1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.813/1999. (Shanti Prasad Vs. State of Rajasthan & Others) DATE OF ORDER : February 12, 2009. P R E S E N T HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS ____________________________________ Reportable Mr. M.S. Singhvi for the petitioner. Mr. Yashpal Khileree, Dy. Government Counsel. BY THE COURT : In this writ petition, the petitioner is challenging the order of termination dated 09.10.1979 passed by the Disciplinary Authority and, so also, order dated 13.08.1998 passed by the appellate authority. Brief facts of the case are that initially the petitioner was appointed as Sanitary Inspector in the Medical & Health Department, Government of Rajasthan. In the year 1970, when the petitioner was working under the C.M.H.O., Pali, he was charge-sheeted under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (in short, to be called the “CCA Rules” hereinafter) vide charge-sheet dated 02.03.1974. The following charges were levelled against the petitioner:- 2 Charge No.I That the said Shri Shanti Prasad Vyas while functioning as Sanitary Inspector at Pali claimed false fare by bus while performed journey by Govt. Vehicle as is indicated in the enclosed statement of allegations. Charge No.II That the said Shri Shanti Prasad Vyas while functioning as Sanitary Inspector at Pali has claimed false T.A. By showing journey to Aburoad out of his Jurisdiction as is indicated in the enclosed statement of allegations. Charge No.III That the said Shri Shanti Prasad Vyas while functioning as Sanitary Inspector at Pali claimed false T.A. By cheating the Govt. as is indicated in the enclosed statement of allegations. Charge No.IV That the said Shri Shanti Prasad Vyas while functioning as Sanitary Inspector at Pali performed journey on 30.07.70 from Pali to Jaipur in the Govt. Vehicle but has decided the Govt. by drawing T.A. by private bus as is indicated in the enclosed statement of allegations. Charge No.V That the said Shri Shanti Prasad Vyas while functioning as Sanitary Inspector at Pali claimed T.A. and D.A. respectedly against standing orders and did not submit tour notes to the ADHE (Health kaner while asked for by him, as indicated in the enclosed statement of allegations. Charge No.VI That the said Shri Shanti Prasad Vyas while functioning as Sanitary Inspector at Pali is guilty of harassing class IV servants and throwing fruits and sweets from shops and collecting money to the D.R.O. Pali as is indicated in the enclosed statement of allegations.” A reply to the charge-sheet was filed by the petitioner on 3 09.05.1974. Thereafter, on 14.03.1975, inquiry officer was appointed who conducted the inquiry and submitted inquiry report on 04.01.1978, which is placed on record as Annex.-3. As per inquiry report out of six charges only charges No.1 to 4 were treated to be proved and charges No.5 and 6 were not proved by the department. On receipt of the inquiry report, the Disciplinary Authority issued notice dated 05.12.1978 to the petitioner to make representation against proposed penalty. The petitioner submitted representation in pursuance of the said notice on 12.12.1978. After lapse of almost ten months, order impugned dated 09.10.1979 was passed by the Disciplinary Authority whereby penalty of termination of services was imposed against the petitioner. The petitioner filed appeal against the penalty order on 07.11.1979; but, the petitioner's appeal was not decided for a long time, therefore, the petitioner filed S.B. Civil Writ Petition No.700/1983 before this Court seeking direction to the appellate authority to dispose of the petitioner's appeal. Since very short question was involved in the said writ petition, the same was decided on 20.04.1983 with direction that after hearing the parties, appeal dated 07.11.1979 may be disposed of within a period of four months. Thereafter, the petitioner's appeal was disposed of on 06.10.1983 while dismissing the same. After disposal of the appeal by the appellate authority, the petitioner again preferred S.B. Civil Writ Petition No.70/1984 4 before this Court. In that writ petition, the petitioner raised grievance that he has not been supplied copies of the documents including statements of witnesses recorded in the inquiry. Vide order dated 24.07.1984 passed in S.B. Civil Writ Petition No.70/1984, this Court directed the respondent department to supply copies of the documents to the petitioner. However, all the documents as directed by this Court were not supplied to the petitioner; and, ultimately, the writ petition filed by the petitioner was allowed on 09.09.1986 and following order was passed : “It has been laid down that when the livelihood of the person is taken away then at least the authorities should pass an order so as to show that they have applied their mind and the order passed by the Appellate Authority could be examined by the Courts. But the present order, which has been passed, does not show the application mind at all. Petitioner has raised a number of grounds in his petition and it was, at least, expected of the authorities that while disposing of appeal, they should have considered the contention and then passed a detailed speaking order. But the present order is wholly a laconic and it does not show that the authorities have cared to consider the pea of the petitioner, as such this order deserves to be quashed. In the result, the writ petition is allowed in part and the case is remanded back to the Appellate Authority. The appellate authority shall hear the petitioner and pass speaking order of the appeal within a period of two months' from today.” In pursuance of the aforesaid order dated 09.09.1986, appeal filed by the petitioner was disposed of on 30.04.1987. The petitioner, however, again filed writ petition before this Court being S.B. Civil Writ Petition No.1722/1987 challenging 5 the order passed by the appellate authority. The writ petition was heard and, again, the matter was remanded to the appellate authority to decide the appeal of the petitioner after reconstituting the record. Following order was passed vide Annex.-13 by this Court : “In the result, the appellate order passed by the respondent on 30.4.87 is set aside. The matter is remanded back to the appellate authority with a direction that the appeal of the appellant should be disposed of in accordance with law after perusing the record if available and if not available, then after its reconstruction without any further delay. The steps indicated above should be taken as expeditiously as possible.” Against the said order remanding the matter to the appellate authority dated 06.09.1996, the petitioner preferred special appeal before the Division Bench of this Court. The said special appeal was registered as D.B. Civil Special Appeal No.631/1996 and the same was decided by the Division Bench on 01.08.1997. The Division Bench directed the respondents to decide the appeal within six months from the date of filing certified copy of the order. Contention of the petitioner is that he submitted copy of the judgment vide letter dated 19.08.1997 for compliance. However, nothing was done for four months, therefore, a reminder was given by the petitioner; but, when nothing was done for pretty long period, the petitioner preferred contempt petition before this Court being D.B. Civil Contempt Petition No.119/1998. Immediately after receipt of notices of contempt, the government machinery came into motion and, as 6 ordered by this Court on 06.09.1996, passed impugned order on 13.08.1998, whereby, the appeal filed by the petitioner was rejected. Contention of the petitioner in this writ petition is that upon perusal of order dated 13.08.1998, it is revealed that the file has been reconstituted comprising report of inquiry officer, suspension order, show cause notice given to the petitioner on the report of the inquiry officer, reply to the show cause notice and order of punishment only; meaning thereby, the appeal was decided by the appellate authority on the basis of above documents only, in which, all the documents were not before the appellate authority while deciding the petitioner's appeal. In the aforesaid circumstances, it is clear that all the documents of record of the inquiry were not included in the reconstituted file and, in casual manner, hastily the appeal was decided on the basis of incomplete record. As per learned counsel for the petitioner, the appeal filed by the petitioner under Rule 23 of the CCA Rules was to be disposed of while following procedure laid down in Rule 30, in which, it is categorically provided that in the case of an appeal against an order imposing any of the penalties specified in Rule 14, the appellate authority shall consider, - (a) Whether the procedure prescribed in these rules has been complied with and if not whether such non- compliance has resulted in violation of any provisions of the Constitution or in failure of justice. 7 (b) Whether the facts on which the order was passed have been established. (c) Whether the facts established afford sufficient justification for making an order; and, (d) Whether the penalty imposed in excessive, adequate or inadequate; (and after giving a personal hearing to the Government servant to explain his case, if he desires so) and after consultation with the commission if such consultation is necessary in the case, pass order - (i) setting aside, reducing confirming or enhancing the penalty; or (ii) remitting the case to the authority which imposed the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case provided that : (i) the appellate authority shall not impose any enhanced penalty which neither such authority nor the authority which made the order appealed against is competent in the case to impose; (ii) no order imposing an enhanced penalty shall be passed unless the appellant is given an opportunity of making any representation which he may wish to make against such enhanced penalty; and (iii) if the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (iv) to (vii) of Rule 13 and inquiry under Rule 8 16 has not already been held in the case, the appellate authority shall subject to the provisions of Rule 18 itself hold such inquiry or direct that such inquiry be held and thereafter on consideration of the proceedings of such inquiry, pass such orders as it may deem fit. Meaning thereby, complete procedure is laid down under sub- rule (2) of Rule 30, which is not complied with whereas the appellate authority was required to record finding that the inquiry was held in accordance with rules. Further, the finding of the inquiry officer as well as Disciplinary Authority is required to be based on the evidence produced in the inquiry; but, while deciding the appeal filed by the petitioner, the appellate authority has not only flouted the order passed by this Court for reconstitution of the record but has also failed to apply its mind and decided the appeal in violation of the procedure laid down in Rule 30 of the CCA Rules, therefore, the finding of the Disciplinary Authority as well as appellate authority deserves to be quashed. Learned counsel for the petitioner vehemently argued that first of all relevant documents and statements recorded in the inquiry were not supplied to the petitioner by the inquiry officer and, upon perusal of the inquiry report, it is clearly established that the same cannot be termed as inquiry under Rule 16 of the Rules and, without any cogent reasons, the petitioner has been penalized. Learned counsel for the petitioner vehemently argued that 9 that the Disciplinary Authority as well as appellate authority have not recorded any reasons for substantiating their orders. So also, the order impugned has been passed without application of mind and without giving any reasons for the finding arrived at by the authority, therefore, the orders suffer from the vice of being non-speaking orders. Learned counsel for the petitioner further argued that the order of Disciplinary Authority is exclusively non-speaking order passed in flagrant violation of Rule 14 of the CCA Rules, therefore, the finding recorded by the appellate authority is illegal and the same is liable to be quashed. The appellate authority has committed error while affirming the order passed by the Disciplinary Authority because the order of the Disciplinary Authority is illegal for the reason that the Disciplinary Authority has passed order in violation of Rule 14 of the CCA Rules. According to Rule 16, the Disciplinary Authority, after receipt of the inquiry officer's report and reply to the show cause notice, is required to record its own finding on the charges levelled against the petitioner delinquent. In the present case, however, from perusal of the order impugned passed by the Disciplinary Authority dated 09.10.1979, it is revealed that not a single word is said as to whether it accepted or rejected the reply filed by the petitioner, therefore, the order of the Disciplinary Authority is illegal and in contravention of the procedure laid down under the rules. Learned counsel for the petitioner while attacking upon 10 the order of the Disciplinary Authority submitted that even excluding from view the provisions of the CCA Rules, the Disciplinary Authority was yet required to apply its mind to the report of the inquiry officer and record of the inquiry as well as reply submitted by the petitioner to the show cause notice; but, the Disciplinary Authority has not applied its mind on any of the submissions raised by the petitioner which is evident from the order impugned itself. The Disciplinary Authority has passed order dated 09.10.1979 on the basis of the report of the inquiry officer only without any discussion, therefore, the order is illegal and passed in violation of the rules because all the grounds taken by the petitioner are ignored by the Disciplinary Authority, therefore, according to learned counsel for the petitioner, order passed by the Disciplinary Authority as well as order of the appellate authority deserves to be quashed. Learned counsel for the petitioner further submitted that the inquiry officer's report is perverse and suffers from non- application of mind. The inquiry officer has not given any reason for accepting the evidence or rejecting the evidence. Likewise, he has committed error while not accepting the testimony of Sohan Singh driver of the vehicle No.RSL 7384 whereas the principal charge levelled against the petitioner turned round the entries in the log book of vehicle No.RSL 7384 and the only witness to depose in respect of the log book was Sohan Singh. More so, Dr. G.S. Gehlot with whom the petitioner is alleged to have travelled did not appear as witness 11 in the inquiry as he had expired and except him only Sohan Singh was the witness to testify as to whether the petitioner travelled with Dr. G.S. Gehlot in the department jeep on the disputed date whereas the witness categorically stated that the petitioner did not travel with Dr. G.S. Gehlot on the said date in the government vehicle nor did the petitioner made over-writing in the log book. The Disciplinary Authority has ignored the statement of Sohan Singh on the ground that he has deposed in favour of the petitioner which could not be a ground for discarding the testimony of Sohan Singh, therefore, the inquiry officer has committed serious error while reaching the conclusion of guilt against the petitioner. It is submitted by learned counsel for the petitioner that, in all, six charges were levelled against the petitioner and, out of those six charges, charges No.1 to 4 are interconnected and cumulatively suggest the principal charge against the petitioner that the petitioner undertook travel beyond his jurisdiction to Abu Road and claimed false fare although he travelled in government jeep with Dr. G.S. Gehlot. Charges No.5 and 6 were, however, not proved. In that connection, on behalf of the department, Sohan Singh who was driver of the jeep No.RSL 7384 in which the petitioner was alleged to have travelled to Abu Road has clearly deposed that the petitioner did not travel in the department jeep on the said date to Abu Road. Further, the petitioner produced on record the order issued by the competent authority directing him to undertake journey to Abu Road, 12 therefore, there was no material available before the inquiry officer to hold the charge levelled against the petitioner proved. In this view of the matter, therefore, the finding of the inquiry officer is perverse and illegal and the inquiry officer reached conclusion on the basis of surmises and conjectures. Lastly, learned counsel for the petitioner contended that the driver of the vehicle categorically stated in his statement that the petitioner did not make any interpolation in the log book and the hand-writing in which the alleged interpolations are made has not been subjected to test by the hand-writing expert, therefore, the finding against the petitioner is perverse and while ignoring the evidence on record illegally the inquiry officer reached conclusion against the evidence coming on record. Therefore, the Disciplinary Authority committed grave error while not considering the reply of the petitioner in which the petitioner raised all these grounds. Learned counsel for the petitioner invited my attention to the judgment reported in (1985) 3 SCC 378, in the case of Anil Kumar Vs. Presiding Officer & Others, in which, the apex Court has held that a reasoned report of the inquiry is essential and, so also, where the inquiry results in loss of livelihood or attach stigma, it has to be held in accordance with the principles of natural justice and minimum expectation is that the report must be a reasoned one. It cannot be an ipse dixit of the inquiry officer without assigning reasons for holding the charge proved. While inviting attention towards judgment of this Court in 13 Jagdish Prasad Meena Vs. Divisional Commissioner, Ajmer, reported in 1991 (1) RLR 213, it is submitted by learned counsel for the petitioner that opportunity of making representation is to be given to the delinquent and after receiving his reply, the Disciplinary Authority is under obligation to consider the same by a reasoned order. Further, inviting attention towards another judgment reported in 1998 WLR Raj. 618, it is contended by learned counsel for the petitioner that the Disciplinary Authority ought to have considered the relevant factors brought to its notice by the delinquent before imposing penalty. Again, citing the judgment of the apex Court reported in (2001) 1 SCC 65, rendered in the case of Union of India Vs. K.A. Kittu & Others, it is submitted by learned counsel for the petitioner that the Hon'ble Supreme Court held that the inquiry officer is duty bound to consider statements of all the witnesses examined in the inquiry. Lastly, referring to the judgment of the Supreme Court in the case of Moni Shankar Vs. Union of India & Another, reported in (2008) 3 SCC 484, it is submitted by learned counsel for the petitioner that in the disciplinary inquiry, evidence is required to be appreciated in proper manner and the appellate authority is required to determine whether relevant evidence was taken into consideration, irrelevant evidence excluded and requisite standard of proof met or not; meaning thereby, learned counsel for the petitioner submitted that inquiry itself was illegal and 14 conducted without application of mind to the evidence coming on record. It is further contended that the petitioner was not supplied with copies of the evidence adduced against him and, so also, the order of the Disciplinary Authority is non-speaking order and appellate authority has flouted the order passed by this Court for deciding the appeal after reconstitution of the entire record. Per contra, by way of filing reply, the respondents have refuted all the allegations levelled by the petitioner with regard to not conducting inquiry as per procedure laid down in the CCA Rules. The main contention in the reply filed by the respondents is that the petitioner claimed travelling allowance in the year 1970 which was falsely claimed by the petitioner, therefore, he was charge-sheeted on 02.03.1974; and, after conducting proper inquiry, on 04.01.1978 the inquiry officer submitted the inquiry report and, on that basis, after following the provisions for providing opportunity to make representation against the proposed penalty, the Disciplinary Authority passed the impugned order dated 09.10.1979, whereby, penalty of termination from service was imposed. As per the respondents, the Disciplinary Authority considered all aspects of the matter and, while taking into account conclusion arrived at by the inquiry officer in the inquiry report dated 04.01.1978, order was passed by the Disciplinary Authority for termination from service. Learned counsel for the respondent Department, while 15 protecting the order impugned, submits that in the inquiry charges levelled against the petitioner were proved by the prosecution by adducing proper evidence. Thereafter, an appeal was preferred against the order of penalty; but, somehow, when the petitioner's appeal was not decided, then, the petitioner preferred writ petition before this Court and, upon direction issued by this Court, the appellate authority disposed of the matter while dismissing the appeal on 06.10.1983. After disposal of the appeal, the petitioner again preferred writ petition, being S.B. Civil Writ Petition No.70/1984, in which, certain grounds were raised by the petitioner for not supplying him copies of documents including the statements of witnesses recorded in the inquiry. The said writ petition was finally decided and the appellate authority was directed to hear the petitioner and pass speaking order within a period of two months. The said order was made on 09.09.1986. However, again, the appeal filed by the petitioner was disposed of by the appellate authority on 30.04.1987; but, the petitioner again challenged the order of dismissal as well as appellate authority's order before this Court by way of filing S.B. Civil Writ Petition No.1722/1987 challenging the order impugned. The co-ordinate Bench of this Court, again, remitted the matter to the appellate authority to decide the appeal of the petitioner after reconstituting the record. Against the said order dated 06.09.1996 passed by the learned Single Judge, the petitioner preferred special appeal before the Division Bench, 16 being D.B. Civil Special Appeal No.631/1996 and the Division Bench of this Court finally passed order on 01.08.1997, whereby, the respondents were directed to decide the appeal filed by the petitioner within six months from the date of producing certified copy of the order. It is submitted by learned counsel for the respondents that although after remitting the matter, some time was consumed for reconstituting the record, therefore, order passed by the Division Bench was not complied with, then, the petitioner preferred contempt petition before the Division Bench of this Court and the said contempt petition (being D.B. Civil Contempt Petition No.119/1998) and after receiving the notices in the contempt petition, the impugned order dated 13.08.1998 was passed by the appellate authority and the petitioner's appeal was rejected; meaning thereby, thrice the case was remitted by this Court with direction to dispose of the petitioner's appeal by a speaking order; and, on the basis of the report of the inquiry officer, the appeal filed by the petitioner was rejected, in which, there is no illegality. Learned counsel for the respondents vehemently argued that the charges levelled against the petitioner were found to be proved and those charges were serious in nature with regard to drawing travelling allowance illegally, therefore, looking to the seriousness of the matter, the order impugned was passed by the Disciplinary Authority after due inquiry, so also, the appellate authority finally passed order in appeal while 17 considering all aspects of the facts and the fact that the prosecution proved the charges against the petitioner beyond any reasonable doubt, therefore, there is no force in this writ petition. In the rejoinder, the petitioner refuted the allegations for claiming false or wrong travelling allowance and submits that the charge-sheet dated 02.03.1974 was ex facie arbitrary and baseless. It is also stated in the rejoinder that the respondents themselves admitted that the record was not reconstituted inspite