SBCWP NO.4504/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T S.B. CIVIL WRIT PETITION NO.4504/1997. Khursheed Ahmed Vs. State of Rajasthan & Anr. Date of order : September 29, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Dr. Mahesh Sharma for the petitioner. Shri S.D. Khaspuria, Additional Government Counsel. ****** BY THE COURT:- Reportable This writ petition has been filed by the petitioner assailing the order dated 28/1/1997 by which he was removed from service and also the order dated 1/7/1997 by which his appeal filed thereagainst was dismissed with the prayer to direct the respondents to grant him Selection Scale after he has completed 9, 18 and 27 years of service, as the case may be. 2) Dr.Mahesh Sharma, learned counsel for the petitioner has argued that petitioner in this matter was served with the charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, “CCA Rules”) on 5/8/1991 containing three charges. Even before the petitioner could file reply to the charge-sheet, District Collector SBCWP NO.4504/97. 2 proceeded to appoint enquiry officer vide order dated 21/10/1991. Enquiry officer submitted its report. There were three charges against the petitioner. Charge No.1 was to the effect that he while issuing certified copy of Jamabandi to one Shri Sunder Singh received copying charges from him and yet did not deposit the same in the Treasury. Charge No.2 was to the effect that he received a sum of Rs.1,250/- from said Shri Sunder Singh without the authority of law and did not pass on any receipt to him, which fact he admitted in his statement dated 21/8/1991. Charge No.3 was to the effect that he further demanded Rs.800/- from said Shri Sunder Singh for giving him 'patta', which was a serious misconduct. 3) Learned counsel for petitioner has further argued that petitioner produced two witnesses before the enquiry officer namely; Deen Mohammad and Kamruddin. Deen Mohammad in his statement has clearly stated that Sunder Singh possibly took away the copy of Jamabandi before it was entered in the concerned register and Kamruddin stated that petitioner prepared the certified copy of the Jamabandi only when Sunder Singh requested for the same but he (Sunder Singh) took away the copy even before it was entered in the register. Those statements were not believed by the enquiry officer, who entirely based his report on preliminary enquiry report prepared by SBCWP NO.4504/97. 3 the District Collector and on statements of petitioner and that of complainant Shri Sunder Singh recorded by the District Collector himself on 21/8/1991. 4) Petitioner categorically raised the plea that provisions contained in Rule 16(7), (8) and (9) prescribing procedure for holding departmental enquiry have not at all been adhered to. The appellate authority also failed to consider all these arguments. The penalty of removal was awarded to the petitioner in an absolutely illegal departmental proceedings at a stage when he already completed 56 years of service and was left with only four years to go before his retirement. Appellate authority has while deciding the appeal merely completed the ritual without considering any of the provisions contained in Rule 30 of the CCA Rules. It is also prayed that petitioner was entitled to benefit of Selection Scale on completion of 9, 18 and 27 years of service which was not awarded to him. It is therefore prayed that writ petition be allowed, impugned-order be set-aside and petitioner be held entitled for reinstatement in service with all consequential benefits and also benefit of Selection Scale. 5) Per contra, Shri S.D. Khaspuria, learned Additional Government Counsel opposed the writ petition and submitted that the objection which the petitioner is raising ought to have been SBCWP NO.4504/97. 4 raised before the enquiry officer/disciplinary authority. In fact, petitioner in his statement before the disciplinary authority admitted his guilt and therefore non giving copy of the preliminary enquiry report and liberty to cross- examine two witnesses cannot be said to have caused any prejudice to him, more particularly when he did not raise such objection before the disciplinary authority when those statements were being recorded even before the enquiry officer thereafter. Many of the arguments now raised were also not agitated before the appellate authority. Petitioner did not deposit the copying fees with the Treasury despite having received the same from the complainant and he also unauthorizedly charged Rs.1250/- for preparing patta and thereafter received additional amount of Rs.800/- in an illegal manner. All the three charges were therefore rightly held proved. Impugned orders do not call for any interference. Writ petition be dismissed. 6) Scrutiny of record indicates that a strange procedure was adopted by the disciplinary authority that he himself recorded statements of the complainant and the delinquent. The delinquent was not given any opportunity to cross-examine the complainant. Disciplinary authority prepared the preliminary enquiry report but he did not supply copy thereof to the petitioner-delinquent and then SBCWP NO.4504/97. 5 he appointed an officer subordinate to him to hold the regular enquiry under Rule 16 of the CCA Rules. This procedure, which has been adopted by the disciplinary authority namely; District Collector was totally uncalled for and rather unheard of. In normal course, if the disciplinary authority decides to himself hold enquiry for which the law permits as is evident from Rule 16 of the CCA Rules, he should have then proceeded to serve charge-sheet upon the delinquent and then required him to file reply and thereafter statements of the departmental-witnesses should have been recorded but no such course has been adopted in the case of petitioner-delinquent. He was neither given opportunity to cross examine the departmental-witnesses nor the chance to produce his own witnesses. In the present case, however, disciplinary authority recorded statements of delinquent and that of the complainant and then proceeded to appoint the Assistant Collector Alwar, a subordinate officer to him, as enquiry officer. The enquiry officer has totally based his report on the basis of findings in the preliminary enquiry report of the disciplinary authority himself and forwarded the same to the disciplinary authority because he was even otherwise, bound to follow his line being his subordinate. Even though 14 documents were produced but not a single witness has been produced to prove those documents SBCWP NO.4504/97. 6 inasmuch as, no witnesses including the complainant was produced before the enquiry officer to support the charges. Statements recorded in the preliminary enquiry could not have been relied on by the enquiry officer. Moreover, copy thereof was not supplied to the petitioner nor he was allowed to cross-examine those witnesses. Petitioner was subjected to this course / procedure adopted by the enquiry officer when he filed reply to the notice served upon him by the disciplinary authority / District Collector on 20/9/1996 proposing the penalty of removal. 7) It is indeed a strange matter where disciplinary authority / enquiry officer while conducting the departmental enquiry against the petitioner have thrown the procedure contained in Rule 16 of the CCA Rules through to the wind. Detailed procedure that is prescribed in Rule 16 for holding departmental proceedings has been given complete go-bye. What is surprising is that the disciplinary authority himself recorded the statements of the complainant and one more witness apart, from recording the statement of the delinquent. Even if those statements are accepted for the purpose of holding such proceedings before preliminary enquiry, then also, sending the matter to the Assistant Collector was absolutely uncalled for and illegal because in that case, that would have definitely and gravely prejudiced case of the SBCWP NO.4504/97. 7 delinquent as Assistant Collector being subordinate to the District Collector was bound to toe the line of action set by him. It would have been proper if the District Collector entrusted the preliminary enquiry to some other officer and then would have appointed Assistant Collector as the enquiry officer. Moreover, neither copy of the preliminary enquiry report nor copies of three of the statements of complainant Sunder Singh, Sher Singh and the petitioner himself was supplied to the petitioner and those statements have been fully relied on by the enquiry officer in preparing the enquiry report in the present matter. Even the petitioner was not given liberty to cross-examine those two witnesses. Not a single witness was produced before the enquiry officer by the department to prove any of the three charges, not even the complainant Sunder Singh. The petitioner was served with the notice of penalty along with copy of the enquiry report and at that stage he specifically raised objection with regard to not adherence of rules 16(7), (8) and (9) of CCA Rules. None of these arguments were considered by the disciplinary authority while awarding penalty of removal. It is not necessary for the delinquent to meticulously raise every single argument with reference to relevant rules and even if some of the objections are raised barely giving reference of rules, then also, disciplinary SBCWP NO.4504/97. 8 authority or for that matter, appellate authority, are not absolved of their duty to adhere to the rules or to ensure compliance of the rules of procedure. They are not to be reminded by the delinquent that while proceeding in the departmental enquiry they are under obligation to follow the procedure and rule and that howsoever grave charges against the delinquent, no order of penalty, muchless major penalty of removal, depriving a person of his right to livelihood, can be awarded without the adherence to the procedure contained in the rules. 8) It is trite law following various judicial pronouncements that disciplinary proceedings are of quasi judicial or quasi criminal in nature. Although, it is not necessary to prove the charges in the disciplinary proceedings by the standard of proof beyond reasonable doubt, which is the case in criminal trial, but at the same time, the charges therein are required to be proved by preponderance of evidence. The procedure that is provided for in Rule 16 is a complete code in itself which in its sub-rule 6(a) clearly provides that where the Government servant has pleaded not guilty to the charges, at the commencement of enquiry, the Inquiring Authority shall ask the Presenting Officer appearing on behalf of the Disciplinary Authority to submit the list of witnesses and SBCWP NO.4504/97. 9 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 lists of prosecution witnesses and documents, shall submit the list of documents relied 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 and also to the government servant or his assisting officer for cross examination. The Presenting Officer shall be entitled to re-examine the witnesses on any point. After the close of the prosecution evidence, the government servant shall be called upon to submit his witnesses. Sub-rule (7) of Rule 16 provides that at the conclusion of the inquiry, the Inquiring Authority shall prepare a report of the inquiry, recording its findings on each of the charges together with reasons. In the present case, the Enquiry Officer has not based his finding in all the three charges, on the basis of any record produced by the respondents (which in fact was not produced) or any of the witnesses examined on their behalf. Disciplinary Authority also completely lost sight of this fact. Initially burden to prove the charges would always rest with the department. Even if the standard of proof that is required in disciplinary enquiry is that of SBCWP NO.4504/97. 10 preponderance of evidence, the enquiring authority could not shift the burden of proof at that stage although of course at the initial level if the department has been able to reasonably discharge its onus he could call upon the delinquent to adduce his evidence against that. In this connection, the observations of Supreme Court in para 25 of M.V. Bijlani, supra cited by learned counsel for the petitioner may be of relevance, which is reproduced hereunder:- “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a department proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” 9) Additionally, in this case, petitioner has asserted that he was entitled to be granted benefit of Selection Scale on completion of 9, 18 and 27 years of service which plea has not been specifically decided by the respondents nor they SBCWP NO.4504/97. 11 have denied plea set up by the petitioner in ground (c). Respondents have no reason why the petitioner was not entitled to benefit of Selection Scale if he was appointed as Patwari and continued to remain on the post of Patwari throughout his service. He was thus definitely entitled to the benefit of Selection Scale, which benefit was granted to the members of the subordinate service that if they are not able to get one promotion in a span of 9 years, they could be atleast entitled to benefit of one selection scale. Disciplinary authority has thus committed violation of principles of natural justice and fairplay. 10) In view of above, writ petition is allowed. Impugned charge-sheet dated 20/10/1991 (Ann.1), impugned-order of penalty of removal 28/1/1997 (Ann.5) and impugned-order of dismissing appeal dated 1/7/1997 (Ann.6) are quashed and set- aside. Petitioner is held entitled to reinstatement with all consequential benefits. Petitioner would be entitled to such Selection Scale on completion of 9, 18 and 27 years of service. It is further clarified that if any benefit of Selection Scale has already been granted to the petitioner then, he would be entitled to benefit of only remaining Selection Scale. Petitioner is also held entitled to interest @6% per annum on such arrears. SBCWP NO.4504/97. 12 11) Compliance of the judgment shall be made within a period of three months from the date certified copy thereof is submitted before the respondents. (MOHAMMAD RAFIQ), J. anil/-