1 CW-1708/96 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR O R D E R S.B. CIVIL WRIT PETITION NO.1708/1996 (S.P.Rastogi Vs. The Hon'ble Governor & others) Date of Order 17th August , 2009 PRESENT HON'BLE MR. JUSTICE K.S. CHAUDHARI Mr.R.C.Joshi for the petitioner. Miss. Raj Sharma Addl.Government Counsel for Respondent No.2 & 3. Mr.Hari Bareth for the respondents No.4 & 5. **** BY THE COURT: By this writ petition the petitioner has challenged the legality of the order dated 30.4.85, order of the Hon'ble Governor dated 31.1.90 and 19.11.93 resulting in imposition of penalty of withholding three increments with cumulative effect and order dated 20th August, 1973 by which petitioner was reverted from Assistant Engineer to Junior Engineer and prayed for consequential benefits resulting from promotion etc. Petitioner joined service in Public Works Department as Overseer on 22nd March, 1960. He was designated as Junior Engineer in March 1968 and appointed as Assistant Engineer on adhoc basis on 2 CW-1708/96 17.1.1970. He was placed under suspension by order dated 11.8.1971. Petitioner was served charge sheet on 6.1.1972 which resulted into exoneration on 29.4.94. He was served another charge sheet on 30.6.75 in which he was exonerated on 31.12.80. He was served another charge sheet on 11.10.72. An enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short “CCA Rules”) was initiated by Memorandum dated 11.10.72 of the Government in Department of Personnel and Administrative Reforms. Four charges were levelled against the petitioner which relate to false measurement and recommending payment to the Contractor and securing undue pecuniary advantage in connivance and conspiracy with the Executive Engineer-Shri P.C. Tripathi and Overseer-Shri J.P. Gupta. Subsequently, order dated 27.6.74 (Annexure-14) was passed by the Governor of Rajasthan for a joint enquiry under Rule 18 of the CCA Rules against Shri P.C. Tripathi-Executive Engineer, J.P. Gupta- Overseer and the petitioner. By that order it was declared that the Governor will be the disciplinary authority and he will be free to impose any of the penalities specified in Rule 14 on the basis of an enquiry 3 CW-1708/96 to be held under Rule 16. By another order dated 27.6.74 the Commissioner (Departmental Enquiries) was appointed as Enquiry Officer for holding a joint enquiry. After completion of enquiry by order dated 30th April, 1985 petitioner was removed from service along with Shri J.P.Gupta-Overseer. Petitioner moved review petition before Hon'ble the Governor (Annexure-16 B) and vide order dated 31.1.1990 the Hon'ble Governor reviewed the order of dismissal of the petitioner and converted it into stoppage of three grade increments with cumulative effect. Order of the Governor was not communicated to the petitioner. Hence, the petitioner filed Writ Petition No.4946/90 which was decided in favour of the petitioner on 21.2.1991 and copy of reinstatement order was made available to the petitioner on 8.7.91. Petitioner submitted joining report on 10th July, 1991, but posting order was not given to the petitioner for two and half years. Ultimately, petitioner reported on duty as Assistant Engineer on 22.11.1993 but in attendance register petitioner was designated as Junior Engineer and he was informed that during suspension he was reverted as Junior Engineer on 20th August, 1973. Petitioner wrote to the Government in this 4 CW-1708/96 regard but ultimately petitioner joined as Junior Engineer on 27th June, 1994. Heard learned counsel for the parties and perused the record. Learned counsel for the petitioner submitted that neither charge sheet was issued by the Governor nor show cause notice for proposed punishment was issued by the Governor who was disciplinary authority under Rule 18 for holding of joint enquiry, hence, order of punishment and review order of punishment are vitiated as held by this Court in SB Civil Writ Petition No.961/85 filed by four delinquent-J.P. Gupta, against State of Rajasthan decided on 5.5.1993. On the other hand, learned counsel for the respondents submitted that judgment rendered in SB Civil Writ Petition No.961/95 (J.P.Gupta v.State of Rajasthan and others) is distinguishable as the Governor has already reviewed the order of dismissal and converted it into stoppage of three grade increments, thus, petition is not maintainable. It is an admitted position that Memorandum dated 11.10.1972 was issued by the Government in Department of Personnel after one and half year of order for joint enquiry under Rule 18 of the CCA Rules and 5 CW-1708/96 Governor was designated as a disciplinary authority, who was to impose any of the penalities specified in Rule 14. After 27.6.94 no fresh charge sheet was issued to the petitioner for holding departmental enquiry under Rule 16. Learned counsel for the respondents was unable to show that after 27.6.1974 the Governor approved the charge sheet already served on the petitioner. In J.P.Gupta's case (supra) it has been observed as under:- “Admitted facts which have come on record show that for holding of enquiry Memorandum dated, 11.10.72 was issued by the Government in Department of Personnel. After over one year and six months order for joint enquiry was passed under Rule-18 of the Rules. Exhibit-13 clearly shows that the Governor was designated as a disciplinary authority and he was to impose any of the penalities specified in Rule- 14. However, after 26.7.74 no fresh charge sheet was issued to the petitioner for holding of departmental enquiry under Rule 16. Neither from the reply nor during the course of arguments, learned Dy.Government Advocate could show from the record that on or after 26.7.74 (27.6.74) the Governor had either issued a fresh chargesheet to the petitioner or had approved the charge-sheet already served on the petitioner. In S.B.CIVIL WRIT PETITION NO.1314/72, Durga Das vs. State of Rajasthan, decided on 2.9.74, S.B.Civil Writ Petition No.212/87, Anil Kumar Mathur v.State of Rajasthan and S.B.Civil Writ Petition No.265/79, Sarvada Nand v. State of Rajasthan an exactly identical question has been examined. While deciding the last case M.B.Sharma,J. placed reliance on earlier two decisions and held,” 6 CW-1708/96 “I had an occasion to examine that in a bunch of the writ petitions starting from Anil Kumar Mathur v. State in S.B.Civil Writ Petition 212/87 and placing reliance on the aforesaid decision of this Court, it was said that “it is therefore, the Governor who is the Disciplinary Authority and it is for him to apply its mind and take decision to whether disciplinary proceedings should continue against the government servant or not. The matter would have been different if there would have been material that after appointing the Governor as the Disciplinary Authority under rule 18 (2) the Governor applied its mind or adopted the charge-sheet served earlier by the competent authority and in that case it could have been said that there was no need to serve fresh charge sheet as the charge-sheet issued earlier was adopted by the Governor after appointing as Disciplinary Authority. This Court further said in the aforesaid case of Anil Kumar Mathur, “Thus, it can be said that once it is decided to hold joint enquiry under rule-18(1) and the Disciplinary Authority is appointed, it is that authority alone who is to apply its mind, serve a charge- sheet unless it adopts the one already issued after applying its mind.” The above cases apply on all fours to the present case and the procedure safeguard contained in rule 16 of the C.C.A.Rules have not been complied with and inquiry is not in accordance with law.” 7 CW-1708/96 In view of these decisions it has to be held that the continuation of enquiry after 27.6.84 on the basis of Memorandum dated, 11.10.72 was wholly illegal. Another infirmity with which the proceeding taken against the petitioner suffers is that notice dated,17.3.81 (Ex.22) was not issued by the disciplinary authority. Instead, it was issued in Department of Personnel. Rules-16 (9) and 16(10) contemplate consideration of the record of inquiry by the disciplinary authority, recording of findings by it and issue of show cause notice by the disciplinary authority on the basis of such findings. These all steps require an active application of mind by the concerned authority. Proceedings under 1958 Rules are quasi judicial in nature and therefore, the disciplinary authority has to apply its independent mind in terms of rules 16 (9) and 16 (10). In this case show cause notice was not issued by the disciplinary authority, namely the Governor. Therefore, further proceedings taken on the basis of the notice dated 17.3.81 cannot be sustained in the eye of law. Yet another infirmity with which the show cause notice suffers is that the notice does not indicate as to whether the Government has accepted and approved the findings recorded by the inquiring authority or not. That apart, notice merely speaks of consideration of the report of the Inquiry Officer. It does not show that the Government had considered record of the enquiry and accepted the findings of the Enquiry Officer. Mere consideration of the report submitted by the Enquiry Officer cannot be treated as equivalent to consideration of record of enquiry contemplated and specified in Rule-16 (8). It can therefore, be said that even the Government did not apply its mind to the proceedings of the enquiry and the 8 CW-1708/96 evidence recorded during the course of enquiry. Non-application of mind by the Government is also evident from the fact that the Government has not even said that it agrees with the findings of the Enquiry Officer. Absence of such indication in the show cause notice has been held to be fatal to the ultimate order of punishment in Nath Mal v.State of Rajasthan (AIR 1958 Raj.153).” In J.P.Gupta's case the writ petition was allowed and order dated 30.4.85 was declared illegal and the petitioner was co-delinquent with Shri J.P.Gupta and the petitioner's case is squarely covered by J.P.Gupta's case and the learned counsel for the respondents could not show how J.P.Gupta's case can be distinguished from the petitioner's case only on the basis of review order passed by Governor. In the light of the above discussion it becomes clear that order dated 30.4.85 is illegal which deserves to be quashed as has already been quashed in J.P. Gupta's case. In such circumstances, subsequent orders of the Governor dated 31.1.90 and 19.11.93 are also deserve to be quashed as they originate from order dated 30.4.85. Hence, the writ petition is allowed and order dated 30.4.85 is declared illegal and is hereby quashed. 9 CW-1708/96 Subsequent orders dated 31.1.90 and 19.11.93 passed by the Governor are also quashed. The petitioner shall be entitled to consequential benefits. The Government shall however, be free to initiate fresh proceedings against the petitioner in accordance with the rules. (K.S.CHAUDHARI) J. teekam