STATE OF RAJASTHAN & ANR. VS. LAXMI NARAIN (D.B.CIVIL SPECIAL APPEAL (W) NO. 601/09) 1 STATE OF RAJASTHAN & ANR. VS. LAXMI NARAIN (D.B.CIVIL SPECIAL APPEAL (W) NO. 601/09) Dated:- 24th July,2009. HON'BLE MR.JUSTICE A.M.KAPADIA HON'BLE MR.JUSTICE SANGEET LODHA Mr. B.S.Bhati, Additional Government Counsel. 1. This special appeal is directed against order dated 18.2.09 passed by the learned Single Judge of this court , whereby the writ petition preferred by the respondent assailing the validity of order dated 12.8.95 imposing penalty of reduction of pay by two stages as a result of disciplinary proceedings under Rule 16 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 ( in short “ the CCA Rules” hereinafter), has been allowed and accordingly, the order impugned imposing the penalty as aforesaid, stands quashed. 2. The respondent, a member of Rajasthan Agriculture Service was charge sheeted for allotting the shops/godowns in the Mandi area in violation of the circulars issued by the State Government and the Directorate, Department of Agriculture, in the year 1987-88 when he was posted as Secretary, Krishi Upaj Mandi Samiti, Beawar. The respondent denied the charges and therefore, a regular enquiry under Rule 16 of the CCA Rules was STATE OF RAJASTHAN & ANR. VS. LAXMI NARAIN (D.B.CIVIL SPECIAL APPEAL (W) NO. 601/09) 2 conducted by the Enquiry Officer appointed by the Disciplinary Authority vide order dated 16.5.95. 3. After completion of the enquiry, the Enquiry Officer submitted the enquiry report wherein, the respondent was found guilty of making irregular temporary allotment of the shops in defiance of the procedure laid down by the State Government by issuing various circulars/orders. However, the Enquiry Officer recorded the categorical finding that on account of the temporary allotments made, the income of the Mandi Samiti has been augmented and the shops and godowns were protected from being damaged/misused. That apart, the Enquiry Officer found that the orders of temporary allotment were issued in favour of the allottees by the respondent after approval of the Administrator, Krishi Upaj Mandi Samiti. 4. The respondent was served with the notice dated 9.1.96 by the State Government to make representation on Enquiry Officer's report, if so desire. After consideration of the representation made by the respondent, the State Government found the respondent guilty of the charge of misconduct levelled against him and accordingly, vide order dated 12.8.96 imposed a penalty of reduction of pay of the respondent by two stages. In compliance of the aforesaid order dated 12.8.96, vide an order dated 22.8.96 the respondent's pay was reduced by two stages. STATE OF RAJASTHAN & ANR. VS. LAXMI NARAIN (D.B.CIVIL SPECIAL APPEAL (W) NO. 601/09) 3 5. The learned Single Judge after considering the rival submissions of the parties and examination of the record, arrived at the finding that the temporary allotment of the shops/godowns was made by the respondent after seeking necessary approval from the Administrator, Mandi Samiti therefore, the act of the respondent may be a technical error but not a misconduct. The learned Single Judge observed that the allotments of shops/godowns were made temporarily to protect apprehended damage to the building structure and so also to increase the income of Krishi Upaj Mandi Samiti. The learned Single Judge further observed that it is not the finding of the Enquiry Officer that the delinquent employee misused his office for personal gains or ulterior motives . It was also noticed by the learned Single Judge that even prior to the respondent's tenure as Secretary, Krishi Upaj Mandi Samiti, temporary allotment of shops/godowns was made but no action was taken against the officer concerned. The learned Single Judge held that where an error has been committed while discharging duties bona fide and the error is quite technical, then the same is not required to be treated as misconduct and if an action is in the interest of institution then, such error is required to be condoned. The learned Single Judge further held that in absence of ill-intentions or intentional negligence or total idleness on the part of the STATE OF RAJASTHAN & ANR. VS. LAXMI NARAIN (D.B.CIVIL SPECIAL APPEAL (W) NO. 601/09) 4 delinquent employee, the error on his part has wrongly been treated as misconduct by the Disciplinary Authority. Accordingly, in view of the findings arrived at as aforesaid, the writ petition preferred by the respondent has been allowed by the learned Single Judge as indicated above. Hence, this appeal. 6. It is contended by the learned Additional Government Counsel that the learned Single Judge has not found any illegality or infirmity in the procedure adopted in holding the disciplinary enquiry against the delinquent employee and the finding of the guilt recorded by the Disciplinary Authority that the delinquent employee was guilty of making temporary allotment of the shops /godowns in defiance of the instructions issued by the State Government is also not disturbed then, there was no occasion for the learned Single Judge to interfere with the order of penalty passed by the Disciplinary Authority. The learned counsel submitted that it is settled position of law that the High Court in proceedings under Article 226/227 of the Constitution of India cannot sit in appeal over the decision of the authorities holding the departmental enquiry against a public servant and it is not the function of the High Court to review the evidence or to arrive at an independent finding on re-appreciation of the evidence. The learned counsel submitted that while passing the order under appeal, the learned Single Judge on re-appreciation STATE OF RAJASTHAN & ANR. VS. LAXMI NARAIN (D.B.CIVIL SPECIAL APPEAL (W) NO. 601/09) 5 of evidence has recorded his own finding which is not permissible under the law and therefore, the impugned order deserves to be set aside. 7. We have considered the submissions of the learned Additional Government Counsel and perused the material on record . 8. It is true that exercising the power of judicial review under Article 226/227 of the Constitution of India, this court cannot re- appreciate the evidence on record and substitute its own finding in place of the findings arrived at by the Disciplinary Authority. But then, the question as to whether the allegations levelled against an employee constitute misconduct or not and whether for a technical and venial breach on the part of a delinquent employee should be subjected to the penalty or not, are certainly the questions which can be gone into by this court while examining the validity of a penalty order passed by the Disciplinary Authority as a consequence of disciplinary enquiry against an employee. 9. In the instant case, it is not in dispute that the large number of shops/godowns in the Mandi area lying vacant were being misused by unscrupulous persons and therefore, the respondent submitted a proposal for allotment of the shops on temporary basis with a view to prevent the property of the STATE OF RAJASTHAN & ANR. VS. LAXMI NARAIN (D.B.CIVIL SPECIAL APPEAL (W) NO. 601/09) 6 Market Committee being misused/ damaged and to augment the income of the Market Committee. It is also not in dispute that the proposal submitted by the respondent was duly approved by then Administrator of the Mandi Samiti and only thereafter, the allotment orders were issued in favour of the allottees. There is no allegation against the respondent that he in any manner, misguided the authorities or misused his authority for personal gain. It is not the case of the respondent that there is any circular issued by the State Government prohibiting the letting out of the shops /godowns in the Mandi area to the traders on temporary basis. It has also not been disputed before this court that all the shops/godowns let out on temporary basis were vacated and no loss has been caused to the Krishi Upaj Mandi Samiti whatsoever. To the contrary, it is the categorical finding recorded by the Enquiry Officer that on account of temporary allotment made, the Krishi Mandi Samiti has been benefited . 10. Assuming that the procedure laid down for allotment has not been strictly followed by the respondent while making temporary allotments then too, such lapse on the part of the authorities dealing with the matter of allotment, on the facts and in the circumstances of the case, has to be treated as technical and venial. Admittedly, the shops/godowns were allotted on temporary basis after due approval of then Administrator of the STATE OF RAJASTHAN & ANR. VS. LAXMI NARAIN (D.B.CIVIL SPECIAL APPEAL (W) NO. 601/09) 7 Mandi Samiti but, no disciplinary action whatsoever has been taken against him who is equally responsible for the allotment made on temporary basis de hor the Rules as alleged. That apart, it has come on record that the temporary allotments of the shops/godowns were made in the Mandi area in the past also and one such officer Shri B.C.Mathur was exonerated from the charge by the State Government. In this view of the matter, there is absolutely no reason as to why the respondent alone has been picked up for a different treatment being given and sought to be penalised for technical and venial breach without there being any allegation of guilty intention or ill motives. 11. Thus, on the facts and in the circumstances of the case, the treatment meted out to the respondent in taking disciplinary action by imposing a punishment of reduction in the pay scale by two stages for technical and venial breach committed while discharging his duties as Secretary, Krishi Upaj Mandi Samiti in the year 1987-88, after a lapse of about 7 years, at the fag end of his career when he was about to retire w.e.f. 31.10.96, notwithstanding the fact that other similarly situated officer has already been exonerated by the State Government and further, no action has been taken against the Administrator,who was responsible for approving the action alleged to be de hors the Rules, is absolutely unreasonable and unjustified and therefore, STATE OF RAJASTHAN & ANR. VS. LAXMI NARAIN (D.B.CIVIL SPECIAL APPEAL (W) NO. 601/09) 8 cannot be countenanced by this court. 12. For the aforementioned reasons, we are in full agreement with the finding arrived at by the learned Single Judge. In our considered opinion, the order impugned passed by the learned Single Judge does not suffer from any error warranting interference by us in this intra court appeal. 13. In the result, the special appeal fails, it is hereby dismissed. No order as to costs. (SANGEET LODHA),J. (A.M.KAPADIA),J. Aditya/-