitioner and mansingh. the enquiry officer submitted his report to the state government, in which he found the charges.....
Judgment:

D.P. Gupta, J.

1. The petitioner was serving as the Station House Officer at the Police Station, Kotgate, Bikaner in the year 1961. One Mst. Tulchhi died on March 19, 1961 and a dispute arose in respect of her properly between her daughter Smt. Meena and Radhey Shyam, who claimed to be the adopted son of the deceased. In order to avoid a conflict, some respectable members of the community to which the aforesaid parties belonged stored the entire property belonging to Smt. Tulchhi in a room in the house of the deceased and locked the same, so that the same may be handed over to the rightful owner as and when a decision was arrived at between the rival claimants in respect of the legal heirship. Smt, Meena submitted a complaint before the Sub-Divisional Magistrate, Bikaner City, on March 29, 1961, who directed Mansingh, Deputy Superintendent of Police, City, Bikaner to visit the spot personally & prepare an inventory of all the articles of the deceased & produce the same in his Court. Mansingh accompanied by the petitioner went to the spot, collected all the valuable articles & cash in a box belonging to Smt. Meena, got the same sealed In presence of respectable persons of the community & pasted a paper slip thereon containing the signatures of the aforesaid persons, who were present on the occasion The box was brought to the Police Station, Kotgate, Bikaner & was kept in the 'Malkbana' of the said Police Station, although the key of the box was kept by Mansingh. On April 4, 1961 Mansingh prepared an inventory of the valuable articles and counted the cash which amounted to Rs. 5716/-, at the Police Station, Kotage in the presence of motbirs and the aforesaid box was again locked and sealed, but the paper slip pasted on the upper lid of the box was this time signed by Mansingh and the petitioner only. Thereafter the box was again placed in the 'Malkhana' of the Police Station, Kotegate. On May 9, 1961 Mansingh sent for the box and the petitioner carried the same to the Court of the Sub-Divisional Magistrate, Bikaner City in a Government jeep, but probably as arrangements could not be made on that date for the weighment of the articles, the Magistrate ordered the box to be produced before him on a subsequent date. However, Mansingh had in the meanwhile, broken open the seals on the said box, but as the case was adjourned be closed the box again, locked it and banded over the same to the petitioner for being kept in the 'Malkhana' of the Police station, Kotgate. While keeping the aforesaid box in the 'Malkhana', Head Constable Raghunath Prasad noticed that the box did not bear any seals and brought this fact to the knowledge of the petitioner, who directed him to put the seals of the Police Station, Kotgate upon the box. A paper slip signed by Mansingh was no doubt pasted on the upper lid of the box. Probably, as the dispute between the parties was taken to a civil court, the box remained lying in the Police Station, Kotgate for a long time and meanwhile Mansingh was transferred from there. Ultimately the Senior Civil Judge, Bikaner directed that the box including the valuables and cash contained therein be handed over to Smt. Meena & then Station House Officer, Incharge of the Police Station, Kotgate, Bikaner broke open the lock of the box for handing over the property contained therein to Smt. Meena. At that time it was discovered that the cash amounting to Rs. 5716/- was missing from the box.

2. The discovery of the aforesaid loss of cash amounting to Rs. 5716/- from the aforesaid box kept at the Police Station, Kotgate led to the initiation of disciplinary proceedings against the petitioner and Mansingh. A memorandum, charge sheet and statement of allegations were issued by the State Government to the petitioner on February 16, 1965. It was considered propos that a joint enquiry under Rule 18 of the Rajasthan Civil Services (Classification; Control and Appeal) Rules, 1958 (hereinafter referred to as 'the Rules') be held against the petitioner and Massingh in respect of the aforesaid matter and the Governor of Rajasthan passed an order on August 17, 1965 directing a joint enquiry against the two delinquent officers. The Additional Commissioner of Departmental Enquiries was designated as the Enquiry Officer to conduct the joint enquiry against the petitioner and Mansingh. The Enquiry Officer submitted his report to the State Government, in which he found the charges proved against both, Mansingh as well as the petitioner and held that both of them were guilty of gross neligence and carelessness in the discharge of their duties. The Enquiry Officer was of the view that the penalty of reduction by two of stages in the time scale of pay with cumulative effect and stoppage of two increments for two years be inflicted upon Mansingh and the penalty of with holding of two grade increments with cumulative effect be inflicted upon the petitioner. The report of the Enquiry Officer was considered by the State Government and as a major penalty was proposed to be inflicted upon Mansingh, a notice to show cause against the proposed punishment was served upon him, as required by Article 311(2) of the Constitution. The entire matter thereafter was referred by the State Government to the Rajasthan Public Service Commission (hereinafter referred to as 'the Commission') for its advice, which agreed with the view of the Enquiry Officer that negligence and carelessness of Mansingh and the petitioner were fully established. However, the Commission advised that the penalty proposed to be inflicted upon Mansingh be reduced to stoppage of grade increments for two years without cumulative effect but so far as the petitioner was concerned, the Commission opined that the proposed penalty of stoppage of two grade increments with cumulative effect would be sufficient to meet the ends of justice. The State Government ultimately agreed with the advice tendered by the Commission & by its order dated January 7, 1969 Mansingh was reduced by two stages in the time scale of pay for a period of two years without cumulative effect, while it directed the the stoppage of two grade increments with cumulative effect in case of the petitioner. The petitioner then submitted a review petition against the aforesaid disciplinary proceedings.

3. Learned Counsel for the petitioner argued in the first instance that the petitioner was denied an opportunity by the Enquiry Officer to produce his defence. His further submission in this respect was that discrimination was practiced by the Enquiry Officer in the conduct of the proceedings in the disciplinary enquiry. It is alleged that adjournments were granted by the Enquiry Officer to Mansingh on several occasions merely for his asking, while an adjournment prayed for by the petitioner on June 20, 1967 was refused by the Enquiry Officer and ex parte proceedings were taken against him on that very date, which resulted in the deprivation of a fair opportunity to produce his defence. The case of the petitioner is that the proceedings of the departmental enquiry were adjourned on January 10, 1997 and March 1, 1067 merely on receiving a telephonic and telegraphic message respectively from Mansingh, without assigning any reasons for such adjournments, but the same facility of granting adjournments was not afforded to the petitioner. Learned Counsel for the petitioner submitted that the Enquiry Officer unreasonably refused an adjournment to the petitioner on June 20, 1967 when he had gone to call upon his ailing brother. It may be pointed out that the departmental enquiry conduced by the Enquiry Officer was not a proceeding in a court of law and the Enquiry Officer was not expected to write elaborate order sheets, incorporating there in the reasons why adjournments were granted. Merely because the reasons for granting adjournments by the Enquiry officer on January 10, 1967 and March 7, 1967 were not recorded in the order sheet it cannot lead to the conclusion that there were no reasons for Mansingh to seek such adjournments or that the Enquiry Officer granted adjournments to him merely for his asking. It is quite probable that Mansingh might have intimated the reasons on which adjournments were sought for by him on the afore-said two dates and the Enquiry Officer might have thought the same as sufficient and, therefore, he adjourned the departmental enquiry proceedings on the request of Mansingh. It further appears that on May 16, 1967 after the entire departmental evidence was recorded, the Enquiry Officer wanted to record the statement of the delinquent officer. The assisting officer of the petitioner, Shri Talwar, objected to this procedure on the ground that there was no provision for recording the statement of the delinquent officer This application was rejected by the Enquiry Officer and when he wanted to proceed further and record the statement of the petitioner, another application was moved on behalf of the petitioner praying for time to move the State Government for transferring enquiry proceedings to some other Officer. The Enquiry Officer allowed time to the petitioner to move the State Government for transferring the case and adjourned the disciplinary enquiry to June 20, 1967. It may be noted here that the petitioner was formerly posted at the Police Training School, Kishangarh and by an order dated June 6, 1967 he was transferred to C.I.D.I.B. Jaipur. By a subsequent order dated June 16, 1967 issued by the Deputy Inspector General of Police, G.I.D.I.B. Rajasthan the petitioner was posted in CM, Special Branch of C.I.D. The petitioner submitted an application dated June 15, 1967 that he has been transferred from Police Training School, Kishangarh to C.I.D. I.E, Jaipur, but as he was proceedings to call upon his ailing brother, the proceedings in the departmental enquiry may be adjourned on June 20, 1967. On the next date of hearing i.e. on June 20, 1967 the Enquiry Officer held that there was no sufficient reason of the absence of the petitioner and directed that ex parte proceedings be taken against him and fixed the matter on June 22, 1967 for further proceedings. On the last mentioned date, the statement of Mansingh was recorded and he stated that he did not wish to produce any evidence in defence. On that date the petitioner was not present nor he produced any evidence in defence. The Enquiry Officer also noted in the order sheet that 'he petitioner did not produce any order of the State Government regarding the transfer of the departmental enquiry proceedings. He, therefore, closed the proceedings in the case for sub-mitting his report to the State Government. Thus it appears from the record that on May 16, 967 the petitioner objected to the recording of his statement by the Enquiry Officer and then he sought an adjournment on that date on the pretext that he would move the State Government for the transfer or the enquiry proceedings to some other officer. The fact that the petitioner did even move an application for transfer of the enquiry proceeding to some other officer oven upto June 20, 1967. as admitted by him in para 5 (k) of the writ petition, exposes the dialatory attitude of the petitioner. Thus it is apparent that an adjournment was sought by him on May 16, 1967 under a false pretext of making an application for transfer of the enquiry proceedings, yet the Enquiry Officer granted him time upto June 19, 1937 for that purpose. Moreover, the application of the petitioner dated June 15, 1967 (Ex. 12) for adjournment of the case was quite vague as it was not disclosed therein as to where the elder brother of the petitioner resided and as to when the petitioner went to meet him. The disclosure of such facts was necessary to enable the Enquiry Officer to adjudge the genuineness of the petitioner's request for an adjournment. Looking to the aforesaid conduct of the petitioner, it was not unreasonable for the Enquiry Officer to take the view, when toe proceedings were next resumed on June 20, 1967, that the petitioner was avoiding to appear and was intentionally trying to delay the proceedings of the enquiry. It appears from the contents of para 12 of the revision application submitted by the petitione to the State Government (reproduced at page 26 of the writ petition) that on June 20, 1967 the Assisting Officer of the petitioner appeared before the Enquiry Officer and requested him personally to give cert in copies. Thus it cannot be accepted that the petitioner was unaware of the fact that his application for an adjournment was rejected by the Enquiry Officer on June 20, 1967, on account of absence of sufficient reason and that case was fixed for further proceedings on June 22, 1967, yet the petitioner did not appear before the Enquiry Officer, nor he took part in the proceedings of the enquiry on June 22, 1967. It is admitted by the learned Counsel for the petitioner that the petitioner took charge of his post in CID, Jaipur on June 22, 1967 and as the proceedings in the departmental enquiry were also being conducted at Jaipur the petitioner could have appeared before the Enquiry Officer on that date. But no explanation what so ever has been furnished by the petitioner as to why he failed to appeared before the Enquiry Officer on June 22, 1967. In fact if the petitioner was at all serious to produce his evidence in defence he could have appeared before the Enquiry Officer on June 22, 1967 along with his defence witnesses or at least he could have submaitted an application on that date for setting aside the exparte order or seeking permission to produce his defence evidence. However, the petitioner did nothing of the kind which shows that he was merely trying to find an excuse for making a grouse of denial of opportunity in respect of production of his evidence in defence which was not well founded.

4. Thus, in the circumstance referred to above, it cannot be said that the order of Enquiry Officer dated June 20, 1967 holding the absence of the petitioner on the date as without sufficient cause was unjustified or unreasonable. I am, therefore, unable to accept the contention of the learned Counsel for the petitioner that there was any denial of reasonable opportunity to the to the petitioner in the matter of production of his defence.

5. The further contention of the learned Counsel for the petitioner that the Enquiry Officer showed undue preference or favour to Mansingh or adopted discriminatory attitude against the petitioner in the conduct of the enquiry proceedings, is also without any basis. Merely because some adjournments were granted at the instance of Mansingh could not lead to the conclusion that the Enquiry Officer in any manner unduly favouring Mansingh. The petitioner has not disclosed the number of adjournments which were sought by him prior to June 20, 1997 and which were allowed by the Enquiry Officer. Moreover, merely the number of adjournments granted to the other delinquent officer could not lead to the inference that the attitude of the Enquiry Officer was discriminatory, particulary in view of the fact that I have already held above that the refusal of the Enquiry Officer to grant an adjournment to the petitioner on June 20, 1967 was not unjustified in the aforesaid circumstances. It may also be recalled here that the Enquiry Officer proposed a much severe punishment for being inflicted upon Mansingh, namely of reducing him by two stages in the time scale with cumulative effect and with holding of increments for two years in future. The aforesaid punishment proposed by the Enquiry Officer was considered to be too severe by the Commission and the State Government and the same was reduced. Thus the allegation of the petitioner that the Enquiry Officer showed undue favour to Mansingh is not supported by the material on record and there was no question of discrimination in the conduct of the enquiry proceedings.

6. Another contention advanced by the learned Counsel for the petitioner was that discrimination was practised by the State Government between the petitioner and Mansing in the matter of award of punishment to the two delinquent officers. It was argued that although the petitioner was awarded the punishment of stoppage of two grade increments with cumulative effect, Mansingh was awarded a punishment of withholding of two grade increments for two years without cumulative effect, although the lapse on the part of Mansingh was more serious. There is no doubt that the Enquiry Officer had recommended the award of more severe punishment in the case of Mansingh on the ground that he was utterly careles in taking away the key of the box along with him when he was transferred from the post of Deputy Superintendent of Police, Bikaner City, yet when the matter was sent to the Commission for its opinion, the Commission took the view that although the carelesness of Mansingh was quite apparent but there was no reason to award him a more severe punishment as the box was kept in the possession and charge of the petitioner and no dishonest motive could be attributed to Man Singh in taking away the key of the box while he went on transfer As regards the petitioner, the Commission expressed the view that the petitioner was utterly negligent and careless in the performance of his duty, inasmuch as when the box was taken back from the Court of the Sub-Divisional Magistrate, Bikaner City to the Police Station, Kotgate on May 9, 1961 inspite of the fact that Head Constable Raghunath Prasad drew the attention of the petitioner to the fact that the box in question had no seals, yet the petitioner tried to hush-up the matter and directed the Head Moharir Raghunath Prasad to put the seals himself and he did not even take care to put his own signatures on the seals. Thus, according to the Commission, the negligence or inaction on the part of the petitioner was far more serious than that of Mansingh. It cannot be denied that the petitioner was the Station House Officer Incharge of Police Station, Kotgate where the box was kept for safe custody and the the petitioner remained in possession and control of the box till he was transferred from the place. It cannot also be denied that the petitioner was duty bound to arrange for the safe custody of the contents of the box, which included valuable and considerable cash and this fact was well within the knowlodge of the petitioner, as an inventory there of was prepared in his presence by Mansingh on April 4, 1961 and at that time the box contained cash amounting to Rs. 5716/-. However, when the box was handed over to the rightful owner by the order of the civil court the cash had disappeared while the box remained in the custody of the police officials of Police Station Kotgate, including the petitioner. Thus the negligence and carelessness of the petitioner is writ large in face of the above mentioned facts. The advice tendered by the Commission was duly accepted by the State Government. In view of the aforesaid facts and circumstances, it cannot be said that there was any discrimination in the matter of award of punishment to the two delinquent officers. The Disciplinary Authority is competent to award suitable punishment on the basis of the gravity of the misconduct of the employer concerned and it is not for this Court in these proceedings under Articles 226 of the Constitution to consider the question of punishment unless the same is grossly excessive or the finding in that respect is perverse It appears that punishment has been awarded in the present case in the light of the seriousness of the lapses on the part of the two delinquent officers and there could be no Interference by this Court in that respect.

7. Another submission made by the learned Counsel for the petitioner was that the order passed by the State Government awarding punishment to the petitioner was not speaking order. This argument is of no substance in view of the fact that the State Government clearly stated in its order dated January 7, 1969 inflicting punishment upon the petitioner and Mansingh that it accepted the advice of the Commission which is Ex. 22 on record discussed in detail the entire material in respect of the charges against the petitioner as well as against the other delinquent officer including the evidence on record in respect thereof. It would be enough, with regard to this submission to refer to the decision of their Lordships of the Supreme Court in State of Madras v. A.R. Srinivasan : AIR1966SC1827 wherein Gajendragadkar C.J. observed as under :

In dealing with the question as to whether it is obligatory on the State Government to give reasons in support of the order imposing a penalty on the delinquent officer, we cannot overlook the fact that the disciplinary proceedings against such a delinquent officer begin with an enquiry conducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public Service Commission is consulted where necessary. Having regard to the material which is thus made available to the State Government and which is made available to the delinquent officer also, it seems to us some what unreasonable to suggest that the State Government must record its reasons why it accepts the findings of the Tribunal which may be in favour of the delinquent officer and proposes to impose a penalty on the delinquent officer, it should give reasons why it differs from the conclusion of the Tribunal, though even in such a case, it is not necessary that the reasons should be detailed or elaborate. But where the State Government agrees with the findings of the Tribunal which are against the delinquent officer, we do not think as a matter of law, it could be said that the State Government cannot impose the penalty against the delinquent officer in accordance with the findings of the Tribunal unless it gives reasons to show why the said findings were accepted by it. The proceedings are, no doubt, quasi judicial; but having regard to the manner in which these enquiries are conducted, we do not think an obligation can be imposed on the State Government to record reasons in every case.

8. The decisions cited by the learned Counsel for the petitioner in this respect are not applicable to the facts of the case and as such it is not necessary to discuss them in detail.

9. Another argument advanced by the learned Counsel for the petitioner was that the breach of the provisions of Rule 16(6)(c) of the Rules was committed by the Enquiry Officer in passing an ex parte order against the petitioner on June 20, 1967. In my view there is no substance in this contention as well The petitioner had full knowledge that the enquiry proceedings against him were fixed for June 20, 1967 and as his application for adjournment was rejected on account of absence of sufficient cause, the Enquiry Officer was fully justified in proceeding ex parte against the petitioner, as the petitioner had failed to attend the enquiry proceedings on the aforesaid date. Moreover, as I have already pointed out above, the petitioner took no steps even thereafter either on June 22, 1967 or subsequent there to get the ex parte older set aside, nor be at all made any attempt to produce his defence witnesses before the Enquiry Officer at any time. It must be observed that from the conduct of the petitioner, it appears that he was not at all serious in producing his defence witnesses and no fault can be found with the order passed by the Enquiry Officer on June 20, 1967.

10. The last submission advanced by the learned Counsel for the petitioner was that in the order (Ex. 4) directing a joint enquiry under Rule 18 of the Rules, the Governor has been named as the Disciplinary Authority for the purposes of the aforesaid common proceedings, vet the order imposing punishment upon the petitioner was passed by the State Government in the Appointments Department. In this connection it may be pointed out the that Rule 18 of the Rules provides that where two or more Government servants are concerned in any case, the Government or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceeding and may specify the authority that may function as the Disciplinary Authority for the purpose of such common proceedings. As Mansingh, against whom a joint enquiry was to be conducted along with the petitioner, was a member of the Rajasthan Police Service and under Rule 15 of the Rules, the State Government was the Disciplinary Authority so far as he was concerned, it was for the State Government to pass an order in respect of such joint enquiry under Rule 18, against Man Singh and the petitioner. The order directing a joint enquiry has indeed been passed under Rule 18 of the Rules, which have been made under proviso to Article 309 of the Constitution. There is no doubt that the Governor when he acts as the Disciplinary Authority under the Rules or the orders issued thereunder, he does not act in his discretion or pleasure but he must be regarded as acting as a Constitutional Head exercising executive functions of the State within the meaning of Article 154 of the Constitution. In the present case it has not been disputed that the Government in the Appointments Departmental empowered to deal with the matters relating to disciplinary enquiries. Such authority, therefore, was quite competent to discharge the functions of the Governor in respect of the imposition of penalty upon the petitioner and Mansingh, as a result of the joint enquiry against both of them under Rule 18. As the Governor was not required to act in his discretion while functioning as the Disciplinary Authority in a Departmental proceedings, such functions could legitimately be discharged by a competent authority empowered to do so. The order passed by the State Government in the present case imposing penalty upon the petitioner is perfectly valid and I find no infirmity in the aforesaid order of the State Government. Moreover, the petitioner preferred a revision petition (although it should have been a review petition) before the Governor, which was rejected by the Governor after giving the petitioner personal hearing in the matter. The grievance that the Governor was the Disciplinary Authority and not the State Government was not raised by the petitioner in his so called revision petition. Further the Governor having himself heard and decided the matter finally, the petitioner can have no grievance on this score. The objection, therefore, must be repelled.

11. As a result of the foregoing discussion, the writ petition has no merit and it dismissed. However, in the circumstances of the case, the parties are left to bear their own costs.


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