DBSAW352/2005 // 1 // IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR ORDER IN D.B. Civil Special Appeal (Writ) No.352/2005 In S.B. Civil Writ Petition No.4251/1994 V.K. Gaur Vs. State of Rajasthan and Another Date of Order ::: 05.10.2010 Present Hon'ble the Chief Justice Mr. Jagdish Bhalla Hon'ble Mr. Justice Mohammad Rafiq Shri V.K. Gaur, appellant, present-in-person None present for respondents #### //Reportable// By the Court:- (Per Hon'ble Rafiq, J.) This appeal is directed against judgment of learned Single Judge dated 14.03.2005 dismissing thereby writ petition filed by petitioner-appellant. In writ petition, petitioner-appellant had challenged order dated 24.10.1992 by which penalty of stoppage of two annual grade increments without cumulative effect, was awarded to him and order dated 17.05.1994 vide which appeal filed by him against aforesaid order of penalty, was dismissed. Appellant V.K. Gaur has appeared in person to argue his matter whereas no one has appeared DBSAW352/2005 // 2 // from the side of respondents to oppose the appeal. The matter was nevertheless considered on its merits taking into account the arguments raised before learned Single Judge as well. Shri V.K. Gaur, the appellant has argued that learned Single Judge erred in law in holding that opportunity of hearing envisaged in Rule 17(1)(c) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, 'the CCA Rules'), cannot be claimed as a matter of right and it is left to discretion of disciplinary authority whether or not to grant such opportunity even if demanded by delinquent. It was contended that in present case, prior to imposing penalty, disciplinary authority of appellant, namely, Director General of Police, by letter dated 31.03.1990, called upon appellant to submit his reply to the notice and granted him opportunity of personal hearing. It was stipulated in that communication that appellant may appear before said authority on any working day within 15 days. The appellant submitted his reply to the notice/memo on 29.03.1990 (Annexure-9) before disciplinary authority, in which he demanded opportunity of personal hearing. This request was made in reply DBSAW352/2005 // 3 // submitted by the appellant in response to notice dated 07.10.1988, wherein it was clearly stated by disciplinary authority that in case appellant wanted opportunity of personal haring, he could apply for same and accordingly the appellant made that request. Having decided to grant opportunity of hearing to delinquent- appellant, respondent cannot be permitted to set up a case before this Court that giving such opportunity of hearing to delinquent- appellant was only discretionary and not mandatory. It was also argued by appellant that according to provisions contained in Rule 17(1) (c) such an opportunity has to be mandatorily provided, if demanded by delinquent and this is how the said rule was construed by disciplinary authority while granting opportunity of hearing to delinquent appellant. In doing so, however, a grave illegality was committed by the disciplinary authority in that when appellant appeared before disciplinary authority i.e. the then Director General of Police Shri M.L. Kalia, he required the delinquent-appellant to make his submissions before the Assistant Inspector General of Police Shri Ganpat Lal Mathur, who provided him hearing on behalf of DBSAW352/2005 // 4 // the Director General of Police because the Director General of Police himself was attending to some other urgent business. Yet another illegality that has crept into the matter is that order of penalty has been passed by Shri Rajendra Shekhar, who succeeded Shri M.L. Kalia. There has been utter violation of principles of natural justice and rather miscarriage of justice. Rule 17(1)(c) of the CCA Rules was thus infringed as also the provisions of Articles 14 and 16 of the Constitution of India violated. In support of his arguments, appellant has relied on Constitution Bench judgment of Supreme Court in G. Nageswara Rao v. A.P.S.R.T. Corporation – AIR 1959 SC 308; Ganpati Singhji v. State of Ajmer and Another – AIR 1955 SC 188. Reliance was also placed on a Single Bench judgment of this Court in Har Lal Vs. The State of Rajasthan and Others – WLR 1996 Raj. 661, which was cited before learned Single Judge as well. It was argued that Single Bench judgment in Har Lal (supra) was being cited for the purpose of showing that learned Single Judge even though was bound by ratio of that judgment, which had full application on the facts of the present case, yet he did not DBSAW352/2005 // 5 // consider the same in its true perspective. Appellant Shri V.K. Gaur further argued that learned Single Judge failed to appreciate that the charges in disciplinary proceedings as also in criminal case against delinquent- appellant were the same and in fact they were founded on the same set of evidence. FIR against the appellant was lodged by the same complainant Mahadev Prasad Gupta and matter was investigated by CID (CB), which gave the final report in the matter and which report was ultimately accepted by the Court. On the same set of charges based on same evidence, therefore, the petitioner could not have been therefore penalized in disciplinary proceedings. In support of this argument, appellant cited judgments of Supreme Court in Capt. M. Paul Anthony Vs. Bharat Gold Mines Limited and Another – (1999) 3 SCC 679 and G.M. Tank Vs. State of Gujarat – (2006) 5 SCC 446 and State Bank of Hyderabad and Another Vs. P. Kata Rao – (2008) 15 SCC 657. Appellant lastly submitted that all these issues were raised before the appellate authority but he dismissed the appeal by a non- speaking and perfunctory order. It is therefore prayed that this appeal be allowed. DBSAW352/2005 // 6 // In reply to the writ petition as also on the submissions noticed by the learned Single Judge in impugned judgment, stand of the respondents is that the appellant was working as Deputy Superintendent of Police at Srikaranpur. During investigation of a case on 10.05.1986, he subjected one Mahadev Prasad Gupta to undue and illegal beating and uttered him unparliamentary language. He forcibly brought him to Police Station which enraged local peoples, who surrounded the police station and started pelting stones. Action of appellant adversely affected image of the Police Department. S.D.M., Srikaranpur, was deputed to hold preliminary enquiry and, on the basis of his report, a charge memo under Rule 17 of the CCA Rules was served upon appellant. He was given full opportunity of hearing. Even if the Director General of Police required the appellant to make his submissions before the Assistant Inspector General, that did not in any manner prejudice the appellant because in any case all his contentions have been taken note of, considered and dealt with when ultimately he himself passed the order. There was no violation of either Rule 17 of CCA Rules or Articles 14 and 16 of the Constitution of DBSAW352/2005 // 7 // India. Moreover appellate authority has also considered all his arguments and dismissed the appeal after due application of mind. Impugned orders therefore do not suffer from any infirmity. We have given our anxious consideration to rival submissions and perused the material on record. First of all, argument of appellant which needs to be considered is that since the charges in the disciplinary proceedings and in the first information report lodged against the appellant, were identical and based on same set of evidence, therefore, when final report has been given in the FIR, which has been accepted by the Court, it should be construed to mean his acquittal and applying the ratio of the Supreme Court in Capt. M. Paul Anthony (supra) and subsequent two cases in G.M. Tank (supra) and State Bank of Hyderabad (supra), the order of penalty should be set aside. In our view, however, this argument may not be available to the appellant in the facts of present case because dictum of the judgment in Capt. M. Paul Anthony (supra) and latter two decisions of the Supreme Court would be applicable only in a case where firstly charges in disciplinary DBSAW352/2005 // 8 // proceedings and criminal trial are identical and based on same set of evidence and secondly; where criminal trial has culminated into acquittal of accused, who is delinquent in disciplinary proceedings. This proceeds on the reasoning that there applies stricter standard of proof in criminal trial for convicting an accused in that charges against him are required to be proved beyond reasonable doubt whereas in disciplinary proceedings charges are required to be proved only by preponderance of evidence, which standard of proof is of somewhat lesser degree. But then, for applying this rule, the matter has to go for full- fledged trial and an acquittal obtained. In the present case, however, the matter did not at all go to the trial because no charge-sheet was filed and as per own showing of the appellant, final report was given. Acceptance of final report does not tantamount to acquittal after full-fledged trial. Ratio of the Supreme Court judgment in Capt. M. Paul Anthony (supra) and other two cases in G.M. Tank (supra) and State Bank of Hyderabad (supra), therefore, does not apply to the facts of the present case. This argument of the appellant therefore does not deserve acceptance. DBSAW352/2005 // 9 // What has to be found out next is whether on the language employed in Rule 17 (1)(c) of the CCA Rules, was it mandatory for disciplinary authority to provide opportunity of hearing to delinquent-appellant, if demanded by him? Related thereto also arise the question whether as per intention of Rule 17 (1)(c) of the CCA Rules, the disciplinary authority himself was required to have provided this opportunity of hearing or whether he could entrust this task to any of his subordinates? Then, the third and most significant question that arises is whether hearing provided by one officer acting as disciplinary authority and decision by his successor can be said to be in conformity with principles of natural justice embodied in the language in Rule 17(1)(c) of the CCA Rules; although, curiously, in this case, the disciplinary authority himself has not given personal hearing to the delinquent, nevertheless, since this question has cropped up in the facts of the present case, we deem it necessary to consider and decide the same as well. In order, however, to appreciate the true content and meaning of Rule 17(1)(c) of the CCA Rules, which we are called upon to DBSAW352/2005 // 10 // interpret, it would be apposite to reproduce hereunder relevant extract of the Rule which we do as under:- “17. Procedure for imposing minor penalties.– (1) No order imposing any of the penalties specified in clause (i) to (iii) of rule 14 shall be passed except after – (a) ....... (aa) ....... (b) ....... (c) an opportunity of personal hearing is given by the Disciplinary Authority to the Government Servant to explain his case, if so desired by him; (d) .......” Clause (c) of sub-Rule (1) of Rule 17 of the CCA Rules, as would be evident from the extracted portion of the Rule (supra), clearly shows that opportunity of personal hearing is to be given by disciplinary authority to delinquent government servant to explain his case, if so desired by him. In present case, charge memo/notice that was served upon appellant by disciplinary authority on 07.10.1988, in its penultimate para clearly stipulated that in case delinquent wanted to avail benefit of personal hearing to explain his case, he could request for the same. It was in response thereto that the delinquent DBSAW352/2005 // 11 // appellant, while submitting his reply to charge-memo on 29.03.1990, requested for personal hearing. This was appreciated by disciplinary authority, who accepted his request, which is evident from communication dated 31.03.1990 addressed to the appellant by Assistant Inspector General of Police, on his behalf. Although, the Assistant Inspector General of Police sent this communication to appellant but what was stated therein was that appellant could on any working day within next 15 days appear before the Director General of Police for personal hearing and this he did, as would be evident from the said letter, as per instructions of the Director General of Police. Having accepted request of appellant to provide opportunity of hearing, the disciplinary authority could not have then entrusted this duty to his subordinate Assistant Inspector General of Police because as per language of Rule 17(1)(c) of the CCA Rules, duty has been cast upon the disciplinary authority to provide opportunity of hearing to delinquent to explain his case, if so desired by him. We find ourselves unable to countenance the viewpoint which has found favour with the learned Single Judge that it was not mandatory and that DBSAW352/2005 // 12 // opportunity of personal hearing envisaged under Rule 17(1)(c) of the CCA Rules cannot be claimed as a matter of right and it is for disciplinary authority to examine such a request in the facts of each case. So long as request for personal hearing is not made, it is not necessary for delinquent authority to provide opportunity of hearing. But once such a request is made, disciplinary authority is under an obligation to provide personal hearing. Another aspect that has not been correctly appreciated by learned Single Judge is that opportunity of personal hearing was required to be provided by disciplinary authority himself and that he could not have assigned this task to his subordinate officer. Shri M.L. Kalia, the then Director General of Police was in office when opportunity of personal hearing in the present case was provided to the delinquent i.e. the appellant herein, by Shri Ganpat Raj Mathur, the then Assistant Inspector General of Police. Thereafter, order of penalty was passed by his successor Shri Rajendra Shekhar, another Director General of Police. This also occasioned failure of justice inasmuch as DBSAW352/2005 // 13 // violated principles of natural justice because opportunity of personal hearing that is envisaged in Rule 17(1)(c) of the CCA Rules has to be real and effective opportunity of hearing and not a mere eye-wash or empty formality. The judgment of Single Bench in Har Lal (supra), which was directly on the point and which was cited before the learned Single Judge, has not at all been adverted to and examined by learned Single Judge. The Constitution Bench of Supreme Court in Ganpati Singhji (supra) dealt with a case wherein clause 40 of the Ajmer Laws Regulation empowered the Chief Commissioner to make rules for the establishment of a system of conservancy and sanitation at fairs and large public assemblies. He could do this by bringing a system into existence and incorporating it in the rules so that all concerned could know what the system is and make arrangements to comply with it. The regulation, however, in effect, empowered the District Magistrate to make his own system and see that it is observed. The Chief Commissioner delegated this authority to the District Magistrate. It was held that the Chief Commissioner could not further delegate the powers delegated to him. DBSAW352/2005 // 14 // In G. Nageswara Rao (supra) again a Constitution Bench of the Supreme Court dealt with a matter which arose out of the Motor Vehicles Act, 1939. In that case, the Minister, who was In-charge of transport department, was required to provide hearing on the objections filed under Section 68G of the Act for preparation of a transport scheme. He directed Secretary to the Government to hear such objections against the scheme proposed by the State Transport Department. Secretary gave personal hearing to the parties, who filed objections and entire material recorded by him was placed before the Minister, In-charge of the transport department, who made his order approving the scheme and the order was then issued in the name of the Governor authenticated by the Secretary of the transport department. It was held that entrusting task of providing hearing to the Secretary, Transport Department, offended the principles of natural justice that the authority empowered to decide the dispute between the opposite parties must be without bias and the proceedings and hearing that was given was in violation of the principle of natural justice. In present case, therefore, opportunity DBSAW352/2005 // 15 // of personal hearing provided to appellant not only was in violation of the CCA Rules, which postulates such personal hearing to be given by disciplinary authority i.e. the Director General of Police himself but order of penalty was otherwise also not passed by the authority who was required to pass the same, namely, the same person holding the Office of the Director General of Police, who had provided such opportunity of personal hearing to the delinquent. When according to a Statute or even a subordinate legislation, certain power is to be exercised by a specified authority, that authority cannot further delegate that power to another authority subordinate to it. In the present case, as per the scheme of the CCA Rules, appellant being member of Rajasthan Police Service, which is a State service, his appointing authority is State Government. For disciplinary purposes, however, the Director General of Police, under the CCA Rules, has been notified as disciplinary authority for imposing minor penalty specified in Rule 14 (ii) of the CCA Rules. It is the Director General of Police alone, who can pass such order of penalty against a member of Rajasthan DBSAW352/2005 // 16 // Police Service. He cannot delegate this power to any of his subordinates. Moreover the Director General of Police as disciplinary authority, was exercising quasi-judicial functions. Functions of the disciplinary authority are quasi-judicial in nature is, by now, well settled proposition of law. Reference in this connection may be made to judgments of the Supreme Court in Roop Singh Negi v. Punjab National Bank – (2009)2 SCC 570 and M.V. Bijlani v. Union of India – (2006) 5 SCC 88. Question before the Supreme Court in Sahni Silk Mills (P) Ltd. v. E.S.I. Corporation – (1994) 5 SCC 346 was with regard to the power of the Employees' State Insurance Corporation under Section 94-A of the ESI Act read with Section 85-B (1) of the Act to recover damages. According to Section 94-A, such power vested in the Corporation, and subject to any regulations made by the Corporation in this behalf, the Standing Committee may direct that all or any of the powers and functions which may be exercised or performed by the Corporation or the Standing Committee, as the case may be, may, in relation to such matters and subject to such conditions, if any, as may DBSAW352/2005 // 17 // be specified, be also exercisable by any officer or authority subordinate to the Corporation. In that case, the controversy was whether the Corporation could delegate its power to impose and recover damages from the employers by resolution to any officer authorized by the Director General. It was held that the Corporation could not have delegated its powers under Section 85-B of the Act to be exercised by any other officer authorized by the Director General because in this process there has been sub-delegation and provisions being quasi-judicial in nature, sub-delegation of power was not permissible. There is another significant aspect that needs to be noticed. It would be evident from the language of Rule 17 of the CCA Rules, which provides that “No order imposing any of the penalties specified in clauses (i) to (iii) of Rule 14 shall be passed except after” (a) ..., (aa) ..., (b) ..., “(c) an opportunity of personal hearing is given by the Disciplinary Authority to the Government servant to explain his case, if so desired by him”. Rule 17, thus, is couched in negative form that no such order of penalty could be passed unless opportunity of personal hearing, if demanded by delinquent, DBSAW352/2005 // 18 // has been provided to him. Use of negative expression and words is pointer to the intention of the rule making authority to make the provision imperative and mandatory in character. The Supreme Court in M. Pentiah v. Veeramallappa – AIR 1961 SC 1107 held that negative words are clearly prohibitory and are ordinarily used as a legislative device to make statute imperative. In the case of Nasiruddin v. Sita Ram Agarwal – (2003) 2 SCC 577, the Supreme Court held as under:- “...It is also equally well settled that when negative words are used the courts will presume that the intention of the legislature was that the provisions are mandatory in character.” Intention of the rule making authority to mandatorily provide personal hearing to the delinquent before imposing penalty is evident also from the word “shall”, which appears in the language of sub-rule (1) of Rule 17 of the CCA Rules to show that “No order imposing any of the penalties specified in clauses (i) to (iii) of Rule 14 shall be passed except after (a) ..., (aa) ..., (b) ..., (c) an opportunity of personal hearing is given by the Disciplinary Authority to the Government DBSAW352/2005 // 19 // servant to explain his case, if so desired by him. The Supreme Court in Union of India v. A.K. Pandey - (2009) 10 SCC 552 dealt with a case where the rule with negatives and prohibitory words followed by word “shall” came up for consideration. In Para 15 their Lordships held as under:- “The principle seems to be fairly well settled that prohibitive or negative words are ordinarily indicative of mandatory nature of the provision; although not conclusive. The Court has to examine carefully the purpose of such provision and the consequences that may follow from non-observance thereof. If the context does not show nor demands otherwise, the text of a statutory provision couched in a negative form ordinarily has to be read in the form of command. When the word "shall" is followed by prohibitive or negative words, the legislative intention of making the provision absolute, peremptory and imperative becomes loud and clear and ordinarily has to be inferred as such.” In view of above discussion, present appeal succeeds and accordingly impugned judgment of the learned Single Judge dated 14.03.2005 is set-aside. Consequently, impugned order of penalty dated 24.10.1992 and order dated 17.5.1994 passed by the appellate authority, are quashed and set aside. Appellant is held entitled to all the consequential benefits. DBSAW352/2005 // 20 // Compliance of the judgment be made within a period of three months from the date copy of this judgment is produced before the respondents. In the facts of the case, parties are left to bear their own costs. (Mohammad Rafiq) J. (Jagdish Bhalla) CJ. //Jaiman//