G.M. Lodha, J.
1. Shri Hari Narayan Goyal, petitioner has filed this writ petition challenging the orders dated 12-11-1972 and 2-9-1974. The Petitioner is an employee of the Rajasthan State Warehousing Corporation constituted under the provisions of Agricultural Produce (Development and Ware Housing Corporation) Act, 1956 in the year 1957.
2. While working at Bhinmal, the petitioner was placed under suspension and was served with a memorandum dated 18th April, 1969. Thereafter, the petitioner was punished by stoppage of one grade increment. However, this memorandum and inquiry is under challenge in this case.
3. The petitioner while he was working as Incharge, Mandawar Mahuwa Road, he was placed under suspension by an order dated 28- 10-1971 and later on inquiry was conducted under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. Shri Manmohan Chand Mathur was appointed as Enquiry Officer.
4. After the enquiry was over, the Managing Director of the Corporation passed an order stopping 3 grade increments with cumulative effect, vide order dated 11-12-1972, which reads as under:
Shri Hari Narain Goyal was placed under suspension on 28-10-71 and disciplinary proceedings were initiated against him.
On careful consideration of the report of the Enquiry Officer and the relevant record following charges are proved against Shri Goyal:
(1)Shri Goyal was careless and negligent in the discharge of his duties in as much as he allowed Shri Durga Lal unauthorised access to his residence/office resulting in unauthorised removal of A/S from Godown No. 4 by Shri Durgalal.
(2)Shri Goyal did not keep the wheat bags in Godown No. 4 in the countable position and thus failed to discharge his duties properly.
Keeping in view the past services and young age of Shri Goyal a lenient view has been taken and a penalty of stoppage of 3 grade increments with cumulative effect is imposed on him.
He is reinstated on the post of TA with immediate effect.
He will get only subsistence allowance and other allowances there on for the period he remined under suspension.
He will be treated as on duty for the period he remained under suspension.
5. An appeal was filed before the Chairman of the Corporation. The Chairman reduced the penalty to 2 grade increments with cumulative effect instead of 3 grade increments.
6. Mr. Singhvi, learned Counsel for the petitioner has submitted that the Enquiry Officer was convinced that hone of the charges was found to be proved against the petitioner, but the Managing Director disagreed and held that some of the charges were proved. In such circumstances, when there was disagreement it was necessary for the disciplinary authority to send a copy of the report of the Enquiry Officer along with the reasons for disagreement, but this was not done and that has vitiated the enquiry proceedings. It was also argued that since the stoppage of grade increments was with cumulative effect, it tent amounts to major penalty and therefore, it was necessary for the disciplinary Authority to send a copy of the report and adopt the procedure for imposition of major penalty thereafter, which has not been done.
7. Mr. Singhvi made a further grievance that according to the Rajasthan Service Rules, after the expiry of six months of suspension, a Government servant is entitled to 3/4th of the salary as subsistence allowance, but in this case it was refused on untenable grounds.
8. Mr. Sharma submitted that so far as the application of the Rajasthan Civil Service (Classification Control and Appeal) Rules to the Corporation is concerned it cannot be disputed unless separate rules are framed by the Corporation itself for disciplinary proceedings. According to him, the charges were proved and therefore, the imposition of penalty was justified. However, he could not justify the imposition of penalty in the form of stoppage of 2 grade increments with cumulative effect without following the procedure under Rule 16 of the C.C.A. Rules and more so when there was disagreement of the Enquiry Officer and the Disciplinary Authority.
9. I have given a thoughtful consideration to the entire matter canvased before me. Under the C.C.A. Rules, which are alleged to be applicable to the Corporation undisputedly, Rule 16 provides the elaborate procedure for major penalty. Undoubtedly, in the instant case, the procedure of Rule 16 of the C.C.A. Rules was sought to be followed by the disciplinary Authority and also the Enquiry Officer. A charge sheet was served upon the petitioner and a reply was called and in order Ex. 3 dated 5-1-1972, it has been mentioned expresely that the enquiry under Rule 16 is being held. In such circumstances, it was incumbent upon the respondents to follow the procedure provided under Rule 16 of the C.C.A Rules.
10.Rule 16 Clause (9) reads as under:
The Disciplinary authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge.
The Disciplinary authority may while considering the report of Inquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/denovo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or other.
11. Rules 16 Clause (10) is most important part of this Rule. Clause (1)(a) of this Rule 16 (10) gives a mandate to furnish a copy of the report and where disciplinary authority is not enquiring authority a statement of its finding together with brief reasons of disagreement, if any with the finding of the enquiring authority.
12. Obviously, in the instant case Sub-clause (a) has not been complied with and for obvious reasons Sub-clause (a) cannot be ignored or treated as directory. The Enquiring Authority's report is one of the most important document, in which the enquiry findings are recorded and it is on the basis of it that further action by the Disciplinary Authority. Since Sub-clause (10) Rule 16 contemplates a notice, thereafter, under sub clause (b) and consideration of the representation therefore, it is only where the report h before the delinquent Officer or an employee that he can apply his mind and find out whether the reasons given by the Enquiry Authority for holding him guilty are based on correct appreciation of evidence on record and if not he can challenge the same by way of representation in reply to a show cause notice under Clause (b). If a copy of the report is not given to the government servant, he cannot be expected to challenge the finding in vacuum as unless specific reasons on which the findings are based, are known, a government servant cannot successfully assail them in reply to show cause notice, in substance. Sub-clause (a) is the bed rock and foundation for further proceedings in Sub-clause (b) and if rule (a) is not complied with, the compliance of Sub-clause (b) would be an empty formality.
13. In case of disagreement, the reasons for disagreement assumes great importance because where as the Enquiring Authority finds the government servant innocent and exonarated 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.
14. In view of the above discussion, I have got no hesitation in holding that Sub-clause (a) of Clause (1) of Clause (10) of Rule 16 is mandatory in nature and in order to permit a government servant to make any representation against the proposed penalty, it forms the bed rock and foundation for application of the mind by a government servant and non-compliance of Sub-clause (a) vitiated the entire proceedings thereafter.
15. Since it is not disputed before me, that before the impugned order or punishment was passed, the copy of the report and the reasons of disagreement were not sent to the Government servant, I have got no hesitation in quashing the impugned orders as being violative of Rule 16 Sub-clause (10)(1)(a) of C.C.A. Rules.
16. Since I am quashing the proceedings on a very major important non-compliance and violation of Rule 16, it is not necessary for me to decide the other points involved in the case, because the respondents would be at liberty to start proceedings from the stage of sending the copy of the report along with tie reasons of disagreement and then obtain a reply, consider the objections and then decide the same afresh.
17. Mr Singhvi submitted that the salary of suspension period has been withheld illegally against the rules because he was entitled to 3/4th of the salary after the expiry of 6 months of the period of suspension. Since a fresh order will have to be passed now, by the Departmental Authority, it is directed that the Departmental Authority would also look into this matter and pass an appropriate order according to Rules 53 and 54 of the Rajasthan Service Rules.
18. The writ petition is consequently accepted. Both the impugned orders of punishment by stoppage of grade increments with cumulative effect, dated 21-11-1972 and 28-9-1972 are quashed. The respondents would be at liberty to start fresh proceedings under Rule 16 of tb.2 CCA Rules or other Rules if they have been framed by the Corporation by now according to law. The parties would bear their own costs.
19. Mr. Shinghvi in the last, pointed out that in cases where stoppage of 2 grade increments are ordered with cumulative effect, it tantamount to major penalty according to the view, taken in 1967 RLW Page 266 and a decision of Mysore High Court report in 1973 (I) SLR page 241. Since I have quashed the orders of penalty it is not necessary to decide this point because it would be open to the Departmental Authority to consider this aspect of the case and to impose the penalty according to law.