1 Gemra Ram Vs. State of Rajasthan & Ors. (S.B. CIVIL WRIT PETITION NO.350/2006) Date of Order : 02.04.2009 HON'BLE MR. JUSTICE SANGEET LODHA Mr. Sandeep Shah, for the petitioner. Mr. Sunil Bhandari for Mr. M.R. Singhvi, for the respondents. 1. Heard learned counsel for the parties. 2. This writ petition is directed against order dated 16.10.96 passed by the Disciplinary Authority imposing the punishment of withholding of two grades increments with cumulative effect upon the petitioner for charge of misconduct proved against him, order dated 2.9.99 passed by the Appellate Authority reducing the punishment of stoppage of two grade increments with cumulative effect to that of censure and order dated 2.11.2004 passed by the Reviewing Authority rejecting the review petition preferred by the petitioner for review of the aforesaid orders. Besides, the petitioner has also sought direction against the respondent to extend all consequential benefit to him including the consideration of his case for grant of second selection grade on completion of 18 years of service. 3. The petitioner working as Excise Inspector Gr.I with the Department of Excise, Government of Rajasthan, was served with a 2 notice under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short 'the Rules of 1958'), proposing disciplinary action against him with the allegation that during the year 1993-94, he has failed to register the minimum number of cases in conformity with the norms prescribed which reflects his carelessness and dereliction towards the duties. The petitioner submitted his representation stating therein that prior to 1991 Pokaran Excise Division was under the Jaisalmer Range and during the period 1988-89, 1989-90 and 1990-91 total number of cases registered under the Pokaran Range were only 4,3 & 2 respectively. It was submitted that there was not much violation of the excise laws during the relevant period in the Pokaran Range, therefore, even after the best efforts only 14 cases could be registered. It was submitted that there was no negligence on his part in achieving the target. However, after consideration of the representation made by the petitioner the Disciplinary Authority found the petitioner guilty of the charge levelled against him and accordingly, imposed the punishment of withholding two grade increments without cumulative effect vide order dated 16.10.96. On appeal, the punishment of withholding two grade increments imposed by the Disciplinary Authority was reduced to censure by 3 the Appellate Authority vide order dated 2.9.99. A review petition preferred by the petitioner under Rule 34 of the Rules of 1958 was rejected by the Reviewing Authority vide order dated 2.11.2004. Hence, this petition. 4. It is contended by the learned counsel for the petitioner that mere non fulfillment of projected target of registering the cases under the Excise Law without anything more does not warrant imposition of punishment. It is submitted that registration of the case always depend on actual commission of offences, therefore, not achieving the target by itself cannot give rise to disciplinary action against an employee. The learned counsel submitted that it has not been proved that the petitioner was negligent in discharging of his duties, therefore, the penalty imposed is absolutely unjustified. In this regard, the learned counsel has relied upon a bench decision of this Court in 'State of Rajasthan & Ors. Vs. Lala Ram' 2002 (1) WLC (Raj.) 189. Regarding delay, it is submitted by the learned counsel for the petitioner that delay in filing the writ petition has been explained satisfactorily in para 12 of the writ petition. It is submitted by the learned counsel that the petitioner remained under the belief that the punishment of censure would not adversely affect his service career. 4 5. Per contra, it is submitted by the learned counsel appearing on behalf of the respondents that since the petitioner has failed to achieve the projected target, therefore, he has rightly been guilty of the charge of misconduct levelled against him. It is submitted by the learned counsel that the penalty of withholding of two grade increments without cumulative effect by the Disciplinary Authority has already been reduced to that of censure by the Appellate Authority, therefore, the sufficient relief already stands granted to the petitioner and the orders impugned does not warrant any interference by this Court. It is submitted by the learned counsel that the writ petition preferred by the petitioner suffers from inordinate and unexplained delay inasmuch as after rejection of the review petition, the present writ petition has been filed after lapse of about more than one year. 6. I have considered the rival submissions and perused the material on record. 7. It is to be noticed that the only allegation against the petitioner is that failure on his part in achieving the projected target of registering the cases for violation of Excise Laws, reflects his carelessness and dereliction towards the duties. It is not the case of the respondents that though the offences of breaches or 5 violation of the Excise Law were committed within the area falling within the jurisdiction of the appellant more than the cases registered by him yet on account of his negligence the cases were not registered. It goes without saying that the registration of the cases depends on actual occurrence of the offences, therefore, the allegation of not achieving the projected target of registering cases by itself shall not constitute 'misconduct' so as to warrant disciplinary action against the employee. 8. As a matter of fact, the controversy involved in the present case stands covered by the Bench decision of this Court in Lala Ram's case (supra) wherein after due consideration the Court observed : “The principle enunciated in Sunil Grover's case is relevant to the facts and circumstances of this case. One must make a distinction between cases of targets fixed for positive results from implementing any statute or policy of Govt. in any field of achievements on the one hand and targets fixed for registering number of cases for breaches or violation of law, which is dependent on actual commission of breaches/obligations by the subjects of such law. Number of breaches or violations of law cannot be presumed to take place so as to make it incumbent upon an officer to register and detect minimum number of cases of such breaches. Acting with vigilance and registration of cases are not necessarily one and same thing. The latter activity can only be justified on detection of breaches or violation of law. Without finding any such existing breaches so as to establish nexus between officer's conduct with the 6 alleged act of negligence, no adverse consequence of punishment can befall the incumbent. One cannot countenance motivation to register a sizable number of cases for breach of law, to windowdress the effectiveness of law through demonstrative statistics. It is a bad governance and counter productive to breed any respect for law to be an effective means of social change, apart from the fact that it reflects a sad commentary on policy framers who start with assumption that laws framed by the State shall not receive general acceptability and will result in large scale non-observance of law by the people who are to be its subject. Compelling any officer to register an officer of the State to involve a minimum number of people in accusation of law breaking at the pains of suffering disciplinary enquiry solely for non fulfillment of such target is anything but reasonable without material to suggest that cases of such breaches do exist, but has gone undetected due to negligence of the officer. It leads to registering increasingly false and non-existent cases to make up the statistics. In order to obviate such abuse, it is necessary that before an incumbent is held negligent in discharge of his duties, such nexus is established.” 9. In view of the position of law settled by this Court as aforesaid, in absence of any allegation that the offences committed during the year in question has gone undetected due to negligence of the petitioner, he cannot be held guilty for any misconduct of negligence or carelessness in discharge of duties as Excise Inspector. 10. Coming to the question of delay in filing the writ petition, it is to be noticed that in para 12 of the writ petition explaining the delay in filing the writ petition, it is stated by the petitioner that 7 he was granted benefit of selection grade after completion of 9 years of service vide order dated 3.11.97 w.e.f. 18.8.96, however, thereafter when the petitioner claimed second selection grade on completion of 18 years of service in the month of December, 2005, he was informed that on account of punishment of censure the second selection grade to be granted on completion of 18 years of service should be deferred for a period of one year. Therefore, considering the adverse effect of the order impugned , the petitioner has preferred this writ petition immediately thereafter. On the facts and in the circumstances of the case, in considered opinion of this Court, the explanation submitted by the petitioner is plausible and acceptable and the writ petition cannot be dismissed solely on the ground of delay. Moreover, keeping in view the finding arrived at as aforesaid that the allegations said to be proved against the petitioner does not even constitute misconduct , in the considered opinion of this court , it will be against the interest of justice to dismiss the writ petition solely on the ground of delay . 11. In the result, the writ petition succeeds, it is hereby allowed. Orders impugned dated 16.10.96 (Annexure-3), 2.9.99 (Annexure-4) and 2.11.04 (Annexure-6) are quashed and set aside. 8 The petitioner shall be entitled for all consequential benefits. No order as to costs. [SANGEET LODHA],J. vijayant