SBCWP No.5791/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.5791/1997. Khalil Khan Vs. State of Rajasthan & Ors. Date of Order:- April 22, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Smt. Naina Saraf for petitioner. Shri Virendra Lodha for the respondents. Shri B.S. Rajawat, Deputy Government Counsel. ***** BY THE COURT:- Reportable This writ petition was filed by the petitioner way back in the year 1997 challenging the order of removal from service dated 31/8/1994 and the order of the appellate authority dated 25/2/1995 by which, his appeal filed against the aforesaid order was dismissed. 2) The factual matrix of the case is that petitioner was initially appointed as Driver Constable with the respondents and at the relevant time, he was working in the Police Line Dholpur. Petitioner on 27/1/1992 applied for leave for a period of one month which was sanctioned by the Superintendent of Police Dholpur. When petitioner sought permission of the Reserve Inspector Dholpur Police Line, Dholpur to proceed on leave, he SBCWP No.5791/97. 2 declined permission. However, according to the petitioner, he proceeded on leave on 1/2/1992. Head Constable M.T.O. Dholpur marked absence of the petitioner in the Rojnamcha on 2/2/1992. Petitioner was served with the charge sheet on 18/5/1993 on the charges of (1) willful absence since 2/2/1992, (2) for not appearing on 12/8/1992 before the medical board at the Government Hospital Dholpur despite communication dated 22/7/1992 and (3) for remaining willfully absent on as many as thirteen occasions. Charge sheet was served upon the petitioner along with statement of allegation on 2/6/1993. When petitioner neither submitted reply to the charge sheet nor appeared before enquiry officer-Shri Bheem Singh, Reserve Inspector of the Police Line served upon the petitioner letter dated 2/3/1994 calling explanation from him to appear before him because he himself was appointed as an enquiry officer. Petitioner while giving receipt of the letter/notice, requested for grant of time and also for supply of documents and statements recorded behind his back and opportunity of cross- examination. Although by the notice, petitioner was required to appear on 7/3/1994 in which petitioner did appear before the enquiry officer and again submitted an application for granting time to cross-examine the witnesses already examined and for that purpose also applied for supply of copies thereof and copies of the SBCWP No.5791/97. 3 documents which the department produced before the enquiry officer. When the matter was taken up on 25/3/1994, petitioner filed another application to the same effect, on which date, he expressed his inability to appear due to illness and requested for another date. That application was submitted when the enquiry officer on 25/3/1994 completed the ex parte enquiry and submitted report to the Superintendent of Police. Superintendent of Police thereafter issued show cause notice proposing to remove him from service and calling upon him to submit representation against the enquiry report. At that stage, petitioner submitted an application to the Superintendent of Police, Dholpur on 5/8/1994 to allow him to join his duties, which was not accepted. Superintendent of Police however on 31/8/1994 passed order of penalty removing petitioner from service. Appeal filed by the petitioner against the order of penalty was dismissed vide order dated 25/2/1995. Hence, this writ petition. 3) Smt.Naina Saraf, learned counsel for petitioner has argued that petitioner proceeded on leave for a period of one month. He could not therefore be treated as willfully absent right from 2/2/1992. Initially, entry was made in the Rojnamcha on 12/2/1992 showing petitioner absent from duty. The entry was absolutely vague. PW2 Pooran Chand in his statement recorded during enquiry has submitted that he has made this entry SBCWP No.5791/97. 4 as per the order of the Reserve Inspector, who himself was appointed as enquiry officer. The other witnesses have also similarly stated that the barrack of the petitioner was searched but petitioner found absent from the duty. They further stated that the enquiry officer was biased against the petitioner and enquiry was not held in a just and proper manner. Enquiry officer was appointed without receiving reply to the charge from the petitioner. When petitioner received notice from the enquiry officer on 2/3/1994, he while giving receipt of the notice requested that he be supplied copies of statements so far recorded and also the documents so as to enable him to cross-examine them. Petitioner reiterated this request on subsequent two dates i.e. 7/3/1994 and 15/3/1994 but the enquiry officer did not supply to the petitioner copies of any statement recorded behind his back enabling him to cross examine them nor it supplied copies of the documents by the respondent department. Petitioner again made an application to the enquiry officer enabling him to appear before the enquiry officer and for fixing another date but the enquiry officer did not decide any of these applications and concluded the enquiry proceedings and submitted enquiry report on 25/3/1994 proving all the charges. Learned counsel argued that enquiry was thus held in utter violation of principles of natural justice and in breach of the procedure SBCWP No.5791/97. 5 contained in Rule 16 of the Rules of 1958. Howsoever serious charges may be but those charges cannot be proved unless an opportunity was afforded to the petitioner to putforth his defence and cross examine the witnesses produced by the department. None of the documents submitted by the department was supplied by the enquiry officer to the petitioner. Petitioner was neither paid salary nor was paid any subsistence allowance during the enquiry proceedings. Not even a defence nominee was provided to the petitioner. His defence was thus seriously prejudiced. 4) Smt.Naina Saraf, learned counsel for the petitioner argued that the enquiry officer himself was the witness because he too declined permission to the petitioner to proceed on leave despite grant of such leave by the Superintendent of Police and it was at his instance that PW2 Pooran Chand made false entries in the Rojnamcha on 2/2/1992 inspite of the fact that he had been earlier granted permission to proceed on leave. His appointment as enquiry officer has thus vitiated the enquiry proceedings because he was biased against the petitioner. Petitioner was not given opportunity to prove this fact in enquiry. Petitioner every time requested for extension of the leave and for that purpose he sent applications but none of these applications were forwarded to the enquiry officer nor documents were supplied to him and an ex-parte enquiry was SBCWP No.5791/97. 6 concluded against him. First letter was issued to the petitioner regarding willful absence on 23/2/1993 even when still 8 days remained of the leave period of 30 days. PW 13 Jitendera UDC has clearly submitted that he himself did not serve letter to the petitioner but even by making statement that he has heard that PW7 Ram Snehi has given two letters to the petitioner and further stated that no such letter was given in his presence. It is denied that petitioner was served with the copies of the letters dated 22/2/1992 and 8/9/1992. Neither any details or particulars of the earlier 13 times when petitioner was allegedly absent were made part of the charge sheet nor enquiry was proceeded pursuant thereto. Disciplinary Authority did not apply his mind to the evidence and mechanically passed the order of penalty. Both the arguments were raised before the appellate authority but the said authority did not consider all those arguments. Appeal has been dismissed by a non-speaking order without examination of any of the argument. First two pages are full of reproduction of charges and the gist of the appeal. And the conclusions have been recorded in the last page in a slipshod manner. Learned counsel in support of his arguments has relied on the judgments of Supreme Court in U.P. State Road Transport Corporation Vs. Muniruddin : (1990) 4 SCC 464, constitution bench judgment of the Supreme Court in State of Madhya Pradesh Vs. SBCWP No.5791/97. 7 Chintaman Sadashiva Waishampayan : AIR 2001 SC 1623, Division Bench judgment of this Court in Datar Singh Vs. State of Rajasthan (DBSWP No.2598 of 1988) decided on 17/11/1988, judgment of co- ordinate Bench of this Court in Deoki Nandan Kulshreshtha Vs. State of Rajasthan & Anr. : 1985 WLN (UC) 103, Harish Chandra Vs. State of Rajasthan & Ors. : WLC (Raj.) 2002(2) 720 and judgment of this Court in Sardar Singh Vs. State of Rajasthan & Ors. (SBCWP No.3109/1995) decided on 7/1/2009. 5) Per contra, Shri B.S. Rajawat, learned Deputy Government Counsel has opposed the writ petition and submitted that although initially petitioner applied for leave for 30 days which was granted but thereafter he remained willfully absent from 2/2/1992 to 7/3/1994 i.e. almost for two years. It is denied that petitioner submitted application in defence for sanction/extension of leave. It is only after he was issued charge sheet. He came out with the plea that he was sick and could not appear to assume duties due to sickness. Under Postal Receipts produced along with the application have no value. Despite various communications, petitioner remained absent from duty and therefore the enquiry officer was left with no option except to conclude the enquiry ex-prate and submit his report. The alleged absence on account of medical ground is an afterthought. Petitioner failed to avail SBCWP No.5791/97. 8 opportunity to participate in the enquiry to produce the evidence despite number of opportunities granted. Learned counsel submitted that Disciplinary Authority has fully applied its mind and then came to the conclusion that the penalty of removal, which is inflicted, was commensurate with the gravity of the charge because petitioner was willfully absent for more than two years and that despite being required, petitioner did not make himself available before the medical board for medical examination and that he had on 13 occasions earlier also absented from duties. Appellate authority has also rightly dismissed the appeal by a detailed order. Since this order was passed in concurrence with the order of the Disciplinary Authority, he was not required to have passed a lengthy order. 6) Upon hearing learned counsel for the parties and perusing the material available on record and the cited judgments of Supreme Court and this Court, I find that in the present case although charge of willful absence of more than two years prima-facie appears to be quite serious but on deeper examination, from inspection of the departmental proceedings against the petitioner, appears to be based on shaky grounds. First charge that petitioner was willfully absent from duties from 2/2/1992 does not appear to hold good atleast for initial period of one month because petitioner was already granted leave for one month vide order SBCWP No.5791/97. 9 dated 27/1/1992. Thus, period for which petitioner was granted leave could not be made part of the charge and the petitioner proceeded on leave i.e. 1/2/1992. Respondents in their reply to the writ petition have also admitted the fact in the opening part of their reply to the writ petition in para 3 that initially petitioner applied by an application to the Superintendent of Police for leave of 30 days which was accepted/granted but at the same time, respondents further stated that he remained willfully absent from 2/2/1992 to 7/3/1994. When already respondents admitted that he was granted leave for one month, which period starts from 1/2/1992, there can be no question of petitioner being willfully absent atleast from 2/2/1992 till initial period of 30 days i.e. 2/3/1992. Petitioner is justified in saying that respondents could not have sent to him a notice for willful absence on 23/2/1992 as the leave period was yet to expire although, by the said notice, he was required to report back on duty and despite receipt of this notice, petitioner did not appear. On the one hand, petitioner says that he sent application for extension/grant of the leave but on the other, respondents have denied that he did not submit any such leave application. Petitioner has produced on record copies of number of UPC certificates of different dates with which he sent such leave applications but this is disputed by the respondents. These documents did SBCWP No.5791/97. 10 not appear to have been placed before the enquiry officer because petitioner prior to producing those documents requested the enquiry officer on 2/3/1994 and 7/3/1994 and repeatedly on 15/3/1994 to provide him copies of the statements recorded by the prosecution witnesses recorded behind his back so that he can cross examine them and also requested for supplying copies of the documents so far produced by the department. Enquiry report which is on record does not reflect whether any of those applications were considered by the enquiry officer. The specific plea to that effect set up by the petitioner although enquiry officer records that petitioner did appear before him on 7/3/1994 and 15/3/1994 and requested for time which was allowed. Matter was then fixed for 22/3/1994 as a last opportunity on which date delinquent did not appear therefore enquiry proceedings were proceeded ex-parte assuming that he deliberately did not want to participate in the enquiry and therefore the ex-parte enquiry report was submitted. Enquiry officer further observed that on the last date i.e. 15/3/1994, final opportunity was given to the petitioner however he failed to produce any evidence, hence the matter was decided against him ex-parte. Petitioner in para 7 of the writ petition has set up a specific plea that he made request not only on 7/3/1994 but also on 15/3/1994 for supply of copies of relevant documents which fact has not been disputed by the SBCWP No.5791/97. 11 respondents in para 7 of their reply. Respondents rather state that so-called applications for extension of leave are nothing but merely afterthought and at no point of time did the petitioner ever give any such application to the disciplinary authority for sanction/extension of leave. In other words, respondents have not denied the specific plea set up by the petitioner with regard to the repeated request for supply of the copies of the statements recorded behind his back for the purpose of cross examination of those witnesses and also documents produced by the respondents. 7) Moreover when the petitioner was being subjected to departmental proceedings, he should have been paid subsistence allowance. This has caused serious prejudice to him and owing to that reason, disciplinary proceedings cannot be held to have been conducted in a fair and reasonable manner in conformity with the principles of natural justice. His defence in the enquiry was seriously prejudiced because he was not provided the defence nominee though in the enquiry report the enquiry officer has noticed such request by the petitioner. Besides, it was the same Reserve Inspector of the Police Line Dholpur, at whose instance a false entry was made in the Rojnamcha about absence of the petitioner as has been stated by PW2 Pooran Chand and it was then showed that barrack was searched by various other witnesses, SBCWP No.5791/97. 12 who have deposed accordingly during enquiry proceedings that petitioner was found absent. This shows that the enquiry officer himself was fully involved in the entire sequence of developments. He could at the best be a witness to those events. If he was appointed as enquiry officer, in the peculiar facts of the case, this has really and gravely prejudiced case of the petitioner as he was biased against the petitioner because he had an interest in giving a report proving the charges. Enquiry proceedings thus stood vitiated on that account. Action of the respondents indeed reflects such bias as would be evident from the manner in which enquiry officer has hurriedly concluded the enquiry proceedings when petitioner requested for supply of the statements and documents produced by the respondents. According to the enquiry officer, petitioner received letter dated 2/3/1994 to appear before him on 7/3/1994 on which date petitioner appeared and made the above request. But without deciding such request, he deferred the matter on 15/3/1994. Petitioner again reiterated the above request but the enquiry officer did not pay any heed to the request. He rather recorded the statements behind his back citing documents. Matter was fixed for 26/3/1994. On that very day, enquiry proceedings were not only proceeded ex-parte against the petitioner delinquent but also concluded and enquiry report was submitted on 25/3/1994. SBCWP No.5791/97. 13 8) For all the aforesaid reasons, enquiry was thus held in utter violation of principles of natural justice which is also infraction of procedure contained in Rule 16 of the Rules of 1958, especially sub-rule (4), (5) and (6) of Rule 16 of the Rules of 1958. In the facts of the case, denial of opportunity to avail services of defence nominee also occasioned miscarriage of justice, as doing so would have only provided the reasonable opportunity to the petitioner to defend himself. On this point, judgment of Supreme Court in Deoki Nandan Kulshreshtha supra is clearly against the respondents. Constitution bench judgment of Supreme Court in Chintaman Sadashiva Waishampayan supra held that non supply of copies of relevant documents to a public servant in the enquiry proceedings would be violative of principle of natural justice and Article 311(2) of the Constitution of India. Division Bench of this Court in Datar Singh supra has clearly held that in view of the law laid down in Sardar Singh supra, third charge against the petitioner that he remained absent on 13 occasions earlier could not be the basis for his removal from service because that period of absence already stood regularized by grant of leave. Besides respondents did not point out either in the charge or the statement of allegation specifically as to what was that period of absence, such charge, even otherwise, was wholly vague. Disciplinary authority has not SBCWP No.5791/97. 14 applied its mind to all these aspects of the matter and the appellate authority has also failed to address himself to any of those arguments which petitioner raised before him and is again raising before this Court. The inquiry was thus held in utter disregard of the principles of natural justice and fairplay in administration action and is therefore violative of Articles 14 and 16 of the Constitution of India. 9) In the result, writ petition is allowed. Impugned orders dated 31/8/1994 and 25/2/1995 are set-aside. Petitioner is held entitled to be reinstated in service with continuity. However, keeping in view the length of time which has elapsed between the order of penalty and now when this judgment is being passed and in totality of circumstances, petitioner is held entitled to only 50% of the consequential monetary benefits although he would be otherwise entitled to other benefits arising out of such continuity including retiral benefits and other consequential benefits. 10) Compliance of the judgment shall be made within a period of three months from the date copy of this order is produced before the respondents. (MOHAMMAD RAFIQ) J. anil