CW 2455/96 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.2455/1996 Sajjan Singh Rajawat Versus Rajasthan Khadi & Gram Udyog Board Date of Order ::: 30/10//09 Hon'ble Mr. Justice Ajay Rastogi Mr. Shiv Kumar ) Mr. Rajeev Bandhu), for petitioner Mr. Arpit Sirvastava for Mr. AK Bajpai, for respondent Board. Instant petition has been filed assailing order dt.14/02/96 (Ann.10) whereby petitioner was inflicted with penalty of removal from service in reference to two charge sheets dt.01/10/93 (Ann.1) & dt.27/01/95 (Ann.9) served U/r 16 of Rajasthan Civil Services (Classification, control & Appeal) Rules, 1958 (“CCA Rules”). Petitioner, while holding post of Supervisor Gr.I (re-designated as Gram Udyog Prasar Adhikari) and posted at Mandalgarh (Bhilwara), was served with memo dt.01/10/93 alongwith charges & statement of allegations U/r 16 of CCA Rules. Pursuant to charge sheet (supra), petitioner submitted application on 27/10/93 seeking permission to inspect the record, enabling him to file reply thereto, But respondents failed to supply list of departmental witnesses & documents in support CW 2455/96 //2// of the charge sheet and further failed to pass an order on his application seeking inspection of the record – in absence whereof, he had no option but to submit his reply on 14/01/94, denying all the charges. Without examining his reply, respondents vide order dt.01/04/94 appointed Shri Ram Kishore Dy. Director as inquiry officer who took up the inquiry while fixing first date as 04/04/94 – intimation whereof was not given to petitioner but no proceedings had taken place and 2nd date was fixed of 05/04/94 which was also not informed by inquiry officer and only presenting officer orally informed on 05/04/94, itself, when departmental witnesses (Laluram Teli, Balu Chamar, Chandra, Ganesh & Gopal) were examined but he had no fair opportunity to cross examine them since petitioner was not made available list of witnesses & documents on which presenting officer wanted to place reliance and that apart, inspection of the record was not permitted which may enable to cross examine departmental witnesses. Thereafter inquiry was adjourned to 27th & 28th April, 1994 but on account of his unavoidable circumstances, petitioner could not attend inquiry on these dates, for which he sent CW 2455/96 //3// application for leave and also informed telegraphically that because of death of his father, he had to perform last rituals, he was on sanctioned leave from 15/05/94 to 01/06/94 but in the meanwhile, inquiry proceedings were conducted behind the back of delinquent and despite delinquent being on sanctioned leave - without taking note whereof statements of departmental witnesses namely Shyamlal Heeralal and Ram Chandra & Kalu were recorded. Statements of witnesses (Jeetmal, Smt.Prem, Shyamlal, Heera Lal) were recorded, which came to his notice only when he resumed duty after availing of sanctioned leave. After the evidence of department was closed on 20/07/94, statement of petitioner was recorded on 21/07/94 but thereafter again statements of departmental witnesses were recorded on 02/08/94, 03/08/94 & 19/08/94 – in course whereof, the procedure adopted by respondents, according to petitioner, was in violation of R.16 (6a) of CCA Rules. It has been further alleged that while statements of departmental witnesses recorded on 2nd, 3rd & 19th August, 1994 were being closed, petitioner was not allowed to cross examine them, rather was asked to put his CW 2455/96 //4// signature, on which he made an endorsement that statement was simply read over to him and in this regard, complaint was also made to the Joint Director, District Industries Centre, Ajmer on 25/08/94 about the procedure being adopted in course of inquiry for having not afforded opportunity of cross examination – specific reference whereof has been made in para 11 of memo of petition. At the conclusion of inquiry, inquiry officer prepared his report holding charges No.1, 3, 4 (in part) & 5 proved but charge No.2 not proved vide report dt.23/12/94 duly forwarded to the disciplinary authority vide letter dt.26/12/94 (Ann.12). At the same time, petitioner was further served with memo of charges U/r 17 of CCA Rules on 04/08/94. Immediately thereafter, petitioner submitted his reply on 10/08/94 denying all the charges imputed against him, which was sent to Shri RP Vijai Deputy Director District Industries Centre, Bhilwara seeking his report, who observed while examining reply of petitioner to the notice U/r 17 of CCA Rules, that allegations are of grave nature, therefore, regular inquiry U/r 16 of CCA Rules may be initiated against him CW 2455/96 //5// and on his opinion, memo U/r 17 was converted into charge sheet U/r 16 of CCA Rules which was served upon petitioner vide memo dt. 27/01/95 (Ann.7). It is relevant to mention that after service of 2nd charge sheet U/r 16 of CCA Rules, petitioner was called upon to submit his reply within fifteen days, alongwith list of documents & witnesses in support of his defence but before expiry of fifteen days and without waiting for the reply to the charge sheet, Shri RP Vijay who had earlier examined his reply in regard to the memo U/r 17 of CCA Rules and on whose opinion, inquiry U/r 17 was converted into charge sheet U/r 16 of CCA Rules, was appointed as inquiry officer vide order dt. 06/02/95 and Shri RP Vijay submitted his report of inquiry, which, however, disclosed that three notices were sent to the petitioner on 23/02/95, 09/03/95, 05/04/95 but he did not appear before inquiry officer; as such ex parte inquiry was conducted and finally inquiry officer held him guilty of all the charges on being found proved and report of inquiry dt.07/06/95 was forwarded on 21/06/95 (Ann.13) – copy whereof was not made available to him against which, representation CW 2455/96 //6// to the Chairman was submitted while endorsing a copy to the Secretary of the Khadi Board, as is evident from documents dt.15th, 18th & 20th March, 1996 (Ann.14 to 16), whereby he sought copy of inquiry report as well as other material on which inquiry officer placed reliance for holding him guilty of charges U/r 16 of CCA Rules, which were not supplied despite request being made. However finally disciplinary authority held the petitioner guilty under both the charge sheets holding proved against him, as a consequence whereof, inflicted penalty of removal from service vide order dt.14/02/1996 (Ann.10). Hence this petition. Reply has been filed by respondents wherein it has been averred in para 9 that in regard to first charge sheet served upon petitioner, statements of departmental witnesses were recorded on 05/04/94 in the presence of petitioner who refused to cross examine and on next dates (27/04/94, 28/04/94 & 31/05/94) and since he did not turn up, statements were recorded, in as much as he was informed vide registered letter dt. 11/05/94 about next date (30/05/94) still when he did not appear despite information, CW 2455/96 //7// statements of rest of departmental witnesses were also recorded. But the reply on behalf of respondents is completely silent in regard to application submitted by petitioner about the fact that he was on sanctioned leave from 15/05/94 to 01/06/94 on account of death of his father. It has also not been controverted that after statement of petitioner was recorded on 21/07/94, what was the justification of statements of departmental witnesses being recorded on 2nd, 3rd & 19th August, 1994. However, what has been averred in para 11 of the reply is that petitioner was informed about date of inquiry but since he failed to produce his witnesses in his defence; as such inquiry was conducted ex parte and next date was fixed – intimation whereof was sent to petitioner who again failed to cross examine witnesses. As regards 2nd inquiry initiated against petitioner, in the reply respondents inter-alia averred that registered notices were sent to the petitioner on 23/02/95, 09/03/95 & 05/04/95 and despite service whereof, since he failed to appear, ex parte inquiry proceedings were initiated and inquiry CW 2455/96 //8// officer found the charges proved against him. It has also been averred in the reply that petitioner preferred appeal before Chairman of Khadi Board, which was pending consideration atleast at the time of filing their reply on 26/09/1997. But the fate of the appeal has not been informed even till arguments were concluded. However, as regards specific averment made in para 18(b) of the writ petition, denial whereof in the reply is totally evasive. No doubt, reference has been made about departmental appeal against order of penalty impugned but at the time of filing the reply by respondents in September, 1997, since then almost 12 years have now rolled by and when the case was being taken up for final arguments, Counsel for respondents was not in a position to inform about fate of the said appeal either finally disposed of or not till date. Ordinarily this Court does not interfere in disciplinary matters, when statutory remedy of appeal is available and availed of but when appeal preferred by the employee is not decided within a reasonable time, the Court has certainly to proceed on an assumption that remedy of appeal provided under Rules is not CW 2455/96 //9// effective. In instant case, from material on record, it appears that appeal has not been decided as yet hence this Court proceeds to decide the instant petition on merits notwithstanding the fate of appeal preferred by petitioner under the Rules. First contention made by Counsel for petitioner is that as per scheme of R.16(9) of CCA Rules, disciplinary authority if being not inquiring authority, is under legal obligation to consider record of inquiry and record clear & definite finding on each charge and if satisfied that charges have been established, it may pass a speaking order after due application of mind as required under Scheme of CCA Rules. Counsel further submits that in instant case, the authority has inflicted penalty of removal from service, without copy of inquiry report being supplied to him, which is in violation of principles of natural justice. Argument of Counsel for petitioner deserves acceptance. Before considering the first contention made on behalf of petitioner, this Court would like to state legal aspect and the law laid down by Apex Court. In Union of India Vs. Mohd. Ramzan Khan vide judgment CW 2455/96 //10// dt.20/11/1990 (1991(1) SCC 588) Apex Court observed ad infra: “18. We make it clear that wherever there has been an inquiry officer and he has furnished a report to the disciplinary authority at the conclusion of the inquiry holding the delinquent guilty of all or any of the charges with proposal for any particular punishment or not, the delinquent is entitled to a copy of such report and will also be entitled to make a representation against it, if he so desired, and non-furnishing of the report would amount to violation of rules of natural justice and make the final order liable to challenge hereafter.” It was further examined in Man. Dir. ECIL Vs. B.Karunakar (1993(4) SCC 727) and taken note of in latest judgment dt.13/08/2008 in State of Uttaranchal Vs. Kharak Singh (2008(8) SCC 236 =2008(4) SCT 21) while it observed ad infra: “7) In Managing Director, ECIL, Hyderabad and Others vs. B. Karunakar and Others, (1993) 4 SCC 727, it was held: "Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry CW 2455/96 //11// officer's report and the delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached.” While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz. before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the Forty- second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding CW 2455/96 //12// upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty-second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty- second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officer's report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence in respect of the charges. Article 311(2) says that the employee shall be given a "reasonable opportunity of being heard in respect of the charges against him". The findings on the charges given by a third person like the enquiry officer, particularly when they are not borne CW 2455/96 //13// out by the evidence or are arrived at by overlooking the evidence or misconstruing it, could themselves constitute new unwarranted imputations The proviso to Article 311(2) in effect accepts two successive stages of differing scope. Since the penalty is to be proposed after the inquiry, which inquiry in effect is to be carried out by the disciplinary authority (the enquiry officer being only his delegate appointed to hold the inquiry and to assist him), the employee's reply to the enquiry officer's report and consideration of such reply by the disciplinary authority also constitute an integral part of such inquiry. Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer 's report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee's right to defend himself against the charges levelled against him. A denial of the enquiry officer's report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is CW 2455/96 //14// a breach of the principles of natural justice.” (emphasis laid) R.16(9) of CCA Rules reads ad infra: “(9) The Disciplinary authority shall, if it is not the inquiring authority, consider the record of inquiry and record its findings on each charge. The Disciplinary may while considering the report of inquiring authority for just and sufficient reasons to be recorded in writing remand the case fr further/de-novo inquiry, in case it has reasons to believe that the inquiry already conducted has been laconic in some respect or the other.” R.16(9) of CCA Rules clearly envisages that if disciplinary authority is not the inquiring authority, it is under an obligation to consider the record of inquiry as construed U/r 16(8) and record its finding on each charge and if not satisfied, may hold denovo or further inquiry if considered necessary; and the disciplinary authority is further under obligation before considering the report of inquiring authority, to supply a copy of inquiry report enabling the delinquent to make his representation if so desires, and if such representation is made, it has to be considered objectively before recording the CW 2455/96 //15// finding on each charge. It therefore, clearly emerges that the word, “consider” having been used by rule making authority in R.16(9) certainly means application of mind and the disciplinary authority is under a legal obligation to examine the material on record of inquiry and followed by a clear & definite finding on each charge and a weak & inconclusive finding cannot serve in law as the basis of taking action against delinquent. Disciplinary authority if concludes while holding that charges have been established, it is necessary to pass a speaking order and as observed (supra), disciplinary authority is under an obligation to give just and sufficient reasons to be assigned and recorded in writing; and if fails to express agreement with the findings recorded by inquiring authority, rather finding him guilty of charges imputed against delinquent, and such a procedure, if adopted, in the opinion of this Court, is in violation of R.16(9) of CCA Rules and it being the requirement under law, non-observance whereof certainly holds the order of penalty being bad in law and deserves to be struck down. CW 2455/96 //16// In instant case, indisputably copy of inquiry report in regard to both the charge sheets was not supplied to the petitioner and that apart, disciplinary authority has failed to record its independent finding on each charge, and the finding of guilt of the charges imputed against him in both the charge sheets has been recorded without appreciating material on record of inquiry, inflicted penalty of removal from service. Even R.14 of CCA Rules, which lays down schedule of penalties further casts obligation upon disciplinary authority to record good & sufficient reasons which alone discloses application of mind while inflicting penalties U/r 14, which has to be in proportionate to the gravity of charges proved by disciplinary authority while recording independent finding on each charge. In instant case, the authority has failed to record good & sufficient reasons as required U/r 14 of CCA Rules while inflicting penalty upon the delinquent. Second contention advanced by Counsel is that list of witnesses & documents relied CW 2455/96 //17// upon by Presenting Officer in support of charge sheets were never supplied to petitioner despite requests being made for inspection of records relating to alleged charges vide application dt.27/10/93, inasmuch as petitioner was on sanctioned leave on 27th & 28th April, 1994 and also from 15/05/94 to 01/06/94 on account of death of his father for performing last rituals, during which inquiry proceedings ought not to have proceeded with regard to first charge sheet dt.01/10/93, while the inquiring authority proceeded to record statements of departmental witnesses on 27th & 28th April, 1994, & 30th May, 1994, in his absence – in regard thereto, a specific averment has been made by petitioner in para 9 of the writ petition. However, it has not been controverted by respondents in their reply and what has been averred is that petitioner was aware of dates fixed by inquiry officer and he was duly intimated after the dates fixed yet he failed to appear on the dates in course of inquiry. From the material on record, this fact remained un-controverted that on the dates fixed of 27th & 28th April, 1994 and 30th May, 1994, petitioner was on sanctioned leave; in CW 2455/96 //18// course of whereof, atleast it was expected from the inquiry officer to have deferred proceedings, yet recorded statements of departmental witnesses in absence of delinquent being on sanctioned leave, which certainly has resulted in denying him a fair opportunity of cross examination of the witnesses and reasonable opportunity to defend himself being a cardinal principles of rules of natural justice; and right of audi alteram partem being a valuable right mandates that no one should be condemned unheard;has been denied to him; and thus action of respondents in holding inquiry proceedings in absence of delinquent petitioner was in violation of principles of natural justice. That apart, Rr.16(6) & 16(6a) of CCA Rules are couched in mandatory form and if read together with R.16(2) it clearly envisages that a list of witnesses & documents to be examined in support of memo of charges, should be made available to the delinquent, because the object of furnishing a list of witnesses & document to the delinquent, who might have advance notice of the persons who are likely to depose against him so that he may make his preparation for effective cross CW 2455/96 //19// examination of witnesses named in the calender; but that will not deprive inquiry officer to examine witnesses having not been cited in the calender but after prior notice to the delinquent and absence of prior notice, would certainly deny a right of fair opportunity to the delinquent so as to have an effective cross examination of departmental witnesses. Further contention advanced on behalf of the petitioner that after closure of departmental evidence on 20/07/1994, statement of delinquent petitioner was recorded on 21/07/94 but thereafter departmental witnesses were again examined by recording their statements on 2nd/3rd & 19th August, 1994 – in course whereof also, petitioner was not afforded opportunity to cross examine them – in regard thereto, a specific averment has been made in para 12 of the writ petition, to which also there is no denial in the reply of respondents; and what has been averred is that since petitioner failed to produce witnesses in his defence, inquiry officer proceeded ex parte against him. However, procedure followed in instant case while recording statements of CW 2455/96 //20// departmental witnesses after closure of their evidence on 20/07/1994, and after recording of petitioner-delinquent's statement on 21/07/94 at the instance of inquiry officer is totally against the law and is in violation of procedure envisaged U/r 16(6a) of CCA Rules and so also of principles of natural justice. As regards 2nd inquiry initiated against petitioner under charge sheet dt. 27/01/95 U/r 16 of CCA Rules, contention advanced by Counsel is that before petitioner could submit his reply to the charge sheet dt.27/01/95 calling upon him to submit reply affording him fifteen days, inquiry officer (RP Vijay) was appointed on 06/02/95 without waiting for his reply and that apart, in fact he had earlier inquired into the matter at the stage U/r 17 and only on his report, a regular inquiry was initiated U/r 16 of CCA Rules, which is in violation of R.16(4) of CCA Rules and so also of Circular No.F.3(6)Karmik/Ka- 3/78 dt. 30/10/86 issued by State Government. Scope of Rr.16(2) & 16(3) of CCA Rules has been examined by this Court in Randhir Singh Vs. State (1992(2) RLR 519) ad infra: “7. ...In my opinion, the argument of Shri Mehta deserves to be accepted. The very object of enacting rule 16 CW 2455/96 //21// (2) and 16(3) is to enable the disciplinary authority to consider the circumstances which are brought forward by a delinquent in his reply in response to his charge sheet and to decide as to whether it is at all necessary to proceed with the disciplinary enquiry or not. At times, when the charges levelled against a delinquent are based on preliminary inquiry or otherwise, the material available to the disciplinary authority at this stage is such on the basis of which it is not possible to finally make up mind as to whether the disciplinary proceedings should continue till their logical end. At this stage the delinquent can produce the material to show that he is not at all concerned with the charges or that the basis of the charges is erroneous or that the charge is so trivial that the matter may be dropped at this stage. And therefore the