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Radha Mohan Vs. State of Rajasthan and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Writ Petition No. 223 of 1973
Judge
Reported in1978(11)WLN189
AppellantRadha Mohan
RespondentState of Rajasthan and ors.
DispositionPetion Allowed
Cases ReferredBoard of Mining Examination v. Ramjee
Excerpt:
.....control and appeal) rules, 1958 - rule 16 disciplinary authority concurs with detailed report of enquiry officer--held, he need not pass speaking order himself.; in cases where the enquirying officer makes a detailed report and the disciplinary authority merely agrees and concurs with the fioding arrived at by the enquiry officer, then the disciplinary authority may not pass a speaking order himsejf and may forward a copy of the enquiry officer's report to the delinquent employee together with its approval thereof.;(b) rajasthan civil services (classification, control & appeal) rules, 1958 rule 16(12) petitioner supplied concise statement of findings with reasons along with show cause notice - held, it is sufficient compliance of rule 16(12).; if what was supplied to the petitioner..........to the delinquent government servant, who shall also be supplied with a copy of the report of the enquiry officer and where the disciplinary authority is not the enquiry officer, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the enquiry officer shall also be supplied to him. what is necessary is that the delinquent employee should be supplied with a copy of the order passed by the disciplinary authority, but in case the disciplinary authority has not him-enquired into the charge framed against the delinquent government servant and has appointed an enquiry officer, then a copy of the report of the enquiry officer should also be supplied to the delinquent government servant although in cases where only a minor punishment is imposed,.....
Judgment:

D.P. Gupta, J.

1. The facts arising out of this rather lengthy writ petition may be stated shortly,

2. The petitioner was employed as a Lower Division Clerk in the State Insurance Department of the State of Rajasthan and at the relevant time he was posted as an Insurance Assistant in the aforesaid Department with his head-quarters at Ajmer. On August 13, 1969 the petitioner was directed to proceed to Bhilwara as a relieving hand. On the next day, the petitioner reported himself for duty at Bhilwara, but he was told there that the clerk of that office who had gone earlier on leave had already re-joined his duties and as such the petitioner was asked to go back to Ajmer. The petitioner claimed three days' allowance for his going to Bhilwara and the return journey. A preliminary enquiry was conducted against the petitioner by the Deputy Director of the State Insurance Department and it was found that the petitioner had claimed excessive daily allowance. There upon a charge sheet along with a statement of allegations was served upon the petitioner on January 9, 1970. Two charges were framed against the petitioner, of which one was that he claimed excessive daily allowance in respect of the trip to Bhilwara in August 1969 and the other was that he did not comply with the directions of the Inspector of the State Insurance Departed and went on leave on false pretexts. The Deputy Director, State Insurance Department, who was the disciplinary authority of the petitioner, himself conducted the enquiry. After holding an enquiry, the disciplinary authority came to the conclusion that both the charges were proved against the petitioners He there, fore, decided that a penalty of with-holding two grade increments with cumulative effect be imposed upon the petitioner. On the basis of the aforesaid order passed by the disciplinary authority a show cause notice was given to the petitioner on April 10, 1970 [which was wholly unnecessary as only a minor punishment was thereby going to be inflicted upon him. After receiving the petitioner's reply to the show cause notice, the disciplinary authority passed an order on May 1, 1970, imposing the punishment of with-holding two grade increments payable to the petitioner with cumulative effect An appeal in the matter to the Director of Insurance was unsuccessful and a review petition to the Governor of the State was also rejected. Hence this writ petition has been fled in this Court.

3. The main contention advanced by the learned Counsel for the petitioner is that the order imposing penalty upon the petitioner dated May 1, 1970 is not a speaking order & that the petitioner was prejudiced in taking further proceedings in the matter, by way of an appeal & a revision as the order which was communicated to him was not a speaking order at all The respondents along with their reply to the writ petition have produced a copy of the order passed by the disciplinary authority & have submitted that a substance thereof was supplied to the petitioner along with the show cause notice dated April 10, 1970. The submission of the learned Additional Government Advocate is that no prejudice was caused to the petitioner on the ground that a complete copy of the order passed by the disciplinary authority was not supplied to hair. Sub-rule (12) of Rule 16 of the Rajasthan Civil Services (Classification. Control and Appeal) Rules, 1958 (hereinafter referred to as 'the Rules' provides that the order passed by the disciplinary authority shall be communicated to the delinquent Government servant, who shall also be supplied with a copy of the report of the enquiry officer and where the disciplinary authority is not the enquiry officer, a statement of its findings together with brief reasons for disagreement, if any, With the findings of the enquiry officer shall also be supplied to him. What is necessary is that the delinquent employee should be supplied with a copy of the order passed by the disciplinary authority, but in case the disciplinary authority has not him-enquired into the charge framed against the delinquent Government servant and has appointed an enquiry officer, then a copy of the report of the enquiry officer should also be supplied to the delinquent Government servant although in cases where only a minor punishment is imposed, the requirement of supplying a copy of the report of the enquiry officer may be dispensed with In cases where the enquiry officer makes a detailed report and the disciplinary authority merely agrees and concurs with the finding arrived at by the enquiry officer, then the disciplinary authority may not pass a speaking order himself and may forward a copy of the enquiry officer's report 10 the delinquent employee together with its approval thereof. In substance what is required is that a delinquent must be put into possession of the reasons and the conlusions on the basis of which be has been punished in the departmental proceedings.

4. In Tarachand v. Delhi Municipality : (1977)ILLJ331SC when the question that the disciplinary authority did not pass a speaking order was raised before their Lordships of the Supreme Court, it was held that it was not obligatory to do so in cases where the disciplinary authority concurs with the finding arrived at by the enquiring officer. It was also held in that case the an order of concurrence need not be supported by reasons. However, in the present case, there is no question of passing of any order of concurrence by the disciplinary authority, in as much as the disciplinary authority itself decided to enquire into the charges levelled against the petitioner. The disciplinary authority, in the present case, was bound to convey to the petitioner a statement of its findings together with the reasons recorded therefore in compliance with the provisions of Sub-rule (12) of Rule 16 of the Rules. I have also taken the aforesaid view earlier in Bhagwat Swaroop v. State of Rajasthan 1977 WLN 496.

5. Now, the question that arises for consideration is as to whether the requirement of Sub-rule (12) of Rule 16 has been complied with in the present case? Learned Additional Government Advocate submits that a substance of the findings arrived at by he disciplinary authority was conveyed to the petitioner along with the so called show cause notice dated April 10, 1970. There can be no doubt that a complete copy of the order of the disciplinary authority imposing penalty upon the petitioner, which has now been produced as Ex. R. 1 in these proceedings, was not supplied 10 the petitioner earlier. But if what was applied to the petitioner along with the so called show cause notice dated April 10 1970, was a concise statement of the findings arrived at by the disciplinary authority with the reasons therefor, then the provisions of Sub-rule (12) of Rule 16 can be considered to have been sufficiently complied with. The submission of the learned Counsel for the petitioner, however, is that in the order Ex. R 1 the disciplinary authority relied upon its personal investigation ^^futh tkap djus ij ^^] besides the evidence which was brought on the record during the disciplinary enquiry, and that the statement of Murli Manohar Sharma, Inspector in the Insurance Department was also relied upon, but the same did not and any mention in the summary supplied to the petitioner along with the show cause notice dated April 10, 1970 and that there was material difference between the order passed by the disciplinary authority (Ex. R. 1) and these called summary thereof which was supplied to the petitioner. Learned Additional Government Advocate has tried to explain the observations made by the disciplinary authority in the matter. It is difficult to comprehend to what extent its personal investigation influenced the decision of the disciplinary authority, if any, with regard to the finding of holding the charges proved against the petitioner. In State of Andhra Pradesh v. S.M. Nizimudlin Ali Khan : (1977)IILLJ106SC it has been held that if the order imposing punishment is based to a large extent on secret information which the delinquent employee has no opportunity to meet, then it must be held chat the Government servant was denied an opportunity of hearing at the stage of the enquiry as well as of making a representation. The disciplinary authority was duty bound to convey to the petitioner all the circumstances which it had discovered as a result of the personal investigation alleged to have been carried out by him. As the disciplinary authority has not mentioned in its order Ex R I as to what enquiries were made by him personally, apart from the evidence which was recorded during the disciplinary enquiry and whether such circumstances were conveyed to the petitioner, it is merely a matter of guess as to what circumstances were discovered by the disciplinary authority as a result of his personal investigation. It would be, therefore, proper to hold in this case that the disciplinary authority took extraneous matter into consideration, when it relied upon its Own personal investigation, while arriving at the conclusion that the petitioner was guilty of misconduct alleged against him & in imposing a punishment of with holding two grade increments and that too with cumulative effect. It is difficult in these circumstances to visualize as to how far the mini of the disciplinary authority was influenced by the extraneous matters, which he found out from his own personal investigation and which went into his consideration while arriving at the finding against the petitioner in the course of the disciplinary proceedings.

6. Learned Additional Government Advocate relied upon a decision of their Lordships of the Supreme Court in Board of Mining Examination v. Ramjee : [1977]2SCR904 and urged that every minor infraction of the rule should not lead to an interference by this Court with the order passed during the disciplinary proceedings. The argument is acceptable in so far as it goes, but in the present case I am not convinced that the mind of the disciplinary authority was not at all affected by the alleged personal investigation, which he has himself referred to in his order Ex. R. 1. In the Board of Mining case : [1977]2SCR904 their Lordships of the Supreme Court have held that if the totality of the circumstances satisfy the Court that the party visited with adverse order has not suffered from denial of reasonable opportunity, the Court will decline to be punctilious or fanatical as if the rules of natural justice were sacred scriptures. There is no doubt that every minor infraction of the rules or even a slight non compliance of the rules of natural justice, which has not prejudiced the delinquent employee in his defence against the charges levelled against him, should not be made the basis of interference by this Court. However, in the present case we are left groping in the dark to imagine as to what extent the matters, which might have come to the knowledge of the disciplinary authority as a result of his personal investigation, influenced his decision in the disciplinary enquiry against the petitioner. On this ground alone I am of the view that the petitioner is entitled to succeed in this writ petition.

7. However, as the learned Counsel for the petitioner has argued some other points as well, I will like to deal with them also One ground which was raised by the learned Counsel was that the petitioner sought the assistance of another Government employee, namely, Umrao Maijalori but such assistance was not allowed to the petitioner. The reply of the respondents to this plea is that the alleged application for seeking the assistance of Jalori was not at all received by the disciplinary authority. There is no reason to disbelieve the statement made by the disciplinary authority on oath that he cid not receive the alleged application of the petitioner dated February 9, 1970 seeling premission to obtain the assistance of Umrao Mai Jalori in she enquiry proceedings. Thus no such application appears to have been moved by the petitioner before the disciplinary authority that he should permit the delinquent employee to take the assistance of another Government servant, as is provided in Rule 16 of the Rules and this objection cannot be permitted to be raised now.

8. Another submission made by the learned Counsel for the petitioner was that a curious procedure was adopted by the disciplinary authority in as much as the def nee witnesses were exrnined first and thereafter the departmental witnesses were examined. This submission alis cannot be accepted 10 view of the fact that in the order passed by the disciplinary authority (Ex. R. 1) it has been mentioned that the petitioner himself had requested the said authority that because his witnesses had come from outside, they may be examined Srst as they had to go and could rot stay for long. It the defence witnesses were examined first before the examination of the departmental witnesses on the express request of the petitioner, then he cannot mike any complaint, because such an extra-ordinary procedure seemed to have been followed in the present case only in order to accommodate the petitioner's request in the matter.

9. Yet another submission was made by the learned count el that copies of the statements of witnesses recorded during the preliminary enquiry were not supplied to the petitioner inspite of demand. The reply of the respondents in in this respect is two fold In the first instance, they submit this no statement of any witness was recorded daring the preliminary enqiiry or investigation and in the second place it has been urged that no application for supplying copies of such statements was received by the disciplinary authority. As the disciplinary authority has also given an affidavit in this respect, there is no reason not to accept the same.

10. However as a result of my finding on the first question, I hold that the disciplinary proceedings were vitiated from the stage of passing the order (Ex R. 1) b the disciplinary authority and consequently the aforesaid order and all the proceedings subsequent thereto are set aside The order of the appellate authority viz the Director of Insurance and the order passed by the State Government in review are also consequently set aside. The disciplinary authority would be at liberty to pass a fresh order in the disciplinary proceedings conducted against the petitioner, if he so decides, after serving a proper notice on the petitioner in respect thereof.

11. The writ petition is accepted, as indicated above. The parties are, however, left to bear their own costs.


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