In the High Court of Judicature for Rajasthan Jaipur Bench Civil Writ Petition No.4633/2000 [ENTITY] Versus [ENTITY] & Ors Date of Order 11/10/2011 /Reportable/ Hon'ble Mr. Justice [ENTITY] Mr. SS Shekhawat for Mr. [ENTITY], for petitioner Mr. [ENTITY], Addl.Govt. Counsel for respondents.
Instant petition has been filed assailing penalty of dismissal from service inflicted vide order dt.02/06/2000 (Ann.7) pursuant to disciplinary inquiry initiated vide memo of charge dt.12/03/1997 (Ann.1) U/[SECTION] of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 ("[ACT]") affirmed by appellate authority dismissing appeal vide order dt.05/08/2000 (Ann.9).
Petitioner joined service on the post of Patwari in the year 1979 and remained posted as Patwari in Patwar Mandal Narayanpur Tatwara Tehsil Gangapur (Sawai Madhopur) for the period from 29/09/1989 to 04/08/1993. After almost two years of he being transferred from Patwar Mandal Narayanpur Tatwara, a complaint was made by complainant ([ENTITY] s/o [ENTITY] R/o Vill. Tatawara) on 28/07/1995 (Ann.2) that petitioner came to his residence on 15/03/1992 and advised that Rs.27,000/- could be sanctioned in his favour under Government Scheme Jevandhara, for digging/ construction of a well, and for allotment of Two & half bigha out of Pasture land situated nearby his agricultural land; and in lieu thereof, petitioner demanded illegal gratification of Rs.2800/- and that was paid to him but has failed to refund.
On the complaint (supra), cognizance was taken by the Collector and some preliminary inquiry, as alleged was held - in course whereof, he was never called upon at any stage; however, charge sheet dt.12/03/1997 U/[SECTION] of [ACT] was served along with statement of allegations (Ann.1) ad infra:
" 01 2800 0 ? ?
After reply to the charge sheet was submitted on 22/04/1998 (Ann.3), inquiry officer was appointed and after recording of evidence of departmental witnesses but without reasonable opportunity of cross examination being afforded to the delinquent petitioner and an opportunity to lead evidence in defence thereof, the inquiry report was submitted by inquiry officer on 10/03/1999 which was served upon the petitioner pursuant to which he submitted reply on 25/10/1999 and appeared for personal hearing on 29/11/1999 but his written objection to the inquiry report was not considered and disciplinary authority finally held him guilty of misconduct and inflicted penalty of dismissal from service vide order dt.02/06/2000 (Ann.7) against which he preferred departmental appeal (Ann.8) raising all objections with respect to contradictions in statements of departmental witnesses apart from the fact that he was not afforded opportunity of cross examining witnesses at the stage of preliminary /disciplinary inquiry, causing prejudice to him, but his appeal was dismissed by appellate authority vide order dt.05/08/2000 - copy whereof was endorsed vide letter dt.21/08/2000 (Ann.9).
It is relevant to record that the proceedings drawn in course of inquiry, (Ann.10) discloses that apart from other date of inquiry proceedings, the delinquent was present almost on all dates (03/12/1997, 23/12/1997, 22/04/1998, 18/08/1998, 28/09/1998, & 07/01 1999) except on few dates. After the reply was filed, on two dates, adjournment was sought by departmental representative for placing list of witnesses, and it being submitted on 21/07/1998, inquiry was fixed for recording statements of departmental witnesses on 18/08/1998 but neither the witnesses nor departmental representative was present on 18/08/1998, 28/09/1998, 08/12/1998, 07/01/1999, as a result whereof, the departmental witnesses could not be examined. However, delinquent for his personal reasons could not remain present on 28/01/1999 and the inquiry officer ordered to proceed ex parte against delinquent and in his absence, statement of [ENTITY]-complainant was recorded while statements of two other witnesses ([ENTITY] & [ENTITY]) were recorded on 17/02/1999 without affording opportunity for cross examining them and opportunity to the petitioner to lead evidence in support of his defence and ultimate fact remains that since reasonable opportunity either regarding cross examination of departmental witnesses or for leading evidence in defence was not afforded to the delinquent and disciplinary inquiry practically remained ex parte against him.
Counsel for petitioner submits that the finding recorded by inquiry officer cannot be sustained and inquiry, itself, was held in utter violation of principles of natural justice; inasmuch as, there was no evidence worthy name to sustain the charge against delinquent (petitioner) and that being so, findings recorded are perverse particularly as no reasonable person could have come to such findings based on evidence led on record, which may hold the petitioner guilty.
Counsel further submits that complaint was filed on 28/07/1995 (Ann.2) relating to alleged incident of 15/02/1992 much after years of his transfer, which depicts that the inquiry was initiated with an oblique motive to punish the petitioner and which has caused great prejudice to him, and this fact was not taken note of that the complaint was made after two years of his transfer and the allegations imputed against him were based on surmises/ conjectures and there was no material to establish allegations to connect the charge on record so as to hold him guilty of misconduct and if such belatedly lodged complaints are being entertained and cognizance are taken by the authority, no officer will be able to discharge his duties without fear under the law.
Per contra, Counsel for respondents submits that inquiry was held in consonance with principles of natural justice and in course of inquiry, ample opportunity was afforded to the petitioner to defend himself; and as regards departmental evidence, Counsel contends that complainant & two other witnesses were produced by the department all have corroborated the statements alleging in regard to illegal gratification paid to the petitioner at the residence of complainant in the presence of [ENTITY] & [ENTITY]; and the petitioner was aware of the dates of inquiry proceeding fixed by inquiry officer and despite that, no application was submitted by him seeking adjournment; that being so, inquiry officer was justified in proceeding ex parte against him and that apart, opportunity was afforded after copy of inquiry report was served by disciplinary authority besides personal hearing being afforded. In such circumstances, no error was committed either by disciplinary authority or appellate authority while passing the orders impugned herein.
Government Counsel further submits that scope of judicial review in disciplinary proceedings under writ jurisdiction is very limited and this court would not function as a Court of appeal to re-examine & re-appreciate the evidence on record and substitute its conclusion in place of the findings arrived at in course of inquiry & affirmed by disciplinary authority assigning reasons thereof.
This Court has considered rival contentions made by Counsel for parties and with their assistance, examined material on record. Scope of judicial review in disciplinary proceedings have been examined and settled by Apex Court in a number of judgments. No doubt, it is true that this Court in its limited scope of judicial review U/[SECTION] of the [ACT] is not supposed to alter the findings recorded either by inquiring or disciplinary authority as a matter of course. It is indeed that this Court can also not sit in appeal over those findings and assume the role of appellate authority; but it does not mean that in no circumstances, the Court can not interfere or it would not preclude this Court to invoke jurisdiction U/[SECTION] of the [ACT] and can interfere with the conclusion if there is no evidence to support the findings or the findings recorded were such as could not have been arrived at and acceptable to a man of an ordinary prudence or the findings are perverse or may not be legally sustainable in the eye of law. In Nand Kishore Vs. [ENTITY] of Bihar (AIR 1978 SC 1277 = (1978) 3 SCC 366 = 1978 (3) SCR 708) it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and therefore it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence that too with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic inquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse.
In [PRECEDENT], Apex Court observed ad infra:
6. It is no doubt true that the High Court under [SECTION] or this Court under [SECTION] would not interfere with the findings recorded at the departmental enquiry by disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings & assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the [ACT] takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.
Scope of judicial review regarding findings recorded by disciplinary authority in domestic/ disciplinary inquiry has been re-stated by Apex Court in recent judgment in [ENTITY] Bank of Bikaner & Jaipur Vs. Nemi Chand Nalwaya (2011(4) SCC 584) and observed ad infra:
6. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental inquiries. Therefore, courts will not interfere with findings of fact recorded in departmental inquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (vide [PRECEDENT], [PRECEDENT], and [PRECEDENT], High Court of Judicature at Bombay vs. Shahsi Kant S Patil - 2001 (1) SCC 416).
In view of what has been observed (supra), it is trite that the findings recorded in a domestic inquiry can be characterized as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person with ordinary prudence could have come to those findings on the basis of that evidence.
In the instant case, the petitioner remained posted as Patwari in Patwar Mandal Narayanpur Tatwara Tehsil Gangapur (Sawai Madhopur) from 29/09/1989 to 04/08/1993 while complaint was filed by [ENTITY] (complainant) on 28/07/1995 (Ann.2) that petitioner came to his residence on 15/03/1992 to get Rs.27,000/- sanctioned in his favour under Government Scheme Jevandhara, for digging/construction of a well, and for allotment of Two & half bigha out of Pasture land situated nearby his agricultural land; however, petitioner demanded illegal gratification of Rs.2800/- and that was paid to him. It was no where mentioned in the complaint initially made on 28/07/1995 that payment of amount alleged to have been made of Rs.2800/- to the delinquent in the presence of either [ENTITY] (his bother) or any one else.
It is relevant to record that though in memo of charges, it was alleged that the complaint was made regarding payment of bribe of Rs.2800/- at his residence in the presence of [ENTITY] & [ENTITY] but in course of inquiry while statements were recorded of [ENTITY] & [ENTITY] who happens to be real brothers & one [ENTITY] who was neither named by complainant in his complaint nor in the memo of charge dt.12/03/1997 about his presence, claiming to be independent witness.
But at the stage of inquiry initiated, complainant in his statement recorded on 28/01/1999 nowhere deposed as to when the petitioner came to his residence and demanded alleged gratification but deposed that the petitioner told that he would get Rs.35,000/- sanctioned in his favour under the Government Scheme Jeevandhara for digging/ construction of a well and for allotment of two & half bighas of pasture land nearby his agricultural land and for which the petitioner initially demanded a bribe of Rs.3,000/- which was settled at Rs.2800/- and was paid to him in cash in presence of [ENTITY] S/o [ENTITY] & [ENTITY] s/o [ENTITY]. However, when statement of [ENTITY] (Pw2) was recorded on 17/02/1999, it was deposed that complainant made payment of alleged bribe of Rs.2800/- in his presence & [ENTITY] but he specifically deposed that he is not the brother of complainant ([ENTITY]) but both of them belong to same village; and this fact was found to be false and the finding was recorded by inquiry officer that the complainant [ENTITY] & [ENTITY] both are real brothers. [ENTITY]ment of [ENTITY] was recorded on 17/02/1999, who was neither named in the initial complaint made on 28/07/1995 nor in memo of charge dt.12/03/1997 nor in the statements of the complainant recorded on 28/01/1999 & so-called independent witnesses came to be recorded behind the back of the petitioner which was in violation of principles of natural justice.
There are apparent material contradictions as to what was referred to in the allegations initially imputed in the complaint and the memo of charge, itself, and so also in the statements of the complainant recorded in course of inquiry, as discussed above. In fact there was no sufficiency of evidence available on record by which it could be elicited to connect the delinquent to the charges imputed.
All these factors were pointed out by the petitioner in details after the copy of inquiry report was served upon him but the disciplinary authority has completely brushed aside all the apparent contradictions in the charge sheet & statements of departmental witnesses; besides the fact which remains completely unnoticed that there was no application ever submitted by complainant or pending in course of his posting as Patwari inasmuch as petitioner was not the officer who had to process either for sanction of amount under Government scheme of Jeevandhara or for allotment of pasture land to the members of BPL card holders.
It was further pointed out by the petitioner that upto 04/08/1993, neither complainant was holding khatedari rights over any land nor he was selected as member of BPL card holder for the purposes of allotment of pasture land or sanction of the amount under Jevandhara Scheme. All these relevant factors were neither considered by disciplinary authority nor it was taken note of that barring few dates, delinquent appeared on almost all dates in course of inquiry as is evident from inquiry proceedings (Ann.10); but either time was sought for recording statement of departmental witnesses or Presenting Officer remain absent and for one or other reasons, the inquiry was adjourned but not at the behest of the delinquent and only on the date of inquiry (28/01/1999), for his personal reasons, when he was not present, inquiry proceeding were ordered to be exparte against him and statements of departmental witnesses were recorded of complainant & other two witnesses on 28/01/1999 & 17/02/1999 out of whom one who was claimed to be independent witness was neither named in the initial complaint nor in the memo of charge nor by the complainant in his statement recorded on 28/01/1999 and without affording fair opportunity for cross examining departmental witnesses and statement of witness in his defence was held guilty and punished with the penalty of dismissal from service and the procedure adopted by the respondent was not in conformity with the scheme of [ACT].
Apart from material contradictions in complaint, charge sheet & statements recorded in course of inquiry, denial of reasonable opportunity for cross examining departmental witnesses and for recording of statement in his defence being afforded, which the disciplinary authority failed to consider but the appellate authority has also failed to consider the justification and what was contended by the petitioner while upholding findings recorded by disciplinary authority while order of appellate authority running in several pages but is completely a reiteration of procedure of inquiry, but the submissions & objections raised by him regarding procedure of inquiry adopted by inquiry/disciplinary authority has not been examined while rejecting his appeal vide order impugned dt.05-21/08/2000 (Ann.9).
Moreover, material fact having not been noticed by disciplinary/appellate authority was that a man having no role to play at any stage and the complainant having no khatedari rights over any land upto 04/08/1993 who was not selected as member of BPL card holder, who could be considered for allotment of pasture land and sanction of amount under Government Scheme of Jevandhara for digging a well, there was no application ever being submitted by complainant or pending and the fact that alleged incident of petitioner having come to the residence of complainant on 15/03/1992 and for the first time, complaint was made on 28/07/1995 (Ann.2) after three years of the incident with no supporting evidence, all these material & relevant facts were neither considered by disciplinary authority and after reproduction of what was noticed by the disciplinary authority in its order, appellate authority also dismissed his appeal.
In view of what has been taken note of (supra) from the material on record, in the opinion of this Court, procedure followed in course of disciplinary inquiry was in clear violation of principles of natural justice and the petitioner has not been afforded reasonable opportunity of hearing and that apart, this Court is also of the considered view that these apparent material contradictions details whereof have been discussed (supra), the finding recorded by disciplinary authority are wholly perverse and no man of ordinary prudence could uphold such findings recorded based on no evidence and there was no sufficiency of evidence available on record which could link the charged officer with misconduct imputed against him and the finding of guilt which has been recorded in the the facts & circumstances is patently perverse and the inquiry was a complete farce and deserves to be quashed.
However, this Court after having examined procedure followed by the authority provided U/[SECTION] of [ACT], concluded that right of cross examination was denied to the delinquent in course of inquiry and if it would have been a case of denial of principles of natural justice, the inquiry was to be reverted back to the stage from where there was violation of principles of natural justice being noticed but since the finding has been recorded by this Court holding that there is no evidence on record which could hold the delinquent (petitioner) guilty and there were apparent material contradictions and the finding of guilt being perverse and not supported by evidence on record which a man of ordinary prudence could uphold, there appears to be no justification to remit the matter back to disciplinary authority for examining the matter from the stage of violation of principles of natural justice being committed and this Court is of the considered opinion that in totality of the facts on record, order of penalty passed by disciplinary authority and upheld by appellate authority from any count cannot be sustained in the eye of law and deserves to be quashed.
Since the petitioner has been deprived of his livelihood protected U/[SECTION] of the [ACT] on account of a faulty procedure adopted by disciplinary authority in a wholly capricious manner and it further appears that holding him guilty appears to be pre-determined and the procedure adopted by the authority was wholly arbitrary and could not be said to be in conformity with the mandate of law, this Court considers it appropriate that while setting aside order of punishment it is a case where delinquent must get consequential benefits having become due & admissible to him under law as if he would have been in service.
Consequently, writ petition succeeds & it is hereby allowed. Orders dt.02/06/2000 of disciplinary authority & dt.05/08/2000 of appellate authority are quashed & set aside. As a consequence thereof, respondents are directed to reinstate the petitioner in service with all consequential benefits flowing from this order having fallen. due and admissible under law. Respondents shall ensure compliance within two months. No costs. ([ENTITY]), J.
K.Khatri/p17/ 4633CW2KRsr11Oct.doc