S.B.CIVIL WRIT PETITION NO.2075/1997 - Udaivallabh Vyas vs. State of Raj. & Ors. DATE OF ORDER : 9/2/2009 1/8 S.B.CIVIL WRIT PETITION NO.2075/1997 (Udaivallabh Vyas vs. State of Raj. & Ors.) DATE OF ORDER : 9/2/2009 HON'BLE DR.JUSTICE VINEET KOTHARI Mr.Manoj Bhandari,] Mr.K.V.Vyas, ] for the petitioner. Mr.Mahendra Choudhary for Mr.G.R.Punia, for the respondent. 1. Heard learned counsels. 2. This petition has been filed being aggrieved of the charge sheet served upon him on 15/3/1997 by the respondent no.2 – District and Sessions Judge, Jaisalmer. 3. The charge against the petitioner, who was working at Pokaran is that between 14/5/1991 to 29/6/1991 he was attached with Munsif and Judicial Magistrate, Pokaran as Stenographer and for the said period he did not type out the dictation given to him by the said Presiding Officer punctually and delayed the typing of the orders passed by the Court. The petitioner preferred this writ petition in this Court on 21/5/1997 challenging the aforesaid charge sheet. This Court after hearing the parties on 5/6/1997 stayed the proceedings of inquiry and accordingly the inquiry has not proceeded against the S.B.CIVIL WRIT PETITION NO.2075/1997 - Udaivallabh Vyas vs. State of Raj. & Ors. DATE OF ORDER : 9/2/2009 2/8 petitioner so far. Mr.Bhandari and Mr.Vyas for the petitioner raised mainly two submissions (i) District and Sessions Judge Jaisalmer could not said to be appointing authority of the petitioner as the petitioner was initially appointed by District Judge, Pali on 3/1/1990 and lateron he was transferred to Jodhpur Judgeship and since then he is working at Jodhpur, learned counsel referred to Rules 12 and 15 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 in this regard and (ii) after the delay of 06 years the charge sheet could not have been issued by the respondent no.2 in view of the fact that orders were not only typed out albeit with delay as the petitioner was under transfer to Jodhpur during this period and the delay occurred on account of unavoidable reasons and after 06 years such charge sheet could not have been issued against the petitioner. 4. Learned counsel for the petitioner also informed the Court that ever since his transfer to Jodhpur the service record of petitioner has been good and no adverse remark has been communicated to him. 5. Learned counsel for the petitioner has relied upon the following judgments in support of his submissions. S.B.CIVIL WRIT PETITION NO.2075/1997 - Udaivallabh Vyas vs. State of Raj. & Ors. DATE OF ORDER : 9/2/2009 3/8 State of Rajasthan vs. Kaloo Singh - 1971 RLW 34, wherein the Court observed as under:- “A person appointed to a higher post in an officiating capacity holds the rank of that post but there is difference between a person who is appointed to officiate on a higher post and a person is appointed to be incharge of the current duties, in addition to his own. The Assistant Superintendent of Police, who is admittedly an authority subordinate to the Superintendent of Police and who is not formerly appointed to the post of the appointing authority either permanently or in an officiating capacity while holding charge of the current duties of the appointing authority can not exercise powers of dismissal in view of the inhibition contained in Art.311 (I) of the Constitution. In Cl.(I) of Art.311 the word “subordinate” has reference to the rank and not the functions.” Surjit Ghosh vs. Chairman & Managing Director, UCO Bank others – AIR 1995 SC 1053: “It is true that when an authority higher than the disciplinary authority itself imposes the punishment, the order of punishment suffers from no illegality when no appeal is provided to such authority. However, when an appeal is provided to the higher authority concerned against the order of the disciplinary authority or of a lower authority and the higher authority passes an order of punishment, the employee concerned is deprived of the remedy of appeal which is substantive right given to him by the Rules Regulation. An employee cannot be deprived of his substantive right. What is further, when there is a provision of appeal against the order of the disciplinary authority and when the appellate or the higher authority against whose order there is no appeal, exercises the powers of the disciplinary authority in a given case, it results in discrimination against the employee concerned. S.B.CIVIL WRIT PETITION NO.2075/1997 - Udaivallabh Vyas vs. State of Raj. & Ors. DATE OF ORDER : 9/2/2009 4/8 State of Rajasthan vs. Ashraf Khan – 1971 RLW 386, wherein, the Court held as under: “Where an authority higher than the one entitled under the statutory rules to appoint orders an appointment, it is the factum of that appointment which controls the scope of the guarantee conferred by Art.311 of the Constitution and if such a civil servant is dismissed or removed by an authority lower in rank than the appointment authority, such an order would contravene the provisions of Art.311 of the Constitution. The respondent having been in fact appointed under the orders of Rajpramukh, he could not have been dismissed from service by the Deputy Secretary Appointments Department. Since the provision of Art.311 of the Constitution has been violated by the order.” P.V.Mahadevan vs. MD,T.N.Housing Board – (2005) 6 SCC 636, wherein the court held that : “The respondent submitted that the irregularity during the year 1990, for which disciplinary action had been initiated against the appellant in the year 2000, cam to light in the audit report for the second half of 1994-95. But, Section 118 of the Tamil Nadu State Housing Board Act, 1961 specifically provides for submission of the abstracts of the accounts at the end of every year and section 119 of the said Act relates to annual audit of accounts. Therefore, the explanation offered for the delay in finalizing the audit account cannot stand scrutiny in view of the above two provisions. There is no acceptable explanation on the side of the respondent explaining the inordinate delay of ten years in initiating departmental disciplinary proceedings. The stand taken by the respondent in the counter-affidavit is not convincing and is only an afterthought to give some explanation for the delay. S.B.CIVIL WRIT PETITION NO.2075/1997 - Udaivallabh Vyas vs. State of Raj. & Ors. DATE OF ORDER : 9/2/2009 5/8 Under the circumstances, allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry.” State of Madhya Pradesh vs. Bani Singh and another – AIR 1990 SC 1308, wherein, the Hon'ble Supreme Court observed as under: “The irregularities which were the subject matter of the enquiry is said to have taken place between the years 1975-1977. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage.” 6. Learned counsel for the respondent, however, opposed these S.B.CIVIL WRIT PETITION NO.2075/1997 - Udaivallabh Vyas vs. State of Raj. & Ors. DATE OF ORDER : 9/2/2009 6/8 submissions and submitted that in view of the alleged misconduct the charge sheet is not required to be quashed by this Court in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India and writ petition deserves to be dismissed. 7. Having heard learned counsels, this Court is of the opinion that the writ petition deserves to succeed on both the grounds raised by the petitioner. Rule 12 and Rule 15 of the CCA Rules, 1958 are quoted below for ready reference. “Rule 12 (1) All appointments to a State Service shall be made by the Government or by any authority specially empowered by the Government in that behalf. (2) All appointments to the Subordinate and Ministerial Services shall be made by the Head of Department or by any authority specially empowered by the Head of Department with the approval of Government in that behalf. (3) All appointments to Class IV Services shall be made by the Head of Office subject to the rules and instructions issued by the Head of Department in that behalf. Rule 15. Disciplinary Authorities – (1) In respect of the State Services the Government or the authority specially empowered by the Government in that behalf, in respect of the Subordinate and Ministerial Services, the Head of Department or the authority specially empowered by the Head of the Department with the approval of the Government and in respect of Class IV S.B.CIVIL WRIT PETITION NO.2075/1997 - Udaivallabh Vyas vs. State of Raj. & Ors. DATE OF ORDER : 9/2/2009 7/8 Services the Head of Office shall be the disciplinary authority. (2) In respect of the State Services the powers of appointment to which is not delegated to a subordinate authority, before imposing the penalties other than censure, and withholding of increments, the Public Service Commission shall be consulted.” 8. In view of the fact that Jaisalmer judgeship itself was created on 1.7.1991 and Pokaran which was under Jodhpur judgeship was merged with Jaisalmer Judgeship only w.e.f. 1/7/1991 and also in view of the fact that petitioner stood transferred to Jodhpur judgeship vide Ex.2 dated 26/6/1991, the learned District Judge, Jaisalmer could not said to be appointing authority of the petitioner while issuing the said charge sheet in question on 15/3/1997. Secondly, this Court of the opinion that looking to the nature of allegation against the petitioner such a charge sheet out not have been issued after a delay of approximately six years. The delay in typing out the dictation as alleged in the charge sheet might have occurred due to unavoidable reason specially in view of the fact that petitioner was transferred on 26/6/1991 itself, the period which falls between the alleged period of 14/5/1991 to 29/6/1991. If the disciplinary S.B.CIVIL WRIT PETITION NO.2075/1997 - Udaivallabh Vyas vs. State of Raj. & Ors. DATE OF ORDER : 9/2/2009 8/8 authority/appointing authority was not satisfied with his work or was of the opinion that same constituted a misconduct, such a charge sheet could have and should have been issued just after the said period was over. Such belated issuance of charge sheet after more than six years is bound to cause unnecessary harassment and down the morale of employee concerned. The power to issue charge sheet by the disciplinary authority in order to maintain discipline should not be used as a tool of harassment much less in an institution like judiciary. 9. Therefore, in over all view of the matter, this Court is inclined to allow the writ petition and quash the impugned charge sheet dated 15/3/1997. Writ petition is allowed accordingly and charge sheet Ex.3 dated 15/3/1997 is quashed. No costs. (DR.VINEET KOTHARI), J. item no.12 baweja/-