- 1 - IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Lal Singh Deora vs. State of Raj. & Ors. S.B.CIVIL WRIT PETITION NO. 7088/2006 DATE OF ORDER : 29/4/2008 HONB’LE JUSTICE GOPAL KRISHAN VYAS REPORTABLE Mr. Vikas Balia, for the petitioner. Ms.R.R.Kanwar, Deputy Government Counsel. In this petition, petitioner has prayed for quashing Annex.4 dated 18/9/99 passed by Inspector General, Registration & Stamps Department, Ajmer, so also order Annex.6 dated 15/9/2000 passed by the Deputy Secretary, Finance (Taxes) Department, Jaipur and order of review dated 6/10/2006 (Annex.10). The brief facts of this case are that petitioner was selected in the Rajasthan Tehsilar Services and was appointed as Naib Tehsildar, Jaisalmer on 15/10/1985. Further petitioner was promoted on the post of Tehsildar in the month of January, 1992. According to petitioner, since his initial appointment he performed his duties with utmost dedication, sincerity and honesty and has never left any cause of complaint to his superior authorities, therefore, petitioner has unblemished service record. - 2 - In the year 1999, when petitioner was posted as Sub- Registrar, Rajsamand he was served with a memo of charges under Rule 17 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 in which allegation was made that during the year 1998-99 when he was posted as Deputy Registrar, Rajasmand he was given target of collection of revenue income of Rs.310/- lacs, however he failed to achieve the target and only sum of Rs.192.45/- lacs was collected, which was only 62.80% of the target of collection of revenue given to him. Further it was alleged that petitioner failed to comply with the directions given to him, therefore, his conduct was in disobedience of the directions given by the higher authorities. After receiving the said charge sheet, petitioner filed his reply on 9/7/1999 and refuted the allegations leveled against him. As per petitioner’s reply, collection of revenue during his tenure was low due to many reason which were beyond his control. So also even in the adverse situation he performed his duties with utmost dedication and efficiency but despite his all efforts only sum of Rs.192.45 lacs could be collected. It is also pointed out in reply that in the year 1998-99 only 34 mining lease transfer applications were received in comparison to 100 applications received in preceding year, so also reduction of stamp duty by the Government from 10% to 7% was also one of the reasons for not achieving the target. Further it is submitted that ban imposed by the State Government for converting the land for industrial purposes upto 500 mtrs from the National Highway - 3 - was also one of the reasons for not achieving the target. While filing the above reply, it was prayed by the petitioner that reasons mentioned in his reply may be considered objectively and he may be exonerated from the allegations levelled against him. After filing reply, petitioner was directed to remain present before the disciplinary authority for personal hearing. On 16/8/99, petitioner appeared and explained all the reasons for low realization of revenue during the said tenure. According to the petitioner, he made his best efforts to achieve the target fixed by the respondent authorities but somehow due to unavoidable reasons he could not achieve the target. However, respondent no.3 without considering and appreciating the reply submitted by the petitioner objectively, passed an order on 18/9/99 by which the petitioner has been held guilty of allegations leveled against him and imposed penalty of stoppage of one grade increment without cumulative effect. Aggrieved of the said order, an appeal was preferred by the petitioner under Rule 23 of the Rules of 1958 before the respondent no.2, wherein, it was stated that grounds taken by him were not considered by the disciplinary authority in right perspective and without assigning any reason and considering the reply filed by him, penalty of stoppage of one grade increment without cumulative effect has been imposed which is illegal. In appeal, the appellate authority reduced the penalty of stoppage of one grade - 4 - increment without cumulative effect to punishment of censure vide order dated 15/9/2000. Meaning thereby, the appellate authority was of the opinion that there is substance in the grounds raised by petitioner in his reply, however instead of quashing the penalty order as a whole, substituted the penalty as aforesaid. Aggrieved by the said order passed in appeal, petitioner preferred a review petition before His Excellency the Governor of Rajathan under Rule 34 of the Rules of 1958 in which he has reiterated the grounds taken in his reply and prayed that orders passed by disciplinary authority as well as by appellate authority being non-speaking orders are not sustainable in the eye of law, so also as per judgment of Division Bench of High Court rendered in D.B.Civil Special Appeal No.53/99 a government employee cannot be punished for a charge of non-achieving the target given by higher authorities. Upon filing review, petitioner was directed by the Deputy Secretary vide communication dated 31/7/2004 to remain present on 9/8/2004 for personal hearing. Pursuant to communication dated 31/7/2004 petitioner appeared and submitted his written arguments and prayed to quash the punishment order dated 18/9/99 so also appellate order dated 15/9/2000. During course of hearing in review petition, petitioner specifically pointed out that there are other officials working as Deputy Registrar (stamps) have also not achieved - 5 - the target fixed by the authorities in 1998-99 but no action has been taken against them, therefore, respondent authorities have acted in most discriminatory manner. Petitioner was hopeful that for the reasons and grounds mentioned in the review petition, the reviewing authority will consider his case objectively and will exonerate him from the charges leveled against him but unfortunately the review petition filed by petitioner was also rejected vide order dated 6/10/2006. Learned counsel for the petitioner argued that penalty of censure imposed upon petitioner is adversely effecting the future service prospects of petitioner and respondent authorities are not considering the case of petitioner for the purpose of promotion to the higher post because of punishment of censure. Learned counsel for the petitioner argued that not achieving the target cannot be construed as a misconduct, therefore, he was to be exonerated by the disciplinary authority but vide impugned order the disciplinary authority imposed penalty upon petitioner, so also appellate authority, though found substance in the grounds taken by petitioner did not quash the whole punishment order, therefore, both the orders are required to be quashed and similarly order of reviewing authority is also suffering from same vice, therefore, may be quashed. - 6 - Further it is submitted by learned counsel for the petitioner that as per settled proposition of law a quasi judicial authority is required to give reasons for its conclusions but upon perusal of orders impugned it is revealed that all the orders are unreasoned order. As per opinion of appellate authority alleged misconduct is not so serious, therefore, while accepting the reply of petitioner in part, the punishment was reduced to censure. This fact also speaks that petitioner was unnecessarily charge sheeted for nothing because there was sufficient reason for not achieving the target, therefore, order of disciplinary authority deserves to be quashed. During the pendency of writ petition, an additional affidavit has been filed by the petitioner pointing out that one Shri Ishwar Singh Rathore, Ugesh Kumar Srivastav, Deputy Registrar, Biana, Shri Ramesh Chand Agarwal, Deputy Registrar, Bilara and Chena Ram Chowdhary, Deputy Registrar, Bhinmal were also given charge sheets for the same charges but respondent department after receiving reply from them, either in disciplinary proceedings or in appeal exonerated them from the charges. The petitioner has specifically pointed out the case of Shri Ishwar Singh Rathore against whom for same charges penalty was imposed but penalty inflicted on him was set aside in appeal by appellate authority vide Annex.12 dated 1/6/2001, therefore, it is urged that respondents have discriminated the case of petitioner while penalizing the petitioner. - 7 - Per contra, counsel for respondents vehemently argued that finding of disciplinary authority was upheld by appellate authority and review authority, therefore, no interference in concurrent finding is required by this Court while exercising power under Article 226 of the Constitution of India. The penalty imposed upon petitioner under Rule 17 of the Rules of 1958 is in consonance with the provisions of law which does not require any interference. As per respondents the target to collect revenue of Rs.310 lacs was assigned to petitioner and admittedly petitioner has failed to achieve the said target, therefore, disciplinary inquiry was required for taking action against the petitioner for alleged misconduct, therefore, no interference is called for in the punishment inflicted upon petitioner. With regard to allegation of petitioner that similarly situated persons were exonerated while considering similar reply as given by the petitioner, it is submitted by respondents that after considering reply submitted by Shri Ishwar Singh Rathore, the order of exoneration was passed in his favour, therefore, petitioner cannot be allowed to raise voice while saying that action of respondents is discriminatory and violative of Article 14 of the Constitution of India. I have heard learned counsel for the parties and perused the entire record of the case. From the pleadings of - 8 - the case, it is clear that a specific reply was given by the petitioner for not achieving target fixed by the respondent authorities for collection of revenue. In reply to the charge sheet it is pointed out by the petitioner that reduction of stamp duty from 10% to 7% by the Government is one of the important reason for reduction in the revenue income by Rs.49.65 lacs and this cannot be attributed to petitioner, as this was the policy of the State Government. Further it is specifically mentioned that during the year 1998-99 only 34 mining lease transfer applications were received as compared to 100 applications in preceding year so also out of 723 applications filed for conversion of agricultural land to residential or commercial land only 197 were processed by the competent authority which is 27% of the total applications received. Similarly, the prohibition of conversion of land upto 500 mtrs from the national highway has resulted in reduction of revenue income. Likewise, slump in the market was also one of the reasons for low revenue income. Upon perusal of punishment order it is clear that the respondents did not consider all the above grounds properly. The only assertion has been made in the punishment order that reply filed by petitioner is not satisfactory but how the reply is not satisfactory is not discussed by the disciplinary authority. Therefore, the order passed by the disciplinary - 9 - authority is totally non-speaking order so also it suffers from the vice of unreasoned order. In appeal also the grounds taken by petitioner were not considered properly. The appellate authority in very casual manner rejected the appeal without giving any proper finding, however, reduced the penalty from withholding of one grade increment to censure. In my opinion, the alleged misconduct was not serious so also for not achieving target proper reasons were given by the petitioner but none of the grounds taken by the petitioner are considered, therefore, action of appellate authority can be defined as discriminatory action because in the case of Ishwar Singh Rathore while accepting the same reasons Ishwar Singh was exonerated by the appellate authority but in case of petitioner the appellate authority maintained the finding given by disciplinary authority and reduced the punishment to censure, however the fact remains that both these persons were charge sheeted for same misconduct but in the case of petitioner, appellate authority maintained the finding of disciplinary authority and only reduced the penalty and in case of Ishwar Singh the punishment order has been set aside. In this case, it is also clear from other documents filed by petitioner viz. Annex.13, 14 and 15 that similarly situated persons who were charge sheeted for same misconduct were - 10 - exonerated by the disciplinary authority itself but same treatment was not given to petitioner. In case of Charan Singh & Ors. vs. RSRTC & Anr. Reported in 2003 (1) CDR 899 (Raj.) in para 12 it has been held by this Court that : “12. Learned counsel for the respondents submitted that the respondents issued only notice to the petitioners with charge sheet and in that enquiry the petitioners can certainly come forward with their pleas justifying the non-achieving th target and if will satisfy, they will be exonerated and if, they do not have any explanation for not achieving the target then this will certainly be due to poor performance of work of the conductor. Here, in this case, the petitioners have challenged the very authority of the issuance of the charge sheet on the ground that issuance of charge sheet is without jurisdiction because of the reason that the charge sheet contains no allegation of slowing down in performance of work by the respondents and the non-achieving of the target in the scheme is not a misconduct for which any enquiry can be held to punish the petitioners. Therefore, mere non-achieving of the target itself cannot be a ground to proceed against the petitioners. I find substance in the submission of learned counsel for the petitioners that there is no reason for authority to proceed only on the ground of non- achieving of target by the petitioners in the scheme under the provisions of sub-clause (t) of - 11 - Clause 31 of the Standing Orders, therefore, the charge sheet deserves to be quashed.” Similarly, in case of Subhash Chandra Grover vs. State of Rajasthan and others (S.B.Civil Writ Petition No.402/1998) decided on 19/5/2000 this Court has held that foundation for making adverse entry was that the petitioner did not fulfil the target setup by the department providing for registration of minimum number of cases of violation of Excise Law cannot be a ground for assessing performance of an employee of Excise Department. Further in case of Dharamveer vs. State & Ors. Reported in 2005 (5) RDD 1219 (Raj.) the Coordinate Bench of this Court has held that initiation of disciplinary proceedings against the petitioner on the allegation that result of school in specific subject of secondary remained below the standard settled by the Education Department does not constitute misconduct. It is well settled that to constitute misconduct in a service there must be commission or omission of some act on the part of the employee, so also charge should be specific and must be without any ambiguity, therefore, in absence of any specific act, deed or omission on the part of employee, charge sheet is not sustainable. In this view of the matter, I am of the opinion that penalty inflicted upon the petitioner is totally unwarranted - 12 - because valid explanation for not achieving the target is on record and the same were beyond the control of petitioner. In view of above discussion, this writ petition is allowed. The impugned orders Annex.4 dated 18/9/99, Annex.6 dated 15/9/2000 and order dated 6/10/2006 (Annex.10) are hereby quashed and set aside and petitioner is held entitled for all consequential benefits. (GOPAL KRISHAN VYAS), J. pankaj baweja