SBCWP No.2126/94. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.2126/1994. Abdul Rehman Vs. State of Rajasthan & Anr. Date of order : December 15, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Kamlakar Sharma for the petitioner. Shri B.L. Awasthi, Additional Government Counsel. **** BY THE COURT :- Reportable Under challenge in this petition are (i) the order dated 20/12/1993 by which petitioner was awarded penalty of forfeiture of his past services and reduction to minimum of the pay scale, (ii) the order dated 15/1/1994 appointing petitioner afresh to the minimum of the pay scale on the post of Forest Guard, (iii) the order dated 4/4/1994 whereby petitioner was declared surplus and (iv) the order dated 11/3/1994 whereby petitioner was posted at Tiger Project, Sawai Madhopur. During pendency of the writ petition, petitioner was compulsorily retired from service vide order dated 19/5/2000. He was therefore allowed to amend the writ petition so as to SBCWP No.2126/94. 2 also challenge the order of his compulsory retirement and therefore, the order dated 19/5/2000 retiring him compulsorily has also been challenged along with seniority list dated 11/4/1997 and 7/6/1999 wherein petitioner was shown junior most in the cadre. 2) Petitioner was initially appointed as Forest Guard in the services of the respondents on 9/12/1977 and was posted as such in the office of Divisional Forest Officer vide order dated 28/8/1985. According to the petitioner, he was taken ill for entric fever and was admitted to M.B.S. Hospital Kota. Petitioner sought permission to leave headquarter from 28/8/1985 to 31/8/1985. Since he was confined to bed and advised further treatment, he applied for extension of his leave from 1/9/1985 to 28/10/1985 and thereafter from 1/10/1985 to 15/10/1985 and then from 1/11/1985 to 10/11/1985. During this time, petitioner developed Jaundice and remained under continuous treatment. Petitioner kept sending applications for extension of his leave as well as certificates of posting. Meanwhile, petitioner met with an accident and his right foot got fractured disabling him to walk around for some time. He remained admitted as indoor patient in Government Hospital Bundi during whole year of 1986 for his treatment. Total period of his absence was from 27/8/1985 to 22/8/1987. Petitioner asserts that he sent leave applications as also medical certificates for all this period. SBCWP No.2126/94. 3 However, he was shocked when he learnt from the news flashed in the newspaper on 30/10/1986 that respondents have terminated his services w.e.f. 29/10/1986. Petitioner then made an application to the Divisional Forest Officer Kota to supply him copy of the impugned-order as well as the enquiry report conducted behind his back. Same however was not supplied to him. Petitioner therefore filed a writ petition being SBCWP No.3137/1987 challenging his termination order. Grounds of challenge were that petitioner was not provided opportunity of hearing and that his explanation for absence was not considered, enquiry was held ex-parte contrary to the principles of natural justice, petitioner was never served with the charge-sheet, any other communication or notice with regard to enquiry proceedings and lastly petitioner was never served with the copy of the enquiry report prior to passing of the order of removal. 3) Writ petition filed by the petitioner was allowed by the learned Single Judge of this Court on the ground of non-supply of enquiry report. Respondents were directed to serve upon the petitioner copy of the enquiry report and petitioner was then required to make a representation to the disciplinary authority and pass fresh order of penalty. Petitioner rejoind duties on 13/7/1993 and SBCWP No.2126/94. 4 was posted as Forest Guard in the office of Divisional Forest Officer on 10/8/1993. Petitioner thereafter submitted a representation to the disciplinary authority on 15/10/1993 with which he enclosed all the medical certificates for the period of his absence. The Divisional Forest Officer issued show cause notice to the petitioner on 27/11/1993 enclosing therewith the copy of the enquiry report and called the petitioner to show cause as to why penalty of removal may not be awarded to him. Petitioner submitted reply to the above notice on 7/12/1993 requesting that since he has explained period of absence and has produced the documents such as medical certificates etc., his case may be considered sympathetically. The Divisional Forest Officer Kota vide his letter dated 9/12/1993 required the petitioner to appear before him in person on 14/12/1993 for hearing. Divisional Forest Officer, Kota finally passed fresh order of penalty dated 20/12/1993 referred to above, directing forfeiture of his past service for wilful absence from 28/8/1985 to 28/10/1986. It was further directed that he shall be given fresh appointment and that he shall be reduced to the minimum of the pay scale on the post of Forest Guard. Petitioner has therefore prayed that the writ petition be allowed in the above referred to terms. SBCWP No.2126/94. 5 4) I have heard Shri Kamlakar Sharma, learned counsel for the petitioner and Shri B.L. Awasthi, learned Additional Government Counsel. 5) Shri Kamlakar Sharma, learned counsel for the petitioner has argued that enquiry proceedings were initiated ex-parte without any notice to the petitioner. He was not even served with copy of the charge-sheet. No notice with regard to pendency of enquiry was served on the petitioner even by the enquiry officer. Even though this court while remanding the matter back to the disciplinary authority required the petitioner to make a detailed representation to the charges against him and the petitioner submitted the representation along with the medical certificates and the applications for extension of his leave. Same however was not considered by the disciplinary authorty. Learned counsel refuted suggestion of the respondents that petitioner was sent letters/notice for participating in the enquiry and the petitioner refused. Neither any postman nor any other employee to substantiate this was produced. No opportunity to cross-examine the witnesses relied on by the enquiry officer in support of his findings was provided to the petitioner. The proceeding of enquiry was stated to be fixed on 14/3/1986 but since notices of the same could not be served on the petitioner, enquiry SBCWP No.2126/94. 6 proceedings were deferred to 7/4/1986 and considering the fact that notice for the said date was also not communicated to the petitioner, enquiry proceedings were again deferred to 21/4/1986. None of the intimations or communications was sent to the petitioner even by post. Yet, ex-parte proceedings were drawn that petitioner refused to accept the notices. Notice to the effect that 21/4/1986 was the date fixed for disciplinary proceedings, was served on the petitioner. No member of the preventive force was examined to prove the fact that service of notice had been effected on the petitioner or he had refused to accept the notice. The enquiry proceedings were thus held in total disregard to the principles of natural justice. Learned Single Judge also did not examine these arguments while allowing the writ petition as he did not deem it necessary to go into all these questions because writ petition deserved acceptance on the ground of non supply of the enquiry report to the petitioner. 6) Shri Kamlakar Sharma, learned counsel for the petitioner further argued that the disciplinary authority was wholly incompetent to impose penalty of forfeiture of past services as no such penalty is specified under Rule 14 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. Action of the respondents in forefeiting his SBCWP No.2126/94. 7 past services was further in violation of Rule 86 of the Rajasthan Service Rules, 1951 as no such penalty is provided therein. The order directing forfeiture of past services is therefore void ab initio. It was argued that even otherwise, penalty of forfeiture of past service and reduction of minimum of pay scale was wholly grossly disproportionate to the gravity of charge proved. Absence of the petitioner was for the reasons of his ill health and accident resulting into fracture in his right foot. It was argued that subsequent order of compulsory retirement of the petitioner was passed due to malafides on the part of the respondents. This was intended to get rid of the petitioner, who was in litigation with the respondents. Petitoiner has been subjected to double jeopardy inasmuch as, he was penalised twice for the same allegation of misconduct. While his services were forfeitured and he was treated junior-most and declared surplus. It was argued that there was no such adversity against the petitioner so as to render him completely unfit for retention in service or that he had become a dead wood to be chopped off. 7) Learned counsel for the petitioner contended that order of compulsory retirement reflects total non application of mind, which was even otherwise incompetent because if petitioner had been appointed afresh vide order dated 15/1/1994, he did not on the date of passing of the order, even complete the SBCWP No.2126/94. 8 qualifying service of 15 years as per the amended Rule 53(1) of the Rajasthan Civil Service (Pension) Rules, 1996. Respondents themselves were uncertain about this. DFO Kota wrote letter to the Conservator of Forest recommending grant of pension. Conservator of Forest however wrote back to the DFO Kota on 4/4/2002 that retirement of the petitioner was not in conformity with Rule 53(1) of the Rules of 1996, then what were the grounds for his compulsory retirement and this fact should have been brought to the notice of the screening committee. It was submitted that the order of penalty as also the order of compulsory retirement have been passed arbitrarily in courable exercise of powers in utter disregard of the principles of natural justice and without there being any application of mind. These orders are therefore liable to be quashed and set-aside. 8) Per contra, Shri B.L. Awasthi, learned Additional Government Counsel opposed the writ petition and argued that petitioner was transferred from Kota to Sultanpur vide order dated 22/2/1985 and petitioner did not accept this posting and left the office on his own without any prior sanction or leave. Petitioner applied for grant of leave from 27/8/1985 to 1/9/1985, which was never granted by the DFO Kota. Neither reason for leave was mentioned nor was it stated as to what kind of leave should be SBCWP No.2126/94. 9 granted. Subsequently, petitioner applied for leave from 2/9/1985 to 11/9/1985 on valid reason but it was not accompanied by any sickness certificate. Leave was therefore not granted and the DFO vide letter dated 3/9/1985 informed that he was treated as wilfully absent requiring him to immediately join duties. Yet, petitioner applied for extension of leave on 12/9/1985 to 30/9/1985 but this time also he did not submit any sickness certificate/medical certificate nor he did mention kind of illness. It was denied that petitioner sent any medical certificate for his illness for the period from 1/11/1985 to 10/11/1985. 9) It was argued that medical certificates enclosed by the petitioner with this writ petition do not bear any number, name of the hospital, name of the disease etc. And on the face of the certificates, it is clear that they have been engineered and are not reliable. Petitioner has not deliberately participated in the departmental proceedings. He is therefore now estopped from questioning legality of the enquiry proceedings. In fact, for the period w.e.f. 1/4/1986 to 30/4/1986 and 18/8/1986 to 30/8/1986 and also the fitness certificate dated 19/10/1986 were not produced by the petitioner in original but photocopies thereof were produced and and reason assigned by the petitioner for this was SBCWP No.2126/94. 10 that original thereof were lost from the records of the High Court. Order of penalty was passed in compliance of the judment of this court dated 24/6/1993 and it was by this order that petitioner was appointed afresh w.e.f. 17/7/1993. It was submitted that due to closure of Forest Scheme, 342 posts of Forest Guards were abolished. Reference was made to the order of the government dated 11/3/1994 to this effect. Out of these, 15 posts of Forest Guards in Bundi Forest Division itself were abolished. Petitioner being junior most in Bundi Division was rendered surplus. Petitioner was adjusted in the Project in Sawai Madhopur. There was no direction for payment of backwages in judgment of this court dated 24/6/1993. Learned Additional Government Counsel denied that petitioner was not afforded full opportunity to participate in the enquiry proceedings. Copy of charge sheet was served upon him and enquiry officer was appointed vide order dated 25/2/1986. Enquiry officer vide letter dated 4/3/1986 required the petitioner to appear before him on 14/3/1986 and thereafter, he sent another letter on 21/3/1986 requiring the petitioner to appear before him on 7/6/1986 but inspite of this, petitioner did not appear before him. Enquiry officer thereafter sent yet another letter on 9/4/1986 by registered post with acknowledgment due again SBCWP No.2126/94. 11 requiring the petitioner to appear before him on 21/4/1986. Envelope containing this letter was returned with the remark that petitioner has refused to accept the same. Even then, enquiry officer vide letter dated 26/6/1986 again informed the petitioner to appear before him at DFO Office Kota on 2/12/1986 and at Bundi on 6/5/1986. Even this letter which was sent by registered post was not accepted by the petitioner and same was returned back with the remark of his refusal. Therefore, the officials affixed the notice on the wall of the residence of the petitioner. Still, the enquiry officer sent yet another letter on 17/5/1986 requiring the petitioner to appear before him on 5/6/1986. In fact, reasons stated by the petitioner for his absence were required to be verified in view of his conduct and therefore Chief Medical & Health Officer Bundi was asked vide letter dated 11/10/1985 to medically examine the petitioner. Copy of this letter was sent to the petitioner but he refused to accept the same. Copy of the envelope containing remarks of refusal is placed on record. Thereafter when the matter was remanded back by this court, petitioner was given fresh notice along with copy of enquiry report and after receiving explanation and giving him chance of personal hearing, fresh order of penalty was passed on 20/12/1993. There was thus no illegality or SBCWP No.2126/94. 12 irregularity in passing of the aforesaid order of penalty. 10) I have given my anxious consideration to the rival submissions and perused the material forming part of the record. 11)Under challenge in this writ petition are various orders such as the order of penalty by which past services of the petitioner were forfeited with reduction to minimum of pay scale, order granting him fresh appointment, order declaring him surplus and order of his compulsory retirement, which was passed by the respondents during the pendency of the present writ petition. Although, in my considered view, all these orders give rise to distinct and different causes of action and therefore, could not be joined in one petition. Since the writ petition was originally filed in the year 1994, which was allowed to be amended so as to challenge the order of his compulsory retirement passed in the year 2000 during the pendency of the writ petition, notwithstanding the fact that petition suffer from misjoinder of causes of action, I do not deem it proper now at this distance of time to non-suit the petitioner by denying him remedy against any of these orders. I therefore proceed to examine the matter on merits. 12) SBCWP No.2126/94. 13 12) Respondents have passed fresh order of penalty vide order dated 20/12/1993. Earlier to this, petitioner in the same departmental proceedings was removed on 29/10/1986 which order was challenged by him before this court. Argument has been raised that this court remanded the matter after setting aside the order of removal on the ground that same was passed against the principles of natural justice. Petitioner was given liberty to make a representation raising all these grounds which were raised before this court, therefore, it was obligatory upon the disciplinary authority to give full opportunity of hearing to the petitioner because earlier enquiry proceedings were held absolutely contrary to the principles of natural justice. It was argued that petitioner was never served with any notice nor he ever refused to receive any letter or communication sent to him by the enquiry officer either through postman or through any other employee of the department. Action of the respondents in holding ex- parte proceedings against the petitioner was therefore bad in the eye of law. Such an action is therefore malafide. This argument is required to be considered in the light of the findings recorded by this court in its judgment dated 24/6/1993 whereby, the order inflicting penalty of removal was set-aside and the matter was remitted back to the disciplinary SBCWP No.2126/94. 14 authority. Perusal of the aforesaid judgment would show that although many arguments were raised, which are again being raised now with regard to legality of ex-parte proceedings but this court did not go into the merits of those arguments and confined its examination to the aspect of non-supply of copy of the enquiry report to the petitioner. Relying on certain earlier judgments on the question of Article 311(2) of the Constitution of India, this court set- aside the order of removal and remanded the matter back to the disciplinary authority to pass a fresh order with direction to reinstate the petitioner back in service. Question as to legality of the action of the respondents in proceeding ex-parte enquiry against the petitioner was thus left open. There is therefore no impediment for the petitioner to raise such questions again even if fresh order of penalty has now been passed on the basis of very same departmental enquiry. 13) Respondents with reply to writ petition have produced on record copy of the office order dated 25/2/1986 with which charge-sheet containing 50 pages was served upon him. Respondents have asserted that copy of memorandum of charge sheet dated 17/2/1986 was delivered to the petitioner vide registered post acknowledgement due and petitioner did not reply the same. Enquiry officer sent to the petitioner letter SBCWP No.2126/94. 15 on 9/4/1985 again by registered post asking him to appear before him on 21/4/1986 but the same was returned back in original with the remarks of his refusal and they waited for several months for his reply. Ultimately, the enquiry officer was appointed vide order dated 5/12/1986. Photocopy of the order to this effect was communicated to the petitioner by the DFO Bundi which too was refused to be accepted by the petitioner. Copy of the letter along with envelope containing refusal is produced on record. Enquiry officer vide letter dated 4/3/1986 required the petitioner to appear before him on 14/3/1986. Inspite of service of the said letter, petitioner did not appear. Enquiry officer then sent another letter on 21/3/1986 asking him to appear before him on 7/4/1986. This letter was also served upon the petitioner but he did not appear. Then, enquiry officer sent yet another letter on 9/4/1986 by registered post AD asking him to appear again on 21/4/1986. Letter was returned back with the remarks that peititioner has refused to acknowledge the same. Copy of the letter as also the envelope containing remark of refusal are placed on record. Enquiry officer then again vide letter dated 26/4/1986 informed the petitioner to appear before him on 2/5/1986 at DFO Office, Kota and on 6/5/1986 at DFO Office, Bundi. This letter was also sent to the SBCWP No.2126/94. 16 petitioner by registered post. Petitioner however refused to acknowledge the receipt of said letter. Still, petitioner did not cooperate with the enquiry officer. Enquiry officer then this time decided to send communication through Flying Squad Kota to deliver the letter personally to the petitioner in the presence of the witnesses. Hari Prasad Forester, Laxmi Narayan Forest Guard and Ram Kumar Meena were appointed to go to the house of the petitioner. These persons offered the letter to the petitioner at his residence but the petitioner refused to accept the same and therefore same was decided to be affixed outside his residence in the presence of the witnesses. Petitioner therefore was again informed by the enquiry officer vide letter dated 7/5/1986 to appear and participate in the enquiry on 16/5/1986. This letter was also sent by registered post. Petitioner refused to receive the same. Copy of envelope containing his refusal is on record. Enquiry officer than again sent communication to the petitioner vide letter dated 17/5/1986 asking him to appear before him at camp Bundi on 5/6/1986. This letter was sent through registered post. This time also, petitioner refused to accept the letter. Copy of the letter and envelope containing refusal by the petitioner are placed on record. In the face of all such overwhelming evidence, which the petitioner has SBCWP No.2126/94. 17 not been able to rebut by filing any rejoinder or otherwise, it cannot be said that the respondents did not make any effort to serve upon the petitioner notice of enquiry proceedings. In fact, what is contrarily evident is that respondents continuously kept on making efforts to persuade the petitioner to participate in the enquiry and each time petitioner refused to acknowledge the communications sent to him and deliberately avoided to participate in the enquiry. In the face of such proceedings, large number of letters addressed to the petitioner and equally large number of refusals, it can safely be concluded that petitioner is to blame himself for ex- parte enquiry proceedings. Such a delinquent cannot be allowed to complain of violation of principles of natural justice because the concept of principles of natural justice implies justice to both the parties. Such principles have to be applied in an even handed manner. This being a principle of equity, has to be applied on the facts of a given case keeping in view the conduct of the parties. 14) Coming now to the question whether the charges against the petitioner can be taken to have been proved by preponderance of evidence, I find three charges against petitioner; one was to the effect that petitioner was willfully absent from service on 27/8/1985. Charge No.2 was to the effect that even after his transfer, petitioner did not SBCWP No.2126/94. 18 accept the transfer order and remained absent. Charge No.3 was to the effect that petitioner applied for medical leave. He was required to appear before the medical board and when such a letter requiring him to appear before the medical board was sought to be delivered to him, he though read a letter but he did not acknowledge the same. Petitioner has agitated before this court that he was taken ill and had entric fever and was hospitalized at Kota. He applied for leave with permission to leave the headquarter w.e.f. 28/8/1985 to 31/8/1985. Then sent his application by post for extension of leave from 1/9/1985 to 28/10/1985 as he was advised complete bed rest. Then he produced medical certificates from 1/11/1985 to 10/11/1985. In the meanwhile, he developed Jaundice. He become very weak. Then, in the quick succession, he met with an accident and got his right foot fractured. It was owing to all these reasons that he could not attend at the new place of posting. Stand of the department before the enquiry officer was that petitioner absented from duties because he wanted to avoid his transfer. He joined his duty in the office of DFO Kota on 16/8/1985 wherefrom he was posted to Sultanpur vide order dated 22/8/1985 but instead of joining at the transferred place, he proceeded on leave. He on lame excuses applied for medical leave. When the leave application SBCWP No.2126/94. 19 was examined, on 3/9/1985, petitioner instead of joining, applied for extension of leave. In none of the applications, did he mention kind of the disease and where he was getting treatment from. In fact, stand of the respondents has been that medical certificates produced by the petitioner, which have been produced even before this Court, did not contain name of