1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH AT JAIPUR ORDER S.B.Civil Writ Petition No.2519/1995 ### Ram Kishor Meena Vs. Union of India & Ors. ### Date of Order :- 02.04.2009 HON'BLE MR.JUSTICE R.S.CHAUHAN Mr.Marudhar Mridul, Sr. Advocate with Mr.Sanjay Pareek, Ms.Ashish Joshi, for the petitioner. Mr.Praveen Balwada with Mr.Suresh Dhenwal, Mr.Deepak Soni, for the respondents. Pitted against the colossal power of the State, the petitioner has sought the refuge of this Court for a number of reliefs. He has not just challenged the order dated 16.07.1994 whereby his pay-scale was suddenly reduced, not just challenged the order dated 11.08.1994 whereby the recovery order was passed, but most importantly he has challenged the suspension order dated 21.07.1994, the charge-sheet dated 25.07.1994, the dismissal order dated 27.04.1995 and ultimately, the order dated 01.05.1995 whereby the dismissal order was confirmed. 2 This case has had a chequered history which is as under :- According to the petitioner, on 20.01.1979, he was appointed as a Welfare Officer in the Central Social Welfare Board (hereinafter referred to as 'the Central Board', for short). He continued to work on the said post till 04.03.1986. Vide order dated 05.03.1986, he was promoted to the post of Assistant Project Officer and continued to hold the said post till 01.11.1988. In November, 1988 he was sent on deputation from the Central Board to the Rajasthan State Social Welfare Board (hereinafter referred as 'the State Board', for short) as the Secretary of the State Board. Vide order dated 16.02.1991, he was absorbed as the Secretary of the State Board in the pay-scale of Rs.3,000-4,500/-. This absorption was done after due consultation with the Central Board. From 1991 till 1993, the petitioner discharged his functions satisfactorily. There were no complaints about his work. However, according to him, after the appointment of respondent No.6, Smt. Sariya Khan, on 26.03.1993, as the Chairperson of the State Board, troubles began for him. 3 Further, it is the case of the petitioner that vide order dated 31.03.1993, the State empowered the Secretary to work as the Treasurer of the State Board. Thus, after 31.03.1993, the petitioner was working both as the Secretary and as the Treasurer of the State Board. During his tenure as the Treasurer, Smt. Sariya Khan wanted the petitioner to approve grant of one voluntary organization, namely Ravindra Tagore Vidhyala Samiti situated in Rawatsar, Distt. Ganganagar for the establishment of the Family Counseling Centre. However, as there were complaints against the said voluntary organization for having misused the grant given earlier by the State Board, the petitioner refused to tow her line. Because of his refusal, Smt. Sariya Khan started bearing a grudge against him. Thus, began his victimization. On 31.03.1994, Smt. Sariya Khan sought six explanations in a single day from the petitioner. These explanations were offered by him vide his reply dated 25.05.1994. Consequently, vide order dated 16.07.1994, without giving him an opportunity of hearing, the petitioner's pay-scale was suddenly reduced from Rs.3000-4500/- to Rs.2500-4250/-. On 21.07.1994, the petitioner was 4 suspended; on 11.08.1994 an order of recovery of Rs.49,773/- was passed. Since the petitioner was suspended and since subsistence allowances was being paid, surprisingly, the order dated 11.08.1994 directed the recovery from his subsistence allowances. Lastly, on 25.07.1994, the petitioner was given a memo of charge-sheet containing eight charges. These charges related either to the petitioner's recommendation for grant of money to different institutions, or for retaining files by him. On 06.08.1994, while submitting his interim reply, the petitioner reserved his right to file a detailed reply. According to the charge- sheet, the Board wanted to rely upon fifty-seven documents. On 19.08.1994, the petitioner requested the State Board to give him copies of the documents as the copies of the said documents were not given to him along with the charge-sheet. Vide letter dated 07.09.1994, the respondents gave copies of only forty documents out of fifty-seven documents relied upon by them for the purpose of carrying out the departmental inquiry. Since only some documents had been supplied, while the others were retained, vide letter dated 16.09.1994, the 5 petitioner clearly pointed out that complete set of documents has not been supplied to him. He further pointed out that even the right to inspect the remaining documents has not been given to him. In reply to the petitioner's letter dated 16.09.1994, vide letter dated 20.09.1994, petitioner was informed that almost all documents have already been given to him. Therefore, he was directed to submit his detailed reply by 27.09.1994. But even before the petitioner could submit his detailed reply, vide order dated 20.09.1994, the State Board appointed an inquiry officer. Again, vide letter dated 29.09.1994, the petitioner pointed out that copies of certain documents had yet to be supplied to him. He also requested that he should be permitted to engage the service of a legal practitioner in order to plead his case before the inquiry officer. However, the State Board did not respond to the said request. The inquiry commenced on 14.10.1994. However, according to the petitioner, he never received any intimation about the commencement of the said inquiry. Similarly, according to him, he never received any information about the next 6 date, namely 20.10.1994. But he did receive information, through a public notice published in the local newspaper, that the inquiry is scheduled to be held on 15.11.1994. But due to his own illness, he requested that the inquiry be postponed. He submitted a medical certificate showing the fact that he was not keeping well. But notwithstanding his request, the inquiry officer decided to proceed ex-parte against the petitioner. On 28.11.1994, the petitioner submitted an application for setting aside the ex- parte order. But the said application was never dealt with by the inquiry officer. Thus, the proceedings continued to be ex-parte. Even on the next date i.e. 03.12.1994, due to the illness of his wife, the petitioner again requested for the adjournment of the inquiry proceeding. Upon his request, the inquiry was postponed till 12.12.1994. But, as the petitioner again fell ill on 12.12.1994, he again requested for adjournment of the inquiry proceeding. Again he submitted a medical certificate showing the fact that he is ill. Despite his request, the statements of two witnesses, namely Nanak Chand and Hanuman Singh were recorded by the inquiry officer. The inquiry officer also noted that the petitioner shall not 7 be informed about the future dates of the inquiry and it is upto him to find out the future dates. Thus, according to the petitioner, he had no notice of the future dates. Moreover, whenever he did attend the inquiry on the future dates, he was not permitted to participate or to cross-examine the witness as he was orally told that the proceeding is ex-parte. It is further the case of the petitioner that on 17.12.1994, the Department had completed the deposition of its witnesses. After the witnesses of the Department were examined, the proceedings were closed. According to the order-sheet dated 17.12.1994, the inquiry officer clearly recorded that “since the Department has completed its evidence, the inquiry report shall be prepared and submitted”. Vide notice dated 25.03.1995, the petitioner was informed that the inquiry has been completed; he was given a copy of the inquiry report. However, as the inquiry had proceeded ex- parte, vide letter dated 10.04.1995, the petitioner raised his objections and clearly pointed out that the inquiry report was not accompanied by the statements of eleven witnesses 8 and sixty documents on which the inquiry officer had relied upon while giving his finding. He, therefore, requested that the statement of eleven witnesses and the copies of sixty documents should be furnished to him. Despite his request, the State Board did not accede to the said request. Therefore, on 19.04.1995, in the absence of the complete record, the petitioner filed the reply. On 05.01.1995, the State Board was informed that the departmental inquiry against the petitioner was over. Vide resolution dated 05.01.1995, the Board authorised the Chairperson to take necessary action against the petitioner after due consultation with the inquiry officer and the Central Board. However, without consulting the Central Board, vide order dated 27.04.1995, the Chairperson dismissed the petitioner from the service. On 01.05.1995, the said order was placed before the State Board for confirmation. The State Board confirmed the dismissal order dated 27.04.1995. Hence, this writ petition before this Court. Vide order dated 22.08.1996, this Court had dismissed the writ petition ostensibly on the ground that the writ petition is not maintainable. 9 According to the notification dated 20.04.1987, service matters of the Central Board were amenable to the jurisdiction of the Central Administrative Tribunal. According to this Court, since the petitioner has arrayed the Central Board as a respondent party, he had an alternate remedy of approaching the Central Administrative Tribunal. Hence, this petition was deemed to be not maintainable. The petitioner challenged the said order before the Division Bench of this Court. Vide judgment dated 15th September, 2001, the learned Division Bench not only quashed and set aside the order dated 22.08.1996, but also set aside the order of dismissal passed by the State Board. Since the Board was aggrieved by the said judgment, it filed a Special Leave Petition before the Hon'ble Supreme Court. Vide judgment dated 18.02.2002, the Hon'ble Supreme Court while setting aside the judgment dated 15th September, 2001 directed that “the writ petition may be taken up for hearing by the learned Single Bench on merits, who shall examine the legality of the order of dismissal and pass appropriate orders in accordance with law.” Hence, this petition has travelled back to this Court. 10 Mr. Praveen Balwada, the learned counsel for the State Board, has raised two preliminary objections with regard to the maintainability of this petition. Firstly, according to the learned counsel, the State Board is neither a “State” within Article 12 of the Constitution of India, nor “an instrumentality of the State” within Article 226 of the Constitution of India. Therefore, it is not amenable to the writ jurisdiction of this Court. According to him, the State Board is merely an agency of the Central Board. But, it does not have an independent existence. Thus, according to him while the Central Board, the master in this case, is amenable to the writ jurisdiction, the State Board, the agent in this case, is not amenable to the writ jurisdiction. Secondly, the writ petition has been filed against the Central Board arrayed as respondent No.3 in this petition. Therefore, under Section 29 of the Administrative Tribunals Act, 1985, this petition, in fact, should have been transferred to the Central Administrative Tribunal. According to the learned counsel, the single judge had dismissed this petition, vide order dated 22.08.1996, on this ground alone. 11 In reply to these two preliminary objections, Mr. Marudhar Mridul, the Senior Advocate, has contended that the Central Board and the State Government have a pervasive administrative and financial control over the State Board. Therefore, the State Board is nothing but “an instrumentality of the State”. Thus, it is amenable to the writ jurisdiction under Article 226 of the Constitution of India. Moreover, the issue whether this writ petition is maintainable was already raised before the Division Bench and the Division Bench had set aside the judgment dated 22.08.1996. Furthermore, the Hon'ble Supreme Court vide its judgment dated 18.02.2002 has already directed the learned Single Judge to examine the legality of the order of dismissal and to pass appropriate order in accordance with law. Therefore, the second preliminary objection no longer survives in light of the clear cut direction issued by the Apex Court. In order to appreciate the first preliminary objections raised by Mr. Praveen Balwada, it is imperative to turn to the Rules governing the composition and functions of the State Social Welfare Board. Rule 2(iv) of the 12 Rules defines the word “Government” as meaning the “State Government/Union territory”. Rule 3 of the Rules deals with the composition of State Board. According to Rule 3(i) of the Rules, “the Board shall consist of such members as may be decided by consultation between the State Government/Union Territory and the Central Social Welfare Board from time to time.” Therefore, the Board is to be constituted only after due consultation between the State Government and the Central Board. According to Rule 3(iv) of the Rules, “the State Board shall be constituted by the State Government through a government order/notification in consultation with the Central social Welfare Board.” According to Rule 3(v) of the Rules, “the Chairman shall be appointed by a mutual agreement between Chairman, Central Social welfare Board and the State Government.” According to Rule 3(vi) of the Rules, “half of the members, excluding the Chairman, shall be nominated by the State Government.” Thus, the Chairman is appointed by the State Government after mutual consultation with the Central Board; half of the members of the Board are also nominated by the State Government. In fact the State Board is constituted only after issuance of a Government order, or a notification 13 to that effect. Further according to Rule 6 of the Rules, if a nominee of the State Government wishes to resign, then the resignation letter is to be sent to the State Government. In case, the Chairman were to resign the resignation letter is to be accepted by the Chairman of the Central Board after holding due consultation with the State Government. In case of any vacancy in the Board, the vacancy is to be filled by the authority which nominated the outgoing member. Thus, in filling the vacancy of those outgoing members appointed by the State Government, the State Government plays a pivotal role. According to Rule 7 of the Rules, which defines the functions of the Board, one of the functions of the Board is to coordinate the welfare and development activities undertaken by various departments of the State Government. Another function of the Board is to administer the programmes of Social welfare in rural areas either sponsored by the Central Social Welfare Board or jointly initiated with the corporation of the State Governments. The State Board is also to stimulate effective co-ordination among voluntary welfare agencies at the State and local levels. It 14 is also to assist the Central Social Welfare Board and the State Government in further developing the welfare services. Thus, the very function of the Board is to carry out work for the good of the people and to discharge a public function. As far as the financial aspect is concerned, according to Rule 12 of the Rules, the expenditure incurred on the establishment of the office of the State Board would be shared equally by the Central Board and the State Government. As far as the other budgeting is concerned, the State Board shall submit its budget to the Central Social Welfare Board. The Board is even subjected to having its accounts audited by the State Accountant General or other auditors appointed by the State Government in consultation with the Central Board. A bare perusal of all these provisions clearly prove the fact that the State Government has a pervasive control over the administration and the finances of the Board. Therefore, this Court has no hesitation in holding the State Board as “an instrumentality of the State”. Therefore, the State Board is amenable to the writ 15 jurisdiction of this Court under Article 226 of the Constitution of India. Hence, the first preliminary objection raised by Mr. Praveen Balwada is, hereby, rejected. As far as the second preliminary objection is concerned, the said preliminary objection is no longer debatable. For, vide judgment dated 18.02.2002, the Hon'ble Supreme Court has directed a Single Bench of this court to decide the case on merits and in accordance with law. In the light of the unequivocal direction, this court has to decide the case on its merit and in accordance with law. Mr. Marudhar Mridul has raised plethora of contentions based both on facts and law: firstly, he has drawn the attention of this Court to the Rules governing the composition and functions of the State Board. Rule 2(i) of the Rules defines “the Board” as meaning the “State Social welfare Advisory Board”. Rule 3(i) of the Rules, dealing with the composition of the State Board, states that “the Board shall consist of such members as may be decided by consultation between the State Government/Union Territory and 16 the Central Social welfare Board from time to time”. According to Rule 3(vi) of the Rules, half the members, excluding the Chairman, shall be nominated by the Central Social welfare Board and the other half by the State Government. Thus, the Board consist of nominated members from the Central Board and of others who are appointed by the State Government. According to the learned counsel, the State Board was constituted on 26.03.1993. But, at that time the Board consisted of members appointed only by the State Government; the Board did not have any members nominated of the Central Board. The said nomination was made by the Central Board on 31.01.1995. Therefore, between 26.03.1993 and 31.01.1995, the State Board was not even validly constituted in accordance with the Rules. Hence, according to the learned counsel, any action taken by the State Board between 26.03.1993 to 31.01.1995 is void-ab- initio. Secondly, the trouble started for the petitioner after the appointment of Smt. Sariya Khan as the Chairperson of the State Board. As stated above, because the petitioner refused to tow her line and to give into her illegal and 17 unreasonable request, she started bearing a grudge against the petitioner. Her mala fide intention is clear from the fact that on 31.03.1994, just in one day, she sought six explanations from the petitioner. Moreover, vide order dated 16.07.1994, without giving him an opportunity of hearing, his pay-scale was suddenly reduced. Subsequently, vide order dated 21.07.1994, he was suspended. To add insult to injury, vide order dated 11.08.1994, the recovery was to be made from the subsistence allowances being given to the petitioner during his period of suspension. According to the learned counsel, these facts clearly prove the mala fide on the part of the Chairperson. Thirdly, the learned counsel has frontally attacked and has challenged the procedure adopted by the Board for conducting the Departmental inquiry. According to Rule 2(vi) of the Rules, the “Secretary” means “the Secretary of the Board appointed by the Board in consultation with the Central Social Welfare Board.” Therefore, the appointing authority is the Board and not the Chairperson of the State Board. According to Rule 10(ii) of the Rules, “the authority competent to promote, degrade or dismiss on officer or servant 18 of the Board shall be the authority empowered to appoint such officer or servant.” Therefore, the power to dismiss or even to initiate a departmental inquiry lies with the Board, and not with the Chairperson. However, in the present case, the departmental inquiry has been initiated by the Chairperson, namely Smt. Sariya Khan. Therefore, the very commencement of the departmental inquiry is contrary to the Rules. Fourthly, the petitioner was not given the documents while giving him the copy of the charge-sheet on 25.07.1994. According to the charge-sheet, the Board relied upon fifty-seven documents. Even after the petitioner had requested that copies of all the documents be given, vide letter dated 07.09.1994, only forty documents were supplied to him. But de facto, only thirty-three documents were supplied to him. The discrepancy of number arises from the fact that according to the charge-sheet, document No.41 consisted of a single unit, yet in the list of documents given to the petitioner on 07.9.1994, document No.41 has been trifurcated into three different parts. These kinds of example can be multiplied further in order to prove numerical discrepancy. Thus, in 19 reality only thirty-three documents have been supplied to the petitioner. The remaining documents were neither supplied, nor the petitioner was given a chance to inspect the same. Vide letters dated 16.09.1994 and dated 29.09.1994, the petitioner pointed out that complete set of documents have not been supplied; he further requested that a large number of documents should be given to him, so that he can build up his defence against the charges levelled against him. However, even these two letters went unheeded. In the absence of the necessary documents, the petitioner has been denied the right of a fair departmental inquiry. Fifthly, vide letter dated 20.09.1994, the petitioner was granted fifteen days time to submit his reply. Yet, on the very same day, i.e. 20.09.1994, the inquiry officer was appointed. According to the learned counsel, such an appointment of the inquiry officer is contrary to Rule 16(iv) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the CCA Rules', for short). 20 Sixthly, initially the petitioner did not receive any intimation about the future dates on which the departmental inquiry was held, namely 14.10.1994 and 29.10.1994. He came to know about the next date of the inquiry i.e. 15.11.1994 through a public notice published in the local newspaper. On 15.11.2995, because of his illness, he sought an adjournment of the inquiry proceeding. In order to substantiate his case that he was actually ill, he submitted a medical certificate along with the application. But notwithstanding his request, notwithstanding the existence of a medical certificate, the inquiry officer decided to proceed ex-parte against the petitioner. Subsequently, after 12.12.1994, the petitioner was not even permitted to participate in the inquiry proceeding. Thus, the petitioner was denied the right to cross-examine the witnesses. Seventhly, according to Rule 16(6)(a) of the CCA Rules, once the department completes its evidence, the inquiry officer is to issue a show- cause notice to the delinquent officer directing him to produce his witnesses and documentary 21 evidence, if any. However, according to the order- sheet dated 17.12.1994, after the Board had completed its evidence, no notice was issued to the petitioner to produce his witnesses or to submit the documentary evidence in order to buttress his defence against the charges levelled against him. Therefore, a valuable right of presenting his side of story has been denied to the petitioner. According to the learned counsel this is a blatant violation of the principles of natural justice. Eighthy, since the proceedings were held ex-parte, while issuing the second show-cause notice accompanied with the inquiry report, it was incumbent for the Board to send copies of the statements of the eleven witnesses examined by the Board, and the sixty documents relied upon by the Board against the petitioner. However, the same was never done. In fact, vide notice dated 25.03.1995, merely the inquiry report had been sent unaccompanied by the relevant record. Hence, the petitioner has been denied the right of submitting a substantial reply to the second show- cause notice sent by the Board. 22 Ninthly, according to Rule 10(vii) of the Rules, the Board is empowered to delegate its powers to the Chairperson. In the meeting on 05.01.1995, the Board had delegated the power to the Chairperson to decide and to act upon the inquiry report provided that the chairperson consults with the inquiry officer and with the Central Board before taking her decision. According to the learned counsel, although the power of deciding the fate of the petitioner was delegated to Smt. Sariya Khan, but such a delegation was a conditional one. According to the resolution dated 05.01.1995, she was required to consult with the Central Board prior to making any decision with regard to the petitioner. Yet, there is not an iota of evidence available on record showing any consultation between the Chairperson and the Central Board prior to passing of the dismissal order dated 27.04.1995. Therefore, the dismissal order is absolutely illegal. Tenthly, according to the learned counsel, Smt. Sariya Khan chaired the Board meeting held on 01.05.1995, where the dismissal order passed by her was to be confirmed. According to the learned counsel, considering the