SBCWP NO. 3347/ 95. { 1 } IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.3347/1995. S.P. Mangal VERSUS Rajasthan State Road Transport Corporation & Anr. Date of order : August 25, 2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Ajeet Kumar Sharma for petitioner. Dr. P.C. Jain for the respondents. **** BY THE COURT :- Petitioner has challenged the order of penalty dated 7/1/1994 by which he was awarded penalty of stoppage of five annual grade increments with cumulative effect and the order dated 23/9/1994 by which his appeal filed against the order of punishment has been dismissed by the appellate authority and petitioner has prayed for declaring these two SBCWP NO. 3347/ 95. { 2 } orders as illegal and for setting aside and quashing the same. Additional prayer has also been made for directing respondents to consider case of the petitioner for promotion to the selection scale in the Engineering cadre ignoring the impugned penalty imposed upon him with effect from the date persons junior to him were given promotion and further, respondents be also directed to give all the consequential benefits to him. 2) Petitioner was serving the respondent-RSRTC on the post of Additional Divisional Mechanical Engineer at the relevant point of time. He was served with the memorandum of charge-sheet dated 21/8/1990 by the Chairman of the respondent-Corporation proposing to conduct departmental enquiry. Allegation against the petitioner was SBCWP NO. 3347/ 95. { 3 } that he appointed Balveer Singh as Driver on regular basis sometime in the year 1985-86. It was alleged that as per report of Selection Committee held in 1988, Ammi Lal was found to be over age on the date on which he was appointed on daily wage basis and three persons were illiterate and therefore charge against the petitioner was that he appointed them illegally and allowed them to continue in service for more than 240 days. Appointment of these persons was thus made in violation of Rules 5 and 6 of the Standing Orders, 1965. Petitioner submitted application to the Chairman on 6/2/1991 in which he submitted that since he was transferred from Bikaner to Bharatpur Division and had to go to attend new place of posting on 28/1/1991, he could not appear before the enquiry officer on the stipulated date. SBCWP NO. 3347/ 95. { 4 } Petitioner wrote to the respondent- Corporation requesting that he wanted to go through the relevant documents pertaining to the initial appointment of the Drivers concerned. Deputy General Manager (Adm.), who was appointed as enquiry officer however in the meantime concluded the enquiry ex-parte. Enquiry officer submitted his report on 4/2/1993. The enquiry officer concluded the proceedings in a hasty manner and submitted his report which was unjustified because petitioner was not granted opportunity of being heard. He therefore prayed that the report submitted by the enquiry officer may not be accepted and a fresh enquiry be ordered but before that he should be provided required copies of the documents and allowed to inspect the enquiry file. Chairman of the respondent-Corporation directed that SBCWP NO. 3347/ 95. { 5 } fresh opportunity be given to the petitioner for submitting his defence and therefore enquiry proceedings were ordered to be started afresh. Petitioner reiterated his demand for supply of documents and inspection of documents and in this connection he submitted another application on 3/4/1991. Deputy General Manager (Adm.)/enquiry officer however, made certain documents available to the petitioner viz. relevant document files of Drivers and for remaining documents, petitioner was asked to obtain copies from his own file and then submit reply to the charge sheet. 3) Petitioner submitted another application to the enquiry officer on 29/5/1991 reiterating his request to furnish all the doucments relating to Ammilal and Narendra Kumar. Petitioner submitted preliminary SBCWP NO. 3347/ 95. { 6 } reply on 23/10/1991 which he sent to the Chairman of the Corporation wherein he reiterated the request for supply of the documents and copy of the reply was submitted to the enquiry officer on 4/1/1992. During the course of enquiry, statements of Bhagwati, Sr.Clerk was recorded on 28/2/1991. Since at that time petitioner was absent, new enquiry officer allowed petitioner to cross- examine the said witness on 28/9/1992. Petitioner examained the said witness on 28/9/1992. Petitioner also examained himself in defence and produced copy of the office-note dated 29/8/1982 (Exh.2) whereby a note was put up by Assistant Mechanical Engineer. Enquiry Officer submitted his report on 12/2/1992 exonerating petitioner from all the charges. Disciplinary Authority furnished a copy of the enquiry SBCWP NO. 3347/ 95. { 7 } report to the petitioner with his letter dated 1/11/1993 in which petitioner was asked to appear for personal hearing. Petitioner appeared before the Chairman of the Corporation/Disciplinary Authority on 25/11/1993 and also gave his written submissions. Chairman of the Corporation vide his order dated 7/1/1992 awarded penalty of stoppage of five annual grade increments with cumulative effect. Petitioner filed appeal against the aforesaid order of the Chairman before the Board of Directors. His appeal was rejected. Hence, the writ petition. 4) Shri A.K. Sharma, learned counsel for petitioner has argued that the enquiry officer as also the disciplinary authority has recorded such findings which no prudent man can on available material/record and therefore the impugned orders of SBCWP NO. 3347/ 95. { 8 } penalty as also the enquiry report suffer from perversity and despite the limited scope of interference available to this Court under Article 226 of Constitution of India, the present one is case of such nature where impugned-order of penalty as also the appellate order ought to be annulled for reasons that there is absolutely no evidence on the basis of which, penalty order could be passed. Being based on erroneous and perverse reasons, the impugned-orders be quashed and set-aside. It is contended that petitioner was not afforded reasonable opportunity to defend himself and was not permitted to go through the relevant documents on which charges were founded. Despite repeated request of the petitioner, he was not provided copies of all the documents or appointment file of the concerned SBCWP NO. 3347/ 95. { 9 } four Drivers. Part of the documents were furnished to the petitioner with letter of the enquiry officer dated 4/4/1991, asking him to obtain certificate at his own level. Petitioner was not provided the relevant documents pertaining to first appointment of Ammilal including the applications of other submitted along with their documents. Non supply of relevant record to the petitioner even for inspection amounts to denial of opportunity of hearing and it vitiates the well settled principles of natural justice. Relevant extract from the appointment file of 1985-86 was also not supplied to the petitioner. Petitioner raised all the grievances in the reply submitted to the disciplinary authority on 19/11/1993 and 25/11/1993. Presumption of respondents that relevant record was SBCWP NO. 3347/ 95. { 10 } in the control of the petitioner was totally baseless since the aforesaid record dt.1/7/1986 pertains to Depot at Alwar. Shri A.K. Sharma, learned counsel referred to Exh.P.1 produced in evidence by witness of the Corporation which was hand written letter dated 6/11/1990 wherein he clearly referred that the relevant record be obtained from Jaipur Depot. It is contended that the sole premise on which petitioner was charge sheeted was for appointment of 3-4 Drivers. The committee when subjected them for regular recruitment, found them illiterate whereas all these three Drivers had produced certificates when they were initially appointed on daily wage basis and that their appointment was on regular basis after the same were processed in the relevant recruitment file of appointment of concerned staff. They SBCWP NO. 3347/ 95. { 11 } were later subjected to disciplinary enquiry by the Assistant Mechanical Engineer/ Workman Incharge. Enquiry was conducted on surmises and conjectures in rejecting the certificate dated 12/11/1987 issued by the Headmaster of the school simply by stating that even he attended the school that does not mean that he received education. Enquiry Officer has gone to the extent of ignoring the signatures. Learned counsel submitted that the enquiry officer failed to appreciate that petitioner could not go into the validity of the license. So long as valid license was produced, no objection was taken by the staff of the office. Similarly, Hawa Singh has also produced the certificate of Primary school passed. Selection committee subsequently held in 1998 observed that there was no reason for SBCWP NO. 3347/ 95. { 12 } the petitioner to treat them illiterate when they produced the original certificate and qualified the written test. Learned counsel submitted that the enquiry officer has misread the medical certificate of Ammilal dated 5/10/1984. In that certificate, Ammilal indicated his age to be 38 years but even on that, it would be evident that at the relevant time of his initial appointment, he was within the age limit of 35 years. Petitioner has produced on record medical certificate dated 5/10/1987 of Ammilal which was produced as Exh.D.4 before the enquiry officer which is on record available herein as Ann.12 and submitted that 5/10/1987 which is the date clearly legible from the photocopy of the certificate and which has wrongly been read as 5/10/1984. Therefore, learned counsel SBCWP NO. 3347/ 95. { 13 } submitted that this document, which was collected by the selection committee when it was convened in 1998 and therefore even otherwise it cannot be accepted to be medical certificate of 5/10/1984. It was argued that part of the charge against the petitioner was that not only he appointed four drivers on daily wage basis but also allowed them to continue for a period of 240 days thereby giving rise to claim of their regular appointment. It was submitted that this charge is wholly baseless as would be evident from the fact that Kotputli Depot where these drivers were appointed on daily wage basis was earlier part of Alwar Division and was transferred to Kotputli Division vide order dated 27/6/1986. Thus, all the four drivers were working in Kotputli Depot which is out of the control of the SBCWP NO. 3347/ 95. { 14 } petitioner. It cannot therefore be said that they were allowed to complete 240 days by the petitioner. It was contended that the persons junior to the petitioner acquired promotion due to the fact that petitioner was awarded penalty therefore, penalty order be quashed and set-aside and the respondents be directed to grant him promotion with reference to the date such promotion was granted to the juniors with all consequential benefits and selection scale. Writ petition therefore be allowed. 5) Dr.P.C. Jain, learned counsel for respondents opposed the writ petition and submitted that this court while exercising its powers of judicial review under Article 226 of the Constitution of India, cannot in matters of disciplinary proceedings, act like an appellate court so as to SBCWP NO. 3347/ 95. { 15 } re-appreciate the evidence. Learned counsel submitted that proof of the charges in the disciplinary proceedings cannot be insisted upon by standard of beyond reasonable doubts and if the charges against the delinquent are proved bu preponderance of evidence, that should be sufficient compliance of the law. Learned counsel submitted that there was ample evidence to prove the charges against the petitioner and it is submitted that all the relevant documents which form the basis of charges against the petitioner were supplied to him. Petitioner was having full control of the said division. If petitioner himself was not vigilant in tracing out the record in his control, respondents cannot be blamed for that. It is submitted that fact of Ammilal Driver being over age having SBCWP NO. 3347/ 95. { 16 } indicated 38 years as his age in the application, this fact could be brought to the notice of the selection committee when it was convened in the year 1988 that he was over age at the time of his initial appointment. Learned referred to statement of B.P. Rawat, witness examined by the Corporation before the enquiry officer and argued that this witness has clearly stated that all the relevant documents were supplied to the petitioner against the clear receipt which was Exh.P.1. The letter of the selection board was Exh.P.3. Witness has proved Exh.P.3 that these drivers were illiterate and that their appointments could not be made because appointments have been made on daily wage basis which was required to be made on the basis of panel available at the headquarter level. Learned counsel submitted that SBCWP NO. 3347/ 95. { 17 } even in the cross-examination of B.P. Rawat that was made by the petitioner, he has clearly stated that panel was available in the branch and it was very much available when the appointments were made by the petitioner. Learned counsel submitted that the enquiry officer has prepared a detailed and comprehensive report. He has given reasons in support of his findings and reasonings are such which cannot be faulted with. It was argued that medical certificate dated 5/10/1984 in which age of Ammilal was mentioned as 38 years and license was issued by Ammilal on 6/4/1970 which clearly proved that he was over age. Learned counsel also supported the other findings recorded by the enquiry officer and submitted that since the disciplinary authority had concurred with the findings of the enquiry SBCWP NO. 3347/ 95. { 18 } officer, he was not required to pass a detailed order. But even then, disciplinary authority has passed just and reasoned order of penalty. Appellate authority has also concurred with the view taken by the enquiry officer and disciplinary authority and has rightly rejected the departmental appeal. Since petitioner was subjected to penalty, he was liable to be over looked in the matter of promotion as the selection scale vis-à-vis his juniors. It is therefore prayed that writ petition be dismissed. 6) I have given my anxious consideration to the rival submissions of the parties and perused the material on record. 7) Appointments that were subject-matter of dispute and on the basis of which petitioner was served with the charge-sheet, were SBCWP NO. 3347/ 95. { 19 } admittedly made on daily wage basis as is evident from the Rules at Ann.10 for appointment on the post of Driver source of recruitment for which is 100% by direct recruitment and qualification for appointment, candidate must be literate with Driving License and with one year experience of driver. Petitioner was therefore required to see whether the candidates were literate. In defence, petitioner produced before the enquiry officer the school certificates of primary school passed of the drivers. Enquiry officer in his report has noticed the defence of the petitioner that he ensured that all these candidates were interviewed and this was done on the basis of the scrutiny of the record. The candidates were made to read the newspaper. Exh.P.3 is the letter written by the Chairman of the SBCWP NO. 3347/ 95. { 20 } selection committee dated 24/2/1988, in which three candidates were found to be illiterate but that later does not contain any basis for such a finding recorded by the selection committee and this fact has been acknowledged by the enquiry officer also. The enquiry officer has examined the school certificate of primary school passed dated 12/9/1986 issued by the headmaster of the school but then enquiry officer did not believe that certificate although it can be presumed that the candidate must have gone to school but whether or not he received education is not even proved from the certificate. Signatures contained at page 16 of the appointment file was also not believed by the enquiry officer because according to him, they were hand written letters and thus enquiry officer cannot hold them illiterate. SBCWP NO. 3347/ 95. { 21 } Enquiry officer has given a finding that Corporation was not justified in treating him as illiterate. The application of Rajendra Kumar available at page No.34 was also analysed by the enquiry officer. Unfortunately, enquiry officer has given finding that he was illiterate. 8) Last part of the charge against the petitioner is that he allowed four drivers to continue in service for more 240 days so as to enable them to claim their regular appointment whereas evidence has clearly proved that much before these four completed more than 240 days from the date of initial appointment, they stood transferred or they were not under the control or supervision of the petitioner. 9) In the result, this writ petition is allowed. Impugned-order of penalty dated 7/1/1994 (Ann.15) SBCWP NO. 3347/ 95. { 22 } and impugned-order of dismissal of appeal dated 23/9/1994 (Ann.17) are quashed and set-aside. Petitioner is held entitled to all the consequential benefits including that of promotion to selection scale at par to his immediate juniors. Compliance of the judgment shall be made within a period of three months from the date of submission of certified copy of this order before the respondents. (MOHAMMAD RAFIQ), J. anil