1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :: J U D G M E N T :: Hanumana Ram Vs. State of Rajasthan & Anr. (D.B.Civil Special Appeal (W) No.957/1997) DATE OF JUDGMENT :::: 22nd March 2010 PRESENT HON’BLE THE CHIEF JUSTICE MR.JAGDISH BHALLA HON’BLE MR.JUSTICE DINESH MAHESHWARI Mr.S.L.Jain, for the appellant. Mr.I.S.Pareek, Government Counsel, for the respondents. .... BY THE COURT: (Per Hon'ble Dinesh Maheshwari,J.) This special appeal is directed against the order dated 29.05.1997 whereby the learned Single Judge of this Court has dismissed the writ petition (CWP No.1814/1992) filed by the petitioner-appellant against the orders dated 12.06.1991 and 03.01.1992 passed respectively by the Disciplinary Authority and the Appellate Authority. Briefly put, the relevant facts and background aspects of the matter are that the appellant Hanumana Ram, while working as constable with the respondents, was served with a memorandum alongwith charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 on the allegations: (i) that he was a habitual absentee and was earlier dismissed from services on 31.03.1983 but was reinstated on 21.11.1986 while withholding one annual grade increment with 2 cumulative effect; (ii) that he was not attentive to the duties and in about 8½ years of service, remained absent 40 times and presented himself to the higher officers in an indisciplined manner; (iii) that whenever posted on a duty, he was habitual of levelling allegations against the officers and to blackmail the higher officers; (iv) that he got trapped one Mohan Singh, Inspector Wireless, on the allegation of demand of bribe of Rs.100/- though the matter had been of the said Mohan Singh demanding the amount of Rs.150/- given as loan to him; and (v) that he filed a false report with mala fide intention to the Anti-Corruption Bureau and thereby got Mohan Singh trapped in a false case. While stating that the aforesaid trap case was found to be false in investigation, the Department maintained in the statement of allegations that the falsity of the case was apparent from the affidavit given by the appellant on 23.11.1987; and it was clear that the amount of Rs.100/- given by the appellant to Mohan Singh had been towards the dues of the loan and not of any bribe. With the memorandum, a list was also furnished, of as many as 14 documents sought to be relied upon, which included the appellant's said affidavit dated 23.11.1987. In response to the aforesaid charge-sheet, the petitioner- appellant stated by way of his application dated 09.04.1990 (Annex.3) that the documents mentioned in the list had not been supplied to him without which the reply could not be filed and hence, the allegations were incorrect and baseless. The appellant also desired to inspect his service book and personal file, attendance registers from the year 1983 to 1989, the FIR lodged against Mohan Singh, and the final report filed in the said FIR after investigation; 3 and further stated that he was desirous of personal hearing and would supply the name of his defence nominee with the final reply. The Superintendent of Police, Bikaner, in response to the aforesaid application dated 09.04.1990, informed the appellant under the communication dated 20.04.1990 (Annex.4) that he could inspect the relevant documents during the office hours. The appellant, however, sent another communication dated 25.04.1990 (Annex.5) that he was not allowed to inspect the documents; and that inspection of the service book, the personal file, and the attendance registers was entirely necessary, without which, he was unable to file the reply. The appellant also submitted that though the Inquiry Officer had been appointed but he had not been allowed inspection; and until inspection, the inquiry proceedings be kept in abeyance. Thereafter, the appellant sent another communication dated 25.05.1990 (Annex.6) that the person proposed to be appointed as defence nominee was out of town and his name shall be sent after obtaining consent. By way of yet another communication dated 15.07.1990 (Annex.7) the appellant stated that neither inspection of the record had been allowed nor defence nominee had been permitted and in absence thereof, he was unable to file the reply. The appellant further stated under his communication dated 20.09.1990 (Annex.8) that the record was not allowed to be inspected and defence nominee was also not permitted and the inquiry had been started ex parte but then, he was finding it difficult to appoint any person as defence nominee due to the pressure of Mohan Singh and Manmohan Singh and, therefore, the inquiry be kept in abeyance. 4 It appears from the material placed on record that the appellant neither submitted a reply nor participated in the inquiry proceedings; and the Inquiry Officer, after taking evidence, proceeded to forward the inquiry report to the Disciplinary Authority, the Superintendent of Police, Bikaner who, in turn, found the charges proved and by the order dated 12.06.1991 (Annex.10) ordered that the appellant be dismissed from service. The appellant allegedly submitted a reply (Annex.9) seeking to dispute the charges, but only on 12.06.1991 i.e., the date of passing of the order by the Disciplinary Authority. According to the appellant, for the purpose of filing an appeal against the order dated 12.06.1991, he made another request for supplying him the copies of relevant orders, the inquiry report, the statements of witnesses, and the order-sheets but he was not supplied the same and, by the communication dated 30.08.1991 (Annex.13), the Superintendent of Police, Bikaner suggested that he could inspect the relevant documents. The appellant did submit an appeal that came to be dismissed by the Dy. Inspector General of Police, Bikaner Range, Bikaner by the order dated 03.01.1992 (Annex.14). While assailing the aforesaid orders dated 12.06.1991 and 03.01.1992, the petitioner-appellant preferred the writ petition and essentially submitted that before imposing the punishment of dismissal from service, he was not supplied the copy of inquiry report and thus, he was deprived of the right of making representation against the report; that the Disciplinary Authority did not extend him a reasonable opportunity of hearing; that on one hand, he had been making representations for obtaining certified copies of the documents for making effective reply but before taking 5 his reply, the Inquiry Officer proceeded with and concluded the inquiry; that he was not given adequate time to appoint a defence counsel; that he was not informed properly about the dates of the inquiry proceedings; that the Inquiry Officer conducted the proceedings in a highly prejudicial manner particularly at the instance of the Inspector who was trapped by the Anti-Corruption Department; that on 12.06.1991, he submitted a representation to the Disciplinary Authority that too was not considered and he was not allowed to summon the witnesses in his defence. The appellant also submitted that neither the Disciplinary Authority nor the Appellate Authority considered his contentions properly; that the order passed by the Appellate Authority was a non-speaking one; and that he was not paid salary and subsistence allowance during the course of inquiry that resulted in putting him at a disadvantageous position. On merits, the appellant submitted that the earlier period of 464 days' leave was treated as without pay and the charges in that relation were baseless. It was further submitted that Mohan Singh was caught red handed while taking bribe of Rs.100/- from the appellant and the FIR was also registered in that regard; that though the Investigating Officer submitted the final report in the said FIR but then, the appellant filed a protest petition alongwith an affidavit of Mohan Singh wherein Mohan Singh admitted having taken the bribe of Rs.100/-; and that the final report was not accepted and the matter was sent back for further investigation. It was yet further submitted that though a final report was filed over again, the same was not accepted either; and the matter was yet again sent for comments under Section 173 (3) Cr.P.C. The 6 appellant, thus, contended that the matter being sub judice, he could not have been charged of making a false report. The appellant further submitted that he had not shown any disobedience before any officer and such charges too were baseless. It is relevant to point out that alongwith the writ petition, the appellant filed as Annexure-15 a photostat of the so-called affidavit of the said Mohan Singh; and, with the averment that in the said affidavit Mohan Singh confessed having taken bribe of Rs.100/- from the appellant for granting casual leave, contended that in the face of such admission of Mohan Singh, the Disciplinary Authority and the Appellate Authority could not have reached to a conclusion that the appellant had falsely implicated him in the trap proceedings. The learned Single Judge while considering the matter in the impugned order dated 29.05.1997 took note of the contentions as urged on behalf of the petitioner-appellant and in the first place proceeded to deal with the submission that Mohan Singh had executed an affidavit on 23.01.1987 confessing that he did receive an amount of Rs.100/- as bribe from the appellant. The learned Single Judge observed that this affidavit was not produced earlier - whether before the Inquiry Officer or the Disciplinary Authority or the Appellate Authority - and the original had not been produced before the Court. The learned Judge pointed out that the counsel for the petitioner was extended an opportunity to explain as to why direction for prosecution be not given against the petitioner for submitting a forged document in the Court and in response thereto, the submissions were made to the effect that the petitioner would produce the original affidavit in the Court where the affidavit would be sent for prosecution while maintaining that the affidavit relied 7 upon was the correct one. The learned Judge was not impressed with such submissions and, while observing that the affidavit could not have been executed on 23.01.1987 as it referred to the incident of 17.10.1987, noticed that as per reply of the respondents, in fact, the appellant had submitted an affidavit to the effect that he did make a false report and admitted having taken loan of Rs.150/- from Mohan Singh and having falsely implicated Mohan Singh upon demand of the loan amount. The learned Single Judge observed that the inquiry proceedings were based on the allegation that the appellant falsely implicated Mohan Singh of having taken a bribe of Rs.100/- though it were an amount of loan; and the position was sought to be contradicted by asserting that Mohan Singh took the bribe while relying upon the affidavit Annexure-15. The learned Judge deduced that the document Annexure-15 was a forged one and directed the Dy. Registrar (Judicial) to lodge a complaint against the appellant for submitting a false document alongwith the writ petition. The learned Judge also observed that if the said affidavit was found to be correct, then Mohan Singh would be prosecuted for accepting bribe and the appellant, who had earlier filed the affidavit to the contrary, would also be prosecuted for filing such affidavit before the authorities; and directed that the affidavit submitted by the appellant before the authorities would also be called by the competent Court in order to adjudicate the matter. The learned Single Judge, thereafter, proceeded to consider the other submissions made on behalf of the appellant and found the ground of denial of proper opportunity untenable while observing that the appellant did not attend the inquiry proceedings despite 8 notices; and the reply dated 12.06.1991 was submitted by him only after passing of the order of dismissal. The learned Judge pointed out contradictions in the stand of the appellant where on one hand he alleged that defence counsel was not giving consent under the influence of Mohan Singh and on the other hand, he was relying on the aforesaid disputed affidavit of Mohan Singh; and observed that in the face of such submissions, how could any person be under the influence of Mohan Singh ? The learned Judge further observed that the appellant was found habitual absentee though he was in police service where discipline was required to be maintained; and rejected the contention about double jeopardy while taking note of the background facts that the appellant was earlier dismissed from service but was reinstated with warning. The learned Judge particularly considered the matter in relation to the allegations about false complaint against Mohan Singh and pointed out that even the memorandum of charges carried the fact about the appellant having submitted an affidavit to the effect that the amount of Rs.100/- (wherefor Mohan Singh was trapped) was not of bribe but was towards repayment of a part of loan of Rs.150/-. The learned Judge found that adequate reasons had been recorded in the orders impugned; that the procedure of inquiry was followed; and that the appellant, who was given repeated opportunities, could not complain of ex parte proceedings and no prejudice was otherwise argued or established. The learned Single Judge, thus, found no case for interference and dismissed the writ petition with the directions noticed supra. This special appeal against the order aforesaid was admitted for consideration on 23.02.1998 and, by the interim order dated 9 15.07.1998, the directions for prosecution of the appellant were ordered to remain stayed. In this appeal, on 03.11.2008, a co-ordinate Division Bench, after noticing that the parties were relying upon the decisions of the Hon'ble Apex Court in the cases of Union of India & Ors. Vs. Mohd. Ramzan Khan: AIR 1991 SC 471 and Managing Director, ECIL, Hyderabad Vs. B.Karunakar: AIR 1994 SC 1074, directed the counsel for the respondents to furnish a copy of the inquiry report to the appellant within a period of four weeks. Thereafter, on 09.01.2009, the matter was adjourned by another Division Bench for four weeks on the request of the counsel for the respondents to enable him to either furnish a copy of the inquiry report or to file the necessary affidavit. Thereafter, an affidavit was filed on behalf of the respondents by the Circle Inspector, Bikaner to the effect that as per the communication dated 26.05.2008 from the Superintendent of Police, Bikaner, the concerned file could not be traced despite efforts. On 20.04.2009, another Division Bench of this Court noticed the submissions on behalf of the respondents that inquiry report was not traceable; and at the request of both the parties, the matter was ordered to be placed for hearing. Thereafter, on 12.05.2009, the learned counsel for the respondents prayed for one more opportunity to make efforts to find out the inquiry report and the counsel further submitted that the Department would like to take action against the delinquent in the event of inquiry report being not traced out. On 17.11.2009, it was, again, submitted that despite efforts, the record of the inquiry was not traceable. The co-ordinate Bench, while observing that the matter was a serious one and a casual reply had been stated before 10 the Court without comprehending the consequences, directed the authorities concerned to make effective search of the record including taking strong disciplinary action against whosoever found guilty, if record be not available. The admitted position yet it is that the said inquiry report is not available in the record that could be procured by the learned Government Counsel. In the given circumstances, we have heard the counsel for the parties with reference to the material as available on record; and as placed before us during the course of hearing for perusal. The learned counsel for the petitioner-appellant strenuously argued that denial of proper opportunity of defence to the appellant in this matter is apparent on the face of record and the inquiry proceedings deserve to be quashed on this count alone. The learned counsel submitted that admittedly, the copy of inquiry report was not supplied to the appellant before or even after imposing punishment; and has not been supplied despite orders of this Court. The learned counsel further urged that neither the certified copies of the relevant documents were supplied so as to enable the appellant to submit reply nor the relevant documents were permitted to be inspected nor was the appellant permitted to appoint his defence counsel; and at every stage, he was denied proper opportunity of defence. The learned counsel contended that the appellant has been sought to be punished only for having made the complaint against the said Inspector Mohan Singh who demanded bribe and only in order to save the said culprit. The learned counsel further submitted that the appellant has been sought to be punished in relation to the alleged absence despite the fact that in that regard, an 11 inquiry had already been conducted and he was reinstated with the order of the Appellate Authority; and, according to the learned counsel, the appellant could not have been made to suffer for the same charges twice over. It is also submitted that the observations by the learned Single Judge regarding the document Annexure-15 are not justified because the document as given to the appellant was produced in the Court; and the observations that such document was a forged one are based only on surmises and conjectures. The learned counsel has referred to and relied upon the decisions in Amritlal Vs. State of Rajasthan & Ors.: 1981 WLN (UC) 457; Shiv Kumar Sharma Vs. Haryana State Electricity Board, Chandigarh and Ors.: AIR 1988 SC 1673; S.N.Mukherjee Vs. Union of India: (1990) 4 SCC 594; Union of India & Ors. Vs. Mohd. Ramzan Khan: AIR 1991 SC 471; Managing Director, ECIL, Hyderabad Vs. B.Karunakar: AIR 1994 SC 1074; Ashok Kumar Solanki Vs. State of Rajasthan & Ors.: 2001 (4) WLN 638; Rajesh Khanna Vs. The Rajasthan State Agriculture Marketing Board, Jaipur: 2002 (2) WLC 464; and State of Uttaranchal & Ors. Vs. Kharak Singh: 2008 AIR SCW 7507. Per contra, the learned Government Counsel has supported the order impugned and submitted that in the face of indisputable fact situation, mere non-supply of inquiry report cannot be said to be decisive of the matter particularly when the appellant has failed to make out a case of prejudice. The learned Government Counsel submitted that the appellant, having not participated in the inquiry proceedings despite opportunities, cannot complain of denial of proper opportunity; and when the fact is apparent on the face of the record that the appellant made a false report against Mohan Singh, 12 the order of dismissal is justified on this count alone. The learned Government Counsel has referred to and relied upon the decisions in B.Karunakar (supra), Divisional Manager, Plantation Division, Andaman and Nicobar Islands Vs. Munnu Barrick and Ors.: AIR 2005 SC 1158 and Aligarh Muslim University and Ors. Vs. Mansoor Ali Khan: AIR 2000 SC 2783. We have given anxious consideration to the entire matter,and have scanned though the record. Not much of discussion and dilatation appears necessary in relation to the decisions cited at Bar for it remains more than settled with the authoritative pronouncements of the Hon'ble Supreme Court in the cases of Mohd. Ramzan Khan, B.Karunakar, and Kharak Singh (supra) that the delinquent is entitled to the copy of inquiry report before Disciplinary Authority takes final decision in the inquiry proceedings; that such copy of inquiry report has to be furnished even if statutory rules do not provide for the same and irrespective of asking by the delinquent; that the disciplinary inquiry must be conducted bona fide and not as an empty formality; that specific evidence is required to be led to prove the documents while extending opportunity to the delinquent to cross-examine and then to lead his evidence. However, equally settled it is that mere non- furnishing of copy of inquiry report is not decisive of the matter but it has to be seen whether the delinquent has been prejudiced thereby. As observed by the Hon'ble Supreme Court in the case of Munnu Barrick (supra), the principles of natural justice cannot be put in a straitjacket formula; and they have to be viewed with flexibility. In a given case where a deviation takes place as regards compliance with the principles of natural justice, it is not necessary to set aside 13 the order impugned unless a clear case of prejudice is made out. Further, there could be certain situations in which an order passed in violation of natural justice need not be set aside under Article 226 of the Constitution of India [vide Aligarh Muslim University (supra)]. Applying the relevant principles to the fact situation of the present case, we are satisfied that for the appellant failing to make out a clear case of prejudice and for the appellant wanting in forthrightness before the writ Court, the order as passed by the learned Single Judge remains unexceptionable and no case for interference is made out. Even when the appellant was proceeded ex parte in the inquiry and even when the copy of inquiry report was not supplied to him and has not been supplied even in this appeal yet, the undenied and indisputable facts of the present case cannot be lost sight of. It has precisely been the allegation against the appellant that he got the Wireless Inspector Mohan Singh trapped by lodging a false complaint of demand of bribe of Rs.100/- whereas the demand and payment had been on account of money due in the appellant against the loan of Rs.150/-. In the memorandum of charges, the Department specifically referred to an affidavit allegedly sworn by the appellant in admission of the fact that the said amount of Rs.100/- related to the loan and not the bribe. The significant part of the matter is that even while demanding the copies of some of the documents to enable him to file reply, the appellant did not precisely refer to his alleged affidavit mentioned in the list of documents. In his alleged reminder for supply of documents, the appellant emphasized on his service record and attendance register as being the most relevant documents but not on the said affidavit. It 14 appears that the appellant was unable to counter or deny the fact about his having sworn the affidavit as relied upon by the Department and hence, at the later stage, made a cursory suggestion in his alleged reply dated 12.06.1991 that he made such a statement (in the affidavit) under the threat from the Inspector and under the advice of his colleagues (vide paragraph-3 of the reply dated 12.06.1991). The cursory suggestion about threat was hollow and baseless for want of necessary particulars; and was apparently an afterthought for no such suggestion was made in any of the previous communications or in any other proceedings. In regard to the advice of the colleagues, it was the sweet will of the appellant as to on what and whose advice he chose to act upon. The fact of the matter emerging from such an affidavit was that it were a loan transaction and not a demand of bribe; and once the appellant admitted having made such a statement on oath, the Department was justified in relying upon the same. It appears that though the said Inspector Mohan Singh got entangled in the trap proceedings at the instance of the appellant but, ultimately, a negative final report was filed in the matter after investigation. The appellant though suggested that his repeat protest petition was pending and the matter was sub judice but it has not been pointed out if at all the cognizance was taken against the said Inspector Mohan Singh by the competent court. Though we are not commenting on the process of investigation and adjudication in relation to the said trap proceedings, but in the given set of facts and circumstances, the Department cannot be faulted in finding false the accusation as levelled against Mohan Singh on the basis 15 of admission of the appellant himself; and in penalising the appellant on the basis of such a finding. Moreover, the matter got confounded before the learned Single Judge with the petitioner-appellant relying upon the document Annexure-15. The