1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2672/99 Balbir Singh Khandekar vs. The Rajasthan Small Industries Corporation Ltd., Jaipur & Anr. Date of order : 8th August, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Sajid Ali for the petitioner. Shri R.P. Garg for the respondent. ****** Petitioner in the present writ petition has challenged the order dated 18.4.1996 by which he was removed from service of the respondents and the subsequent order dated 19.9.1998 whereby his appeal filed thereagainst has been dismissed. Petitioner was initially appointed as Class-IV employee with the Rajasthan Small Industries Corporation Ltd. on 14.10.1977. He was promoted as Junior Sales Assistant by order dated 4.11.1989. He was served with a charge sheet dated 30.6.1995 at the time when he was posted as Incharge Furniture and Carpet Production Training Centre, Lasadiya under Rule 8 of the Rajasthan Small Industries Corporation Service (Discipline & Appeal) Rules, 1974 (for short-`the Rules of 1974'). Four charges were levelled against 2 him. The petitioner submitted reply to the charge sheet and denied the charges. The Enquiry Officer submitted its report on 11.4.1996 to the disciplinary authority who passed the order of punishment on 18.4.1996 removing the petitioner from service. Petitioner filed an appeal against the said order, but when the same was not decided, he approached this Court by filing S.B. Civil Writ Petition No.3674/1996. This Court disposed of the writ petition vide its judgement dated 23.7.1998 directing the appellate authority to decide the appeal of the petitioner within thirty days from the date of receipt of certified copy. The appellate authority by its order dated 19.9.1998 eventually dismissed the appeal. Hence the writ petition. Shri Sajid Ali, learned counsel for the petitioner has argued that the orders passed by the disciplinary authority as also the appellate authority are non-speaking orders and do not reflect application of mind. Out of the four charges, the first charge against the petitioner was absence without permission and second related to flouting 3 orders of the superior. The third charge was that the petitioner entered into correspondence with the Commissioner, Tribal Area Development bypassing the competent authority and the fourth charge was to the effect that he uses improper and non- administrative language in the letters written to the higher authority. In order to arrange for defence, the petitioner submitted an application on 4.7.1995 for inspection of record and also for obtaining copies of some documents followed by another application on 30.7.1995, but neither he was allowed to inspect them, nor the documents were supplied. He then submitted yet another application to the disciplinary authority on 11.8.1995 for inspection of the complete record. Petitioner requested for permitting him to inspect 5 documents for charge no.1, 31 documents for charge no.2, 2 documents for charge no.3 and 13 documents for charge no.4. The disciplinary authority by his letter dated 11.7.1995 required the petitioner to appear before the A.O. (TAD) to inspect the documents. On the first date, the A.O. (TAD) was not present and 4 subsequently when the petitioner appeared before him, out of 51 above mentioned documents, he was shown only 7 documents by A.O. (TAD), who then told the petitioner that the rest of the documents shall not be shown. The petitioner submitted another application on 12.10.1995 for inspection of the remaining documents and also demanded copy of the charge sheet issued to Dau Lal Bijawat, Manager Rajasthali, Udaipur because some of the charges in his case and the present matter were interrelated. However, no other document was either allowed to be inspected nor copy of any of the demanded document was supplied to the petitioner. In these circumstances, he was compelled to file written statement on the basis of whatever material was available with him. Learned counsel argued that serious prejudice was caused to the petitioner in defending himself as in the absence of relevant documents, he was handicapped in effectively putting up his case. The respondents thus violated provisions of Rule 8 of the Rules of 1974. Shri Sajid Ali further argued that Shri 5 R.P. Pareek, Special Officer (Enquiry) was appointed as Enquiry Officer and the Administrative Officer (Special Schemes) was appointed as Presiding Officer. Both of them were experienced in the accounting and administrative matters, especially the Presiding Officer. Petitioner who has been promoted from Class-IV cadre to Class-III was not very well acquainted with the Rules and procedure relating to departmental proceedings. He requested for providing him defence nominee but the Enquiry Officer did not pay any heed to his request. The witnesses produced by the department nominee Ram Singh and Jagdish Prasad, did not support the charges against the petitioner. Yet the Enquiry Officer, in his report found charges proved against the petitioner. The disciplinary authority did not supply the copy of the enquiry report to the petitioner before passing the removal order and that it was supplied to him only along with removal order. In absence of the copy of the enquiry report, the petitioner was seriously prejudiced as he could not know on what basis the charges have been found proved 6 against him. Had he been supplied copy of the enquiry report, he would have filed the representation to the disciplinary authority that the finding recorded by the enquiry officer are perverse and that there was absolutely no material to prove the charges. There was thus violation of Rule 11 of the Rules of 1974 as also Article 14 and 311 of the Constitution of India. It was argued that the Enquiry Officer was appointed even without affording the opportunity to file of the written statement by the petitioner. The Enquiry Officer was appointed on 20.11.1995 who wrongly fixed the date of hearing on 14.12.1995 whereas the written statement of defence was filed by the petitioner on 12.1.1996. There was thus violation of Rule 8(3) and Rule 8(4) of the Rules of 1974. It was argued that the documents which were produced before the Enquiry Officer and were exhibited on behalf of the department were never supplied to the petitioner before recording statement of Shri C.R. Jain. These documents were not verified by their authors. The petitioner could not effectively cross examine the said 7 witnesses. The Disciplinary authority has violated Rule 8(9) of the Rules of 1974 because he has not considered the entire record of the enquiry and has not recorded his finding on each of the charges. The order of punishment is cryptic and laconic and does not show any application of mind. Learned counsel relied on the judgement of Supreme Court in Mohd. Ramjan Khan vs. Union of India-AIR 1991 SC 471 and Managing Director, E.C.I.L. vs. B. Karunakar-1993(6) SC 1 and argued that the respondents have violated the principles of natural justice enshrined in Article 14 and 311 of the Constitution of India as also Rule 2(8) of the Rules of 1974 by not supplying copy of the enquiry report which has seriously prejudiced the case of the petitioner. The appellate authority has also not applied its mind to the evidence and material available on record inasmuch as it has also not examined the excessiveness of the penalty. The penalty of removal is wholly disproportionate to the nature of charges proved. Learned counsel also relied on the judgements of Supreme Court in Government of 8 A.P. & Ors. vs. A. Venkata Raidu-(2007) 1 SCC 338 and Hiran Mayee Bhattacharyya vs. Secretary S.M. School for Girls & Ors.- (2002) 10 SCC 293. It is therefore prayed that the writ petition be allowed in terms of the prayers. Shri R.P. Garg, learned counsel for the respondent opposed the writ petition and argued that the writ petition is not maintainable as the same is barred by principles of res judicata. Citing the judgement of this Court in earlier S.B. Civil Writ Petition No.3674/1996 of the petitioner, Shri R.P. Garg submitted that the petitioner in the aforesaid writ petition already challenged the order of his removal dated 18.4.1996, which was disposed of by this Court and it was observed that the petitioner shall be free to challenge the order in accordance with law so passed before the appropriate authorities. It was argued that the enquiry has been made strictly in accordance with Rules of 1974 inasmuch as the copy of the enquiry report has also been supplied to the petitioner. Since the petitioner has alternate remedy by 9 raising a dispute before the Industrial Tribunal under the Industrial Disputes Act, the writ petition is liable to be dismissed. Learned counsel refuted the assertion that the petitioner was not allowed to inspect the entire record. It was argued that by letter dated 26.8.1985 petitioner was informed that he may inspect the record on 15.9.1995 in the office of Administrative Officer and he actually inspected the record on that date. A letter was then written to the petitioner on 7.10.1995 again informing him to file written statement in defence. Petitioner did not raise the argument with regard to not permitting him to inspect the documents in the earlier writ petition, therefore, he cannot raise such argument now. It was denied that the petitioner requested for providing any defence nominee. Learned counsel also denied that Ram Singh and Jagdish Prasad did not support the allegation levelled against the petitioner. It was submitted that the orders passed by the disciplinary authority and the appellate authority cannot be said to be non-speaking and unreasonable. As regards non supplying 10 of the enquiry report, it was argued that the Rules of 1974 especially Rule 8 relating to disciplinary proceedings no where provides for supply of copy of enquiry report even then it was supplied to the petitioner along with the penalty order. It was denied that the petitioner was not afforded sufficient opportunity to defend himself. The petitioner did not file written statement in spite of being required repeatedly. In those facts, the disciplinary authority was left with no option, but to appoint the Enquiry Officer. It was submitted that mere non supply of enquiry report by itself does not prove that any prejudice was caused to the petitioner. The law laid down by Supreme Court in Mohd. Ramjan Khan, supra, was diluted in the subsequent judgements of the Supreme Court wherein it has been held that the mere non- supply of enquiry report cannot be taken as basis to show prejudice. Non supply of the copy of the enquiry report and the prejudice are independent factors. It was argued that the provisions of Rule 8(11) provides that after passing of the punishment order under 11 Rule 8(10) by the disciplinary authority, the order of punishment alongwith copy of findings of charges will be supplied and it was at that stage that the copy of the enquiry report and the final order was supplied to the petitioner. The petitioner therefore cannot be allowed to complain of any prejudice. It was therefore prayed that the writ petition be dismissed. I have given my anxious consideration to the rival submissions and perused the material on record. Contention that the writ petition is not maintainable and is barred by principle of re judicata is liable to be rejected because this Court in earlier writ petition of the petitioner merely directed the appellate authority to decide the appeal filed by him with opportunity to the petitioner to challenge the order in accordance with law before the appropriate authorities. Dismissal of the writ petition of the petitioner may have resulted into merger of the removal order with the appellate order. But the Court having not adjudicated upon the correctness of removal order, it did not 12 merge with the passing of fresh order. Dismissal of the petition of the petitioner would therefore give rise to a fresh cause of action. Merely because the Court while dismissing the writ petition observed that petitioner would be free to challenge the order passed in appeal in accordance with law before the appropriate authority. The jurisdiction of this Court to entertain and decide the writ petition against the order dismissing appeal as also the removal order would not be ousted thereby. The record of the case has been produced for perusal of the Court which contains the copy of the enquiry report as well. It would be seen from the enquiry report that the charge no.1 against the petitioner was to the effect that he had been from time to time absenting from his duties and this charge has been found proved against him on the basis of fact that there were wrong entries in the attendance register with regard to his absence from 13.5.95 to 23.5.1995. In fact, he was absent on those dates. This fact was sought to be proved from Ex.6 i.e. a post card received from 13 Manager Rajsthali, Udaipur and Ex.P-7, the copy of the attendance register showing presence of one Daram Chand and not that of the petitioner. Similarly, the charge no.2 is to the effect that the petitioner in spite of being directed to report on duty at Rajasthali, Mount Abu, did not do so, has also been found proved against him. For this period also, the petitioner demanded as many as 31 documents and almost all of them were neither allowed to be inspected by him, nor copies thereof were supplied. The third and fourth charges against him are interrelated and are to the effect that he addressed communication to other Government Senior functionaries bypassing his superiors and used indecent language in those letters. Those charges have also been found proved against the petitioner. The petitioner demanded from the respondents as many as fifty documents for inspection and also asked for their copies but most of them were also not made available to him. Even if petitioner demanded so large number of copies, the respondents could not just allow him seven documents, out of fifty one 14 documents and not supply copy of one of them citing their Rule 8(3) to say that Rule provided for inspection of copy and not for supplying of copy. The nature of documents which were mentioned by the petitioner in his application submitted to the disciplinary authority was mostly relevant to the charges sought to be proved and they were eventually used against him in the Enquiry Officer. The Supreme Court in A.Venkata Raidu, supra in a somewhat similar circumstances observed that the principles of natural justice requires that if a material is sought to be used in an enquiry, then copy of such material should be supplied to the person against whom the enquiry is being held. Moreover, in a case like this, where the department was represented through their Presiding Officer and the Administrative Officer and the petitioner who originally was Class-IV employee and was promoted as Junior Sales Assistant had to himself act for his defence. Although, the petitioner has asserted that he was prejudiced because of non providing defence nominee to him, but he 15 has not brought on record as to when and to whom did he make request for providing defence nominee. Even then the fact remains that the petitioner had to submit his written statement in the absence of number of documents which he demanded and was not even allowed to inspect. The enquiry report, in its earlier part, though incorporated the defence version of the petitioner but the charges have been found proved against the petitioner on the strength of those very documents which were made use of by the Enquiry Officer against him, though many of them were not supplied. In such like circumstance, it cannot be said that the petitioner was not prejudiced by non-supply of the enquiry report. The contention of the respondents that since Rules provide for supply of the findings of the Enquiry Officer along with final order of penalty therefore in the absence of provisions in the Rules to supply copy of the enquiry report prior to imposing penalty, they were not required to supply, is liable to be rejected. Copy of enquiry report, which eventually formed basis for imposing penalty 16 upon the delinquent, ought to have been supplied along with notice of proposed penalty asking the petitioner to submit his representation on the findings as also on the penalty. The disciplinary authority was also not justified in speeding up the appointment of the enquiry officer without allowing written statement of the petitioner. The petitioner was only served with charge sheet on 30.6.1995. He demanded copies of the documents by his applications dated 4.7.95, 30.7.95 and 11.8.95 and the deliberations made herein above would show that finally he was allowed inspection of seven documents, out of fifty one demanded. He submitted one more application on 5.11.1995 requesting to inspect remaining documents and also demanded copy of charge sheet served upon Dau Lal Bijawat. It was at that stage that the disciplinary authority hurriedly appointed the Enquiry Officer on 20.11.1995. Under compulsion, therefore, the petitioner had to submit his written statement on 12.1.1996. There was thus violation of principles of natural justice in not 17 supplying copies of the documents demanded by the petitioner and not permitting him to inspect such documents and when he insisted, in appointing the Enquiry Officer without providing opportunity to file written statement and not supplying him copies of the documents before he was required to cross examine the departmental witnesses and thereafter not supplying him copy of the enquiry report. The disciplinary proceedings against the petitioner thus vitiated from the voice of arbitrariness and colourable exercise of power. The appellate authority has not applied his mind to any of the arguments raised by the petitioner in his appeal and dismissed the appeal by a cryptic and non speaking order. He was required to pass a reasoned order. Requirement of giving reasons in support of a decision is integral part of the principles of natural justice. In the result, the writ petition succeeds and the order of penalty and removal of the petitioner from service dated 18.4.96 is set aside and the order by which the appeal of the petitioner was dismissed dated 19.9.1998 is also set aside. Since the 18 petitioner was removed a decade ago and this matter has remained pending for more than nine years, owing to which the petitioner was not required to discharge his duties, all this time, he would therefore be only entitled to notional benefits for the intervening period. In so far however other benefits are concerned such as increments, revision of pay, seniority and consideration of promotion etc., the petitioner would be deemed to be continuous in service and this period of service would held valid for the purpose of all these benefits. (MOHAMMAD RAFIQ), J. RS/