1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.6745/97 Khem Chand Rawat vs. State & Ors. Date of order : 22/2/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Reashm Bhargava for the petitioner. Shri S.D. Khaspuria, Addl. Govt. Counsel for the respondents. ****** This writ petition has been filed by the petitioner Khem Chand Rawat challenging the charge sheet Ex.8 dated 7.5.1993, preliminary enquiry report Ex.33 by which he was held guilty of the charges, the order of penalty dated 27.5.1995 and the order by which his appeal was dismissed dated 1.7.1997. The petitioner was served with a charge sheet on 7.5.1993 containing three charges. Charge no.1 against him was that it appears from the preliminary enquiry report that petitioner had taken money in the sum of Rs.5,000/- from Shri Prabhu Singh, a sum of Rs.9,500/- from Shri Kajja Singh for their appointment as Class-IV employee with the respondents. Charge no.2 and 3 are to the effect that by doing so he earned bad name to the department and that his conduct was 2 unbecoming of a government servant and thereby violative of Rule 3 and 4 of Rajasthan Civil Services (Conduct) Rules 1971. In the enquiry report submitted by the enquiry officer, the petitioner was held guilty of all the charges and finally by order dated 27.5.1995, he was awarded penalty of stoppage of three grade increments with cumulative effect. His appeal filed against the aforesaid order of penalty was also dismissed. Hence this writ petition. Shri Reashm Bhargava, learned counsel for the petitioner has argued that a preliminary enquiry was conducted into the very same allegations and the report was submitted by examining the alleged complainant and various other witnesses and by order dated 28.1.1993, petitioner was issued a written warning and was advised to take care in future to avoid such behaviour. Such warning was issued by the disciplinary authority. Once on the basis of the very same charges, petitioner was penalised, he could not be again subjected to another enquiry and further punishment on the same 3 charges would be hit by the doctrine of double jeopardy enshrined in Article 20 of the Constitution of India. Petitioner has even questioned that order by separately filing revision petition before the Deputy Director General, NCC, Rajasthan on 4.2.1993 pointing out that before passing the aforesaid order, he was not provided with an opportunity to defend his case. The petitioner thereafter on 2.3.1993 moved a representation demanding copy of the alleged preliminary enquiry report referred in in the order dated 28.1.1993. Disciplinary authority got annoyed therewith and instead of supplying copy of the preliminary enquiry report, he issued to him a show cause notice as to why disciplinary action may not be initiated against him on the basis of such report. Petitioner submitted reply to the aforesaid notice on 19.3.1993 denying the allegations and submitted that they had enmity with him and therefore they have made false allegations to harm him. The matter be therefore dropped. Petitioner also in his reply reiterated his demand for supply of the enquiry report and the statements of 4 witnesses and copy of the complaint. Instead of supplying these documents, the respondents by their letter dated 22.3.1993 declined to give any of these documents including the copy of the enquiry report on the ground that it was confidential and the same could not be made available in the interest of State. The fact that respondents were prejudiced with the petitioner would be evident by his transfer made around this time, which the petitioner sought to challenge in the separate suit. By letter dated 22.3.1993, petitioner was advised to withdraw the civil suit. The petitioner again moved representation on 27.3.1993 with the prayer that his transfer be cancelled. The respondents thereupon issued to him regular charge sheet on 7.5.1993. Shri Reashm Bhargava, learned counsel submitted that the wording of charge no.1 clearly show that the entire charge sheet was based on preliminary enquiry report. Whatever are charges, they are worded in such a manner as if the respondents have already concluded that the petitioner was guilty and then issued the charge sheet to 5 him to complete mere formality. Such a charge sheet has to be therefore quashed. The petitioner again submitted an application on 14.5.1993 demanding copy of the enquiry report and other documents on the basis of which charge sheet was issued. The respondents by their letter dated 7.6.1993 denied to supply copy of the enquiry report and advised him to inspect the rest of the files, which did not include the enquiry report. Petitioner again submitted a representation on 16.6.1993 reiterating his demand for supply of copies of documents on the basis of which preliminary enquiry report was prepared so that he may defend himself effectively in the enquiry. The disciplinary authority by order dated 25.6.1993 however appointed the enquiry officer. The disciplinary authority nowhere in this order of appointing enquiry officer considered the detailed reply and various representations submitted by the petitioner. It is therefore prayed that such an order appointing the enquiry officer is liable to be quashed and set aside. Shri Reashm Bhargava, learned counsel 6 for the petitioner further argued that when the enquiry officer was appointed, the petitioner submitted an application to him on 5.8.1993 that this enquiry could not be proceeded against him as he has already been punished by recorded warning on the same charges. Petitioner then submitted two more representations on 12.8.1993 and 15.10.1993 demanding copies of the documents and the preliminary enquiry report before the enquiry was taken any further. The enquiry officer however by its order dated 29.10.1993 conveyed to him that his request is not justified and therefore no action can be taken. Petitioner then by representations dated 30.10.1993 and 1.11.1993 reiterated his demand and made it clear that he was participating in the enquiry proceedings under protest. He thereafter on 1.12.1993 submitted a list of witnesses whom he wanted to examine along with their written statement. Petitioner again on 27.1.1994 reiterated his demand that he be supplied copy of the enquiry report and statements recorded during the course of such preliminary enquiry. The respondents by 7 their letter dated 4.2.1994 informed the petitioner that he can obtain the statements of those witnesses only upon completion of enquiry. The statement of the petitioner was recorded by the enquiry officer on 3.3.1994. When for several months, nothing was heard about the outcome of the enquiry, petitioner submitted representation on 25.1.1995, 20.2.1995 and 27.3.1995 to the disciplinary authority to know the outcome of the enquiry. Finally without supplying the copy of the enquiry report, the disciplinary authority by order dated 27.5.1995 awarded the penalty of stoppage of three annual grade increments with cumulative effect to the petitioner. The appeal preferred against the punishment order was also rejected by the appellate authority by the non-speaking or cryptic order dated 1.7.1997. Shri Reashm Bhargava, learned counsel for the petitioner referring from the copy of the enquiry report which was supplied to him during the pendency of the appeal argued that it was not at all an enquiry report envisaged under Rule 16 of the Rajasthan Civil Services (Classification, Control and 8 Appeal) Rules, 1958. The so called enquiry report supplied to the petitioner consists of two parts. Part-1 contains the list of the statement of witnesses and part-2 which the respondents now described as the enquiry report, is having conclusions recorded by the enquiry officer described as findings. Referring from such enquiry report and the documents supplied to the petitioner, learned counsel submitted that the statements supplied along with the findings of the enquiry officer are exactly those which were recorded in the preliminary enquiry as is evident from the date given there below. The witnesses Prabhu Singh S/o Ladhu Singh, Biram Singh S/o Moola Singh, Jia S/o Moolagi, Noor Singh S/o Jai Singh was examined on 6.7.1992, Kajja Singh S/o Late Bhiya Singh was examined on 18.7.1992 and petitioner Khem Singh on 23.7.1992 all recorded during preliminary enquiry. This was then followed by the finding of the Investigating Officer given on 1.8.1992. Now second part consists of findings of the Inquiry Officer which has been prepared on 31.3.1994. These findings have been divided 9 into various sub-paragraphs styled as (a) to (u). Learned counsel submitted that the enquiry officer has neither referred to the charges, nor has he discussed about the statements, if any recorded during the course of disciplinary enquiry. He has also not rendered his findings issue wise as is the requirement of sub-rule (7) of Rule 16 of the CCA Rules. Such a cryptic enquiry report is non speaking and not as envisaged under the CCA Rules in terms of the judgement of Anil Kumar vs. Presiding Officer-AIR 1985 SC 1121. Learned counsel also sought to cite number of judgements of Supreme Court and this Court on the question of non supply of the enquiry report to the petitioner, non supply of the documents and the preliminary enquiry report, which was the very foundation of the charge sheet issued against him and argued that this has seriously prejudiced his defence. In fact, non supply of the enquiry report caused a grave prejudice to him. Had he been supplied the enquiry report, he would have been in a position to persuade the disciplinary authority to take a different view of the 10 matter by pointing out to him all these lacunaes in the enquiry, which he has now urged before this Court. Learned counsel cited the judgement of Supreme Court in Union of India & Ors. vs. Mohd. Ramzan Khan- (1991) 1 SCC 588 by which the supply of enquiry report was held to be mandatory for awarding of penalty. In the judgement of Managing Diector, ECIL, Hyderabad & Ors. vs. B.Karunakar & Ors.-(1993) 4 SCC 727, it was held that mere non supply of the enquiry report would not be a reason to annul the order of punishment unless delinquent is not able to show that any prejudice has been caused to him by such non supply. In the facts of the case, learned counsel submitted that prejudice is writ large on record because none of the procedure that is envisaged in CCA Rules was adhered to. Even the appellate authority has also dittoed the order of penalty. He has not considered the various arguments which the petitioner raised in his appeal and rather merely reproduced the events briefly and thereafter straightaway jumped to the conclusion that he did not find any merit in the appeal and 11 rejected the same. It is therefore prayed that the writ petition be allowed in the terms prayed for. Shri S.D. Khaspuria, learned Additional Government Counsel opposed the writ petition and argued that there is no provision in the CCA Rules for supply of either of the preliminary enquiry report or the documents. The enquiry was conducted strictly as per the provisions contained in CCA Rules and that by non supply of the enquiry report, the petitioner was not prejudiced and there were serious charges levelled against him that he charged money from two persons for getting them employed as Class IV. This was a serious misconduct and considering the gravity of the charges against him, the penalty of stoppage of three annual grade increments with cumulative effect cannot be said to be unjustified. The petitioner has not been able to show as to which particular provision of the CCA Rules was violated. The appellate authority has provided opportunity of hearing to petitioner prior to deciding his appeal and after due application of mind found the appeal without any substance, 12 therefore, dismissed the same. The cited judgements are distinguishable on facts and therefore cannot be applied to the present matter. It is therefore prayed that the writ petition be dismissed. Upon hearing the learned counsel for the parties and perused the material on record, especially the enquiry report, I find that the provisions of CCA Rules especially those contained in Rule 16 have been violated in a wholesome manner by the enquiry officer and/or disciplinary authority in the disciplinary proceedings in question. The argument, which has been raised by the respondents in their counter affidavit that there is no provision for supply of either preliminary enquiry report, the statements recorded in the preliminary enquiry report or the documents during the enquiry, cannot be countenanced. In the normal course, it may not be necessary to supply the copy of the preliminary enquiry report or the statements recorded therein but when the very foundation of the charge sheet is those documents, the respondents could not have withheld those documents and could not 13 decline to supply on the pretext that these are confidential and their supply to the petitioner would in any manner prejudice the interest of the State. One fails to appreciate the reason or logic as to how the supply of the preliminary enquiry report and the statements recorded during such preliminary enquiry would have caused any prejudice to the interest of the State. Such a specious plea cannot be therefore accepted. The final enquiry report which the respondents have supplied to the petitioner after he filed appeal, leaves much to be desired. The so called enquiry report which the respondents have supplied to the petitioner consists of two parts, while first part is containing the statements of various witnesses recorded in the preliminary enquiry, the second part gives the finding of the enquiry officer. The enquiry report even if it is taken as the one which the respondents have described as findings of the enquiry report, even then the enquiry officer therein has simply given his conclusions without discussing the statements, if any, recorded during the 14 enquiry. It is also not evident whether such statements were recorded in the course of the regular disciplinary enquiry. It is thus but obvious that the conclusions were recorded by the enquiry officer while relying on the statements of the witnesses recorded in the preliminary enquiry. The enquiry officer has not even otherwise mentioned whether any statements were recorded by him in the course of disciplinary enquiry. He has also not discussed the evidence either issue wise or in the sub-paragraphs which he has referred to as paras (a) to (u). The issue wise finding on three charges has not been rendered as is envisaged under sub-rule (7) of Rule 16. The repeated demand by the petitioner by different applications/ representations for supplying the preliminary enquiry report, complaint made against him and various statements recorded in the preliminary enquiry, thus assumes significance. Eventually, if these were the documents which have weighted with the enquiry officer for giving the finding against the petitioner in his report, it 15 cannot be therefore accepted that non supply of such an enquiry report to the petitioner would not be causing any prejudice to him because had such report been supplied to the petitioner, there would have been all probabilities to persuade the disciplinary authority to take a different view of the matter and the disciplinary authority could probably be persuaded to direct de novo enquiry. Therefore, the argument that no prejudice is caused to the petitioner by non supply of the enquiry report is not accepted. The appellate authority also failed to apply any of the requirement of CCA Rules. The appellate order which runs into one and a half page hardly contains any discussion of the arguments, which the petitioner raised before the appellate authority. It only briefly gives the background of the matter and relates to the conclusions drawn by the enquiry officer and in a just four and half line para at the concluding part of the order, dismissed the appeal. The appellate order also fails to confirm the provisions of the Rule 23 of the CCA Rules. Such an order also cannot be 16 upheld. Neither the enquiry officer, nor the appellate authority appreciated the argument of the petitioner that once he was already penalised on the very same charges by award of recorded warning, how could for the second time, he be penalised on the self same charges. The order dated 28.1.1993 is on record which clearly show that the disciplinary authority on perusal of the record of Lt. Colonel Vikram Kumar on complaints in connection with recruitment in 2 Raj Naval Unit NCC, Ajmer, found him guilty and therefore warned him to be cautious and take care in the future to avoid such behaviour. For all the aforesaid reasons, the writ petition deserves to be allowed and is hereby allowed. The impugned order of penalty dated 27.5.1995 and the appellate order dated 1.7.1997 are quashed and set aside. The petitioner is held to be entitled to all the consequential benefits. (MOHAMMAD RAFIQ), J. RS/