1 HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B.Civil Writ Petition No. 4370 / 2010 Dr. [ENTITY] S/o Late Shri Gauri Vallabh Purohit, age 70 years, R/o C-50, Kamla Nehru Nagar, Extn-1, Jodhpur. Petitioner Versus 1. The [ENTITY] through Secretary, Department of Personnel (Group-III), Government Of Rajasthan, Jaipur. 2. The [ENTITY]. Respondents For Petitioner(s) : Mr. MR [ENTITY] Mr. [ENTITY] Mr. [ENTITY] For Respondent(s) : Ms. [ENTITY] HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment 20/01/20[SECTION] The petitioner has preferred this writ petition making the following relief:-
"It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction, order dated 30.09.1992 (Annex.7) whereby the petitioner has been removed from service and the communication dated 31.03.2010 whereby the petitioner's appeal has been rejected may kindly be quashed and set aside and the respondents may kindly be directed to give pensionary benefits admissible to him and the arrears of pension may also be paid to the petitioner with interest @ 24% per annum.
Any other appropriate wit, order or direction, which this Hon'ble Court may deem fit and appropriate in favour of the petitioner, in the facts and circumstances of the case, may also kindly be passed in the interest justice."
The brief facts as noticed by this Court in the petition are that the petitioner was appointed as Civil Assistant Surgeon on 12.01.1967 as he was having a qualification of MBBS and Post Graduation in Surgery. The petitioner was charged with the allegation of remaining absent form 14.12.1983 to [SECTION].06.1987. The charge-sheet could not be served upon the petitioner and therefore the same was published in [ENTITY] Times on 23.02.1991 whereby, the petitioner was directed to remain present for the inquiry within 30 days of receiving such notice. Even after such publication in [ENTITY] times the petitioner did not file any reply and also did not contest or defend his case for want of knowledge. Since the petitioner did not come to defend himself in spite of the publication of notice, the Disciplinary Authority proceeded ex-parte under [SECTION] of the [ACT]. While invoking and exercising such powers the disciplinary Authority terminated the services of the petitioner which was further approved by the RPSC and State Government. As per Para 9 of the writ petition, the petitioner did not get the copy of the impugned order until [SECTION].07.2009. It is further mentioned in ground g of the wit petition that the petitioner came to know about the impugned order only on 16.07.2009. He preferred an appeal under [SECTION] of the Rules of 1958 but the same was rejected in limine vide communication dated 31.03.2010. After such information of the termination order dated 30 th September 1992 and after dismissal of the appeal, the petitioner has challenged the same by way of this writ petition. The respondent s have filed a detailed reply and stated that the petitioner remained absent from duty from 14.12.1983 to [SECTION].06.1987 without any information and without any application for leave, therefore, Disciplinary proceeding was rightly initiated against the petitioner under [SECTION] of the Rules, 1958. It was also averred in the reply that since the charge-sheet was sent through Registered Post on the address of the petitioner available on record and also through the department and still the same could not be delivered therefore, a publication was made on 23.02.1991 in the [ENTITY] times. Since inspite of such publication, the petitioner did not remain present for defending himself, therefore, proceeding under [SECTION] of the [ACT] was undertaken. While invoking [SECTION] the services of the petitioner were terminated. The respondent in their reply to ground g have stated that the order of punishment could not be served upon the petitioner as he was not performing his duty in the disputed period and was was not present at the Head Quarter. It was also submitted that the petitioner preferred an appeal under [SECTION] of the [ACT] for the prescribed period and, therefore the order dated 31.03.2010 was grossly illegal. Counsel for the petitioner argued that the provision of [SECTION] of the Rules of 1958 was to be adopted only in extreme circumstances when in the inquiry it was not reasonably practical to follow the procedure prescribed in the said rules. Such reasons ought to have been recorded by the Disciplinary Authority. Counsel for the petitioner stated that since the order of punishment was admittedly not served upon him and was served by him only on 16.07.2009, therefore, the petitioner could not challenge the same within the prescribed period. Counsel for the petitioner has relied upon the judgment passed in [PRECEDENT] page 87. The relevant portion of the judgment is as follows:-
"13. We might make it clear that we do not mean to approve the petitioner's attitude, if he knowingly remained absent on the date or dates fixed by the Inquiry Officer. The inquiry Officer could certainly proceed ex parte if the petitioner did not care to appear before him on the date or dates fixed by him, but the ex parte proceedings do not mean that the finding should be recorded against the absentee without any kind of inquiry that is, without examining any evidence oral or documentary against him. If the Inquiry Officer had Ex. A-3 before him as asserted by the opposite parties, It was his duty to call the person who had recorded that statement and verify its correctness from him. That document should also have been put to the petitioner and an opportunity ought to have been given to him to explain the same. It would still be open for the non-petitioners to make a proper enquiry if it is considered desirable. What we mean to stress is, that the impugned order of dismissal against the petitioner cannot be maintained, because the findings against him are based on no evidence."
The counsel for the petitioner thus, submitted that the ex- parte proceedings do not mean that finding should be recorded against the absentee without examining the evidence orally or documentary against him.
The counsel for the petitioner further relied upon the judgment of [PRECEDENT], relevant portion of the judgment is as follows:-
"11. Rule lays down that where the Disciplinary Authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the rules, the Disciplinary Authority may consider such circumstances of the case and pass such orders thereon as it deems fit. The aforesaid rule is practically in similar terms as Proviso (b) to [SECTION] of the [ACT] and [SECTION] of the [ACT]. Proviso (b) to [SECTION] empowers the authority to dismiss or remove a person or to reduce him in rank when he is satisfied that for some reason to be written, it is not reasonably practicable to hold such an enquiry, the authority may dismiss or remove such a person or reduce him in rank. [SECTION] provides that where the Disciplinary Authority is satisfied for reasons to be recorded by it in writing that it is not reasonably practicable to hold an enquiry in the manner provided in the rules, the Disciplinary Authority may consider the circumstances of the case and make such others as it deemed fit. Thus, in both these provisions referred to above, it has been laid down that Disciplinary Authority has to record his reasons in writing as to why it is not reasonably practicable to follow the procedure prescribed for holding an enquiry and after recording the reasons the authority may dispense with the enquiry. The objection raised by Shri [ENTITY] that the Court cannot review the order of dispensation of the enquiry passed by the authority is not sustainable in view of the judgment of this Court in [PRECEDENT]. (supra) and the cases of the Supreme Court especially the cases of [PRECEDENT] (supra) and [PRECEDENT] (supra). In [PRECEDENT] (supra), the Supreme Court on the point of judicial review made the following observations:
The reasons must be germane to the issue and would be subject to a limited judicial review. xx xx xx Once the reasons are specified which are certainly subject to limited judicial review as in a writ for certiorari, the court would examine whether the reasons were germane to the issue or were merely a cloak, device or a pretence to dispense with the inquiry and to impose the penalty.
19. Coming back to the facts of the case. The ground on which the enquiry was dispensed with that it is not reasonable and practicable to hold an enquiry under normal procedure as reliable and independent witnesses are not willing to get themselves exposed in the enquiry for the obvious reasons. From the facts on record, there is nothing to indicate as to who are the independent witnesses and against them who exercised the threat. The ground, thus, appears to be far-fetched. Thus, in view of the proposition of law discussed above, we are of the opinion that the order dispensing with the enquiry cannot be sustained.
Further there is some force in the contention of Shri [ENTITY], learned Counsel for the petitioner that simply because the disciplinary authority took a decision for dispensing with the enquiry, that by itself would not be sufficient to pass an order of punishment against the delinquent. There must at least be some evidence to substantiate the charge against the delinquent employee."
The counsel for the petitioner referred to judgment of [PRECEDENT], relevant portion of judgment is as follows:-
"It was incumbent on the respondents to disclose to the Court the material in existence at the date of the passing of the impugned order in support of the subjective satisfaction recorded by respondent No.3 in the impugned order. [SECTION] can be invoked only when the authority is satisfied from the material placed before him that it is not reasonably practicable to hold a departmental enquiry. This is clear from the following observation at [SECTION]; (at p. 1479 of [PRECEDENT]) of [ENTITY]'s case:
"A Disciplinary authority is not expected to dispense with a disciplinary authority lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the department's case against the government servant is weak and must fail.
The decision to dispense with the department euquiry cannot, therefore, be rested solely on the ipse dixit of the concerned authority. When the satisfaction of the concerned authority is questioned in a Court of law, it is incumbent on those who support the order to show that the satisfaction is based on certain objective facts and is not the outcome of the whim or caprice of the concerned officer."
Counsel for the petitioner has relied upon the judgment of [PRECEDENT], relevant portion of judgment is as follows:-
"6. In their reply, the appellants justified the invoking of [SECTION] on the ground the respondent No.1 did not respond tot he notices issued by appellant No.3 and did not offer any explanation for his wilful absence from duty for a long period of more than 2 years.
12. We find that for application of [SECTION] in the background of [SECTION] of the Rules the basic requirement is that a conclusion has to be recorded that it is not reasonably practicable to hold the inquiry proceedings. Such a finding does not appear to have been recorded. Therefore, the views expressed by the CAT as affirmed by the High Court do not suffer from any infirmity."
The counsel for the petitioner relied upon the judgment of [PRECEDENT] is as follows:-
"16. In the aforesaid circumstances mentioned by the Competent Authority, there is no iota of allegations of terrorising, intimidating or threatening of any of the witnesses or Enquiry Officer of the Competent Authority nor is there a case that the petitioner was not available or was not attending the enquiry or it was not possible to serve the notice of the enquiry on him or he was absconding at the time of enquiry. This was merely a speculation of the Competent Authority based on no evidence whatsoever that no one would depose against the petitioner. The Competent Authority has not stated that the delinquent had ever been involved in a criminal case or charges had been framed against him by any competent criminal court or on what basis the authorities presumed that he was involved in the murder of [ENTITY] and destruction of evidence of his involvement. The caste feeling or the general feeling of the local people against the out-siders as well as the issue of demand of vehicle for Pulse Polio or endeavour by the delinquent for forming the employees association; going to Dehradun for bringing the Rules etc. for steam-lining the association, cannot constitute the basis for attracting the drastic provisions of [SECTION], non-conclusion of the enquiry by Mr. [ENTITY] in absence of any allegation of misbehaving by the delinquent with the Enquiry Officer or witnesses or the reason that enquiry cannot be held properly because the delinquent was holding the office of the Employees Association or to believe that nobody would depose against him merely because he is an office-bearer of the association, are totally irrelevant and extraneous consideration for passing such an order. Whether the Director is there temporarily or permanently or on a fixed tenure, has nothing to do with the circumstances which may give rise to a decision for not holding the enquiry as it was not "reasonably practicable" to do so. The drastic provisions cannot be said to be warranted in a case where the Competent Authority whimsically wants to use it for the purpose of teaching lesson to others. The words "reasonably practicable" would apply in a case where the authorities cannot, in a reasonable manner, put into practice the clauses in relation to an enquiry for the reason of certain facts and circumstances of that case, the authority cannot, in a reasonable manner, hold the enquiry even to assume that the authority was unable to adduce evidence against the delinquent due to his influence in the association, would not justify dispensing with the disciplinary proceedings and such an order has to be declared as unsustainable. Discretion of the authority to dispense with the departmental enquiry has to be exercised on objective assessment of the facts available on record of the case. The features of the instant case do not attract applicability of the provisions of [SECTION] at all and the impugned [SECTION] termination, without holding enquiry, stands vitiated being based on no material, rather based on extraneous consideration and irrelevant material and smacks of malafide and arbitrariness. "
The counsel for the petitioner referred to the judgment of [PRECEDENT] of which the relevant portion is as follows:-
"The first question which has been raised before us by Sri [ENTITY] is that though the respondent came to know about the order of his dismissal for the first time on 28 May 1951, the said order must be deemed to have taken effect as from 3rd June 1949 when it was actually passed. The High Court has rejected this contention; but Sri [ENTITY] contends that the view taken by the High Court is erroneous in law. We are not impressed by Sri [ENTITY]'s argument. It is plain that the mere passing of an order of dismissal would not be effective unless it is published and communicated to the officer concerned. If the appointing authority passed an order of dismissal but does not communicate it to the officer concerned, theoretically it is possible that unlike in the case of a judicial order pronounced in Court, the authority may change its mind and decide to modify its order.
It may be that in some cases, the authority may feel that the ends of justice would be met by demoting the officer concerned rather than dismissing him. An order of dismissal passed by the appropriate authority and kept with itself, cannot be said to take effect unless the officer concerned knows about the said order and it is otherwise communicated to all the parties concerned. If it is held that the mere passing of the order of dismissal has the effect of terminating the services of the officer concerned, various complications may arise. If before receiving the order of dismissal, the officer has exercised his power and jurisdiction to take decisions or do acts within his authority and power, would those acts and decisions be rendered invalid after it is known that an order of dismissal had already been passed against him ? Would the officer concerned be entitled to his salary for the period between the date when the order was passed and the date when it was communicated to him ? These and other complication would inevitably arise if it is held that the order of dismissal takes effect as soon as it is passed though it may be communicated to the officer concerned several days thereafter. It is true that, in the present case, the respondent had been suspended during the material period; but that does not change the position that if the officer concerned is not suspended during the period of enquiry, complications of the kind already indicated would definitely arise. We are, therefore, reluctant to hold that an order of dismissal passed by an appropriate authority and kept on its file without communicating it to the officer concerned or otherwise publishing it will take effect as form the date on which the order is actually written out by the said authority; such an order can only be effective after it is communicated to the officer concerned or is otherwise published. When a public officer is removed from service, his successor would have to take charge of the said office; and except in cases where the officer concerned has already been suspended, difficulties would arise if it is held that an officer who is actually working and holding charge of his office, can be said to be effectively removed from his office by the mere passing of an order by the appropriate authority. In our opinion, therefore, the High Court was plainly right in holding that the order of dismissal passed against the respondent on 3rd June 1949, could not be said to have taken effect until the respondent came to know about it on 28 May 1951. "
The Apex Court has said that order of dismissal would not be effective unless it is published and communicated to the officer concerned.
Counsel for the petitioner also relied upon the judgment of State of U.P. and Ors. Versus [ENTITY], reported in 2010 Vol.2 SCC, Page 772, relevant portion of judgment is as follows:-
"27. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge-sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge-sheet. Since the Government servant is absent, he would clearly lose the benefit of cross-examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer.
This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.
28. Enquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed.
Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.
29. Apart from the above by virtue of [SECTION] of the [ACT] the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee."
Thus, the counsel for the petitioner laid emphasis upon the requirement of completing the inquiry by taking proper oral and documentary evidence, even after the inquiry was ex-parte. It was also reiterated by the counsel for the petitioner that invocation of [SECTION] was to be done only in very rare of the rare circumstances and this was not a case where it was not reasonably practicable to follow the procedure prescribed in the said rules. More ever the Authority did not record the reasons in writing which made it so reasonably practicable for the inquiry to be conducted without adopting the procedure laid down in [SECTION], [SECTION] and [SECTION].
The counsel for the respondent emphatically argued that the petitioner has came to this Court after a delay of about [SECTION] years and since he was an educated person, it was expected out of him that he shall understand the gravity of law and submit himself for the procedure of law after the publication of the charge-sheet in the news-paper.
Counsel for the respondent argued that the petitioner has knowingly and willfully abandoned his services and without bothering about outcome of his absence he did not find out about the consequences of his remaining absent.
Counsel for the respondent argued that any prudent educated person would definitely make efforts to keep track of his services and this is a case of Res Ipsa locutor, where the facts itself indicate that the petitioner did not want to serve the respondents and, therefore, was rightly removed for voluntarily remaining absent for a long period from 4012.1983 to [SECTION].06.1987.
Counsel for the respondent also relied upon the judgment passed in Vinod Kumar Versus [ENTITY] reported in 1986 WLC page 550. The relevant portion of judgment is as follows:-
"5. Mr. [ENTITY] submits that even if the petitioner has not joined the enquiry it is open for the disciplinary Authority or the Enquiry Officer to proceed ex-parte. Learned counsel submits that there was no occasion to restoring to [SECTION]. The submission of the learned counsel does not appear to be well founded. In view of the provisions of [SECTION] a power has been conferred upon the Disciplinary Authority that if it is satisfied that is not reasonably practicable to follow the procedure prescribed under [SECTION] then the regular procedure can be dispensed with. Since in view of the special power conferred upon the disciplinary authority has dispensed with the regular enquiry as contemplated under [SECTION] then in that case it cannot be said that the exercise of the power by the disciplinary Authority under [SECTION] is bad in any respect. It is true that Enquiry Officer could have proceeded ex-parte with the enquiry without taking resort to [SECTION]. But if the vigilant disciplinary Authority has taken resort to [SECTION] on account of the peculiar circumstances of the case that the petitioner knowing fully well that he has been charge sheeted and several times notices were sent to his house and all the time report was received form the Police Station Bhirani that the petitioner was not available and the notices were left at the house of the petitioner. This only shows that the petitioner deliberately avoided the service of notice and did not cooperate with the Enquiry Officer and acted in the most grossly undisciplined manner. It is least expected from a disciplined force official to avoid service of notice and avoid to appear before the Enquiry Officer for one reason or the other and such conduct cannot be lightly condoned.
6. Mr. [ENTITY], learned counsel for the petitioner in this connection has invited my attention to the decisions of their Lordships of Supreme Court in the [PRECEDENT], [PRECEDENT]. (2); [PRECEDENT] (3) and [PRECEDENT] (4). All the cases cited by the learned counsel do not deal with situation in hand and the rules like [SECTION] of the Rules of 1958. Therefore, they do not provide any assistance to the learned counsel. Rather cases which are more relevant in the line is Union of India and Another vs. [ENTITY] Patel (5) and [PRECEDENT]. In these circumstances, their Lordships emphasised that the reason for dispensing with the enquiry can be obtained in the final order. The reason given by the disciplinary Authority is that the petitioner deliberately did not appear in the enquiry inspite of knowing fully well that enquiry is pending and deliberately absented from his house so as to avoid the enquiry."
By the judgment referred , counsel for the respondent fortified her argument that a person who does not appear inspite of notices or willfully avoids the Disciplinary proceedings can definitely be dealt with by invoking the [SECTION] Rules of 1958. This Court of the opinion that [SECTION] of the Rules of 1955 is an extra ordinary provision made for a circumstance when the inquiry is not reasonable, practicably and, therefore, it should be cautiously used. The [SECTION] is the extra ordinary power with the Disciplinary Authority to abandon the safety valve enshrined under [SECTION], [SECTION] and [SECTION] to protect the rights of the employees. The shield of protection as granted by the legislature in [SECTION], [SECTION] and [SECTION] cannot be lightly removed and has to be done only as a last resort. It is an admitted position of the respondents that they have not served the charge-sheet and the punitive order. The respondents were under an obligation to either make such efforts to complete the service of charge-sheet to bring it to the knowledge of petitioner so as to enable him to defend himself against the charges levelled. Even in case the ex-parte proceeding was found necessary then also a proper oral and documentary evidence should have been taken and a detailed factual matrix ought to have been established. Without establishing anything on merits of the case the simple recording in the order that the petitioner has been removed from service without saying anything on the merit of the charges shall be an extremely unfounded and illogical order. The impugned order passed by the Disciplinary Authority has merely said that the charge is grave and, therefore, the petitioner is removed form service. The recording of satisfaction regarding practicability to brush aside the procedure of [SECTION], [SECTION] and [SECTION] is also missing in the impugned order. More over it was within the hands of the Disciplinary Authority to have applied their mind independently and such application of mind ought to have been reflected in the impugned order which is not there in the present case. The case law cited by the counsel for the respondent is of Single Bench and the case law cited by the counsel for the petitioner is of Apex Court and Division Bench of this Court and, therefore, this Court is found to follow the precedent law laid down by the higher Court. The precedent law cited by the counsel for the petitioner makes it evident that any invocation of [SECTION] could not have been done merely in absence of the petitioner without recording the reasons for considering it so impracticable that the provisions of [SECTION], [SECTION], and [SECTION] could not be adopted. It is clear from the case law that it was an obligation upon the respondent to take oral and documentary evidence before arriving at any conclusion regarding the charges so levelled. In the light of the aforesaid discussion the writ petition is allowed and the order dated 30.09.1992 as well as order dated 31.03.2010 are quashed and set aside. The age of the petitioner is already about 77 years and the counsel for the petitioner has fairly conceded that the consequential benefits from the date of absence till the date of superannuation i.e. from 14.12.1983 to 31.10.1998 are foregone by the petitioner. Thus, the petitioner will not be entitled to receive any pay and allowances as a consequence to quashing of the impugned order dated 30.09.1992 to 31.03.2010 from 4.12.1983 to 31.10.1998.
However the respondents are directed to pay all the retiral and pensionary benefits to the petitioner while treating him to be in service on the notional basis from 4.12.1983 to 31.10.1998. The computation of the retiral benefits and grant of pension shall be completed within a period of three months from furnishing a certified copy of this order to the respondents.
(DR. [ENTITY] Ankita/92