IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 1182 of 1997 IBRAHIM KHAN V/S RSRTC & ORS Mr. SK MALIK, for the appellant / petitioner Mr. V K MATHUR, for the respondent Date of Order : 27.11.2007 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MUNISHWAR NATH BHANDARI,J. ORDER ----- By this appeal, the appellant seeks to challenge the order of the learned Single Judge dated 12.5.1997, dismissing the appellant's writ petition. The brief facts of the case are, that the appellant was appointed as a driver with the respondent- Corporation on 1.5.1976, and while so working, the bus being driven by him met with an accident on 3.12.1977, wherein one Mohan Lal died. Thereupon a Criminal Case was registered, and Motor Accident Claim was also filed. In the Motor Accident Claim, the Tribunal passed an award of compensation on 14.8.1981, after passing of this Award the appellant was served with a charge sheet on 27.3.1982. The charges included a charge that the petitioner did not bring the fact of accident to the notice of the respondents, and did not file a First Information Report. On this charge sheet, an inquiry was conducted, and the appellant was found guilty, and was ultimately dismissed from the service vide order dated 24.7.82. Against that order, the appellant preferred an appeal, which was dismissed on 15.10.1982. Thereupon the petitioner challenged the dismissal order by way of a writ petition before this Court, being S.B. C.W.P. No. 1952/83, which came to be allowed vide order dated 16.2.93, wherein though it was held, that in view of the judgment of Hon’ble Supreme Court in Union of India Vs. Mohd. Ramzan reported in AIR 1991 SC 471, the non-supply of inquiry report does not render the termination of the petitioner invalid, therefore, this ground was negatived, however, it was found, that the order of the appellate authority was not a speaking order, rather it was found to be a laconic order, therefore, the order of the appellate authority, being Annex.6, was quashed, and the respondents were directed to supply copy of the report of the Inquiry Officer to the petitioner, and the petitioner was given three weeks' further time, after receipt of the report of the Inquiry Officer, to file a proper appeal before the appellate authority, and the appellate authority was to hear the petitioner, and pass proper speaking order, so as to show application of mind. Thereafter the order Annex.2, dated 26.12.95 had been passed, again terminating the services of the petitioner. Thereupon the petitioner filed the present writ petition. In the intervening period, as 2 appears from Annex.3, that the petitioner filed a contempt petition for wilful disobedience of the said order of this Court dated 16.2.93 mentioned above, wherein reply was submitted to the effect, that the record of the Corporation pertaining to the inquiry proceedings was not traceable, hence supplying copy of the Inquiry Officer's report to the petitioner cannot be complied with, and in that eventuality it was also contended on behalf of the petitioner, that if the record is lost, the only consequence would be reinstatement of the petitioner, and fresh inquiry on those charges, which submission was countered, by submitting, that this has factually been done, and fresh notices had been issued against the petitioner, and fresh order of punishment has been passed. Considering all this it was found in the contempt petition, that it is open to the petitioner to have such remedies as are available to him under law, in challenging the subsequent orders. With this the contempt proceedings were dropped. Thereupon, the petitioner filed the present writ petition, seeking to challenge the order Annex.2. It was challenged in the writ petition mainly on the ground, that the only procedure open to the respondents was to reinstate the petitioner if the record was not traceable, and then should have proceeded against the petitioner in accordance with law, by issuing fresh charge-sheet, and without complying with the order of the Hon'ble Court, the respondents cannot resort to the method of issuing a fresh charge-sheet, without reinstating 3 the petitioner in service. The other ground given is, that without reinstating the petitioner the respondents have proceeded against the petitioner, and exparte inquiry was conducted, and thereafter, the appellate authority, without following the procedure prescribed under the rules, has passed the order against the petitioner, which is totally without jurisdiction, and ex-facie illegal, as the appellate authority has acted, as the Disciplinary Authority as well as Appellate Authority, and such action of the appellate authority is violative of the Article 14 and 16 of the Constitution of India. Then the other objection raised is of malafides. The learned Single Judge, who heard the matter noticed the contentions, advanced on behalf of the present appellant, to the effect, that in the impugned order, Annex.2, it has been recorded by the appellate authority that the inquiry report was served by the department to the petitioner vide letter dated 13.11.95 on his home address, which was received by the petitioner on 18.11.95, and the receipt is on record, therefore, the inquiry report was sent, while the petitioner's case is that he was not supplied with the copy of the earlier inquiry report. Learned Single Judge found, that it is a disputed question of fact, on the face of the official record, as the receipt of inquiry report is available on record, and the disputed question cannot be gone into the writ jurisdiction. It has 4 also been noticed, that the appellate authority had sent the matter back to the Inquiry Officer, who sent letters to the petitioner for joining the inquiry, but he did not appear in response to the many registered communications sent to him, even there was a publication in the newspaper to join/participate in the inquiry, but the petitioner neglected all of them, and having neglected to go before the enquiry officer, now it is not open to the petitioner to join the issue in the writ petition. It was found, that this Court cannot go into the disputed questions of fact, and thus, the writ petition was dismissed. Assailing the impugned order of the learned Single Judge, and the order impugned in the writ petition, being Annex.2, relying upon the judgment of Hon'ble the Supreme Court in Surjit Ghosh Vs. Chairman & Managing Director, United Commercial Bank & Ors., reported in (1995) 2 SCC 474, it was contended, that in the present case the appellate authority had acted as Disciplinary Authority, and thereby the appellant's right of filing appeal has been taken away, and as held by Hon'ble the Supreme Court, in Surjit Ghosh's case, such exercise of powers is violative of Article 14, and on that sole ground, the order, Annex.2 annexed with the writ petition, is liable to be set aside. Learned counsel for the respondent, on the other hand, supported the impugned order. 5 We have gone through the impugned orders of the learned Single Judge, Annex.P/2, and the judgment of Hon'ble the Supreme Court, in Surjit Ghosh's case. So far the legal proposition propounded by the Hon'ble Supreme Court in Surjit Ghosh's case is concerned, that appellate authority cannot arrogate to its jurisdiction of the Appellate Authority, and if it so arrogates, the dismissal order would suffer from inherent defect, and would be liable to be set aside, is concerned, there is no dispute on this legal proposition as such. But then, that is not the end of the matter, inasmuch as, in the present case, a look at the judgment of this Court passed in earlier writ petition being dated 16.2.93, would show, that the punishment order passed by the appellate authority was challenged, on the ground of delay, which contention was negatived. Then other contention raised was about the non-supply of Inquiry Officer's report, which contention was also negatived. Then third contention raised was, about the order of the Appellate Authority being not speaking order, and being laconic, found favour in the said order dated 16.2.1993 and therefore, this order set aside the appellate authority's order, and directed the respondents to supply the copy of the report of the Inquiry Officer to the petitioner, and the petitioner was given three weeks' further time from the receipt of the Inquiry 6 Officer's report, to file proper appeal before the appellate authority, and the appellate authority was directed to hear the petitioner and pass proper speaking order, so as to show application of mind. It would suffice to say, that the order of the Disciplinary Authority as such, had not been quashed by this Court, and the order of the appellate authority was only found to be laconic, and the appellate authority was directed to supply the copy of the inquiry report, and was further directed, to thereafter, receive the appeal from the petitioner, hear him, and pass appropriate speaking order, so as to show application of mind. This in our view, leaves no manner of doubt, that whatever order was required to be passed thereafter, was required to be passed by the appellate authority only, and not by the Disciplinary Authority. The supervening circumstance, which appears to have intervened in the present case is, that during this intervening period, the record of the inquiry had been lost. It is unfortunate that the record was lost, but then, on that count, the appellant could not claim any mileage, for the simple reason, that the Disciplinary Authority's order had not been quashed in the writ petition, and the only appellate authority's order, having been found to be laconic, the appellate authority was directed to decide the 7 matter afresh, after providing the copy of the inquiry report. Obviously, as the inquiry report was not available, the appellate authority directed the Inquiry Officer to hold a fresh inquiry, and submit the report, which could be considered, and the appellant was time and again called to join the inquiry, participate therein, but as found by the learned Single Judge, the appellant adopted a wholly stubborn attitude, and did not participate. In such circumstances, if the same conclusion was arrived at, by the Inquiry Officer again, and the appellate authority had passed the order Annex.2, in our view, no fault can be found therewith, even in view of the proposition propounded by Hon'ble the Supreme Court in Surjit Ghosh's case. This is one aspect of the matter. The other aspect of the matter is that the contention about the Appellate Authority lacking jurisdiction to pass the order, though taken in the writ petition, was not canvassed before the learned Single Judge. Not only that, this has not been taken as a ground in the present appeal as well, either that the Appellate Authority had no jurisdiction to pass the impugned order, or that this contention as taken in the writ was argued before the learned Single Judge. Obviously the point stands given up, and cannot be allowed to be agitated now at this stage. 8 Yet another aspect of the matter, as considered by Hon'ble the Supreme Court, in Surjit Ghosh's case in para 8, 9 and 10 is, that in the present case, the appellant was appointed only on 1.5.76, and after serving for only one and a half year, the incident occurred, and he was terminated from service way-back on 4.7.82. Since then he is not in job, and by now he has already crossed the age of superannuation. In such circumstances, even on equitable considerations, we do not think that the appellant should be given any relief, more so, when the Appellate Authority or the Disciplinary Authority has not directed the recovery of the amount of compensation, paid by the Corporation, to the claimants, from the appellant. The appeal thus is devoid of merit, and is therefore, dismissed. The parties are left to bear their own costs. ( MUNISHWAR NATH BHANDARI ),J. ( N P GUPTA ),J. /tarun/ 9