1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPL. APPL. WRIT No. 827 of 2001 JAGDISH CHANDRA PALIWAL V/S CHIEF EXE. OFFICER ZILA PARISHAD & ORS. Mr. RANJEET JOSHI, for the appellant / petitioner Mr. BL BHATI, AGA, for the respondent Date of Order : 8.1.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI MOHAMMAD RAFIQ,J. ORDER ----- By this appeal, the appellant seeks to challenge the order of the learned Single Judge dated 19.9.2001, whereby the writ petition was dismissed in limini, on the ground of availability of alternative remedy, by way of appeal before the Rajasthan Civil Services Appellate Tribunal, giving liberty to the appellant to first approach before the aforesaid Tribunal. The facts of the case are, that the petitioner was initially appointed on the post of Munshi in January 1979 in the Irrigation Department, wherefrom he was declared surplus in the year 1989, and was sent to Zila Parishad, where he was appointed on the post of Ex-Officio Gram Panchayat Secretary-cum-Gram Sevak in Panchayat Samiti Girva, and since then he was continuing to work there. Meanwhile, he was sent for taking training of Gram Sevak. 2 Then since 1997 he was transferred to Panchayat Samiti Kotda and served in Gram Panchayat Mahed. With these facts, it is alleged that the petitioner was on leave, which was extended from time to time. However, the petitioner was intimated vide Anex.6 that his services have been terminated vide Annex.7. It is alleged that previously the petitioner was suspended, which suspension was set aside, and he was reinstated in 1995, but then the petitioner was not given payable allowances, for which he had to approach the Tribunal, and annoyed of that, the petitioner has been terminated by the impugned order. It is alleged in the writ petition that no inquiry of whatever nature was initiated, or conducted, against the petitioner, under Rajasthan Civil Services (Classification, Control & Appeal) Rules, and the order proceeds on the basis of willful absence. It is alleged that apart from the fact that there was no wilful absence, in any case he could not be terminated, even on that ground, without holding any inquiry. Thus, the order is challenged on the ground of being violative of principles of natural justice, apart from Article 311 of the Constitution of India. Since the writ petition was dismissed in limini, in the present appeal, the respondents sought liberty to file reply and reply has been filed, a perusal thereof shows that the strongest reliance is placed on the provisions of Rule 86 of the Rajasthan Civil Services Rules 3 to support the impugned order. Of course it is also alleged that the petitioner was guilty of some embezzlement for which he was given notice and he absented, and therefore, he was terminated from services. So far as the present appeal is concerned, since the writ petition has been dismissed on the ground of alternative remedy of appeal, that ground is required to be examined. A look at the provisions of the Rajasthan Civil Services (Service Matters Appellate Tribunals) Act, 1976, hereafter to be referred to as the Act, provides in Section 4 thereof that the Tribunal shall hear appeals against the order passed by any officer or authority on any service matter or matters affecting a Government servant in his personal capacity. Then procedure of Tribunal has been given and powers have been prescribed. Then by virtue of Section 8, the order of the Tribunal has been made final, and by virtue of Section 10, the jurisdiction of Civil Court is barred. However, the term “service matter”, has been defined in Section 2(f), which reads as under:- “(f) “Service matter” means any one or more than one of the following matters relating to a Government servant :- (i) Seniority; (ii) Promotion; (iii) Confirmation; 4 (iv) Fixation of pay; (v) An order denying or varying pay, allowances, pension and other service conditions to the disadvantage of a Government servant, otherwise than as a penalty; (vi) Cases of reversion while officiating in a higher service, grade or post to lower service, grade or post otherwise than as a penalty; (vii) Withholding the pension or denying the maximum pension otherwise than as the penalty; (viii) Any other matter notified by the Government.” Thus, sine-qua-non and maintainability of appeal before the Tribunal would be, that the matter should fall within the definition of “service matter”. We may hasten to observe, that a bare reading of the provisions of Section 2 (f) as quoted above, in our view, leaves no manner of doubt, that the impugned order, Annex.7, impugned in the writ petition, does not fall in any of the categories enumerated in Section 2(f) of the Act. In that view of the matter, we are constrained to observe, and conclude, that the impugned order of the learned Single Judge cannot be sustained. The obvious consequence is, that the matter is required to be remitted back to the learned Single Judge for hearing the matter on merits. At this stage, the learned counsel for the appellant submitted, that if the matter is remitted back, 5 it will take another more than a decade to hear the matter by the Single Bench, and again an appeal may be filed before the Division Bench, while the appellant is out of job. With this, it was also submitted, that from a look at Annex.7 and from a reading of Rule 86, on which reliance is placed by the respondents, it is writ large, that the order impugned, Annex.7 cannot be sustained. In these circumstances, he submitted that the Division Bench itself should consider the writ petition on merits itself, and in order to avoid delay, considering the fact that the appellant is out of job, the appellant is prepared give up his claim for back-wages, and emoluments, for this period from the date of passing of the impugned order, Annex.7. To this learned counsel for the respondent also has no objection, and therefore, instead of remitting the matter back to the learned Single Judge, we have examined the sustainability of the order, Annex.7 on merits also. A look at Annex.7 shows, that all that it recites is, that in the meeting of the Standing Committee, held on 21.8.2000, it was resolved vide Resolution No.11, to terminate the services of the petitioner on account of his willful absence, and therefore, he has been terminated w.e.f. 17.2.98. Admittedly, no inquiry of whatever nature, as contemplated by the CCA Rules had been conducted against the petitioner, inasmuch as, even no charge-sheet has been served, nor any charges have been framed, and therefore, it 6 is pleaded in the reply, that Rule 86 of RSR does empower the passing of the order like the impugned order. Allegation of violation of principle of natural justice was sought to be contested on the ground of various notices having been given to the petitioner to report on duty. We may gainfully quote the provisions of Rule 86 also on which strongest reliance has been placed by the respondents, which read as under:- “86. Absence after expiry of leave:-(1) A Government servant who is absent from duty without leave or before leave applied for has been sanctioned by the competent authority shall be treated to have remained willfully absent from duty; and such absence shall amount to interruption in service involving forfeiture of past service unless, on satisfactory reasons being furnished, the absence is regularised by grant of leave due or is commuted into extra-ordinary leave by the authority competent to sanction leave. (2) (a) A Government servant who remains absent from duty after the expiry of the sanctioned leave or after communication of refusal of extension of leave is not entitled to any pay and allowances for the period of such absence and the period of such absence shall be commuted into extra- ordinary leave unless on satisfactory reasons being furnished, the period of absence is regularised by grant of leave due by the authority to grant leave. (b) Wilful absence from duty after the expiry of leave renders a Government servant liable to disciplinary action. (3) Notwithstanding the provisions contained in sub-rules (1) and (2) above the disciplinary authority may initiate departmental proceeding under Rajasthan 7 Civil Services (Classification, Control & Appeal) Rules against a Government servant who willfully remains absent from duty for a period exceeding one month and if the charge of wilful absence from duty is proved against him, he may be removed from service.” A reading of this Rule 86 does show, that the only relevant part could be sub-rule (3), and Clause (b) of sub- rule (2), according to which, willful absence of duty after expiry of leave, renders the government servant liable to disciplinary action, and even sub-rule (3), on which very strong reliance is placed by the respondent, also provides, that notwithstanding anything contained in sub-rule (1) and (2), the Disciplinary Authority may initiate departmental proceedings under Rajasthan Civil Services (Classification, Control & Appeal) Rules, against a government servant, who willfully remains absent from duty for a period exceeding one month, and if the charge of wilful absence from duty is proved against him, he may be removed from service. The reading of this provision leaves no manner of doubt, nor does it require any interpretation, that even this sub-rule (3) contemplates initiation of departmental proceedings under Rajasthan Civil Services (Classification, Control & Appeal) Rules, and further provides, that if the charge of willful absence from duty is proved, then he may be removed from service. Obviously, charge has to be framed, inquiry has to be conducted,and that charge is to 8 be proved. Then only this sub-rule (3) may come into action. It is a different story, that even in that event, it only confers a discretion on the Disciplinary Authority to impose punishment of removal from service, and does not have the effect of laying down a straitjacket formula, as if, wherever the charge of willful absence is proved against the delinquent officer, he has to be removed from service, and that no other punishment can be imposed. This being the position, there is no escape from the conclusion, that the order, Annex.7, cannot be sustained, as admittedly no inquiry has been conducted against the petitioner-appellant under the Rules. Consequently, the appeal and writ petition are both allowed. The impugned order, Annex.7, is set aside, and the respondents are directed to reinstate the petitioner, in any case within a period of two weeks from today. It is further directed that as the petitioner has given up the claim for back-wages and emoluments, he will be entitled to continuity of service, and seniority for this interregnum period, and notional fixation of pay etc., but would be entitled to actual emoluments from the date of reinstatement. It is further clarified, that if the respondents failed to reinstate the petitioner within two weeks as above, the petitioner will be entitled to emoluments and wages with effect from today. 9 It is further directed, that in that event, the appellant will also be entitled to have this order executed, in accordance with the provisions of Order 21 CPC, through principal Civil Court of the concerned jurisdiction, as if this order were a decree of the Civil Court. The parties are left to bear their own costs of this litigation. ( MOHAMMAD RAFIQ ),J. ( N P GUPTA ),J. /tarun/