SBCWP NO.368/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.368/1997. Atar Singh Versus State of Rajasthan & Ors. Date of Order:- February 18, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Mahendra Singh for the petitioner. Shri Pradeep Kalwania, Deputy Government Counsel. ***** BY THE COURT:- This writ petition has been filed by the petitioner assailing the order of penalty dated 14/12/1996. By the said order, Commissioner Devasthan imposed a penalty upon the petitioner of stoppage of three annual grade increments with cumulative effect and directed recovery of the amount to the extent of which loss was caused to the department on account of the theft in the temple where petitioner was posted as Chowkidar. This Court while issuing show cause notices in the writ petition on 29/1/1997, passed the stay order only to the extent of staying recovery of the amount from the salary of the petitioner. By the subsequent order dated 8/8/1997 the writ petition was admitted in the same manner in which only to the extent of punishment order No.2 and therefore matter is SBCWP NO.368/97. 2 considered to that extent only. Learned counsel for the petitioner has argued that despite the fact that this court in his earlier writ petition being SBCWP No.1968/89 decided on 18/3/1993 made observation with regard to the non adherence to the provisions and procedure contained in Rules 10 and Rule 16, respondents have again violated those rules by not holding the enquiry therewith. Learned counsel has taken me through the enquiry report as order of penalty. It is argued that in the enquiry report, no evidence documentary or oral adduced by the department has been discussed whatsoever. Entire enquiry report has been based on the statement of the petitioner alone and that too in the previous enquiry proceedings. Even if petitioner had agreed to course adopted, still then, enquiry officer was required to atleast impose penalty dealing with the evidence of the respondents adduced before the enquiry officer of the previous enquiry proceedings. Disciplinary Authority has also violated provisions contained in Rule 16(3) because he has not dealt with the evidence of first three charges. He has mechanically agreed with the report of the enquiry officer and based the order of penalty without the application of mind. Learned counsel for the respondents opposed the writ petition and argued that since the petitioner agreed that he did not want to produce any evidence, enquiry officer cannot be faulted in SBCWP NO.368/97. 3 relying upon that statement. Learned counsel referred to the written statement of the petitioner at Annexure-R/2 to argue that it is borne from his statement that he was negligent in discharging his duties. His so called representation was submitted subsequent to the occurrence of theft. Learned counsel submitted that petitioner being Chowkidar of the temple was directly responsible if act of theft had taken place in the temple when he was supposed to be gardening. Having heard learned counsel for the parties and perused the material on record and especially considering the fact that respondents did not produce any evidence before the enquiry officer and simply based the entire finding on the statement of the petitioner himself, the procedure of enquiry as contained in Rule 16 of the CCA Rules has not been followed. Respondents were first required to produce their evidence documentary or oral and then only petitioner should be called to adduce his evidence in rebuttal. Enquiry officer has not recorded his finding on first two charges as per the requirement of sub-rule (7) of Rule 16 of the CCA Rules. The disciplinary authority has also simply dittoed the report of the enquiry officer and has not given any finding on first two charges as required as per requirement of sub-rule (9) of Rule 16 of the CCA Rules. Since the writ petition was admitted only in regard to Penalty No.2, writ SBCWP NO.368/97. 4 petition deserves to be allowed to the extent it provided that recovery of the loss caused to the department on account of the theft would be made from the salary of the petitioner. In the result, writ petition is allowed. Part of Penalty No.2 which provided recovery of the loss caused to the department on account of the theft would be made from the salary of the petitioner is set-aside. No order as to costs. (MOHAMMAD RAFIQ), J. anil