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Fatehsingh Lodha Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 29 of 1972
Judge
Reported in1977WLN421
AppellantFatehsingh Lodha
RespondentState of Rajasthan and ors.
DispositionPetition allowed
Cases ReferredIn E.S. Athithyaraman v. The Commissioner
Excerpt:
.....rules, 1958 rules 16 & 17 - proceedings under rule 17 commenced but not finally decided fresh enquiry under rule 16 is not barred.;it is clearly established that unless an order is based upon an enquiry against a public servant imposing a penalty on him or exonerating him of the charge levelled against him it cannot be said that further proceedings could not be commenced against such a public servant even in a case where the earlier disciplinary proceedings in which an order imposing penalty was passed are subsequent quashed fresh disciplinary proceedings against the concerned employee would not be barred unless the order quashing the earlier disciplinary proceedings contained any direction in that respect or the employee concerned was exonerated of the charge.;merely because..........prohibition on the ground that the deputy inspector general of police could not have initiated a fresh enquiry against the petitioner in the same matter, in contravention of the order of the inspector general of police dated july 8, 1968.5. learned counsel for the petitioner, in the first place, contended that an inquiry was initiated against the petitioner under rule 17 of the rules by the superintendent of police, sirohi vide notice dated may 18, 1964 and again another enquiry was made under rule 16 vide notice dated october 29, 1964, and that a denovo enquiry on the same allegations could not be initiated by the deputy inspector general of police against the petitioner. learned counsel relied upon the decisions of this court in dwarkachand v. state of rajasthan , dr. kishan singh v......
Judgment:

D.P. Gupta, J.

1. The petitioner in this case was appointed as a Sub-Inspector of Police on probation with effect from December 2, 1951 by the order of the Inspector General of Police, Rajasthan dated 20/21st December, 1951.

2. According to the petitioner, he was confirmed on the aforesaid post of Sub-Inspector of Police by the order of the Inspector General of Police dated September 9, 1952 with effect from August 15, 1952. According to the respondents, however, the petitioner was confirmed by the order of the Deputy Inspector General of Police, Jodhpur Range, Jodhpur dated June 15. 1955 with effect from June 1, 1955. The petitioner there after continued to hold the post of Sub-Inspector of Police. On May 18, 1964 the Superintendent of Police, Sirohi sent a notice under Rule 17 of the' Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the rules') along with a statement of allegations, to the petitioner and he was directed to show cause why the punishment of stoppage of five grade increments with future effect be not imposed upon him The petitioner submitted his reply and his case is that he was also given a personal hearing by the Superintendent of Police, Sirohi. But it is not in dispute that to final decision was communicated to the petitioner in respect of the aforesaid proceedings under Rule 17 of the rules.

3. On October 29, 1964 the petitioner was served with a fresh charge sheet together with a notice under Rule 15 of the rules, along with substantially the same statement of allegations. A departmental enquiry was conducted by the Superintendent of Police, Sirohi, who in his inquiry report found that the charges framed against the petitioner were not substantiated. The record of the said inquiry conducted by the Superintendent of Police, Sirohi was forwarded by him to the Deputy Inspector General of Police, jodhpur, Range, who disagreed with the findings arrived at by the Superintendent of Police, Sirohi and was of the opinion that the charges framed against the petitioner were proved from the material on record. The Deputy Inspector General of Police thereupon after giving a show cause notice to the petitioner and after considering his reply thereto inflicted the penalty of reduction in rank to the post of Head Constable of Police for a period of one year upon the petitioner. The petitioner preferred an appeal before the Inspector General of Police. One of the main contentions of the petitioner in the appeal was that the petitioner was appointed and conformed by the Inspector General of Police and as such the said authority was alone competent to initiate the disciplinary proceedings against him and to inflict punishment upon him as a result of such proceedings. the Inspector General of Police by his order dated July 8, 1968 (Exhibit 10) accepted the aforesaid contention of the petitioner and allowed his appeal holding that the petitioner was confirmed be the order of the Inspector General of Police dated September 9/10, 1952 and as such the lower authority was not competent either to initiate disciplinary proceedings against the petitioner or to award any penalty to him as a result of such proceedings.

4. It appears that some correspondence was exchanged thereafter between the Deputy Inspector General of Police and the office of the Inspector General of Police for over a period of two years. The view of the Deputy Inspector General of Police was that the petitioner was confirmed by his order and as such he was justified in initiating the earlier disciplinary proceedings against the petitioner and also in awarding punishment to him, and that the order of the Inspector General of Police dated July 8, 1968 deserved to be reviewed. But it does not appear from the record produced before this Court that the order passed by the Inspector General of Police on July 8, 1968 was ever reviewed by him. However, on September 22, 1970 the Deputy Inspector General of Police, Jodhpur served a fresh notice under Rule 16 of the Rules upon the petitioner along with a charge sheet and a statement of allegations, which were identical to those which were served upon the petitioner earlier along with notice dated October 29, ] 964. The Deputy Inspector General of Police also appointed the Superintendent of Police, Sirohi as the Inquiry Officer. It is at this stage of the proceedings that the petitioner approached this Court for a writ of prohibition on the ground that the Deputy Inspector General of Police could not have initiated a fresh enquiry against the petitioner in the same matter, in contravention of the order of the Inspector General of Police dated July 8, 1968.

5. learned Counsel for the petitioner, in the first place, contended that an inquiry was initiated against the petitioner under Rule 17 of the rules by the Superintendent of Police, Sirohi vide notice dated May 18, 1964 and again another enquiry was made under Rule 16 vide notice dated October 29, 1964, and that a denovo enquiry on the same allegations could not be initiated by the Deputy Inspector General of Police against the petitioner. learned Counsel relied upon the decisions of this Court in Dwarkachand v. State of Rajasthan , Dr. Kishan Singh v. State of Rajasthan 1965 RLW 152 in support of his aforesaid contention. I am unable to accept this contention of the learned Counsel in as much as admittedly no final decision was ever arrived at by the Superintendent of Police, Sirohi in respect of the proceedings initiated under Rule 17 of the rules with the giving of notice dated May 18, 1964. It appears from the events which have been enumerated above that in the first instance the Superintendent of Police, Sirohi gave the notice dated May 18, 1964 to the petitioner Under Section 17 of the rules proposing the imposition of a minor penalty and the petitioner also submitted his reply, but after the receipt of the reply of the petitioner when the matter was considered, it was probably thought that adequate punishment could not be awarded under Rule 17 and as such a fresh notice was issued to the petitioner on October 29, 1964 under Rule 16 of the ru!es, on the basis of substantially the same charge sheet and the statement of allegations. In these circumstances, it is difficult to accept the contention of the learned Counsel that the enquiry under Rule 17 should be deemed to ha/e been dropped and no further inquiry should have been made against the petitioner thereafter in the matter. On the other hand, it is clear from the circumstances of the present case that the enquiry under Rule 17 was abandoned and a fresh enquiry on the same facts was initiated against the petitioner, probability on the ground that it was felt by the competent authority that the lapse alleged on part of the petitioner was of grave nature requiring imposition of major penalty upon him and as he thought that adequate punishment could not be awarded to the petitioner for his alleged lapse in the proceedings under Rule 17. The present one is not a case where the earlier departmental enquiry against the concerned Government servant came to an end and the employee was exonerated of the charge. Dr. Kishan Singh's case (supra) has no application as in that case proceedings were initiated under Rule 16 yet thereafter the concerned authority switched on to Rule J7, but there is no such situation in the present case In Dwarkachand's case (supra) it was held by his Court that the rules contemplate that if there is an order of exoneration the matter should end finally. The Division Bench, which decided that case, observed:

On a careful consideration, therefore, of the entire matter, we are of opinion that once a departmental enquiry of over and a public servant has been exonerated, no second departmental enquiry on the same facts ran be ordered unless there is a specific provision for reviewing an order of exoneration of this kind in the Service Rule's or any law to that effect.

Dwarkachand's case was later on considered by their Lordships of the Supreme Court in Davendra Pratap v. State of Uttar Pradesh : (1962)ILLJ266SC . In the last mentioned case the Collector of Jhansi commenced an enquiry against the delinquent employee on certain charges of misdemeanour. The State Government ordered the dismissal of the employee from service. The employee thereupon filed a civil suit in the Court of Civil Judge, Lucknow, which was dismissed. But on appeal Allahabad High Court held that the principles of natural justice were violated, as reasonable opportunity was not afforded to the employee and he was deprived of the protection of Article 311 of the Constitution. The order of dismissal was, therefore, held to be avoid: inoperative & illegal. There upon the Government of Uttar Pradesh reinstated the employee and after some time again started departmental proceedings against him on the same allegations. On these facts, their Lordships held that the decision in Dwarkachand case was not applicable, and observed as under:

An adjudication on the merits by a quasi-judicial body may not debar commencement of another enquiry in respect of the same subject matter. But in this case we are concerted with the scope of the High Court order. The binding effect of a judgment depends not upon any technical consideration of form, but of substance. The High Court in the appeal filed by the appellant in Suit No. 103 of 1954 did not exonerate the appellant from the charges. The High Court decreed the suit on the ground that the procedure for imposing the penalty was irregular and such a decision cannot prevent the State from commencing another enquiry in respect of the same subject matter consistently with the provisions of Articles 310 and 311.

6. Thus it is clearly established that unless an order is based upon an enquiry against a public servant imposing a penalty on him or exonerating him of the charge levelled against him it cannot be said that further proceedings could not be commenced against such a pubic servant Even in a case where the earlier disciplinary proceedings in which an order imposing penalty was passed are subsequently quashed fresh disciplinary proceedings against the concerned employee would not be barred unless the order quashing the earlier disciplinary proceedings contained any direction in that respect or the employee concerned was exonerated of the charge. The decision of their Lordships of the SC in Devendra Pratap's case clearly lays down that in case the earlier disciplinary proceedings are quashed on the ground of some irregularity of procedure or on any other similar ground, the commencement of a fresh enquiry in respect of the same subject matter cannot be prevented. In the present case merely because an earlier notice under Rule 17 was issued to the petitioner on May 18, 1964 it cannot be held that fresh disciplinary proceedings under Rule 16 which commenced with the giving of notice dated October 29, 1964 were in any manner barred. For the same reason it cannot also be held that when the Inspector General of Police set aside the earlier order imposing penalty of reduction of rank for a period of one year upon the petitioner only on the ground that the Deputy Inspector General of Police had no authority to initiate the disciplinary proceedings against the petitioner and when there was no decision arrived at by the Inspector General of Police regarding the merits of the charges levelled against the petitioner, a fresh enquiry in respect of the same charge could not be considered to be barred. As a matter of fact, the Inspector General of Police himself in his order dated July 1, 1968 directed that a fresh notice should be issued to the petitioner and an Enquiry Officer should also be appointed afresh to adjudicate the merits of the charges against the petitioner. In view of the decision of their Lordships in Devendra Pratap's case the aforesaid direction given by the Inspector General of police in his order dated July 8, 1968 is clearly in accordance with the established law on the subject and there is no reason for interfering with the aforesaid direction.

7. In R. Ghosh v. Damoder Valley Corporation 1970 Lab & Ind Cases 443 where a fresh charge sheet was given without proceedings with the charge sheet served upon the delinquent employee earlier, it was held by a learned Judge of the Calcutta High Court that there is no requirement that a charge sheet once issued could only be withdrawn by an express order in writing. When a second charge sheet is served upon the delinquent employee, before the proceedings started with giving of an earlier charge sheet having come to a final conclusion, it could be implied by conduct of the parties that the earlier charge sheet was not intended to be pursued and that it was withdrawn. In the present case, after the second charge sheet was issued to the petitioner on October 29, 1964 and an enquiry proceeded on the basis thereof the petitioner fully participated in such an enquiry and thus the conduct of the parties in those proceedings was sufficiently indicative of the fact that the earlier charge sheet dated May 18, 1964 was either withdrawn or abandoned. In this view of the matter, a denote enquiry on the basis or the same facts and substantially the some charge sheet and allegations was not barred in the present case, & competent authority was legally empowered to initiate a fresh enquiry against the petitioner after serving a fresh notice upon him under Rule 16 of the rules.

8. The second submission made by the learned Counsel for the petitioner was that the denovo enquiry was belated as the Inspector General of Police set aside the order passed in the earlier enquiry on July 8, 1968 and the Deputy Inspector General of Police gave a fresh charge sheet to the petitioner under Rule 16 on September 22, 1970 and that the delay of two years in initialing a fresh enquiry against the petitioner lead to the conclusion that the disciplinary authority had abandoned the intention of starting a denovo enquiry against the petitioner. A decision of a learned Single Judge of the Madras High Court in E.S. Athuhyaraman v. The Commissioner, Endowments 1971 (2) SLR 41 has been relied upon by the learned Counsel in support of his submission. In that case a departmental proceeding was initiated and the employee was called upon to show cause against the propose punishment but for 3 years after the receipt of the reply of the Government servant concerned, no further action was taken in the matter. After the lapse of 3 years a notice was against issued to the concerned employee that an enquiry would be conducted against him and even thereafter no enquiry was actually conducted for another two years. In these circumstances, it was held that the long delay coupled with other circumstances led to the conclusion that the disciplinary proceedings were deemed to be dropped. The facts in the present case are quite different and the aforesaid decision cannot be applied to the facts of the present case. The Inspector General of Police, while quashing the earlier proceedings by his order dated July 8, 1968 himself intimated that a fresh enquiry would be conducted against the petitioner by him and that an order for the appointment of an enquiry officer was being issued separately. There is also sufficient explanation on the record on behalf of the respondents for the delay which shows that there was correspondence going on between the Inspector General of Police and the Deputy Inspector General of Police as to who should issue the fresh charge sheet to the petitioner and for that reason the denovo enquiry could not be initiated earlier. The Deputy Inspector General of Police appears to have taken the view vide his letter dated July 16, 1968, a copy of which has been placed on the record and marked Ex. Rule 3 that the petitioner was confirmed by him and as such he was the appointing authority, who could initiate the disciplinary proceedings against the petitioner & on that basis the Deputy Inspector Genera] of Police was insisting that the order passed by, the Inspector General of Police on July 8, 1968 should be revived. It appears that the delay in serving a fresh charge sheet in the present case has been caused on account of this difference of opinion between the Inspector General of Police and the Deputy Inspector General of Police on the question as to-who was the appointing authority with regard to the petitioner and as to whether the earlier order passed by the Inspector General of Police on July 8 1968 should be reviewed by the latter or fresh proceedings should be initiated by him.

9. In E.S. Athithyaraman v. The Commissioner, Endowments 1971(2) SLR 41 it, was noticed by the learned Judge that there was no explanation offered by the respondents for the delay of 3 years, in the first instance, and of two years even after the notice of fresh enquiry was served upon the concerned employee. The aforesaid decision is, therefore, clearly distinguishable. Meredelay, which has been sufficiently explained, could not be fatal to the holding of a fresh enquiry against the petitioner

10. The last submission of the learned Counsel is that the petitioner was appointed by the Inspector General of Police and he was the disciplinary, authority so far as he was concerned and the Deputy Inspector General of Police could not have served the charge sheet and initiated fresh disciplinary, proceedings against the petitioner video his notice dated September 22, 1970. It is not in dispute that the petitioner was initially appointed by the Inspector General of Police, but that appointment order dated December 21, 1951 related to the appointment of the petitioner on probation. There is a difference between the parties as to which authority confirmed the petitioner in his appointment on the post of Sub Inspector of Police. According to the petitioner he was confirmed by the Inspector General of Police by his order dated September 9, 1952 while according to the respondents the petitioner was confirmed by the Deputy Inspector General of Police by his order dated June 15, 1955. The order passed by the Inspector General of Police dated July 8 1968 in the earlier disciplinary proceedings against the petitioner is an order which was given inter-parties. In that order the Inspector General of Police accepted the contention of the petitioner that he was appointed by his order on 9/10 h September, 1952, & on that basis he quashed. the earlier departmental proceeding against the petitioner. The Inspector General of Police was of the view that the disciplinary enquiry against a person appointed by the Inspector General of Police could not have been initiated by the Deputy Inspector General of Police nor the said authority could inflict, any penalty upon such an employee. There is no reason not to accept the facts which have been relied upon by the Inspector General of Police while passing his earlier order dated July 8, 1968 and as that order was passed inter-parties, it is not possible for the respondents now to dispute that the petitioner was confirmed by the Inspector General of Police. Thus, the Inspector General of Police was the appointing authority, so far as the petitioner is concerned within the meaning of Rule 2(a) of rules. It is also not in dispute that-the post of Sub-Inspector of Police is included in the Subordinate Services and is enumerated in Schedule IT annexed to the rules. According to Rule 15 of the rules, the Head of the Department with the approval of the State Government is entitled to inflict all the penalties specified in Rule 14 The disciplinary authority for the petitioner was, therefore, the Inspector General of Police, who is the Head of the Department. Sub-rule (2) of Rule 16 requires that the disciplinary authority should frame definite charges on the basis of the allegations on which the enquiry is proposed to be held and a copy of such charges, together with the statement of allegations on which they are based, should be communicated in writing to the Government Servant concerned. Thereafter the written statement submitted by the employee has also to be considered by the disciplinary authority. Under Sub-rule (4) of Rule 16, the disciplinary authority is empowered to nominate a Board of Enquiry or an enquiry officer, if it does not proceed to enquire the matter itself.

11. In the present case, the notice of denovo enquiry as well as the charge sheet & the statement of allegations have been issued by the Inspector General of Police, Jodhpur Range, Jodhpur. In my view the Deputy Inspector General of Police was not competent to initiate the disciplinary proceedings against the petitioner in view of the provisions of Rules 15 & 16 of the Rules. It was held by the Inspector General of Police vide his order (Ex. 10) dated July 8, 1968 that only the Inspector General of Police could initiate a fresh enquiry and appoint an enquiry officer so far as the petitioner was concerned. It is not the case of the respondents that the aforesaid order of the Inspector General of Police was reviewed by that authority at any time, or that it was set aside by any competent authority or a court of law. As such the order of the Inspector General of Police dated July 8, 1968 rendered inter parties in which he observed that a separate order was being issued by him regarding the appointment of an enquiry officer was final and conclusive on this aspect of the matter. The Deputy Inspector General of Police, Jodhpur Range, Jodhpur could not thereafter initiate a fresh enquiry against the petitioner nor he could appoint a new enquiry officer for that purpose. As a master of fact, if the Deputy Inspector General of Police could have initiated a fresh enquiry against the petitioner then the enquiry which was held earlier on the basis of the notice dated October 29, 1964 was not required to be set aside by the Inspector General of Police. There is no doubt that in State of Madhya pradesh v. Sardul Singh 1970 SLR 101 their Lordships of the Supreme Court held that a delinquent employee had only a right under Article 311 of the Constitution that he could not be dismissed or removed by an authority subordinate to that by which he was appointed and that the disciplinary proceedings could not be initiated or conducted by an officer subordinate to appointing authority. Article 311 only guarantees the right to a civil servant that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed and that does not include a further guarantee that the relevant disciplinary enquiry cannot be initiated or conducted by any authority lower than the authority mentioned in Article 311. In the present case, although there was no contravention of the provisions of Article 311 of the Constitution, yet there was a breath of the provisions of Rules 15 and 16 of the Rules. It is not the case of the respondents that the Deputy Inspector General of Police was specifically empowered by the Inspector General of Police with the approval of the State Government to initiate the enquiry against the petitioner. In this view of the matter, the notice dated September 22, 1970 issued to the petitioner under Rule 16 of the Rules by the Deputy Inspector General of Police, along with the charge sheet and the statement of allegations is invalid and has to be quashed, ft shall, however be open to the Inspector General of Police, who is the disciplinary authority, to initiate fresh enquiry against the petitioner on the basis of the same charge sheet and the statement of allegations in accordance with the earlier order dated July 8, 1968.

12. In the result, the writ petition is allowed and the notice dated September 22, 1970 issued by the Deputy Inspector General of Police, Jodhpur Range, Jodhpur and the disciplinary proceedings initiated against the petitioner on the basis thereof are quashed and the respondents are restrained from taking further proceedings against the petitioner on the basis of the aforesaid notice dated September 22, 1970. However, as mentioned earlier, it shall be open to the Inspector General of Police to initiate fresh disciplinary proceedings against the petitioner in respect of the same subject matter on the basis of the same charges and the statement of allegations, In the circumstances of the case the parties are left to bear their own costs.


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