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Hira Lal Pathak Vs. the State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 215 of 1977
Judge
Reported in1977WLN(UC)432
AppellantHira Lal Pathak
RespondentThe State of Rajasthan
DispositionPetition dismissed
Cases ReferredState of Assam and Ors. v. Raghava Rajgapalacharya Civil Appeal Nos.
Excerpt:
.....in accordance with the provisions of rule 16 and after receiving the inquiry officer's report, the disciplinary authority held the petitioner guilty of the charge, but then, under sub-rule (11) of rule 16, the disciplinary authority proceeded to impose a minor pertain upon the petitioner. i he procedure thus adopted in the present case was completely in accordance with the provisions 1 rule 16 and the penalty was imposed upon the petitioner under sub-rule (11) of rule 16 of the rules. the procedure of rule 17 was not at all resorted to in the present case.;(c) rajasthan civil service (classification, control & appeal) rules, 1958 - rule 16--consideration of representation punishment order should show that employee's representation was considered--held, record shows that his reply to..........is, therefore, completely unfounded and has no basis.2. as regards the other contention of the learned counsel for the petitioner, the non-petitioners in their reply to the show cause notice have asserted that the petitioner was given an opportunity to cross-examine the witnesses produced by the department and also to produce his evidence in defence, but he did not do so and that on the other hand the petitioner submitted an application on april 15, 1970 (a copy of which has been produced with the reply to the show cause notice and marked ex r. 1) in which he admitted his carelessness and stated that he did not wish to submit anything in opposition to the charges. the non-petitioners have categorically stated in their reply that the witnesses of the department were examined on april.....
Judgment:

D.P. Gupta, J.

1. In this writ petition, the first submission made by the learned Counsel for the petitioner is that the inquiry was not fair inasmuch is the petitioner was neither allowed any defence counsel nor he was allowed an opportunity to cross examine the witnesses appearing for the department nor he was allowed to examine witnesses in his defence. Under Sub-rule (5) of Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the Rules') the delinquent Government servant, who is served with a charge sheet under Rule 16, is permitted to present his defence with the assistance of any other Government servant approved by the Disciplinary Authority. It is not the case of the petitioner that he desired to take the assistance of any other Government servant or any other person for purposes of presenting his d fence but the Disciplinary Authority or the Inquiry Officer refined permission to the petitioner to allow such Government servant or other person to assist the petitioner, either in preparing his defence or cross-examining the witnesses The allegation on the score is, therefore, completely unfounded and has no basis.

2. As regards the other contention of the learned Counsel for the petitioner, the non-petitioners in their reply to the show cause notice have asserted that the petitioner was given an opportunity to cross-examine the witnesses produced by the department and also to produce his evidence in defence, but he did not do so and that on the other hand the petitioner submitted an application on April 15, 1970 (a copy of which has been produced with the reply to the show cause notice and marked Ex R. 1) in which he admitted his carelessness and stated that he did not wish to submit anything in opposition to the charges. The non-petitioners have categorically stated in their reply that the witnesses of the Department were examined on April 14, 1970 and April 15, 1970, but the petitioner did not cross-examine them 'though he had every opportunity to do so'. It has also been stated in the reply to the show cause notice that the petitioner did not submit any application for summoning any defence witnesses. The content of the application Ex R 1 support the case of the non-petitioners, both in respect of the fact that the petitioner was present on April 15, 1970, before the Inquiry Officer and that he was not inclined to present any defence. The petitioner has admitted his presence before the Inquiry Officer on April 14, 1970 in para 8 of the writ petition. Thus, it cannot be held that the petitioner was not afforded any opportunity to cross-examine the witnesses produced on behalf of the Department or to produce his defence. The first contention of learned Counsel for the petitioner, therefore, is repelled.

3. The second contention of the learned Counsel is that the disciplinary proceedings were initiated against the petitioner under Rule 16 of the Rules, but later on the Disciplinary Authority erroneously proceeded under Rule 17 and awarded a minor punishment to the petitioner by withholding one grade increment without cumulative effect and relied upon the decision of this Court in Dr. Kishan Singh v. Stale of Rajasthan 1965 RLW 153 in support of his contention. It should be observed in this contention that Dr. Kishan Singh's case (supra) was very much different from the present case inasmuch as in that case after giving a notice under Rule 16 of the Rules no evidence was examined, but the disciplinary authority switched on to the procedure of Rule 17 of the Rules. In the present case, however, inquiry against the petitioner was completed in accordance with the provisions of Rule 16 and after receiving the Inquiry Officer's report, the Disciplinary Authority held the petitioner guilt of the charge, but then undo Sub-rule (11) of Rule 16 the Disciplinary Authority proceeded to impose a minor penalty upon the petitioner. The procedure thus adopted in the present case was completely in accordance with the provisions of Rule 16 and the penalty was imposed upon the petitioner under Sub-rule (11) of Rule 16 of the Rules. The procedure of Rule 17 was not at all resorted to in the present case and this contention of the learned Counsel for the petitioner also fails.

4. The third contention of the learned Counsel is that the petitioner submitted a reply to the show cause notice but the same was not considered by the Disciplinary Authority and without considering his aforesaid reply the Disciplinary Authority imposed a penalty of stoppage of one grade increment without cumulative effect upon the petitioner. In substance his argument is that the order passed by the Disciplinary Authority on March 23, 1971 (Ex 9) imposing penalty upon the petitioner is not a speaking order and no reasons have been given therein for holding the petitioner guilty of the charges levelled against him. Similarly, the contention of the learned Counsel further is that the order passed by the Appellate Authority on April 15, 1976, is also not a speaking order. The non petitioners in para 3 of their reply to the show cause notice issued by this Court have stated that the representation of the petitioner in reply to the show cause notice was duly considered by the Disciplinary Authority, but the same was rejected as it had no merit. The grievance of the petitioner is justified to this extent that the order Ex. 9, passed by the Disciplinary Authority imposing penalty upon the petitioner, does not ex facie show that the Disciplinary Authority duly considered the representation of the petitioner, which was submitted by him in reply to the show cause notice and rejected the contentions advanced therein The fact hat after the reply to the show cause notice was received by the Disciplinary Authority, it proceeded to hold the petitioner guilty of the charges vide Ex. 9, coupled with the contents of para 3 of the reply to the show cause notice issued by this Court in the writ proceedings, lead to the conclusion that the grievance of the petitioner in this respect has no substance. It must, however, be emphasised that normally the order passed by the Disciplinary Authority imposing punishment upon a delinquent employee, should show that it has considered the representation of the employee submitted in reply to the show cause notice and that it did not find any merit therein. If that would have been done in the present case, the Court would not to have to issue a show cause notice to the respondents in the present writ petition. However, on a perusal of the reply submitted by the respondents in this Court in response to the show cause notice in the writ petition, I am satisfied that the representation of the petitioner appears to have been duly considered by the Disciplinary Authority. Then Lordships of the Supreme Court in Tara Chand v. Municipal Corporation of Delhi and Ors. : (1977)ILLJ331SC have held that no doubt the disciplinary proceedings are quasi judicial in nature, but having regard to the manner in which the disciplinary inquiries are conducted, if the orders passed by the Disciplinary Authority and the Appellate Authority are of concurrence with the findings arrived at by the Inquiry Officer, it may not be necessary to set out therein the reasons for such agreement. Their Lordships have been pleased to observe in the aforesaid case:

We would like to make it clear that while it may be necessary for a disciplinary or administrative authority exercising quasi-judicial functions to state the reasons in support of its orders if it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment of the rules made thereunder, it would be laying down the proposition a little too broadly to say chat even an order of concurrence must be supported by reasons. It cannot also, in our opinion, be laid down as a general rule that an order is a non-speaking order simply because it is brief and not elaborate. Every case, we think, has to be judged in the light of its own facts and circumstances.

Their Lordships in Tara Chand Khatri's case (supra) after considering a catena of cases, have come to the conclusion that the disciplinary proceedings against delinquent employees under Article 311 of the Constitution stand on a slightly different footing, on account of the peculiar nature of the disciplinary proceedings and the decided cases under the Mines and Minerals Act and other laws were distinguished by their Lordships on the ground that they had nothing to do with disciplinary proceedings.

5. The last contention of the learned Counsel for the petitioner is that besides imposing the penalty of with holding one grade increment without cumulative effect upon the petitioner, the Disciplinary Authority has passed further order imposing a second penalty upon him by directing that the petitioner should not be paid half of the salary for the period of his suspension. The submission of the learned Counsel is that another notice should have been given to the petitioner before the order with-holding half of the salary for the suspension period was passed. In support of his contention learned Counsel relied upon the decision of their Lordships of the Supreme Court in M. Gopal Krishna Naidu v. The State of Madhya Pradesh : (1968)IILLJ125SC , a decision of Delhi High-Court in Shri B.H. Morwaha v. Union of India and Ors. 1973 (2) SLR 315 and a decision of this Court in Shri Karhaiya Lal v. The Union of India and Ors. 1971 (1) SLR 414. It may be observed that in all the aforesaid cases, which have been relied upon by the learned Counsel, the delinquent employee was exonerated of the charges levelled against him. In M. Gopalkrishna Naidu's case (supra) their lordships of the Supreme Court have clearly laid down that when the delinquent employees was exonerated of the charge, the question still remain as to whether he was or was not fully exonerated and whether the suspension in such a case was or was not wholly unjustified. As this question has to be determined objectively a notice or at least an opportunity to make a representation should be finished to the delinquent employee. However, in cases where the delinquent employee is found guilty of the charges levelled against him and some penalty is imposed upon him in consequence of the findings arrived at by the Disciplinary Authority, then the questions as to whether full salary for the suspension period should be paid to the delinquent employee or not and whether the period of suspension should be counted towards service or not, have to be decided on the basis of the record of the disciplinary enquiry and in such eases no further enquiry or opportunity to the employee concerned is necessary. In these cases where there has been found guilty as a consequence thereof, the question regarding payment or non-payment of salary for the period of his suspension and whether such period should be treated to be spent on duty or not are to be decided on the basis of the record of the disciplinary enquiry and a third notice is not required to be given to the delinquent employee. I have taken this view in Guj Raj Singh v. State of Rajasthan and Ors. 1977 WLN 245. In the case of B.D. Gupta v. State of Haryana 1972 SLR 845 their Lordships of the Supreme Court explained their earlier decision in Gopal Krishna Naidu's case (supra) thus:

The real ratio in M. Gopalkrishna Naidu's 1965 RLW 153 case was that if an order affects the employee financially, it must be passed after an objective consideration and assessment of all relevant facts and cirri Distances and after giving the person concerned full opportunity to male out his own case about that order. In the instant case the order unquestionably is one that seriously prejudices the appellant. We would further like to add that the fact that even the order of punishment was made without giving the appellant a real opportunity to make in effective representation against it makes the second order affecting his pay and allowance still more vulnerable.

In B.P. Gupta's case their Lordships held that the appellant did not get an opportunity to defend himself in respect of ore of the charges and he should have been given an opportunity to she what the suspension order against him was unjustified. In that case reference was made to the decision in the case of State of Assam and Ors. v. Raghava Rajgapalacharya Civil Appeal Nos. 1561 and 1562 of 1966; decided by the Supreme Court on October 6, 1967. In the last mentioned case, the Government servant had not been exonerated of the charge levelled against him and in those circumstances it was held by their Lordships of the Supreme Court that it was open to the Government to decide what period of absence from duty during the period of suspension should be treated as period spent on duty and also what proportion of pay and allowances should be paid to him. In the present case also the charges levelled against the petitioner have been found to be proved and he has been punished in respect thereof and as such this case will be governed by the dictum of their Lordships of the Supreme Court in Raghava Rajgopalacharya's case (supra).

6. No other point was argued before me.

7. The writ petition has no force and consequently the same is dismissed.


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