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Jetharam Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 667 of 1974
Judge
Reported in1981WLN566
AppellantJetharam
RespondentState of Rajasthan and ors.
DispositionPetition dismissed
Cases ReferredIn Khemchand v. Union of India
Excerpt:
.....but not asserting it when d.e. held twice--procedural guarantee fully complied with--returning charge sheet knowingly--held, no prejudice is caused.;the petitioner was fully aware of his rights and even if with full knowledge of his rights, he did not assert at any stage when the departmental proceedings were held twice over, that he had not received the charge-sheet and the statement of allegations in respect of dhula's complaint, it must be held in the present case that the procedural guarantee was fully complied with and no prejudice was caused to the petitioner, even if it be accepted that he knowingly returned the original charge-sheet and the statement of allegations, along with his acknowledgement of the receipt there of.;writ dismissed - - 11/- from shankersingh for making..........were initiated in respect of the two complaints file against the petitioner and two different charge sheets were served upon the petitioner, on a of which will here in after be referred to as 'shankersingh's complaint' while the other one will be referred to as 'dhula's complaint'. the collector, pali forwarded the two charge sheets, along with memorandums of allegations to the petitioner and appointed the sub-divisional officer, bali as the enquiry officer in respect of both the departmental enquiries. both the charge sheets along with memorandums of allegations were served upon the petitioner. he filed a written statement in respect of shankersingh's complaint but did not file any reply in respect of dhula's complaint. in the enquiry in respect of shankersingh's cert plaint the.....
Judgment:

Dwarka Prasad Gupta, J.

1. The petitioner was appointed as a Patwari by the District Land Records Officer, Pali on July 10, 1951. In the year 1963 he was posted as a Patwari in village Chanari, Tehsil Desuri, District Pali.

2. The Sub-divisional Officer, Bali visited village Chanari on November 7, 1963 and during his tour two complaints were submitted before him by the residents of the village. One complaint was made by Shankersingh and Roopa while the other by Dhula, Bhura, Dalla and Premraj. In both cases an allegation was made that the petitioner, while acting as a Patwari, did not enter in the 'Patwar Record' the newly constructed wells of the complainants and demanded Rs. 11/-each for making the requisite entry and thus he was guilty of demanding illegal gratification. Two departmental enquiries were initiated in respect of the two complaints file against the petitioner and two different charge sheets were served upon the petitioner, on a of which will here in after be referred to as 'Shankersingh's complaint' while the other one will be referred to as 'Dhula's complaint'. The Collector, Pali forwarded the two charge sheets, along with memorandums of allegations to the petitioner and appointed the Sub-divisional Officer, Bali as the enquiry officer in respect of both the departmental enquiries. Both the charge sheets along with memorandums of allegations were served upon the petitioner. He filed a written statement in respect of Shankersingh's complaint but did not file any reply in respect of Dhula's complaint. In the enquiry in respect of Shankersingh's cert plaint the petitioner was held guilty and the disciplinary authority viz. the Collector, Pali agreed with the finding arrived at by the enquiry officer and issued a second notice as referred under Article 311(2) of the Constitution, to the petitioner to show cause why he should rot be dismissed from Government service. In respect of Dhula's complaint, the enquiry officer also held that the allegation was proved against the petitioner but the disciplinary authority viz. the Collector, Pali found that the evidence was not properly considered by the Sub-divisional Officer, Bali and the Collector directed that a de novo enquiry should be held and a fresh enquiry report should be submitted.

3. A fresh enquiry in pursuance of the remand order passed by the Collector, Pali, was conducted by the successor Sub-divisional Officer, Bali, although the earlier enquiry was conducted by Shri Jasraj, the then Sub-divisional Officer. The petitioner was informed about the de novo enquiry and he took part in the proceedings of the fresh enquiry held against him, cross-examined the witnesses produced on behalf of the department and also produced his evidence in defence. The Sub-divisional Officer, Bali found charge No. 1 proved against the petitioner, namely, that he received a sum of Rs. 11/-each from Bhura, Dalla and Dhula by way of illegal gratification for entering the newly constructed wells of these persons in the 'Patwar Records'. The Collector, Pali agreed with the finding of the enquiry officer and gave a notice to the petitioner as contemplated under Article 311(2) of the Constitution on June 4, 1970 (Ex.9) in respect of Dhula's complaint. A reply was filed by the petitioner to this notice on June 22, 1970. It was for the first time at that stage an objection was taken by the petitioner that copies of the charge sheet and memorandum of allegations were not served upon him. This reply dated June 22, 1970 was also sent by the petitioner in the matter pertaining to Shankersingh's complaint; although it related to Dhula's complaint and the stand taken by the petitioner was that from an inspection of the record he did not find that service of the charge sheet was effected upon him. The Collector, Pali had directed the petitioner by his letter dated June 4,1970 (Ex. 9) to appear in person before him on June 29, 1970 and to submit his objections, if any. However, the petitioner did not present himself personally before the Collector on June 29, 1970. As no reply to the notice issued in accordance with under Article 311 was received in respect of Dhula's complaint, the Collector passed an order of dismissal of the petitioner from service on July 15, 1970. A review petition filed by the petitioner was rejected on October 20, 1970. An appeal preferred by the petitioner before the Board of Revenue was also dismissed on March 30, 1971. There after a second appeal preferred to the State Government was rejected on April 20, 1973.

4. In this writ petition, the principal contention advanced by the petitioner is that the charge sheet and the statement of allegations in respect of Dhula's complaint were not received by him. The petitioner modified the stand taken earlier by him and in the writ petition he has submitted that although two charge sheets were sent to the petitioner, one pertaining to Shankersingh's complaint and the other pertaining to Dhula's complaint, yet as he thought one to be a copy of the other, he kept with him the copy of the charge sheet and other accompanying documents in respect of Shankersingh's complaint and returned the papers relating to Dhula's complaint, including the copy of the charge sheet, after acknowledging receipt of the charge sheet in respect of Shankersingh's complaint. It is urged by the learned Counsel that the principles of natural justice were violated in as much as the enquiry was conducted against the petitioner in respect of Dhula's complaint without the petitioner even knowing the nature of the allegations which were the subject matter of enquiry in the disciplinary proceedings against him. The learned Deputy Government Advocate has produced before me the entire record of the disciplinary enquiry conducted by the Sub-divisional Officer, Bali in respect of Dhula's complaint. It appears from a perusal of the record that a copy of the charge sheet was served upon the petitioner through the Head Master, Patwari Training School, Udaipur and the acknowledgement of the petitioner in respect there or is on the record. It is not the petitioner's case that he was not aware of the fact that two separate complaints were filed against him before the Sub-divisional Officer, Bali on November 7, 1963 when the said officer visited village Chenari. In these circumstances, it is difficult to accept the contention of the petitioner's learned Counsel that the petitioner mistook the two charge sheets as copies of the same document. In Shankersingh's complaint, the allegation was chat the petitioner had demanded Rs. 11/- from Shankersingh for making an entry in respect, of his newly constructed well in the 'Patwar Register', while in Dhula's complaint, the allegation was that Bhura, Dhula and Dalla were charged Rs. 11/- each by the petitioner unlawfully for making entries of their respective wells in the Patwar Register. The petitioner was a Patwari of the village Chenari and be must be well aware of the fact that Shanker Singh on the one hand and Dhula, Dalla and Bhura on the other hand had separate wells. The most important aspect of the matter is that the petitioner had taken part in the disciplinary proceedings in respect of both the complaints from the very beginning upto the end and at no stage of the proceedings before the Enquiry Officer, be made a grievance that a copy of the charge sheet or the statement of allegations was not served upon the petitioner. As a matter of fact in the writ petition it has been accepted by the petitioner that he had received copies of the charge sheet and statement of allegations in respect of Dhula's complaint, but according to him, he had returned the same after acknowledging the receipt thereof, under a mistaken impression that the charge sheet was a copy of the charge sheet sent it Shankersingh's complaint. On a careful examination of the record of the disciplinary proceedings, I find that the acknowledgement receipt has been endorsed by the petitioner on the forwarding letter and it does not appear from the record that the petitioner had returned the charge sheet and the memorandum of allegations sent to him in respect of Dhula's complaint. It is indeed surprising that the petitioner having taken part in the disciplinary enquiry relating to Dhula's complaint, as he cross-examined the witnesses including Dhula, Bhura and Dalla and also examined his own witnesses in defence, which was not possible for him to do without at least knowing the nature of the charges or the details contained in the statement of allegations in respect of such charges, could now turn round and allege at the stage of the writ petition that he had returned the copy of the charge sheet and the statement of allegations pertaining to Dhula's complaint. It is also apparent from the record that on August 5, 1967 the petitioner applied for change of the enquiry officer. As already mentioned above, in the disciplinary proceedings to Dhula's complaint the Collector, Pali had ordered a de novo enquiry and as a result thereof the disciplinary enquiry was again held by a different officer after serving a notice upon the petitioner and the petitioner also took part in the de novo enquiry as well.

5. Learned Counsel for the petitioner tried to explain the conduct of the petitioner in taking part in the de novo enquiry held in respect of Dalla's complaint by submitting that the petitioner was under on erroneous impression that it was only a preliminary enquiry. The application of the petitioner dated August 5, 1967 and all subsequent applications submitted by him at various stages in the course of the disciplinary enquiry pertaining to Dhula's complaint, go to show that the petitioner was very well aware of the fact that a disciplinary enquiry was being conducted against him and Dot merely a preliminary enquiry. It was in this context that the petitioner not only applied for change of the enquiry officer but he also applied for permission for the appointment of a Government employee to help the petitioner in the preparation and presentation of his defence. I am convinced from a perusal of the record of the departmental enquiry relating to Dhula's complaint that the petitioner was well aware of the fact that disciplinary proceedings, in respect of the charge-sheet in Dhula's case, for imposition of major penalty were pending against him. Article 311 of the Constitution envisages that the employee concerned should be informed of the charges levelled against him. The Constitutional guarantee contained in clause (2) of Article 311 is to the effect that a Government servant could not be dismissed or removed from service or reduced in rank except after an enquiry, in which he should be informed of the charges levelled against him and he should also be given a reasonable opportunity of being heard in respect of those charges, The other requirement contained in the proviso to Article 311 is that a notice in respect of the penalty proposed to be imposed, on the basis of the evidence adduced during the disciplinary enquiry should be served upon the delinquint employee. In the present case, even on the basis of the submissions made by the petitioner himself it is quite apparent that he was informed of the charges framed against him in respect of Dhula's complaint. Although a case is sought to be made out that the petitioner was under a mistaken impression that the enquiry was conducted in respect of Shankersingh's complaint and not in respect of Dhula's complaint yet the applications submitted by the petitioner on July 28 1965 and June 29, 1968 for summoning of defence witnesses go to show that the petitioner was properly informed that the enquiry was conducted in respect of the complaint of Dhula, Bhura, Dalla and Premraj and also of the fact that he was charged of having accepted Rs. 11/- each as bribe for making entries in the Patwar Record relating td the construction of new wells by the afaresaid persons.

6. Learned Counsel for the petitioner, relying upon the decisions of their Lordships of the Supreme Court in Boolchand v. Kurukshetra University : (1968)IILLJ135SC and C.L. Subramaniam v. Collector of Customs, Cochin : (1972)ILLJ465SC , urged that the procedural guaranttee contained in Article 311 of the Constitution in respect of removal, dismissal or reduction in rank of a Government servant was valuable and could not be lightly ignored.

7. In Boolchand's case : (1968)IILLJ135SC their Lordships quoted with approval the following observation made by the House of Lords in the case of Ridge v. Baldwin 1964 AC 40:

There I find an unbroken line of authority to the effect that an officer cannot lawfully be dismissed without first telling him what is alleged against him and hearing his defence or explanation.

Even according to the aforsaid observation what is reqired is that the tenure of office of Government servant could not be interrupted without his first being informed of what was alleged against him and then without giving him an opportunity to submit his defence or explanation. The procedural guarantee contained in Article 311 is undoubtedly a valuable one and a breach thereof vitiates the enquiry. But when, as in the present case, it is amply clear from the record that the petitioner was very well made aware of the charges against him and then he took, part in the disciplinary proceedings held against him from the beginning to the end, without any demur or protest and without raising any objection that a copy of the charge sheet was not served upon him or that he was not made aware of the charges levelled against him or of the details of the allegations on which those charges were based. In the aforesaid circumstances, the petitioner cannot complain of any breach of the procedural guaranttee.

8. In Khemchand v. Union of India : (1959)ILLJ167SC S.R. Das Chief Justice speaking for the Supreme Court, summarises the law of reasonable opportunity in respect of departmental enquiries as under:

(19) To summarise the reasonable opportunity envisaged by the provision under consideration includes:

(a) An oppertunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges levelled against him are and the allegations on which such charges are based;

(b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining himself or any other witnesses in support of his defence, and finally,

(c) an opportunity to make his representation as to why the proposed punishment should not be inflicted on him, which he can only do if the competent authority, after the enquiry is over and after applying his mind to the gravity or otherwise of the charges proved against the Government servant tentatively proposes to inflict one of the three punishments and communicates the same to the Government servant.

In short the substance of the protection provided by rules, like Rule 55 referred to above, was bodily lifted out of the rules and together with an additional opportunity embodied in Section 240 of the Government of India Act, 1935 so as to give a statutory protection to the Government servant and has now been incorporated in Article 311 so as to convert the protection into a constitutional safe guard.

9. Once it is apparent from the record that the petitioner was made aware of the charges levelled against him and the allegations on which such charges were based and he was afforded an opportunity to deny his guilt and establish his innocence and to defend himself by cross-examining the witnesses produced by the department and by examining witnesses in his defence, and then an opportunity was also afforded to him to show cause why the proposed punishment should not be inflicted upon him, then it must be held that all the necessary ingredients of the procedural guarantee contained in Article 311 were fully satisfied. If the petitioner in his reply to the show cause notice relating to the proposed penalty erroneously made a wrong reference to the departmental enquiry concerning Shankarsingh's complaint it was his own mistake and he cannot throw the blame for such a mistake on his part on the disciplinary authority. In the present case, a proper show cause notice was duly served upon the petitioner, as admitted by him in the writ petition, in respect of Dhula's complaint. But if the petitioner was careless or negligent in sending his reply with reference to some other matter, then it is not open to the petitioner to complain that there was a breach of the constitutional guarantee contained in Article 311 of the Constitution.

10. It must also be observed that the petitioner has not come forward in this Court with clean hands. In para 19 of the writ petition the petitioner has alleged that no information was sent to the petitioner about the de novo enquiry held against him, in respect of Dhula's complaint. But on looking into the departmental enquiry relating to Dhula's case, I find that intimation was sent to the petitioner about the de novo enquiry and he was further informed of the fact that evidence would be recorded again. The petitioner took part in the de novo enquiry proceedings and also summoned his defence witnesses on June 29, 1968. Again in his representation dated January 1, 1967 which is reproduced at pages 16 and 17 of the writ petition, it was admitted by the petitioner in the last paragraph that two departmental enquiries were pending against him before Shri Jasraj and his complaint then was that according to law one officer could not be entrusted with two departmental enquiries. In view of the aforssaid admission contained in the representation of the petitioner dated January 8, 1967 it does not lie with him now to allege that he was not aware of the pendency of the departmental enquiry in respect of Dhula's complaint and that all through he was taking part there in under a mistaken impression that the departmental enquiry was being conducted in respect of Shankersingh's case. Again in para 22 at page 19 of the writ petition it has been submitted by the petitioner that he filed two replies dated 31-12-1963 in response to two letters of the Sub-divisional Officer, Bali 'pertaining to both the aforesaid complaints dated 7-11-1963.' This also falsifies the case now set up by the petitioner. Therefore, I am not at all convinced that there was any breach of the principles of natural justice or that the procedural guarantee envisaged under Article 311 of the Constitution was not fulfilled in the case of disciplinary enquiry conducted against the petitioner in respect of Dhula's complaint.

11. Another argument advanced by the learned Counsel for the petitioner was that the provisions of Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal; Rules, 1958 were violated, in so far as Sub-rules (2) and (4) were not complied with. Learned Counsel urged that the enquiry officer should have been appointed after the disciplinary authority had examined the written statement of defence and there after considered it necessary to enquire into the charges framed against the petitioner. According to the petitioner's case, no written statement of defence was filed by him in respect of Dhula's complaint and as such the appointment of the enquiry officer along with the framing of the charge sheet did not cause any prejudice to him. More over, the learned Counsel for the petitioner himself contended that the Classification, Control & Appeal Rules were not applicable to the petitioner, who was governed by the provisions of the Rajasthan Land Revenue (Land Records) Rules 1957. Rule 14 of the 1957 Rules provides that an order of dismissal or removal of a patwari could be passed by the Collector, who was the appointing authority, for incompetence, misconduct or neglect of duty amongst other reasons. The only procedural requirement contained in Rule 14 is that before passing an order of removal or dismissal the Collector should in all cases give the Patwari concerned an opportunity of explaining the chargas which have been brought against him and showing cause against the imposition of a penalty considered to be appropriate, if the charges against him be held to be proved. The Collector is authorised to call such evidence as he may deem necessary, if the allegations are denied by the Patwari concerned.

12. On the basis of the provisions of Rules 16, the argument of the learned Counsel for the petitioner is that the Collector should have himself conducted the enquiry and should have recorded the evidence and that he could not delegate the making of an enquiry to the Sub-divisional Officer. I am unable to find any such prohibition in the provisions of Rule 14(1) debarring the Collector from appointing an enquiry officer to record the evidence and make a report. The essence of Rule 14 is that the Collector, who is the appointing authority, must apply his mind and he alone is competent to pass an order of removal or dismissal of a patwari. The procedural guarantee contained in rule 14 is that an opportunity of explaining the charges and of showing cause against imposition of the proposed penalty should be afforded to the concerned Patwari.

13. The learned Counsel for the petitioner tried to take a curious position when he was confronted with the fact that the enquiry in respect of Dhula's complaint was conducted not only once but twice and on both the occasions the petitioner had taken part in the disciplinary proceedings from the beginning to the end According to the learned Counsel for the petitioner the petitioner mistook the first enquiry as a preliminary enquiry, while the de novo enquiry was considered by him as part of Shankersingh's enquiry. As I have already indicated above, there is nothing on the record to support the contention of the learned Counsel. The position which is now sought to be adopted by the petitioner in the writ petition appears merely to be an after thought. As I have endeavoured to show that the petitioner was fully aware from the very beginning that there were two complaints against him and that two separate charges sheets were framed and served upon him, one in respect of Shakersingh's complaint and the other in respect of Dhula's complaint, and further that two departmental enquiries were conducted against the petitioner. It is because of this fact that the petitioner advanced a reason for transfer of the enquiry, that two departmental enquiries could not be entrusted to the same enquiry officer. In view of the admissions made by the petitioner at various stages of the departmental enquiries, it does not lie with him now at the stage of writ petition in this Court, to take a different posture abondoning the one adopted by him in the course of disciplinary proceedings. What is most intriguing is that the petitioner did not make any grievance about the alleged non-receipt of the charge-sheet or the statement of allegations in respect of Dhula's complaint even until the de novo enquiry was completed, and on the other hand he continued to take part' in the said enquiry held twice over, cross-examining the witnesses produced by the department and producing his own evidence in defence. The petitioner was fully aware of his rights and even if with full knowledge of his rights, he did not assert at any stage when the departmental proceedings were held twice over, that he had not received the charge-sheet and the statement of allegations in respect of Dhula's complaint, it must be held in the present case that the procedural guarantee was fully complied with and no prejudice was caused to the petitioner, even if it be accepted that he knowingly returned the original charge-sheet and the statement of allegations, along with his acknowledgement of the receipt there of.

14. No other point was argued by the learned Counsel for the petitioner before me.

15. This writ petition has no force and is dismissed.


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