1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.3960/1995. : : Sita Ram Bagada Vs. Rajasthan Khadi & Gramoudyog Board & Anr. : : Date of Order 30.7.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. K. S. Shekhawat for Mr. R. N. Mathur for the petitioner. Mr. Arpit Srivastava for the respondents. Heard learned counsel for the parties. 2. This writ petition has been filed by the petitioner against the penalty order of his removal dated 5.2.1994 and the order dated 6.10.1994 by which his appeal was dismissed by Chairman of Rajasthan Khadi & Village Industries Board (for short “the Board”). 3. Petitioner, who was posted as Village Industries Extension Officer, was placed under suspension on 28.5.1990 in contemplation of disciplinary proceedings. He was served with a charge-sheet on 4.6.1990 on two charges; charge 2 No.1 was to the effect that he was transferred from Panchayat Samiti, Sanganer to Panchayat Samiti, Sewar, Bharatpur and was relived on 21.9.1989, despite the fact that he was reminded by several letters, but he did not hand over charge to Shri Satish Chand Agarwal. Charge No.2 was that he willfully absented from duties ever since his transfer to Panchayat Samiti, Sewar vide order dated 12.2.1989. Petitioner submitted reply to charge-sheet. It appears from the reply dated 29.6.1990 that he denied the charges, but thereafter he did not participate in the disciplinary proceedings. The respondents published a notice in the newspaper on 21.7.1991 calling upon the petitioner to appear and attend his duties at Panchayat Samiti, Jayal where he was subsequently transferred. In the present disciplinary proceedings, it appears that respondent issued to petitioner notices on 30.10.1990, 16.11.1992, 29.3.1993 and 13.4.1993. The Enquiry Officer finally submitted his report on 15.4.1993 proving charges. On that basis, petitioner was removed from service vide order dated 5.2.1994. 4. Shri K. S. Shekhawat, learned counsel for the petitioner has argued that petitioner had been throughout submitting applications for grant of medical leave. Reference 3 is made to as many as nine such applications submitted by the petitioner, which are enumerated in Schedule-A of the writ petition. Learned counsel submitted that petitioner was throughout this period seriously ill and, therefore, he could not attend the duties. In the circumstances, it cannot be said that petitioner was willfully absent. The Enquiry Officer concluded his enquiry and submitted his report only on the basis of certain correspondence, which has been exchanged between different offices of the respondents. No evidence has been analyzed inasmuch as no witness has been produced to prove such correspondence or to prove charges. Learned counsel relied on the judgment of Supreme Court in Roop Singh Negi Vs. Punjab National Bank & Ors. : 2009 (2) SCC, 570 and argued that Supreme Court in that judgment held that mere production of documents is not enough. Contents of documentary evidence has to be proved by examining witnesses. It was argued that departmental proceeding is a quasi-judicial proceeding and enquiry officer performs a quash-judicial function. The Enquiry Officer has to therefore arrive at a final conclusion taking into consideration the material on record. The report of Enquiry Officer cannot be based on mere ipse dixit of the department. Learned counsel argued that petitioner was placed under suspension 4 on 28.5.1990 and was reinstated on 21.9.1990, but was not paid any subsistence allowance for the aforesaid period. Learned counsel submitted that disciplinary authority did not supply to the petitioner copy of the enquiry report prior to passing order of removal dated 5.2.1994 and this caused serious prejudice to petitioner because in the present case enquiry was held against him ex-parte. Copy of enquiry report subsequently supplied to him on 26.11.1994 by letter dated 26.11.1994, which is on record as Annex.7. The impugned order of penalty, therefore, liable to be set aside. Learned counsel lastly submitted that appeal submitted by petitioner was rejected by the Board by taking a very hyper technical view. It was rejected by order dated 6.4.1994 on the premise that application addressed to Chairman of the Board did not fall within the purview of appeal and, therefore, it was returned back. On return however petitioner declined to accept the same. Learned counsel submitted that even if appeal was not submitted on proper performa or styled as representation to the Chairman, it sought to question the correctness of order of penalty, which should have been entertained and decided as an appeal. The Appellate Authority has to give reasons in support of its order, even if he concurs with view taken by Disciplinary 5 Authority. Learned counsel in support of his argument relied on the judgment of Supreme Court in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney & Ors. : 2009 (4) SCC, 240. 5. Shri Arpit Srivastava, learned counsel for the respondent No.2 opposed the writ petition and submitted that petitioner was given all the opportunities to defend himself inasmuch as he was served with a charge-sheet to which he submitted reply also. It is submitted that if the petitioner deliberately did not choose to participate in the enquiry, he cannot blame the Enquiry Officer for not granting him opportunity. The Enquiry Officer has made all the efforts by repeatedly issuing notices on 30.10.1990, 16.11.1992, 29.3.1993 and 13.4.1993. Learned counsel submitted that representation erroneously submitted to the Appellate Authority, which was returned back to him and did not thereafter submit another appeal in time. It is argued that petitioner did not hand over the charge to Shri Satish Chand Agarwal and he willfully absented from duty for more than seven months and the penalty of removal was rightly awarded to the petitioner. Learned counsel, therefore, prayed that writ petition be dismissed. 6 6. Having heard learned counsel for the parties and perused the material on record. 7. It is not in dispute between the parties that enquiry procedure contained in Rule 16 of Rajasthan Civil Services (CCA) Rules, 1958 is applicable to disciplinary proceedings held by the Board against its employees. The charge-sheet that was issued to petitioner was also issued under Rule 16 of CCA Rules. The Rule 16 of CCA Rules has provided a detailed procedure which is required to be adhered by the enquiry officer while holding such disciplinary enquiry. Sub-rule (6) of Rule 16 provides the manner in which the evidence in the disciplinary enquiry has to be received. It provides that :- “Rule 16 (6) : In case of a Government servant has pleaded no guilty to the charges, the Inquiring Authority shall ask the Presenting Officer appearing on behalf of the Disciplinary Authority to submit the list of witnesses and documents within 10 days, who shall also simultaneously send a copy to the Government servant. Delinquent officer, within ten days of the receipt of the list of prosecution witnesses and documents, shall submit the list of documents 7 required by him for his defence. The Inquiring Authority shall then summon the documents of both sides and ask the parties to admit or deny them. It shall then summon such evidence as is necessary, giving opportunity to the presenting officer officer for examination-in-chief and also to the government servant or his assisting officer, whosoever may be presented for cross- examination. The Presenting Officer shall be entitled to re-examine the witness on any point on which they have been cross-examined but not on any new matter, without the leave of the Inquiring Authority, after the close of the prosecution evidence the Government servant shall be called upon to submit the list of the witnesses within 10 days which he would like to produce in his defence. The Inquiring Authority after considering the relevancy of the witnesses and the documents shall summon only the relevant witnesses and the documents and record the evidence thereof, while giving opportunity of Examination-in-Chief and cross-examination/re- examination to the parties and then close the evidence.” Sub-rule (6) (a) (1) of Rule 16 has provided that : “The evidence of any person which is of a formal character may be given by affidavit and may, subject to all just exceptions, be accepted in 8 evidence in departmental proceedings. Where the enquiry officer thinks fit that the person should be summoned and examined personally, or if either party, namely the presenting officer or the delinquent officer insists on the personal attendance of the witness, arrangements should be made for the personal attendance of such witness.” Sub-rule (6) (b) of Rule 16 further provides that : “The Enquiring Authority may for good and sufficient reasons to be recorded in writing, recall witnesses for examination in part-heard cases being conducted by him.” Sub-rule (6) (c) then provides that : “The Inquiring Authority shall give a notice within 10 days of the order or within such further time not exceeding 10 days as the Enquiring Authority may allow, for the discovery or production of any documents which are in the possession of Government.” The charge No.1 has been found proved only on reading of two letters in evidence without any of the witnesses produced on behalf of disciplinary authority to 9 prove them. The finding on charge No.1 has been concluded in just about 6-7 lines. Charge No.2 also has been taken as proved on the basis of perusal of certain letters and relevant files. The Board has not produced any witness to prove this charge either in substance. No witness whatsoever was produced to prove any of two charges. The Supreme Court in the case of Roop Singh Negi (supra) dealing with a case where an employee of the Punjab National Bank was charged with theft of bank draft book, and a criminal case registered against him however resulted in acquittal and then a departmental proceedings were conducted against him. The Supreme Court in that case held that no witness was examined to prove the documents and the Enquiry Officer based its finding on the evidence concluded during the investigation by Investigating Officer against the delinquent and other accused. In para No.14 of the judgment, it was held by the Supreme Court that :- “Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into 10 consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.” When the enquiry against the petitioner was held ex-parte, non-supply of enquiry report to petitioner before awarding penalty of removal has indeed caused serious prejudice to him because enquiry against him was held ex- parte and, therefore, if he had been supply with copy of enquiry report, he would have certainly been in a position to make a representation to the disciplinary authority persuade him to to take a different view. In the facts of the present case, the observation that was made by Supreme Court in Roop Singh (supra) should apply with full force. It must therefore be held that charges against the petitioner, which have been taken as proved on the basis of mere documents and reading the 11 relevant files without such document or files being proved by any of the witnesses on behalf of respondent-Board, cannot be accepted as a finding of guilt lawfully arrived at against the petitioner. It is trite law that enquiry officer acts as a quasi-judicial authority and in such proceedings even if the evidence that he received may not be strictly in accordance with law ensigned in the Evidence Act, even than the charges against the delinquent are required to be proved by preponderance of probability and such charges may be based on evidence, which is legally admissible keeping upper must in the view adherence to the principles of natural justice. The Appellate Authority also acted wholly illegallt in not holding representation as appeal and rejected the same by taking a very hyper technical view of the matter. Instead of returning the representation submitted by petitioner, such representation should have been treated as appeal and decided on its merit. In the result, this writ petition deserves to be allowed, it is accordingly allowed. The impugned order of penalty as well as penalty order dated 5.2.1994 and the order dated 6.4.1994 by which appeal of the petitioner was dismissed, are quashed and set aside. Petitioner shall be entitled to reinstatement in service with all consequential 12 benefits. Petitioner is also held to be entitled to subsistence allowance from 28.5.1990 to 21.9.1990. Compliance of this judgment shall be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ)J. A.Arora/- Item No.H/4.