CW 3272/96 {1} In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.3272/1996 Achal Singh Parmar Versus State & Ors. Date of Order : 05/01/10 Hon'ble Mr. Justice Ajay Rastogi Mr. NS Chouhan for Mr. RD Rastogi, for petitioner Mr. SD Khaspuria, Addl. Govt. Counsel for respondents Instant petition has been filed assailing order dt.06/12/94 (Ann.14) inflicting stoppage of one annual grade increment without cumulative effect upon petitioner after holding disciplinary inquiry U/r 16 of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (“CCA Rules”) and the order dt.31/07/95 (Ann.16) dismissing his appeal. Petitioner while working as Assistant Sadar Kanoongo in the Collectorate, Dholpur was served with memo alongwith charge sheet dt.26/09/1992 (Ann.7 to 9) imputing three charges. Finally, despite inquiry officer having not found either of charges proved against him, disciplinary authority held him guilty for charge NO.1 and inflicted penalty of stoppage of one annual grade increment without cumulative effect vide order dt.06/12/1992 (Ann.14). “Charge No.1 : Petitioner had CW 3272/96 {2} purchased a plot in the name of his wife without informing and seeking prior approval of respondents.” After regular inquiry held, inquiry officer did not find either of charges proved against him vide report dt.23/09/93 (Ann.11); but without serving a Note of disagreement upon him as it appears from the penalty order impugned, disciplinary authority made certain queries from inquiry officer at his own level; and finally called the petitioner for personal hearing and in absence of any disagreement Note being served, there was no occasion for the petitioner to have made any submission in course of personal hearing even if afforded. However, taking note of material on record, disciplinary authority held the petitioner guilty for charge No.1 and inflicted penalty of stoppage of one annual grade increment without cumulative effect vide order dt.06/12/94 (Ann.14) – against which appeal was preferred but was dismissed vide order dt.31/05/95 (Ann.16). Main thrust of petitioner's counsel is that in the absence of Note of disagreement being served, which is the requirement under CCA Rules, the very order inflicting impugned penalty is arbitrary and violative of CW 3272/96 {3} principles of natural justice; and deserves to be quashed & set aside. In support, Counsel has placed reliance upon judgment of this Court in Hari Narain Goyal Vs. State Ware Housing Corpn. (1983 RLR 520) and so also of Apex Court in Punjab National Bank Vs. Kunj Behari Misra (1998(5) JT (SC) 548). Respondents have filed reply to the writ petition, wherein facts (supra) have not been controverted. However, Government Counsel submits that after a copy of inquiry report was received by disciplinary authority, petitioner was called for personal hearing and after affording opportunity, he was held guilty of charge NO.1 and punished by disciplinary authority inflicting penalty of stoppage of one increment without cumulative effect and it being minor penalty, even if Note of disagreement being not served upon him, no prejudice would have caused to petitioner (delinquent). Government Counsel further submits that appellate authority has also examined his objection and did not find favour to interfere with the impugned penalty; and in a limited scope of judicial review, this Court would not like to sit as a court of appeal to re-appreciate the finding recorded by CW 3272/96 {4} disciplinary & appellate authority holding him guilty. This Court has considered rival contentions of the Counsel for parties and with their assistance, examined the material on record. Facts have remained un-controverted that inquiry officer has not found either of three charges proved against him in course of inquiry, as is evident from inquiry report dt. 23/09/93 (Ann.11). A note of disagreement in order to afford an opportunity of hearing to delinquent (petitioner) for any justification recorded while disagreeing with report of inquiry officer, was not served upon delinquent before passing order of penalty impugned while affording personal hearing to him. A question certainly arises that if Note of disagreement having not been served upon delinquent, what would be the effect of opportunity of personal hearing afforded before passing the order of penalty impugned. Rr.16(9) & (10) of CCA Rules being relevant is ad infra: “16 (9). The disciplinary authority shall, if it is not the inquiring authority, consider the record of inquiry and record its finding on each charge. The Disciplinary authority ay CW 3272/96 {5} while considering the report of the inquiring authority for just and sufficient reasons to be recorded in writing remand the case for further /de-novo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other.” (10). The disciplinary authority shall forward a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority a copy of the report of the inquiring authority to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days.” A conjoint reading of Rr.16(9) & (10) of CCA Rules which being mandatory were required to be followed while passing the order impugned, and the respondents were under obligation to comply with, certainly depict that after the record of inquiry as contemplated U/r 16(8) is received, a legal obligation is cast upon disciplinary authority if he is not the enquiry officer to examine the same and record its findings on each charge, as clearly contemplated in case of disagreement with the report of inquiry, the CW 3272/96 {6} disciplinary authority is under obligation to serve Note of disagreement upon the delinquent to submit his explanation. In the instant case, inquiry officer was different than disciplinary authority and being the fact finding authority after the record of inquiry was submitted by inquiry officer U/r 16(8), disciplinary authority was under legal obligation to examine the same and record its finding on each charge and in case of disagreement with the findings recorded by inquiry officer, legal obligation is casted upon him to serve a Note of dis-agreement upon delinquent calling for his explanation and only after affording opportunity of hearing to him, the disciplinary authority could have proceeded for recording finding of guilt while passing final order U/r 16(10) of CCA Rules. In instant case, indisputably Note of disagreement was never served upon delinquent-petitioner before disciplinary authority held him guilty for charge No.1 while inflicting penalty impugned. In Hari Narain Goyal Vs. RSWHC (supra), it has been observed ad infra: “12. Obviously, in the instant case, sub-clause (a) has not been complied with and for obvious reasons, sub-clause (a) cannot be ignored or CW 3272/96 {7} treated as directory. The inquiring authority’s report is one of the most important documents, in which the enquiry findings are recorded and it is on the basis of it that further action by the disciplinary authority. Since sub-clause (10) of Rule 16 contemplate contemplates a notice, thereafter, under sub-clause (b) and consideration of the representation therefore, it is only where the report is before the delinquent officer or an employee that he can apply his mind and find out whether the reasons given by the enquiry authority for holding him guilty are based on correct appreciation of evidence on record and if not he can challenge the same by way of representation in reply to a show cause notice under clause (b). If a copy of the report is not given to the Government servant, he cannot be expected to challenge the findings in vacuum as unless specific reasons on which the findings are based, are known, a government servant cannot successfully assail them in reply to show cause notice, in substance. Sub- clause (a) is the bed rock and foundation for further proceedings in sub-clause (b) and if rule 16(a) is not complied with, the compliance of sub- clause (b) would be an empty formality. “13. In case of disagreement, the reasons for disagreement assumes great importance because whereas the CW 3272/96 {8} enquiring authority finds the Government servant innocent and exonerates him, the departmental authority for the reasons to be recorded finds him guilty and therefore, he can challenge the findings of the departmental authority only when he knows what were those reasons on account of which there was disagreement.” Taking note whereof, in the opinion of this Court, in absence of Note of disagreement being served upon delinquent (petitioner) before affording personal hearing and while passing final order U/r 16 of CCA Rules, the very order of penalty impugned, cannot be said to be legally sustainable as it being in violation of principles of natural justice, deserves to be set aside. The appellate authority has also failed to consider legal requirement which the disciplinary authority was under obligation to follow while passing the order of penalty impugned and therefore, order of appellate authority is also not sustainable. Consequently, writ petition succeeds and is hereby allowed. Order inflicting penalty dt.06/12/94 (Ann.14) & the appellate order dt. 31/07/95 (Ann.16) are quashed & set aside; and as a consequence whereof, petitioner will be CW 3272/96 {9} entitled for consequential benefits flowing there from as admissible under law. Compliance be made within three months from the receipt of certified copy of this order. No costs. (Ajay Rastogi), J. K.Khatri/p9/3272CW96Jn5AldDE.doc