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Deoki Nandan Kulshreshtha Vs. State of Rajasthan and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 126 of 1978
Judge
Reported in1985WLN(UC)103
AppellantDeoki Nandan Kulshreshtha
RespondentState of Rajasthan and anr.
DispositionPetition allowed
Excerpt:
.....done in the present case, is that without recording any evidence in support of the charges, the enquiry officer proceeded to record the statement of the petitioner on 2nd january, 1971 and 4th january, 1971. the said procedure adopted by the enquiry officer was not in accordance with the cca rules and the same has resulted in prejudice to the petitioner.;the enquiry officer as well as the disciplinary authority were not justified in denying to the petitioner the opportunity of adducing his evidence, oral as well as documentary in support of his defence. the petitioner was entitled to lead evidence, oral as well as documentary, to establish the aforesaid case that was put up by him and the said request of the petitioner could not be rejected only on the ground that the petitioner, in..........laheri, assistant director (admn.), sheep and wool department, government of rajasthan, as the enquiry officer to conduct an inquiry into the charge. by memorandum dated 15th july, 1970 the petitioner was served with another charge-sheet containing two further charges nos. 2 and 3. charge no. 2 relating to leaving of the headquarter without permission during the period of suspension from 23rd april, 1968 to 19th april, 1969 and charge no. 3 related to the failure on the part of the petitioner to join duty at ramgarh extension centre since 20th april, 1969. after receipt of the said memorandum, the petitioner addressed a letter ex. 10) dated 30th july, 1970 whereby he requested for supply of a copy of the letter dated 28th may, 1969 of the district sheep and wool officer, churu, as.....
Judgment:

S.C. Agrawal, J.

1. Deoki Nandan Kulshreshta, the petitioner in this writ petitioner, joined Government service as Patwari in the Colonisation Department of the Government of Rajasthan on 18th June, 1956. He was subsequently promoted as Lower Division Clerk (LDC) and thereafter, on his own request, the petitioner was transferred to the Sheep and Wool Department of the Government of Rajasthan and was posted as Upper Division Clerk (UDC), Accounts clerk in the said department. While he was working on the post of Accounts Clerk at the Sheep and Wool Extension Centre, Hanumangarh, District Churu, the order dated 25th June, 1968 was passed whereby the petitioner was transferred to the Sheep and Wool Extension Centre, Ramgarh, District Jaisalmer. On the representation of the petitioner, an order dated 10th July, 1968 was passed whereby the transfer order dated 25th June, 1968 was kept in abeyance. The aforesaid order dated 10th July, 1968 was however, revoked by order dated 25th October, 1968 and as a result the transfer order dated 25th June, 1968 was brought into force. The petitioner failed to join duty at Ramgarh and by order dated 4th December, 1968 he was placed under suspension. During the period of suspension the headquarter of the petitioner was placed at Churu. While the petitioner was under suspension, the petitioner was served with a charge-sheet along with a memorandum dt. 223- 1969.The said memorandum was originally issued under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as 'the CCA Rules'). But subsequently the said proceedings were converted to one under Rule 17 of the CCA Rules and by order dated 15th May, 1970 the penalty of with-holding of five grade increments with cumulative effect was imposed on the petitioner. The order of suspension dated 4th December, 1968 was revoked by order dated 19th April, 1969. By order dated 19th April, 1969 the order of suspension dated 4th December. 1968 was revoked with effect from the date the petitioner reported for duty at Ramgarh. On 13th February, 1970 the petitioner was served with another charge-sheet containing one charge under Rule 16 of the CCA Rules, The said charge related to the petitioner having not reported at the headquarter at Churu and his having not obtained permission to leave headquarters since 23rd December, 1968. In the said charge it was also mentioned that after the order dated 19th April, 1969, the petitioner had failed to report for duty at the Extension Centre at Rajgarh. After the receipt of the said memorandum dated 13th February, 1970, the petitioner sent a letter (Ex. 6) dated 27-2-1970, wherein he prayed for some time to file a reply to the charge and also prayed for supply of copies of certain documents mentioned in the said letter for the reason that the said documents were necessary for the petitioner to prepare his reply to the charge. The case of the petitioner is that the copies of documents referred to in the aforesaid letter dt. 27th February, 1970 were not supplied to him. The petitioner, however, submitted his reply (Ex. 7) dated 24th March, 1970 to the charge which was levelled against him in the charge-sheet appended to the memorandum dated 13th February, 1970. By order (Ex. 8) dated 23rd June, 1970, the Director, Sheep and Wool Department of the Government of Rajasthan appointed Shri Shiv Laheri, Assistant Director (Admn.), Sheep and Wool Department, Government of Rajasthan, as the Enquiry Officer to conduct an inquiry into the charge. By memorandum dated 15th July, 1970 the petitioner was served with another charge-sheet containing two further charges Nos. 2 and 3. Charge No. 2 relating to leaving of the headquarter without permission during the period of suspension from 23rd April, 1968 to 19th April, 1969 and charge No. 3 related to the failure on the part of the petitioner to join duty at Ramgarh Extension Centre since 20th April, 1969. After receipt of the said memorandum, the petitioner addressed a letter Ex. 10) dated 30th July, 1970 whereby he requested for supply of a copy of the letter dated 28th May, 1969 of the District Sheep and Wool Officer, Churu, as the said letter was necessary for the petitioner to prepare a reply to the charges contained in the charge sheet appended to the memorandum dated 15th July, 1970. The case of the petitioner is that the copy of the aforesaid letter 28th May, 1969 was also not supplied to him. The Enquiry Officer held an inquiry on 16th December, 1970, 17th December, 1970, 2nd January 1971 and 4th January, 1971. During the course of the said inquiry, the Enquiry Officer recorded the statement of the petitioner on 2nd January, 1971 and 4th January, 1971. According to the petitioner, the Enquiry Officer prepared the inquiry report on 4th January, 1971. Since the Enquiry Officer did not accede to the request of the petitioner for a defence nominee to represent him during the course of inquiry and the request of the petitioner for examining defence witnesses, the petitioner submitted an application dated 4th January, 1971 before the Director, Sheep and Wool Department, Rajasthan (hereinafter referred to as 'the Director'), the disciplinary authority and in pursuance of the said application of the petitioner, the Director by his letter (Ex. R. 10) dated 13th January, 1971 asked the petitioner to appear before the Enquiry Officer on 22nd January, 1971 and to produce the evidence which he wanted to produce before the Enquiry Officer. After the receipt of the aforesaid letter dated 13th January, 1971, the petitioner addressed a letter dated 19th January, 1971 to the Enquiry Officer whereby he requested for adjournment of the inquiry fixed on 22nd January, 1971 on the ground that the petitioner was ill. The Enquiry Officer did not accede to the aforesaid request of the petitioner for adjournment of the inquiry and submitted his inquiry report on 23rd January, 1971. After considering the report of the Enquiry Officer. The Director issued a show-cause notice (Ex. 11) dated 29th March, 1971 whereby the petitioner was informed that it was proposed to impose the punishment of dismissal from service on the petitioner and the petitioner was required to show cause against the proposed punishment. The petitioner submitted his reply (Ex. 12) dated 20th April, 1971 to the aforesaid show-cause notice. By order (Ex. 13) dated 3rd June, 1971, passed by the Director, the petitioner was dismissed from service. The petitioner submitted an appeal to the State Government against the aforesaid order of dismissal. In the said appeal, the petitioner also requested that he may be given a personal hearing By letter (Ex. 15) dated 23rd June, 1971, the petitioner was asked to appear for personal hearing before the Special Secretary, Agriculture Department, Government of Rajasthan, on 24th June, 1971. The case of the petitioner is that on 24th June, 1977, the matter was adjourned for future date. In the meanwhile by order (Ex. 16), dated 28 June, 1971, the petitioner was informed that the Governor, after examining the relevant record, had been pleased to accept the advice of the Rajasthan Public Service Commission and to uphold the decision of punishment of dismissal from service awarded by the Director. Sheep and Wool and has rejected the appeal preferred by the petitioner, Thereupon, the petitioner filed this writ petition wherein he has challenged the orders dated 3rd June, 1971 and 28th June, 1971.

2. The writ petition has been contested by the respondents who have filed a reply to the writ petition The petitioner has filed a rejoinder to the said reply filed by the respondents.

3. The writ petition was earlier heard by Hon'ble Justice G.M. Lodha and the learned Judge by his order dated 8th November, 1979 allowed the writ petition and quashed the order of dismissal dated 3rd June, 1971 on the ground that no inquiry was held into the charges mentioned in the memorandum dated 15th July, 1970 and that the charge No. 1 referred to in the memorandum dated 13th February, 1970 has been quashed by the Director while passing the order dated 3rd June, 1971 and that Rule 16 of the CCA Rules had been violated completely in so far as the charge-sheet dated 15th July, 1970 was concerned. While quashing the order of dismissal dated 3rd June, 1971 the learned Judge, however, observed that since the writ petition was being accepted on the ground of non-compliance of the provisions of Rule 16 of the CCA Rules, it would not mean complete exoneration of the petitioner by this Court and that it will be open to the respondent to proceed under Rule 16 of the CCA Rules in respect of the charges in the charge-sheet dated 15th July, 1970 and to pass such appropriate orders as may be deemed proper after strict compliance of Rule 16 of the CCA Rules. The aforesaid judgment was, however, reversed, in appeal (Special appeal No. 30 of 1980 decided on September 16, 1981) by a division bench of this court. In the said judgment of the division bench of this court, it has been held that the additional charges Nos. 2 and 3 dated 15th July, 1970 were nothing else than a clarification and specific mentioning of particular dates and the period for which the charges were levelled against the petitioner and that when the additional charges Nos. 2 and 3 were there, charge No. l dated 13th February, 1970 bad become redundant and that the Director, Sheep and Wool had not committed any error in cancelling the said charge. According to the decision of the division bench, the memorandum dated 15th July, 1970 was issued in a routine way and the petitioner could not claim any illegality on the ground that a fresh enquiry officer ought to have been appointed or that a fresh order should have been passed by the disciplinary authority in holding the enquiry, The division bench of this Court after setting aside the order of the learned Singled Judge, remanded the matter for decision on other points which were left undetermined. In pursuance or the aforesaid order of the division bench of this Court, the writ petition has come up for hearing before me.

4. Shri Singhi, the learned counsel for the petitioner has urged the following contentions:

(i) The petitioner was denied reasonable opportunity in as much as:

(a) copies of the documents referred to in letter (Ex. 6) dated 27th February,l970 were not furnished to him and as a result, the petitioner could not submit a proper reply to the charges that were levelled against him,

(b) the petitioner was not allowed to be represented by a defence nominee during the course of the inquiry and there has been violation of the mandatory provisions of Rule 16(5) of the CCA Rules:

(c) the Enquiry Officer interrogated the petitioner during the course of the enquiry without recording any evidence in support of the charge levelled against the petitioner, and

(d) the Enquiry Officer did not afford to the petitioner an opportunity of adducing his evidence, oral as well as documentary, during the course of inquiry.

(ii) the inquiry that was conducted in the charges levelled against the petitioner was vitiated on account of non-payment of subsistence allowance to the petitioner during the course of the inquiry.

(iii) There has been no proper consideration by the Disciplinary authority of the reply that was submitted by the petitioner to the show-cause notice served on him.

(v) There has been no proper consideration of the appeal submitted by the petitioner to the state Government.

5. As regards the grievance of the petitioner about non-supply of the copies of the documents referred to in his letter (Ex. 6) dated 27th February, 1970, the case of the petitioner is that the said documents were necessary for purpose of preparing the reply to the charges that were levelled against him and in the absence of the said documents, the petitioner was not able to prepare a proper reply. In the reply that has been filed on behalf of the respondents, it is stated that no such application is available on the record and that further more it was not obligatory under the CCA Rules to supply copies of the documents and that it was open to the petitioner to have obtained copies of the documents by moving an application in accordance with the Rules. In the said reply, it is also stated that the particulars of some of the documents mentioned in the letter (Ex. 6) are not clear and that most of the documents were written by the petitioner wanted he could have got the same summoned before the Enquiry Officer. In my opinion the petitioner could justifiably ask for supply of the copies of the documents which he considered necessary for preparing his reply to the charges and the said request of the petitioner could be refused only if the documents of which copies were wanted were of no relevance whatsoever to the charges. In the present case, the request of the petitioner for grant of copies of the documents mentioned in letter (Ex. 6) dated February 27,1970 was rejected by the authorities on the ground that the documents were irrelevant to the charge. In the facts and circumstances of the case, it is however not possible to hold that the petitioner has been materially prejudiced in preparing his reply on account of the failure on the part of the concerned authority to furnish to him the copies of the documents referred to in the letter (Ex. 6) dated February 27, 1970. I find that the petitioner gave a detailed reply (Ex 7) to the charges and in the said reply he has mentioned the documents on which he wished to place reliance in support of his case. In the circumstances the enquiry proceedings as well as the orders passed on the basis of the said enquiry cannot be held to be vitiated on account of the failure on the part of the authorities to supply the copies of the documents referred to in the letter (Ex. 6) of the petitioner before he submitted bis reply to the charges.

6. There is, however, considerable force in the submission of Shri Singhi that there has been denial of reasonable opportunity to the petitioner on account of the petitioner being denied a defence nominee during the course of the inquiry & petitioner being required to answer the questions put by him by the Enquiry Officer before any evidence was recorded in support of the charges and the petitioner being denied an opportunity of adducing evidence oral as well as documentary, in support of his case.

7. In Sub-rule (5) of Rule 16 of the CCA Rules, as it stood at the relevant time, it was provided as under:

(5) The Disciplinary authority may nominate any person to present the case in support of the charges before the authority inquiring into the charges (hereinafter referred to as the Inquiring Authority) The Government Servant may present his case with the assistance of any other Government servant approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits.

Explanation--For the purpose of this sub Rule, a Public Prosecutor, prosecuting Inspector or a prosecuting Sub-Inspector shall be deemed to be a legal practitioner.

8. Under the aforesaid Sub-rule a government servant was entitled to present his case with the assistance of any other government servant approved by the Disciplinary Authority. The petitioner in his reply (Ex. 7) dated 24th March, 1980 to the charges had stated that if the inquiry was held at Haumangarh he wanted Shri R.L. Kakkar senior clerk, Rajasthan Canal Project Talwada Division, Hanumangarh and if the inquiry was held at Jaipur, he wanted to have Shri Umrao Chand Jain, Insurance Department, Government of Rajasthan as his defence nominee. The Disciplinary Authority did not pass any order with regard to the appointment of a defence nominee. In the reply to the writ petition it has been stated that defence nominee was not appointed for the reason that the petitioner had not submitted the letter of consent from the employee concerned and in the absence of such a letter of consent, the Disciplinary Authority could not have appointed the defence nominee. It has also been stated in the reply to the writ petition that no prejudice has been caused to the petitioner by the failure to appoint the defence nominee in the present case because the petitioner has accepted all the facts mentioned in the statement of allegations in support of the charges and that there has been no violation of any mandatory provision of Sub-rule (5) of Rule 16. I am unable to agree with the aforesaid submission contained in the reply to the writ petition. The provisions of Sub-rule (5) of Rule 16 with regard to appointment of the defence nominee are intended for the protection of the government servant during the course of the inquiry because a government servant may not be fully familiar with the procedure and the defence nominee may give proper assistance to him in the proper conduct of the inquiry. It is not an obligation of the government servant to submit the letter of consent of the employee whom he wishes to be appointed as the defence nominee. The government servant is only required to indicate the name of the employee whom he wishes to be appointed as defence nominee and the Disciplinary Authority may give its approval to the appointment of said person as defence nominee and while doing so the Disciplinary Authority may inquire from the government servant so named as to whether he was agreeable to act as the defence nominee. There is nothing on the record to show that the government servants whose names were mentioned by the petitioner in his reply (Ex. 7), were not agreeable to act as the defence nominee for the petitioner. It is also not possible to hold that the failure to appoint a defence nominee in the present case has not resulted in any prejudice to the petitioner. If the defence nominee had been duly appointed by the Disciplinary Authority in accordance with the CCA Rules before the commencement of the inquiry, the petitioner could have sought advice of the defence nominee before making his statement before the Enquiry Officer and the petitioner might not have made a statement before the Enquiry Officer before other evidence in support of the charge had been produced before the Enquiry Officer. In the circumstances, I am of the opinion that the failure to appoint the defence nominee by the Disciplinary Authority has resulted in denial of reasonable opportunity to the petitioner.

9. With regard to the recording of the statement of the petitioner by the Enquiry Officer, it may be stated that under Sub-rule (5) of Rule 16 of the CCA Rules, as it stood at the relevant time, there was no provision with regard to recording the statement of the government servant before the commencement of the inquiry. Under the provisions of Clause (a) of Sub-rule (6 of Rule 16, which was substituted vide notification dated 9th October, 1974, a provision has been made for recording the plea of the government servant at the commencement of the inquiry, but there was no such provision earlier i.e. on the date when the inquiry was held in the present case The Enquiry Officer was, therefore not justified in recording the statement of the petitioner at the commencement of the inquiry. The Enquiry Officer should have first recorded the evidence that was adduced in support of the charges and then it would have been for the petitioner to choose whether he wanted to examine himself is support of the defence or to adduce any other evidence. What appears to have been done in the present case, is that without recording any evidence in support of the charges, the Enquiry Officer proceeded to record the statement of the petitioner on 2nd January, 1971 and 4th January, 1971. The said procedure adopted by the Enquiry Officer was not in accordance with the CCA Rules and the same has resulted in prejudice to the petitioner.

10. With regard to the production of evidence, oral as well as documentary by the petitioner, in support of his case, it may be stated that the petitioner, in his reply (Ex.7) to the charges, had given the names of three persons whom he wanted to examine as witnesses in his defence and had also mentioned in the said reply the documents on which he wanted to rely in support of his defence. The Enquiry Officer appears to have concluded the inquiry after recording the statement of the petitioner on 4th January, 1971 and at that stage he did not afford any opportunity to the petitioner to adduce any evidence, oral as well as documentary, in support of his defence. After the Enquiry Officer had completed the inquiry, the petitioner moved an application before the Disciplinary Authority and the Disciplinary Authority passed the order (Ex, R. 10) dated 13th January, 1971 whereby the petitioner was directed to appear before the Enquiry Officer on 22nd January, 1971 and produced his evidence. After the receipt of the said letter dated 13th January, 1971, the petitioner addressed a letter dated 10th January, i971 to the Enquiry officer wherein he requested for an adjournment of the enquiry on the ground of his own illness, In the said letter the petitioner also requested for summoning of the witnesses mentioned in his reply to the charge-sheet also & for summoning the documents mentioned in the said reply. The said request for the petitioner contained in his letter dated 19th January, 1971 was rejected by the Enquiry Officer and in the Enquiry report the Enquiry Officer has stated that the said letter was not accompanied by any medical certificate about illness of the petitioner and further that the petitioner, by making the said request, was only trying to prolong the inquiry. The Enquiry Officer has also observed that there was no need for affording any opportunity to the petitioner to adduce evidence in his defence in view of the fact that the petitioner in his statement, has accepted his having failed to join duty and having not stayed at the headquarter during the period of suspension The Disciplinary Authority has agreed with the aforesaid view of the Enquiry Officer and has held that in view of the fact that the petitioner has fully accepted both the charges levelled against him, there was no need of any inquiry and the question of calling the witnesses of the petitioner did not arise. In my opinion the Enquiry officer as well as the Disciplinary Authority were not justified in denying to the petitioner the opportunity of adducing his evidence, oral as well as documentary, in support of his defence. The reply of the petitioner to the charge-sheet as well as the statement made by him before the Enquiry Officer during the course of the inquiry, have to be read as a whole. In the said reply to the charges, as well as in the statement made before the Enquiry Officer, the petitioner had admitted that during the period of suspension he did not stay at the headquarter at Churu, but he has also stated that the reason why he did not stay at his headquarter was that he was required to hand over the charge of the office and took time and further that he had written letter dated 29th January, 1969 with regard to the changing of his headquarter from Churu to Hanumangarh and the matter was under consideration. Similarly with regard to his failure to join duty at Ramgarh after withdrawal of the order of suspension, the petitioner, in his reply to charge-sheet as well as in his statement, while admitting that had failed to join duty at Ramgarh, has given reasons for the said failure and the said reasons were that the petitioner had not been paid subsistence allowance as well as the travelling allowance. This would show that the petitioner, while accepting that he raised to stay at the headquarter at Churu during the period of suspension and that he failed to join at Ramgarh after the suspension order was revoked, has given his justification for his action. The petitioner was entitled to lead evidence, oral as well as documentary, to establish the aforesaid case that was put up by him and the said request of the petitioner could not be rejected only on the ground that the petitioner, in his reply to the charge-sheet as well as the statement before the Enquiry Officer, had accepted the charges levelled against him.

11. It may also be stated that no fault can be found with the petitioner in the matter of non-production of the evidence and the Enquiry Officer was not justified in saying that the petitioner was trying to delay the inquiry and in refusing the request of the petitioner on that ground. Although the Enquiry Officer was appointed by the order dated 23rd June, 1970 the inquiry was not commenced by him till 16th December, 1970. The case of the petitioner is that that too was done only at the instance of the petitioner. After 16th December, 1970, the only proceedings that were taken by the Enquiry Officer in the inquiry was to record the statement of the petitioner on 2nd January, 1971 and 4th January, 1971. The petitioner had made the request for summoning the documents mentioned by him in his reply dated 24th March, 1970 to the charges in his letter dated 4th January, 1971 addressed to the Disciplinary Authority. The witnesses whom the petitioner wanted to produce were all government officers and it was not within the power of the petitioner to produce them on his own and they had to be summoned by the Enquiry Officer. Similarly, as the documents which the petitioner wanted to produce were in the custody of the government officers which could have been produced only by summoning the same through the Enquiry Officer. Since the request for the production of the witnesses and the documents was made by the petitioner immediately after the Enquiry Officer had recorded the statement of the petitioner on 4th January, 1971, it cannot be said that the petitioner was trying to delay the inquiry. The request that was made by the petitioner on 19th January, 1971 for postponing the inquiry was for the reason that the petitioner was ill & that the witnesses and the documents may be summoned. The Enquiry Officer, in my view, was not justified in refusing the said reasonable request of the petitioner and on account of the denial by the Enquiry Officer of the request of the petitioner to adduce evidence, oral as well as documentary, in support of his defence, the petitioner has been denied a reasonable opportunity to defend himself in the inquiry.

12. As regards the submission of Shri Singhi that the charges levelled against the petitioner were without foundation, I am of the opinion that it is not necessary to go into the said question since I am of the opinion that the petitioner has been denied reasonable opportunity of defending himself. It will be open to the petitioner to agitate this question before the Enquiry Officer in case a fresh inquiry is held in the charges levelled against the petitioner. The other contentions raised by Shri Singhi with regard to failure on the part of the Disciplinary Authority to consider the representation submitted by the petitioner its reply to the show cause notice as well as the failure on the part of the Appellate Authority to consider the grounds urged by the petitioner in his appeal, also do not call for consideration, in view of my above finding that the petitioner hat. been denied a reasonable opportunity before the Enquiry Officer.

13. In the result, the writ petition is allowed. The enquiry report as well as the show-cause notice (Ex. 11) dated 29th March, 1971, order (Ex. 13) dated 3rd June, 1971 and the order (Ex. 16) dated 28th June, 1977 are quashed. It will be open for the appropriate authorities to consider as to whether a fresh inquiry should be conducted against the petitioner in the charges that have been levelled against him in the charge-sheet. The petitioner will be entitled to be reinstated with consequential benefits. No order as to costs.


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