1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R (1) S.B. C. Writ Petition No. 4555/1997. (Pep Singh Vs. State of Raj. & ors.) (2) S.B.C. Writ Petition No. 4106/1996. (Madho Lal Kashyap Vs. State of Raj. & ors.) Date of Order : 08/04/2010. P R E S E N T HON'BLE MR JUSTICE MOHAMMAD RAFIQ Mr. Arpit Srivastava, for the petitioners. Mr. Krishna Verma, for respondents. **** BY THE COURT: REPORTABLE These two writ petitions have been filed by the petitioners Pep Singh and Madho Lal Kashyap against the orders of penalty awarded to them in disciplinary proceedings. Since common question of law and facts are involved in both these cases, the same are being disposed of by this common order. Petitioner Pep Singh was serving the respondent in Transport Department as Class-IV employee and petitioner Madho Lal Kashyap was serving as a Lower Division Clerk. It is alleged that on 8.1.1991 both petitioners were on duty in the night at the check post at Aklera. Petitioner Madho Lal issued two check slips amounting to Rs. 2 876/- each but due to non availability of loose cash and small currency notes, both the vehicle owners/drivers paid Rs. 880/- each i.e. Rs. 8/- in excess of the amount shown in the slips and these Rs. 8/- were kept in coffers by the petitioner as it is and the total amount of revenue collected by the petitioner till the surprise checking by the A.C.D., Flying on the night intervening 8-9th January, 1991 was Rs. 3504/-, but in fact, the cash found with the petitioner by the said Flying Squad was Rs. 3512/- instead of Rs. 3504/-. Thus, he was found in possession of an amount of Rs. 8/- in excess. The Flying Squad seized the receipt book, attendance register and the cash amount of Rs. 3512/-. A memorandum of charge-sheet was served upon petitioner Pep Singh on 3.9.92 containing two charges (Annex.2). Charge No.1 against him was that during sudden inspection by the Flying Squad, a sum of Rs. 308/- was illegally found at the check-post for which the delinquent could not give any satisfactory explanation. Charge No.2 was to the effect that two unauthorised check slip books were found by ACD, Flying Squad at the time of sudden inspection from the check post. Simultaneously, another memorandum of charge was also served upon petitioner Madho Lal which contained three charges. The first charge against him was that during surprise checking by the Flying 3 Squad at Transport Check post on 9.1.91, an amount of Rs. 8/- was found in excess for which the petitioner could not give any explanation. Second charge against him was that during the course of inspection, near the seat of the petitioner two currency notes of Rs. 50/- each were found under a newspaper. Likewise, two currency notes of Rs. 100/- each were found in the Almirah. Thus, in all Rs. 308/- were found unauthorisedly about which no explanation was offerred. Third charge was to the effect that check slips from 1/91 total 472 pages were found issued at the check post; and another check slip bearing Sr. No. 1 to 35 was found at the check post but he could not explain from where these check slips had come. Thus, for last two charges, the charge-sheet issued to Madho Lal was exactly similar to both the charges against co- delinquent Pep Singh. Madho Lal filed reply to the charge-sheet on 18.11.92 and denied all the charges. Similarly, Pep Singh also filed reply to the charges on 20.3.93 denying both the charges. A joint enquiry was ordered against both of them under Rule 18 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (in short CCA Rules) with the Disciplinary Authority appointing a common Enquiry Officer vide order dated 20.3.93. The enquiry Officer submitted the report on 30.9.95. In his report, he had not find any of the two charges proved against the delinquent Pep Singh, whereas out of three charges 4 levelled against Madho Lal, charge No.1 was found only partly proved and charge No.3 proved whereas charge No.2 was not found proved. The disciplinary authority supplied copy of the enquiry report to both the petitioners, along with his communication dated 30.1.95 calling upon them to submit their representations thereto. Petitioner Madho Lal submitted a representation dated 22.6.96 in response to the said communication and requested that he be exonerated of all the charges. When Pep Singh did not submit any reply, another communication was sent to him on 19.7.96 followed by a show cause notice dated 20.8.96 which was in the shape of reminder to the earlier communication. Pep Singh submitted reply/ explanation on 6.9.96. The disciplinary authority thereupon with his letter dated 8.10.96 supplied to him the comments made by the Transport Commissioner in which he did not agree with the conclusions of the enquiry officer. The disciplinary authority passed the final order in the case of Pep Singh on 31.1.96 thereby awarding him penalty of stoppage of two grade increments with cumulative effect. Similarly, the disciplinary authority passed the order of removal against the delinquent Madho Lal on 20.7.96. Appeal filed by Madho Lal was dismissed by the appellate authority on 16.8.96. Hence these writ petitions. Shri Arpit Srivastava, learned counsel for 5 the petitioners has argued that the provisions contained under Rule 16 of the CCA Rules were not followed by the enquiry officer. Charges against the petitioner were taken as proved merely on the basis of charge-sheet issued by the respondents. The enquiry officer held that even though the Presenting Officer has not produced any evidence either documentary or even oral, even then the charges against them are taken to be proved as per records of the department. The learned counsel submitted that mere issuance of charge-sheet by itself does not mean the charges against the delinquent stand proved especially when a complete procedure has been provided under Rule 16 of the CCA Rules as to in what manner, the documents are to be produced and proved by production of the witnesses. Rules of procedure were violated in a wholesome manner in the present case and the principles of natural justice were given a complete go-bye. The learned counsel for the petitioner in support of his arguments placed reliance on the judgments of the Supreme Court in Roop Singh Negi Vs. Punjab National Bank & ors., (2009) 2 SCC 570; and State of U.P. & ors. Vs. Saroj Kumar Sinha; 2010 AIR SCW 1077. The learned counsel also relied on Anil Kumar Vs. Presiding Officer & ors. (1985) 3 SCC 378; and Union of India & ors. Vs. Prakash Kumar Jandeen (2009) 1 SCC (L & S) 394. It was contended that no notice of disagreement was served upon the petitioner Madho Lal, who was merely 6 supplied a copy of the enquiry report by letter dated 30.1.95, whereas this was the mandatory requirement of law because the enquiry officer did not find charge No.2 proved against him whereas charge No.1 was found proved only partly, yet the disciplinary authority disagreed with the conclusions arrived at by the enquiry officer and held all the three charges proved against the petitioner and on that basis awarded the extreme penalty of removal. The learned counsel submitted that in the case of Pep Singh, however noting made by the Transport Commissioner was supplied only when he persisted in his demand that he could not be penalised because the Enquiry Officer did not find any charge proved against him. But in that case too, the Transport Commissioner has not given any reasons or justification why he disagreed with the conclusions of the Enquiry Officer. The learned counsel in this connection has relied on the judgment of the Supreme Court in SBI & ors. Vs. Arvind Kumar Sukla, JT 2001(4) SC 415. It is therefore, prayed that the impugned order of penalty be quashed and set aside. Shri Krishna Verma, learned counsel appearing for the respondents opposed the writ petition and submitted that in cases where the delinquents admit their guilt in the course of enquiry, non production of documentary or oral evidence, would be immaterial even if the finding 7 of guilt has been recorded against such delinquents. The learned counsel in this connection has referred to the last part of the enquiry report and submitted that the delinquents admitted that two check slip books were recovered from the delinquent from the check post whereas the department had not issued check slip books nor did it issue any such instructions for getting such check slip books printed. The check slips were thus illegally got prepared. Charge No.3 was found proved against Madho Lal. Regarding supply of note of dissent while disagreeing with the findings recorded by the enquiry officer, the learned counsel submitted that such note of dissent was made by the disciplinary authority which would be evident from Annex.7 dated 8.10.96 addressed to petitioner Pep Singh, with which the relevant noting of the file was supplied to him. The learned counsel submitted that charges against the petitioners were otherwise quite serious and that those charges were also proved from the investigation made by the Anti Corruption Bureau. The appellate authority has objectively considered the arguments raised by the petitioner Madho Lal, and therefore, no interference is called for. I have given my anxious consideration to the rival submissions and perused the record. It is indeed a very strange case where 8 both the delinquents having contested the charges by filing reply to the charge sheet, the departmental /disciplinary authority was content with mere issuance of charge-sheet but no witness was produced to prove such charges against either of the delinquents. Not a single document was produced to prove the charges against either delinquent. Though a feeble attempt has been made by the learned counsel appearing for the respondents to show that the admission made by the delinquent about the seizure of check slip should be sufficient to hold them guilty at least for that charge, but surprisingly not even that check slip book was produced in evidence. Yet the enquiry officer and the disciplinary authority held that the charges against the petitioners could be taken to be proved just because charge sheet has been issued to them. Disciplinary Authority completed the ritual of appointing enquiry officer. Detailed procedure under Rule 16 of the CCA Rules was given a complete go-bye. If at all the enquiry officer and/or disciplinary authority was under the impression that it was a case of admission of guilt by the delinquent, in that event, the procedure that is envisaged in sub-rule (4-A) of Rule 16 was to be followed where the enquiry officer was required to specifically ask the delinquent whether he pleads guilty or has any defence to make and if he pleads guilty to any of the articles of charges, the Inquiring Authority was then required to record 9 the plea, sign the record and obtain the signature of the delinquent thereon and then return a finding of guilt in respect of those articles of charges to which the delinquent pleads guilty. But here the contention made by the respondents is not supported by record because both the delinquents denied all the charges levelled against them which is evident from their reply to the charge-sheet. Further, the procedure contained in sub-rule (6) of Rule 16 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 thereof to the Delinquent Officer, who within ten days of the receipt of the lists of prosecution witnesses and documents, shall submit the list of documents required 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 for Examination-in-Chief and also to the Government servant or his assisting officer, whosoever may be present, for cross-examination. The Presenting Officer shall be entitled to re-examine the witnesses on any point on which they have been cross-examined but not on any new matter, without 10 the leave of the Inquiring Authority. After the close of the prosecution evidence, the Government servant was then required to submit the list of the witnesses within 10 days which he would like to produce in his defence. The Inquiring Authority after considering the relevancy of the witnesses and the documents shall summon only the relevant witnesses and the documents and record the evidence thereof, while giving opportunity of Examination- in-Chief and cross-examination/ re-examination to the parties and then closed the evidence. In Roop Singh Negi (supra), it was held by the Supreme Court that the function of enquiry officer is quasi-judicial in nature. The charges levelled against the delinquent must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer of the criminal case against the accused could not be treated to be evidence in the disciplinary proceeding. In the present case too, mere seizure of different check slips by the Flying Squad of Anti Corruption Bureau has been taken to be a substitute for evidence in disciplinary proceedings. Even that check slip book has not been produced in evidence. It was further held in that judgment by the Supreme Court that unless any 11 witness was brought to prove the documents seized during the investigation, that cannot be accepted as a valid piece of evidence. In that case also some documents were tendered in evidence but that by itself was not accepted as evidence because no witness had appeared to prove the contents thereof. The enquiry report was held to be based on surmises and conjunctures. It was held that even if the standard of proof in the disciplinary proceedings is by way of preponderance of probabilities, mere suspicion cannot be a substitute for legal proof and that despite non applicability of the Evidence Act, 1872, the enquiry has to be conducted according to the principles of natural justice. In Saroj Kumar Sinha (supra), again a similar issue cropped up before the Supreme Court and it was held that the departmental enquiry conducted against the Government servant cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. Object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal /removal from service. In that case too, not only the delinquent was denied access 12 to documents sought to be relied upon against him, but he was condemned unheard as the enquiry officer failed to fix any date for conduct of the enquiry. The enquiry proceedings were held to be vitiated having been held without following the principles of natural justice and in total disregard of fair play. Coming now to second argument with regard to non-furnishing note of disagreement with the report of enquiry officer by disciplinary authority, I find that though in the case of Pep Singh, when he did not respond to the first communication made to him while supplying him copy of enquiry report and calling upon him to submit his comments, the respondents sent to him two more such communications dated 19.7.96 and 20.8.96 to which he responded on 6.9.96 demanding that he be exonerated particularly when the enquiry officer has exonerated him of all the charges. It is only thereafter, that the disciplinary authority served upon him yet another notice dated 8.10.96 along with copy of the relevant part of the note-sheet where the disciplinary authority had disagreed with the conclusions of the enquiry officer that he did not find any of the charges proved against delinquent Pep Singh, but no such note of dissent or anything of that sort was supplied to petitioner Madho Lal or otherwise brought to the notice of this Court. It was Madho Lal who was visited with 13 extreme penalty of removal. In the case of petitioner Madho Lal Kashyap, the enquiry officer found only charge No.3 fully proved and charge No.1, partly proved, whereas, charge No.2 was not found at all proved. If the disciplinary authority was satisfied that all the three charges were not proved against the delinquent in his perception, he could not have made such a serious departure without serving upon him a note of dissent and giving him an opportunity to submit his representation there against. Though of course, as per provisions of sub-rule(9) of Rule 16, while considering the report of the enquiry authority, for just and sufficient reasons to be recorded in writing, the disciplinary authority could remand the case for further/ de novo enquiry, in case he had the reason to believe that the enquiry already conducted has been laconic in some respect or the other. But if that procedure was not followed and he was satisfied on the basis of evidence available on record that the charges were found proved against the delinquent and that findings recorded by the enquiry authority are contrary to such evidence, then only option available to him was to record the tentative reasons and serve upon the delinquent opinion of dissent so as to enable him to represent there against. Such a procedure, is clearly provided in sub-rule(3) of Rule 16 that if the disciplinary authority is not an enquiry authority and he seeks to differ with the findings 14 recorded by the enquiry authority, the brief statement of the reasons may be served upon the delinquent. The Supreme Court in Ansind Kumar Sinha (supra) has categorically held that in any such circumstance, the disciplinary authority is under an obligation to record his tentative reasons for such disagreement and give to the delinquent officer an opportunity to rebut it. In reaching to this view, the Supreme Court has relied on its earlier judgment in Kunj Bihari and various other judgments. In the result, both these writ petitions deserve to be allowed and are accordingly allowed. The impugned order of penalty dated 31.1.97 in the case of Pep Singh, and 20.7.96 in the case of Madho Lal so also the order of appellate authority dated 16.8.97 in the case of Madho Lal, are quashed and set aside. The petitioners are held entitled to reinstatement in service with all consequential benefits with interest @ 6% per annum. Compliance of the judgment be made within a period of three months from the date its copy is produced before the respondents. No order as to costs. (MOHAMMAD RAFIQ),J. Gandhi/-P.A. Item no. 13-14