1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.5850/1994 Gopal Lal Sharma vs. State of Rajasthan & Ors. Date of order : 16/10/2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.M. Mehrishi for the petitioner. Shri B.L. Avasthi, Addl. Govt. Counsel for the respondents. ****** Heard learned counsel for the parties. The petitioner in this writ petition challenged the order dated 14.10.1994 whereby he was dismissed from service. The respondents served a charge sheet upon the petitioner on the ground that he procured appointment on compassionate grounds concealing the fact that already her mother Smt. Shobha Rani was appointed on the post of LDC vide order dated 3.3.1980 in consideration of the fact that her husband and father of the petitioner died while serving the respondents. Shri M.M. Mehrishi, learned counsel for the petitioner has assailed the order of dismissal on the ground that no misconduct was committed by the petitioner because he did not conceal any fact inasmuch as he did 2 not commit any fraud by applying for the appointment on compassionate ground. Referring to performa of the application- Annexure-3A, learned counsel for the petitioner argued that in the application form, that was submitted by the petitioner for securing the compassionate appointment, he did not conceal any information as regards the status of the family inasmuch as the enquiry officer, as also the disciplinary authority have failed to correctly analyse the evidence. The appointing authority has clearly stated before him that case of the petitioner was the first case for appointment on compassionate ground. Reference was made to the report of the Enquiry Officer in which it is mentioned that Dr. O.P. Taheen, Joint Director (ESI), Jaipur in his his cross examination stated that he did not examine the matter from the point of view of Rule 7 of the Recruitment of Dependents of Govt. Servants Dying While in Service Rules, 1975 (in short- `the Rules of 1975') because the case of the petitioner was first case of appointment on compassionate ground. Learned 3 counsel submitted that disciplinary enquiry was not conducted in accordance with the Rule 16 of the Rajasthan Civil Services (CCA) Rules, 1956 inasmuch as the copy of enquiry report along with the show cause notice was not served upon the petitioner while calling upon him to submit his representation against the proposed penalty. It was argued that the mother of the petitioner never applied for appointment on compassionate ground and that she was appointed only because it was treated as a `hard case' by the government as is evident from her appointment order dated 3.3.1980. It was argued that witnesses of the department namely Dr. Ram Swaroop Meena and Dr. O.P. Taheen nowhere in their statements alleged that the petitioner secured the appointment on the basis of fraud or misrepresentation. The petitioner was prejudiced by non-supply of copies of the documents and statements of witnesses examined in the preliminary enquiry report. Learned counsel argued that appointment of second member of family on compassionate ground was no misconduct because according 4 to Rule 7 of the Rules of 1975, more than one members of the family of the deceased government servant could be appointed on compassionate grounds. Learned counsel in this connection relied on the judgement of this Court in Narendra Kumar Sharma vs. The State of Rajasthan & Ors.-1992 (3) WLC (Raj.) 490, Shailesh Pareek vs. State of Rajasthan & Anr.-1992 (3) WLC (Raj.) 569 and Roop Singh & Ors. vs. The State of Rajasthan & Ors.-2000 (3) WLC (Raj.) 481. It is therefore argued that there was thus failure of principles of natural justice. The dismissal order is therefore liable to be quashed and set aside. Shri B.L. Avasthi, learned Additional Government Counsel opposed the writ petition and argued that the petitioner nowhere in the application form disclosed the fact that her mother was already appointed on consideration of the fact that she was widow of a deceased government servant. This fact was evident from the appointment order dated 3.3.1980 where it is clearly stated that she being widow of Hari Babu Sharma, MSI who died on 15.11.1991, was appointed as a hard 5 case on the post of LDC. Shri B.L. Avasthi, learned Additional Government Counsel argued that the argument that petitioner was appointed as a second person from the same family cannot be accepted because it was not a conscious decision of the government to appoint the petitioner in spite of fact that her mother was already appointed on compassionate ground. While the mother of the petitioner was appointed on 3.3.1980, the petitioner applied for such appointment much thereafter on attaining the age of superannuation in 1993. It was argued that even Dr. O.P. Taheen, the Joint Director who approved the appointment has clearly stated that the case of the petitioner was examined as a first case of appointment on compassionate ground and that it was not decided in the light of Rule 7 of the Rules of 1975. The appointment obviously was secured by the petitioner by concealing the fact thereby playing fraud upon the government. It was submitted that mere non- supply of the enquiry report would not invalidate the order of penalty because after the judgement of Supreme Court in UOI 6 vs. Mohd. Ramzan Khan-(1991) 1 SCC 588, the Supreme Court in number of subsequent judgements has held that the delinquent has to show as to what prejudice was caused to him by non-supply of enquiry report. The copies of the statements recorded in the preliminary enquiry also did not cause any prejudice to the petitioner because finally enquiry report was based on the evidence recorded before the enquiry officer inasmuch as the petitioner has also not shown with reference to any particular document from the statement as to in what manner he was prejudiced by non-supply thereof. I have given our anxious consideration to the rival arguments and perused the impugned order as also other material forming part of the record. Although it is a fact that under Rule 7 of the Rules of 1975 then applicable, it was provided that the government could appoint one more person of family on compassionate ground. But then, here in the present case the statement of Dr. O.P. Taheen, the Joint Director on which reliance has been placed by the petitioner himself, clearly makes it 7 evident that the case of the petitioner was not examined from that perspective and that it was not a conscious decision of the government to appoint him invoking Rule 7 as second appointment on compassionate ground. Contention that the mother of the petitioner was not appointed on consideration of the fact that her husband died while serving the respondent also, cannot be accepted. The order of appointment of the petitioner's mother dated 3.3.1980 clearly state that Smt. Shobha Rani widow of late Shri Hari Babu, MSI died on 15.11.1979 was hereby appointed as a `Hard Case' on the post of LDC. The tenure of the order thus leaves no manner of doubt that it was an appointment on consideration of the fact that her husband died while serving the respondents. Statements of witnesses produced by the respondents namely Dr. Ram Swaroop Meena and Dr. O.P. Taheen, the Joint Director (ESI), cannot be analysed out of context. Even if those witnesses have stated that the case of the petitioner was processed and finalised as a first case of appointment on compassionate ground, in lieu of the 8 services rendered by his father, the fact remains that this is precisely the charge against the petitioner that he procured the appointment on compassionate ground withholding the fact with regard to the appointment of his mother on the same ground. Argument of the learned counsel for the petitioner that if the petitioner was appointed on compassionate ground, in spite of the fact that petitioner did not conceal any material particulars about the family and for that he cannot be made to suffer owing to fault on the part of the authorities of the department if they provided him appointment, cannot be accepted because ultimately the beneficiary of such appointment was the petitioner and it cannot be accepted that the petitioner would be unaware of the fact that his mother had already been appointed in the same department on consideration of the fact that her husband died while serving the respondent. So far as the question with regard to the non supply of the enquiry report is concerned, the law laid down by Supreme 9 Court in Mohd. Ramzan Khan, supra, was subsequently diluted in the Constitutional Bench judgement of the Supreme Court in Managing Director, ECIL, Hyderabad vs. B. Karunakar-(1993) 4 SCC 727 wherein it has been held that an order of penalty need be annulled merely because enquiry report is not furnished to the delinquent and the delinquent has to show as to what prejudice has been caused to him by non-supply of the enquiry report. In the present case, the petitioner has not been able to persuade this Court as a matter of fact that his mother was not already appointed on compassionate appointment, which is the finding recorded by the enquiry officer, and therefore, by mere supply of the enquiry report, he could not be said to have been prejudiced on that account. I therefore do not find any merit in this this writ petition, which is accordingly dismissed. (MOHAMMAD RAFIQ), J. RS/