Case: State of Rajasthan, Jaipur Vs. S. K. Dutt Sharma

KASLIWAL, J. This appeal by grant of special leave is directed against the judgment of the Division Bench of the High Court of Rajasthan dated February 7, 1990, reversing the judgment of the learned Single Judge 2. Shri S. K. Dutt Sharma, respondent herein was a Member of the Rajasthan Administrative Service since 1960. From June 1, 1966 to October 4, 1967 he was posted as Vikas Adhikari, Panchayat Samiti Bhadra in District Sriganganagar. A written complaint was lodged against the respondent to the Collector, Sriganganagar alleging misappropriation and illegalities in the purchase of French letters (condoms) by the Panchayat Samiti, Bhadra during the period of the posting of the respondent as Vikas Adhikari. The respondent was suspended on February 3, 1968 and a first information report was lodged with police against the respondent on September 25, 1968 and the matter was also referred to the Anti-corruption Department for taking necessary action. The Anti-corruption Department suggested that action be taken against the respondent departmentally and as such the respondent was served with a charge-sheet on April 29, 1972. The disciplinary authority after considering the report of the Enquiry Officer served a show-cause notice dated September 14, 1977 on the respondent informing him that the State Government had provisionally decided to dismiss the respondent from service and he was required to show cause against the said action. The respondent submitted his representation against the report of the Enquiry Officer. The representation submitted by the respondent was referred to the Public Service Commission which after considering the entire matter recommended the removal of the respondent from service. The disciplinary authority then passed a detailed order dated September 21, 1978 and after recording his finding on each charge and considering the recommendation of the Public Service Commission imposed a penalty of removal from service 3. The respondent filed a writ petition under Article 226 of the Constitution in the High Court challenging the aforesaid order of removal from service. The learned Single Judge by his order dated April 3, 1986 dismissed the writ petition. On an appeal filed by the respondent, learned Division Bench of the High Court allowed the appeal, set aside the judgment of the learned Single Judge as well as the order of removal from service passed by the disciplinary authority and gave the following direction "The appellant shall be allowed inspection of documents mentioned in the three lists (Annexure 5) and will be allowed to file any additional reply, if he so desires. The department shall be at liberty to call for any of the witnesses, whose affidavits have been filed by the appellant for cross-examination. The parties would be at liberty to adduce additional oral and documentary evidence. The appellant shall also be allowed to be represented by a legal practitioner. The Enquiry Officer shall submit his report in the light of the entire evidence and material which has come on record. It is further directed that the disciplinary authority shall conclude the enquiry as far as possible within a period of nine months from the date of this order. It is directed that the appellant shall present himself before the disciplinary authority on February 14, 1990 at 10 a.m." * 4. The State of Rajasthan aggrieved against the aforesaid order of the learned Division Bench has come in appeal before this Court. We have heard learned counsel for the parties and have thoroughly perused the record. The disciplinary authority after considering in detail the evidence relating to the various charges recorded its finding on each charge. As regards charge No. 1, the disciplinary authority held that the department had failed to establish the first part of the said charge that French letters were not actually purchased by the petitioner (respondent before this Court). The disciplinary authority, however, found that second part of the charge of overwriting and interpolations in the record was established and there was sufficient evidence on the record to prove that there was no firm bearing the name M/s. M. R. & Company at Bhadra or at Shahdara, Delhi and someone had arranged the supply of French letters in the name of a bogus firm and from the evidence on record it was established that the petitioner was aware of this fact and if this had not been so, the petitioner would not have become party to this scandal by actively associating himself in making overwriting/interpolations on the record. The disciplinary authority also found that the third part of this charge, namely, the petitioner made payment for French letters at 98 paise per piece whereas the prevalent market price during the relevant period was only 20 paise per piece was also established from the evidence on record and that an avoidable loss to the extent of Rs. 10, 000 was caused to the Panchayat Samiti. Charge No. 4 was also found fully established against the petitioner inasmuch as in making payment by cash, instead of cheque, the had contravened the provisions of the Rule 15 of the Rajasthan Panchayat Samiti and Zila Parishad (Finance, Accounts and Budget) Rules, 1959. The contention was raised before the learned Single Judge that the petitioner was not allowed inspection of the relevant documents which were necessary for the purpose of preparing his statement of defence. Learned Single Judge observed that there was no substance in the aforesaid submission because the letter (Annexure 7) dated September 1, 1972 showed that the petitioner had completed the inspection of the record in the Anti-corruption Department on June 2, 1972 which is also borne out by the letter dated June 12, 1972 addressed by the Deputy Inspector General of Police, Anti-corruption Department to the Secretary to the Government of Rajasthan, Appointments Department. Learned Single Judge further observed that Shri Singhi, learned counsel for the petitioner was unable to show the relevance of the other records mentioned in the letter (Annexure 5) dated July 11, 1972 in the subject-matter of enquiry 5. Another contention raised on behalf of the petitioner was that he was not permitted to engage a legal practitioner to represent him during the course of the inquiry, though the departmental nominee was a person in the rank of Deputy Superintendent of Police in the Anti-corruption Department and had remained Prosecuting Inspector for a number of years. It was contended that such action was in violation of sub-rule (5) of Rule 16 of the Rajasthan Civil Services (Classification, Control, and Appeal) Rules, 1958. The learned Single Judge in this regard held that in the present case, the case of the petitioner was that the departmental nominee in the inquiry proceedings was Shri D. C. Malik who had remained Prosecuting Inspector for a number of years, but at the time when the inquiry was held, he was holding the post of Deputy Superintendent of Police and was not Prosecuting Inspector. The request of the petitioner for engaging a lawyer was declined for the reason that no lawyer was appearing on behalf of the department. Learned Single Judge thus held that strictly speaking the petitioner could not ask for the assistance of a legal practitioner under sub-rule (5) of Rule 16, because the departmental representative was neither a legal practitioner nor a Police Prosecutor or Prosecuting Inspector. Learned Single Judge also noted that the petitioner was told that he should take the assistance of a government servant who may be in the service of the Rajasthan Government. The petitioner did not choose to exercise the said right and pleaded his own case. It was further noted that from the application that was submitted by the petitioner during the course of the inquiry, the petitioner was found to be a person well versed in law as well as legal decisions. Learned Single Judge also noted that from a persual of the statements of some of the witnesses filed as Annexures 18, 19 and 20 to the writ petition, it was clear that the said witnesses had been cross-examined by the petitioner at length. Learned Single Judge also observed that in the present case the main question which had to be considered during the course of inquiry was as to whether M/s. M. R. & Company was a genuine firm or a bogus firm and the rates at which the French letters were purchased were higher than the market rate or not. Thus, taking into consideration the entire facts and circumstances of the case, learned Single Judge was of the opinion that it could not be said that the petitioner had suffered any prejudice on account of refusal on the part of the authorities to permit the petitioner to engage a legal practitioner to defend him 6. Another contention raised before the learned Single Judge was that there was a contravention of the provisions of sub-rule (6)(a)(i) of Rule 16 which provided that the evidence of any person being of formal character may be given by affidavit. It was contended that the petitioner had submitted the affidavits of a number of persons to prove that M/s. M. R. & Company existed at Bhadra, but the same were wrongly excluded from consideration by the Enquiry Officer as well as the disciplinary authority on the ground that the deponents were not subjected to cross-examination. Learned Single Judge brushed aside the said contention also and held that the Enquiry Officer had taken note of (sic the affidavit of) Padam Singh which was filed as Exhibit D-16 and did not find the same worthy of acceptance on the basis of the evidence that was produced by the department to prove that there was no firm in the name of M/s. M. R. & Company either at Shahdara, Delhi or at Bhadra. Learned Single Judge also observed that the Enquiry Officer had considered the evidence of Subhash Chandra Mittal, Padam Singh and Mahavir Prasad, but had not treated the said evidence as credible for the reason that there was no firm in the name of M/s. M. R. & Company in Bhadra or in Shahdara, Delhi 7. On appeal, the learned Division Bench set aside the findings of the learned Single Judge on all the aforesaid three contentions and passed an order setting aside the order of the learned Single Judge as well as the disciplinary authority and remanded the case with the direction as already mentioned above. In our view, the learned Division Bench wrongly decided the aforesaid points and there was no justification to remand the matter in the facts and circumstances of the case. Learned Division Bench on the first contention took the view that the petitioner was not given an opportunity to inspect all the relevant documents to enable him to prepare the proper defence regarding the charges levelled against him. It has been observed in this regard that several documents were mentioned in the three lists of Annexure 5 and the same were not included in the file of Anti-corruption Department. It was contended before us that the inspection of all the documents mentioned in the three lists of Annexure 5 were not allowed and as such the petitioner was prejudiced in defending his case. We find no force in this contention. Learned counsel for the respondent was unable to show the relevance of any of the documents of which inspection was not allowed with the charges framed. We have also gone through the report of the Enquiry Officer placed on record in which the finding has been recorded in detail that no such company by the name of M/s M. R. and Company ever existed at any period of time at Bhadra or at Shahdara, Delhi. We were prepared to consider such request even now if the respondent could show any material regarding the existence of M/s M. R. and Company at any place, but the respondent was unable to show any such material and in these circumstances we do not find that any injustice or prejudice has occasioned to the respondent in defending his case. It was merely a ruse for remanding the case and the learned Division Bench did not go to the substance of the matter 8. As regards the objection that the respondent was not afforded an opportunity to engage a legal practitioner, suffice to say that Shri D. C. Malik, the departmental nominee was not a legal practitioner nor a Prosecuting Inspector at the relevant time. Further, the charges against the respondent were not of such nature that he could not defend them himself or through the departmental representative whose assistance was offered to him but which assistance he declined. We agree with the finding and conclusion arrived at by the learned Single Judge in this regard 9. We also find no force in the contention that the Enquiry Officer and the disciplinary authority did not take into consideration the affidavits of some witnesses filed on behalf of the respondent on the ground same could not be taken into consideration without an opportunity of producing the said witness for cross-examination. The evidence on the question whether the firm of M/s M. R. & Company existed at Bhadra or not was not of a formal nature. In fact, it was a crucial point for consideration. The respondent had relied on the affidavit of Padam Singh in order to show that he was running the firm in the name of M/s M. R. & Company at Bhadra, but the same after consideration had been rightly discarded by the Enquiry Officer on adequate reasons given in the report placed on record. In these circumstances, we find that there was no ground or justification for the Division Bench to send the matter back for fresh inquiry 10. It was further submitted before us that the respondent was suspended as back as on February 3, 1968 and was dismissed from service by order dated September 21, 1978 and is now going to attain the age of superannuation in 1994 and has suffered the agony of the long protracted disciplinary proceedings as well as the litigation in the High Court and this Honble Court. It has been contended that the respondent after passing his LL.B. examination is now engaged in writing law books and is author of a large number of law books on local laws of Rajasthan which have been published during the intervening period. It has been submitted that the respondent may at least be given some relief by way of pension even if he is not held entitled to any back wages

Decision:
0[ds]We have heard learned counsel for the parties and have thoroughly perused the record. The disciplinary authority after considering in detail the evidence relating to the various charges recorded its finding on each charge. As regards charge No. 1, the disciplinary authority held that the department had failed to establish the first part of the said charge that French letters were not actually purchased by the petitioner (respondent before this Court). The disciplinary authority, however, found that second part of the charge of overwriting and interpolations in the record was established and there was sufficient evidence on the record to prove that there was no firm bearing the name M/s. M. R.Company at Bhadra or at Shahdara, Delhi and someone had arranged the supply of French letters in the name of a bogus firm and from the evidence on record it was established that the petitioner was aware of this fact and if this had not been so, the petitioner would not have become party to this scandal by actively associating himself in making overwriting/interpolations on the record. The disciplinary authority also found that the third part of this charge, namely, the petitioner made payment for French letters at 98 paise per piece whereas the prevalent market price during the relevant period was only 20 paise per piece was also established from the evidence on record and that an avoidable loss to the extent of Rs. 10, 000 was caused to the Panchayat Samiti. Charge No. 4 was also found fully established against the petitioner inasmuch as in making payment by cash, instead of cheque, the had contravened the provisions of the Rule 15 of the Rajasthan Panchayat Samiti and Zila Parishad (Finance, Accounts and Budget) Rules, 1959.The contention was raised before the learned Single Judge that the petitioner was not allowed inspection of the relevant documents which were necessary for the purpose of preparing his statement of. Learned Single Judge observed that there was no substance in the aforesaid submission because the letter (Annexure 7) dated September 1, 1972 showed that the petitioner had completed the inspection of the record in then Department on June 2, 1972 which is also borne out by the letter dated June 12, 1972 addressed by the Deputy Inspector General of Police,n Department to the Secretary to the Government of Rajasthan, Appointments Department. Learned Single Judge further observed that Shri Singhi, learned counsel for the petitioner was unable to show the relevance of the other records mentioned in the letter (Annexure 5) dated July 11, 1972 in ther of enquiryThe learned Single Judge in this regard held that in the present case, the case of the petitioner was that the departmental nominee in the inquiry proceedings was Shri D. C. Malik who had remained Prosecuting Inspector for a number of years, but at the time when the inquiry was held, he was holding the post of Deputy Superintendent of Police and was not Prosecuting Inspector. The request of the petitioner for engaging a lawyer was declined for the reason that no lawyer was appearing on behalf of the department. Learned Single Judge thus held that strictly speaking the petitioner could not ask for the assistance of a legal practitioner undere (5) of Rule 16, because the departmental representative was neither a legal practitioner nor a Police Prosecutor or Prosecuting Inspector. Learned Single Judge also noted that the petitioner was told that he should take the assistance of a government servant who may be in the service of the Rajasthan Government. The petitioner did not choose to exercise the said right and pleaded his own case. It was further noted that from the application that was submitted by the petitioner during the course of the inquiry, the petitioner was found to be a person well versed in law as well as legal decisions. Learned Single Judge also noted that from a persual of the statements of some of the witnesses filed as Annexures 18, 19 and 20 to the writ petition, it was clear that the said witnesses had beend by the petitioner at length. Learned Single Judge also observed that in the present case the main question which had to be considered during the course of inquiry was as to whether M/s. M. R.Company was a genuine firm or a bogus firm and the rates at which the French letters were purchased were higher than the market rate or not. Thus, taking into consideration the entire facts and circumstances of the case, learned Single Judge was of the opinion that it could not be said that the petitioner had suffered any prejudice on account of refusal on the part of the authorities to permit the petitioner to engage a legal practitioner to defend himLearned Single Judge brushed aside the said contention also and held that the Enquiry Officer had taken note of (sic the affidavit of) Padam Singh which was filed as Exhibit6 and did not find the same worthy of acceptance on the basis of the evidence that was produced by the department to prove that there was no firm in the name of M/s. M. R.Company either at Shahdara, Delhi or at Bhadra. Learned Single Judge also observed that the Enquiry Officer had considered the evidence of Subhash Chandra Mittal, Padam Singh and Mahavir Prasad, but had not treated the said evidence as credible for the reason that there was no firm in the name of M/s. M. R.Company in Bhadra or in Shahdara, Delhi7. On appeal, the learned Division Bench set aside the findings of the learned Single Judge on all the aforesaid three contentions and passed an order setting aside the order of the learned Single Judge as well as the disciplinary authority and remanded the case with the direction as already mentioned above. In our view, the learned Division Bench wrongly decided the aforesaid points and there was no justification to remand the matter in the facts and circumstances of the case. Learned Division Bench on the first contention took the view that the petitioner was not given an opportunity to inspect all the relevant documents to enable him to prepare the proper defence regarding the charges levelled against him. It has been observed in this regard that several documents were mentioned in the three lists of Annexure 5 and the same were not included in the file ofn Department. It was contended before us that the inspection of all the documents mentioned in the three lists of Annexure 5 were not allowed and as such the petitioner was prejudiced in defending his case. We find no force in this contention. Learned counsel for the respondent was unable to show the relevance of any of the documents of which inspection was not allowed with the charges framed. We have also gone through the report of the Enquiry Officer placed on record in which the finding has been recorded in detail that no such company by the name of M/s M. R. and Company ever existed at any period of time at Bhadra or at Shahdara, Delhi. We were prepared to consider such request even now if the respondent could show any material regarding the existence of M/s M. R. and Company at any place, but the respondent was unable to show any such material and in these circumstances we do not find that any injustice or prejudice has occasioned to the respondent in defending his case. It was merely a ruse for remanding the case and the learned Division Bench did not go to the substance of the matter8. As regards the objection that the respondent was not afforded an opportunity to engage a legal practitioner, suffice to say that Shri D. C. Malik, the departmental nominee was not a legal practitioner nor a Prosecuting Inspector at the relevant time. Further, the charges against the respondent were not of such nature that he could not defend them himself or through the departmental representative whose assistance was offered to him but which assistance he declined. We agree with the finding and conclusion arrived at by the learned Single Judge in this regard9. We also find no force in the contention that the Enquiry Officer and the disciplinary authority did not take into consideration the affidavits of some witnesses filed on behalf of the respondent on the ground same could not be taken into consideration without an opportunity of producing the said witness for. The evidence on the question whether the firm of M/s M. R.Company existed at Bhadra or not was not of a formal nature. In fact, it was a crucial point for consideration.The respondent had relied on the affidavit of Padam Singh in order to show that he was running the firm in the name of M/s M. R.Company at Bhadra, but the same after consideration had been rightly discarded by the Enquiry Officer on adequate reasons given in the report placed onrecord.In these circumstances, we find that there was no ground or justification for the Division Bench to send the matter back for fresh inquiry