(1) Ganga Ram Vs. Secretary, Home Department & Others IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR : O R D E R : S.B. Civil Writ Petition No.1692/1995. (Ganga Ram Vs. Secretary, Home Department & Others) DATE OF ORDER : August 13, 2008 P R E S E N T Hon'ble Mr. Justice Gopal Krishan Vyas _______________________________ Mr. S.N. Trivedi for petitioner. Mr. B.L. Tiwari, Counsel for the State. BY THE COURT : In this writ petition, the petitioner has prayed for quashing order Annex.-4 dated 14.07.1994, passed by respondent No.2 Superintendent of Police, Jodhpur and order Annex.-5 dated 29.03.1995 passed by the appellate authority Dy. Inspector General of Police, Range Jodhpur, Jodhpur and further prayed that the respondents may be directed to treat the petitioner continuing in the service with all consequential benefits. According to the facts of the case, the petitioner was (2) Ganga Ram Vs. Secretary, Home Department & Others regularly appointed and confirmed on the post of Constable in the Police Department on 08.12.1984. He was allotted Belt No.1667. Since his appointment, he has worked with utmost satisfaction of the higher authorities and on 23.03.1991 when he was posted at Police Station Udai Mandir, Jodhpur he filed an application for sanction of 33 days' P.L. The application for P.L. Filed by the petitioner was allowed and he was granted 33 days' privilege leave vide order dated 01.04.1992 for the period commencing from 16.04.1992 to 20.05.1992. The petitioner went to his village Narwa for availing the aforesaid leave and upon completion of the leave period, on 20.05.1992, in the morning he left his village to resume his duties but, unfortunately, he fell ill at the bus-stand itself, therefore, he was taken to hospital where he was given treatment by the doctor and a sickness certificate for seven days was issued in his favour. The petitioner's contention is that the said certificate was sent by him through registered post and, thereafter, he remained sick for some time. Thus for the extended period, he filed application for leave alongwith medical certificates to the respondent No.2. The said application was filed through post as well as special messenger. It is also pointed out by the petitioner that no government accommodation was provided to (3) Ganga Ram Vs. Secretary, Home Department & Others him and as such he was living in a rented house at Lala Lajpat Rai Colony, Sardarpura Road No.5, Jodhpur and the said address was within knowledge of the staff members of the Police Station Udai Mandir, Jodhpur. A charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (in short, hereinafter “the CCA Rules”) was issued to the petitioner on 07.11.1992 alongwith memorandum of allegations which is on record as Annex.-1 and 2. In the charge-sheet, main allegation against the petitioner is that after completion of the sanctioned leave he remained absent from duty without prior intimation and without obtaining extension of leave. Further it is stated that when recall notice dated 19.08.1992 and 15.09.1992 were issued, they were served upon the address where the petitioner was residing. In the inquiry against the petitioner, Shri Avtar Singh, Dy. S.P. (Rural) was appointed as the Inquiry Officer and before the Inquiry Officer the petitioner explained all the circumstances in which he fell ill and also proved that his leave applications and medical certificates were filed within time and the said fact was admitted in the inquiry by the Force Clerk in- charge of the administrative work in the office of the respondent No.2. After conclusion of the inquiry, the Inquiry Officer (4) Ganga Ram Vs. Secretary, Home Department & Others submitted the inquiry report to the Disciplinary Authority, respondent No.2. As a result of the inquiry, the Inquiry Officer arrived at the conclusion that in respect to the two main charges of willful absence from duty the petitioner was not found guilty but, in the concluding para the Inquiry Officer held the petitioner guilty for charge No.3 for not submitting correct address of leave to the office. The above facts speak that the petitioner was exonerated by the Inquiry Officer from two main charges and for the minor charge held the petitioner guilty. The Disciplinary Authority, however, without observing reasons for disagreement with the finding of the Inquiry Officer with reard to exoneration from the main charges sent the inquiry report alongwith notice to file representation against the inquiry report. The petitioner filed his reply to the conclusion of the Inquiry Officer. The Disciplinary Authority, while observing in the penalty order that he is not accepting the conclusion of the Inquiry Officer, held the petitioner guilty for all the charges and passed order awarding punishment of dismissal from service while sanctioning leave without pay for the period from 20.05.1992 to 10.08.1993. Against the said penalty order, the petitioner filed appeal before the respondent No.3 and the same was also dismissed by the appellate authority vide Annex.-5 dated (5) Ganga Ram Vs. Secretary, Home Department & Others 29.03.1995. The petitioner has assailed both the orders impugned on various grounds. The first contention of the petitioner is that the order of dismissal from service is totally illegal as the same was passed without communicating the reasons for disagreeing with the finding of the Inquiry Officer which is totally against the proposition of law laid down by the apex Court in the case of R.R. Gabhane Vs. State of M.P. & Others, reported in (1998) 8 SCC 549, in which the Supreme Court has held that if the Disciplinary Authority disagrees with the finding of the Inquiry Officer, then, the Disciplinary Authority is required to give notice to the delinquent while assigning reasons for disagrement and after obtaining the reply from the delinquent in order to satisfy himself, thereafter, the punishment order can be passed. But, in this case, admittedly for the two charges which however were not specifically mentioned in the charge-sheet the petitioner was exonerated by the Inquiry Officer and in respect of charge No.3 formulated by the Inquiry Officer himself he was found guilty for not furnishing the correct leave address while availing the privilege leave. The petitioner has, therefore, contended that the order of penalty is patently in contravention of the principles of natural justice and respondent No.2 Superintendent of Police, (6) Ganga Ram Vs. Secretary, Home Department & Others Jodhpur has committed error while not assigning reasons for disagreeing with the finding of the Inquiry Officer for which no explanation was sought for from the petitioner. The second ground of challenge is that the petitioner was not supplied grounds of disagreement. In respect of the main charge of absence from duty the petitioner proved his case in his defence before the Inquiry Officer while leading independent evidence of the department itself by which he proved that after availing privilege leave application for extension of leave was filed as per rules alongwith medical certificates. With a view to substantiating the above ground, it is stated by learned counsel for the petitioner that in the inquiry report Annex.-3, at page 28 of the paper-book, the Inquiry Officer has reproduced the statement of D.W.-5 Hayana Singth who was in-charge Office Assistant in the office of the Superintendent of Police, Jodhpur and, in his statement, he has categorically stated that while working on the post of Office Assistant in the office of the Superintendent of Police he received Ex.-D/1 dated 24.05.1992 and Ex.-D/2 sickness certificate sent by Constable Ganga Ram (petitioner) informing the department that he is ill. It is also stated by D.W.-5 that after receiving those applications and medical certificates sent by the petitioner vide letter dated (7) Ganga Ram Vs. Secretary, Home Department & Others 29.05.1993 certain queries were made from the S.H.O., Police Station Udai Mandir. Before the Inquiry Officer, this witness admitted that he received Ex.-D/5, D/6, D/7, D/8, D/9, D/10 and D/11, certificates and applications filed by the petitioner with regard to extension of leave. While inviting attention of this Court to the above facts, it is argued by learned counsel for the petitioner that the Inquiry Officer accepted the aforesaid defence evidence in favour of the petitioner and gave a clear finding that no misconduct with regard to willful absence from duty is proved by the department. However, in the operative part of the report of inquiry, it is stated that two major charges have not been proved against the petitioner but the charge with regard to not informing the department about correct address during leave is proved against him. Therefore, as per learned counsel for the petitioner there was no ground for inflicting harsher penalty of dismissal against the petitioner under Rule 16 of the CCA Rules and, that too, without assigning cogent reasons for disagreeing with the finding of the Inquiry Officer by the Disciplinary Authority and without providing opportunity to the petitioner of being heard. Therefore, on the ground of the principle of commensurate punishment also the order of dismissal from service is illegal and (8) Ganga Ram Vs. Secretary, Home Department & Others without any foundation to stand. It is next contended by learned counsel for the petitioner that not only the principles of natural justice have been violated by the respondents while passing the impugned order of dismissal from service but, in respect of the third charge, as has been found by the Inquiry Officer to have been proved against the petitioner, it is clear from perusal that the said finding itself is contradictory because the petitioner was exonerated from the primary charges on the basis of the evidence produced on record from both the sides, therefore, there was no material to arrive at the finding that the petitioner did not inform the correct leave address to the department. Admittedly, all the documents, applications for extension of leave and medical certificates were produced by the petitioner in the office of the Superintendent of Police, Jodhpur which has been proved before the inquiry Officer by the evidence of D.W.-5 and the documents produced by the petitioner. According to learned counsel for the petitioner without recording and informing reasons for disagreement with the finding of the Inquiry Officer with regard to two main charges exonerating the petitioner from the same, the petitioner has been penalized disproportionately in contravention of the basic principles of law with harsher penalty of dismissal from service (9) Ganga Ram Vs. Secretary, Home Department & Others which is not at all warranted in the facts and circumstances of the case because the action is against the principle of natural justice. Per contra, learned counsel for the respondents vehemently argued that the petitioner was working in a department in which discipline is imperative requirement. According to him, although he was granted 33 days' P.L. it was his duty to report to the controlling officer immediately after completion of the leave period; but, neither he joined the duties nor he gave his correct address where any recall notice could be sent for his presence. Therefore, the Superintendent of Police, respondent No.2, who has to maintain the discipline in the department, has rightly passed the order of penalty against the petitioner after considering all aspects of the matter which is in consonance with the charges levelled against the petitioner. Learned counsel for the respondents vehemently argued that although the Inquiry Officer exonerated the petitioner from the two main charges but the petitioner has been held guilty of the charge of not giving his leave address during the period of his absence and two notices were sent to the petitioner to resume duty but he was not found on the address given by him to the department. It is therefore clearly evident that the (10) Ganga Ram Vs. Secretary, Home Department & Others petitioner did not give correct address deliberately. In that view of the matter, according to learned counsel for the respondents, the penalty of dismissal from service has rightly been inflicted. It is further contended by learned counsel for the respondents that the ground raised by the petitioner with regard to not providing opportunity of hearing is untenable. The Disciplinary Authority after having recorded the reasons in detail and after due application of mind has found the petitioner guilty of all the charges and, therefore, the penalty of dismissal from service is commensurate with the gravity of the charges levelled against the petitioner. I have considered the rival submissions and carefully gone through the material on record. In this case, although the petitioner was charge-sheeted under Rule 16 of the CCA Rules for not resuming duties after availing the privilege leave; but, upon perusal of the inquiry report it clearly emerges that the petitioner proved his defence before the Inquiry Officer and, as result thereof, the Inquiry Officer upon appreciation of evidence on record, concluded that the petitioner is not guilty of any misconduct of remaining willfully absent from duty and, in support of the same, the petitioner has produced on record documentary evidence. (11) Ganga Ram Vs. Secretary, Home Department & Others D.W.-5 Office Assistant in-charge in the office of Superintendent of Police admitted before the inquiry Officer that the applications for extension of leave and medical certificates sent by the petitioner were duly received in the office and a query was also made from the S.H.O., Police Station Udai Mandir where the petitioner was then working. Therefore, in my opinion, the Inquiry Officer exonerated the petitioner from the main charges and, therefore, the Disciplinary Authority was under obligation to show explicit reasons for disagreement with the report of the inquiry and give notice to the petitioner to show cause why he may not be punished. The lapse on the part of the Disciplinary Authority who was under obligation to assign explicit reasons for disagreement, has led to vitiation of the disciplinary proceedings and therefore the penalty order cannot be based upon the re- appreciation of the facts and circumstances by the Disciplinary Authority himself. The Disciplinary Authority was under obligation to act in accordance with law. The apex Court of the country has held in the case of R.R. Gabhane Vs. State of M.P. & others, (1998) 8 SCC 549 as follows : “In this case the Enquiry Officer's report was in favour of the appellant delinquent officer. He had exonerated the appellant of the charges. The copy of this report was not commuicated to the (12) Ganga Ram Vs. Secretary, Home Department & Others appellant. A show-cause notice was given proposing to dismiss him from service for those charges, without indicating in any manner that the Enquiry Officer had found the charges not proved. The Enquiry Officer's report was also not supplied to the appellant. The Enquiry Officer's report came to light only when it was filed along with the counter-affidavit in the writ petition. The was not a fair thing to do. We are not going into the question whether it was obligatory upon the disciplinary authority to communicate the reasons for his disagreement with the findings of the Enquiry Officer to the delinquent officer or not. In view of the above conduct which prima facie looks to us unfair, we think it appropriate to interfere in the matter. The judgment of the Division Bench of the High Court is set aside and the order of the learned Single Judge is restored only to the extent the said order remits the matter to the disciplinary authority to continue the proceedings from the stage of the second show-cause notice. The disciplinary authority shall now communicate the reasons for his disagreement with the Enquiry Officer's findings to the delinquent officer, hear him and pass orders according to law. All this exercise shall be completed within six months from today.” The Disciplinary Authority is, therefore, under obligation to record reasons for disagreement with the finding of the Inquiry Officer and, thereafter, reasons are required to be supplied to the delinquent and opportunity of hearing must be afforded before inflicting punishment. In the aforesaid facts and circumstances, in view of the apex Court decision in the case of R.R. Gabhane Vs. State of M.P. & Others (supra), I have no hesitation to conclude that the (13) Ganga Ram Vs. Secretary, Home Department & Others order of penalty passed by the Disciplinary Authority in the present case cannot be sustained in the eye of law. In that view of the matter, the finding arrived at by the Inquiry Officer requires to be accepted and, therefore, the order of penalty can only be based upon the principle of commensurate punishment. The Inquiry Officer arrived at the finding of guilt against the petitioner to the extent of charge of not having given correct address during his leave period on the ground that an employee of the State was expected to give correct address and inform about his whereabouts to the department and exonerated him from the charge of willful absence from duty because the petitioner by way of submitting evidence explained away that he has filed application of medical leave with documentary evidence. Although in this case, the applications and medical certificates were received by the Department sent by post and messenger by the petitioner but it is nowhere stated in the writ petition by the petitioner that he submitted correct address where he was residing during the extended period of leave. Therefore, to that extent the petitioner did not submit address during illness, the petitioner has rightly been held guilty by the Inquiry Officer and, therefore, the petitioner required to be punished with a penalty commensurate to the charge proved (14) Ganga Ram Vs. Secretary, Home Department & Others against him. Consequently, this writ petition is partly allowed. While quashing the orders impugned Annex.-3 dated 14.07.1994 and Annex.-4 dated 29.03.1995, the penalty inflicted upon the petitioner is reduced from the penalty of dismissal from service to the penalty of withholding of two grade-increments with cumulative effect. As a sequel, the petitioner shall be reinstated in service forthwith. He shall however be entitled to only 50 per cent of the back-wages for the period he has not worked while withholding two grade-increments with cumulative effect with effect from the date of dismissal from service and, accordingly, the petitioner shall be treated continuously in service with all consequential benefits. The petitioner shall be paid all the dues as a result of the above order within a period of three months from the date of production of certified copy of this order positively. No order as to costs. (Gopal Krishan Vyas) J. Ojha, a.