1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2295/1995 Hari Narain Gupta vs. State & Ors. Date of order : 8/2/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri N.S. Chauhan for the petitioner. Shri Krishna Verma, Addl. Govt. Counsel for the respondents. ****** REPORTABLE This writ petition has been filed by the petitioner Hari Narain Gupta way back in the year 1995 challenging the order dated 28.6.1995 and also the charge sheet and enquiry report on the basis of which, it was passed. By the aforesaid order dated 28.6.1995, petitioner was awarded penalty of stoppage of one grade increment with cumulative effect. During the pendency of the writ petition, respondents promoted some of his juniors and, therefore, the petitioner by permission of the Court amended the writ petition so as to assail the promotion granted to the respondent nos.3 to 6 by order dated 4.7.1995 and also prayed that he should be granted selection scale on completion of 15 years of service as was granted to many other similarly 2 situated employees. Shri N.S. Chauhan, learned counsel for the petitioner has argued that the disciplinary enquiry was conducted by the respondents in utter disregard of the procedure contained in Rule 16 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 inasmuch as no record whatsoever was produced by the Enquiry Officer to prove the charges. The Enquiry Officer in the report has clearly admitted that this was a 15 years old matter in which relevant record was not traceable and the Presenting Officer has expressed his inability to produce such record and therefore the enquiry report was being prepared merely on the basis of statements of the witnesses who were resummoned for the purpose. Learned counsel submitted that there were six charges against the petitioner. Charge No.4 and 5 were not found proved by the Enquiry Officer, whereas charge no.1 and 6 were found proved and charge no.2 was found partly proved. Learned counsel referred to the findings recorded by the Enquiry Officer in all the three charges 3 namely charge no.1, 2 and 6 and argued that the charges were not found proved on the basis of record or evidence produced by the respondents but rather the Enquiry Officer arrived at the conclusion about proof of the charges on the basis of the reply to the charge sheet submitted by the petitioner. It is submitted that the proceedings were liable to be quashed for the reason of delay as the matter kept pending for more than a decade and a half and finally when the enquiry report was submitted, the procedure given in Rule 16 of the CCA Rules was not adhered to. The Enquiry Officer has not discussed anything about three statements recorded on behalf of the department, but merely proceeded to record the finding of guilt against the petitioner on the three charges on the basis of the reply of the petitioner to the charge sheet. Learned counsel for the petitioner relied on the judgement of Supreme Court in State of A.P. vs. N. Radhakishan-(1998) 4 SCC 154 and M.V. Bijlani vs. Union of India & Ors.- (2006) 5 SCC 88. Relying on the later decision learned counsel submitted that the 4 disciplinary proceedings being quasi criminal in nature, there should be some evidence to prove the charges. There being no evidence in the present case, the penalty order deserves to be quashed and consequently the respondents be directed to grant to the petitioner regular promotion with effect from the date such promotion was granted to his juniors as admitted by the respondents in para 2 of their affidavit that while juniors were promoted against the vacancies of the year 1995-96, but the promotion was not granted to the petitioner on the ground of penalty of stoppage of one grade increments with cumulative effect. Thereafter, he was promoted against the vacancies of the year 1997-98. Learned counsel also submitted that respondents in the additional affidavit also stated that the petitioner was given benefit of selection grade with effect from 1.9.1989 by order dated 4.7.1996, but actually the benefit has not been granted to him so far. The petitioner in the meantime had taken voluntary retirement from service on 31.3.2009. He was promoted on the post of 5 Motor Vehicle Sub-Inspector on 16.12.2005, while his juniors were promoted to that post earlier than him. Shri Krishna Verma, learned Additional Government Counsel submitted that the writ petition should not be entertained because petitioner has sought to directly challenge the order by bypassing the alternate remedy of appeal. It is argued that the scope of interference with this Court in its limited jurisdiction of Article 226 of the Constitution does not extend to examining the factual aspects of the matter because this Court does not act as an appellate court and a fact finding authority. It is only required to see whether the procedure in arriving at such finding has been correctly followed. If there is some evidence to sustain the charges, the adequacy and sufficiency of the charges need not be gone into. Learned counsel in support of his arguments relied on Union of India & Anr. vs. B.C. Chaturvedi-(1995) 6 SCC 750. Learned counsel submitted that the promotion of the petitioner was delayed on account of penalty of stoppage of one grade increment 6 with cumulative effect and therefore if his juniors were promoted earlier than him, he can have no grievance therewith. So far as benefit of selection grade is concerned, petitioner has already been granted such benefits with effect from 1.9.1989 by order dated 4.7.1996. The matter being old one, the record could not be procured, yet the charges were proved by adducing evidence. Three witnesses were examined on behalf of the department and the Enquiry Officer as also Disciplinary Authority were fully justified in relying on the testimony of those witnesses and also evaluating their evidence in the light of what the petitioner has stated in his reply to the charge sheet. Learned counsel further argued that having not challenged the continuation of enquiry for more than 16 years, petitioner is now estopped from challenging the penalty order on account of delay. It is therefore prayed that the writ petition be dismissed. I have given my anxious consideration to the rival submissions and perused the material on record. The manner in which the enquiry report 7 has been prepared in this matter leaves much to be desired. In the first place, there was no justification to keep the disciplinary proceedings pending against the petitioner for as long as 16 years. The petitioner was suspended in contemplation of the disciplinary proceedings by order dated 19.2.1979 and charge sheet was served upon him on 6.4.1979. The matter was kept pending and ultimately enquiry report was submitted on 10.8.1994 and the penalty order was passed on 28.6.1995. Starting from 6.4.1979, when the charge sheet was served, it has taken more than 16 years to inflict the penalty upon the petitioner and then the Enquiry Officer in his report at the outset records his helplessness because the Presenting Officer expressed inability to provide relevant record as it was not traceable. The Enquiry Officer then said that the report was prepared on the basis of conclusion drawn from the statements of the witnesses, who were resummoned. But then when he ultimately records in his finding on the charges, he does not at all refer to any of the statement of three witnesses namely 8 PW-1, Narendra Singh, PW-2 Babu Lal and PW-3 Jai Narain, who were produced by the department before him. In order to appreciate the submissions made by the learned counsel for the petitioner, I shall briefly examine the finding recorded by the Enquiry Officer in so far as three charges which he found proved against the petitioner. The charge no.1 against the petitioner was that he made a report about there being no goods tax due from vehicle no.RSL-3175 merely on the basis of the receipt from 1.1.1979 to 31.3.1979 and did not verify such fact from goods index register. Now on this finding what is recorded by the Enquiry Officer is that this charge was proved against the petitioner from his own reply to the charge sheet because he does not say that he made endorsement about no dues from the vehicle in question on the basis of goods index register, but rather made such entry on the basis of earlier receipt and token given by the D.T.O. And then the Enquiry Officer proceeded to hold the charge proved by observing that petitioner should have 9 examined the relevant record to find out whether or not there was any difficulty or wrong committed by the earlier officers in issuing the token and fitness certificate. Merely on the basis of earlier receipt and fitness certificate, it could not be assumed that there were no dues against the vehicle owner in regard to the period anterior thereto whereas the plea of the petitioner that such receipt and fitness certificate could not be issued by D.T.O. if they had not verified from the accounts about any due from vehicle owner for the earlier period, was not at all objectively examined by the Enquiry Officer. Similarly charge no.2 against the petitioner was that he made a wrong entry on the token in favour of vehicle no.RNM-3295 about the due tax and subsequently that entry was struck, rather any tax being due was made by verifying this fact from the D.C.R. register. This charge was denied by the petitioner. The charge against him was that he should have first verified from D.C.R. register, and then should have made the entry. The petitioner denied this charge, yet the Enquiry Officer 10 found this charge also proved on the basis of reply to the charge sheet and came to the conclusion that such entry was made by the petitioner without examining the D.C.R. register. The D.C.R. register was not at all produced before the Enquiry Officer, yet he recorded a finding of guilt against the petitioner and in doing so, he does not refer to any of the statements of the witnesses examined by him before the department. The charge nos.3, 4 and 5 were not found proved. But, charge no.6 against the petitioner was found proved which is to the effect that he concealed the fact with regard to entry of vehicle no.RJF-2342 being procured by the owner on higher purchase basis and this fact was not brought on note sheet by the petitioner. The defence of the petitioner was that this vehicle was transferred by the D.T.O., Jhunjhunu in favour of one Ishak Mohammad and while transferring the registration, the D.T.O., Jhunjhunu did not make any endorsement about the vehicle being procured on higher purchase basis. He transferred the registration certificate in favour of Smt. 11 Sunita on 12.2.1979 as per the instructions of the D.T.O. It was for the D.T.O., Jhunjhunu to verify the record before transferring the registration and thereafter the D.T.O. should have done. Since there was no note on the registration certificate about the vehicle having been procured on higher purchase basis, the petitioner should not be held guilty. Now on this the Enquiry Officer has taken a very strange attitude by observing that the petitioner was not justified in merely relying on the entry / endorsement made by D.T.O., Jhunjhunu and he should have examined the other record. No record whatsoever has been produced, nor the statement of any of the witnesses has been examined by the respondents. While the learned Additional Government Counsel may be justified in submitting that this Court does not act as a court of appeal or a fact finding authority, but at the same time learned counsel for the petitioner is also equally correct in complaining about the wholesome manner in which procedure contained in Rule 16 of the CCA Rules was violated by the Enquiry Officer in 12 the present matter. 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 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 13 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 acquired in disciplinary enquiry is 14 that of 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 15 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.” Moreover, even if the Enquiry Officer found that the disciplinary proceeding was delayed for the reason of loss of record and if the record was lost, that could not supply any additional reason to the department for its inability to produce the record as to substitute the proof of guilt taken against the petitioner. In view of the conclusions which I have arrived at on the second argument, learned counsel for the petitioner, I need not examine first argument with regard to delay in conclusion of enquiry. Moreover, merely because the petitioner has not approached the appellate authority, this Court cannot relegate him to the alternative remedy of appeal now at this stage when the present writ petition has remained pending before this Court for last 15 years. This Court in 16 exercise of powers of judicial review under Article 226 can interfere in the disciplinary matters if it is of the view that finding recorded by the Enquiring Authority or Disciplinary Authority are such, which no reasonable person of ordinary prudent could on given material, reach because in that event such finding would be perverse and erroneous entitling this Court to invoke its power of judicial review. In view of above discussion, the writ petition deserves to be allowed and the order of penalty dated 28.6.1995 is quashed and set aside. The respondents are directed to consider the case of the petitioner for grant of promotion by reviewing the DPC with regard to the year 1995-96 and if adjudged suitable grant him promotion on the post of Motor Vehicle Sub-Inspector against the vacancies of the year 1995-96 with effect from the date, his immediate junior was granted such promotion with all the consequential benefits including considering his case for promotion by reviewing the recommendations of D.P.C. against the vacancies on which his such juniors were 17 granted promotion as Motor Vehicle Inspector with all the consequential benefits. The respondents have admitted that they have already granted the benefit of selection grade to the petitioner by order dated 4.7.1996 with effect from 1.9.1989, which fact is disputed by the petitioner. The respondents shall verify the fact and if the actual benefits are not released to the petitioner, the same shall be released now. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/