1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.2691/96 Mohammad Shabab vs. State & Ors. Date of order : 8/2/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Smt. Naina Saraf for the petitioner. Shri M.F. Baig, Addl. Govt. Counsel for the respondents. ****** REPORTABLE This writ petition has been filed by the petitioner challenging the order of his dismissal dated 31.8.1995 and the order rejecting his appeal by the appellate authority dated 1.3.1996. The petitioner was serving as Constable in C.I.D., Crime Branch at Jaipur. A charge sheet was served upon him on 20.8.1993 containing six charges, all of which were relating to his willful absence on different occasions for a total of 120 days. Petitioner submitted reply to the charge sheet. Respondents thereafter by order dated 15.3.1994 appointed Shri Prasanna Kumar, Deputy Superintendent of Police as Enquiry Officer. Disciplinary Authority by subsequent order dated 9.5.1994 changed the Enquiry Officer and appointed another Deputy 2 Superintendent of Police Shri Iedana Ram as Enquiry Officer vide order dated 14.7.1994. Enquiry Officer submitted his report regarding guilt of the petitioner on all the charges. Disciplinary Authority thereafter passed the order of his dismissal on 31.8.1995. Petitioner filed appeal against the aforesaid order of dismissal on 18.1.1996 and raised all the arguments, which he has raised in this writ petition, but none of those arguments were considered and the appellate authority by merely reproducing the charges, dismissed the appeal vide order dated 1.3.1996 in just one para, containing hardly six to eight lines, by upholding the order of penalty. I have heard Smt. Naina Saraf, learned counsel for the petitioner and Shri M.F., learned Additional Government Counsel for the respondents. Smt. Naina Saraf, learned counsel for the petitioner has argued that the Enquiry Officer was frequently changed inasmuch as no notice of change of Enquiry Officer was given to the petitioner and even lastly appointed Enquiry Officer without giving 3 proper notice to the petitioner, recorded evidence of prosecution witnesses in absence of the petitioner. He did not pass the appropriate order for proceeding ex-parte against the petitioner. Respondents did not appoint any Presenting Officer. Enquiry Officer himself acted as a prosecutor while cross examining the witnesses produced by the department and that too, in the absence of petitioner. Disciplinary Authority without supplying copy of the enquiry report and without calling upon him to submit his comments thereupon, proceeded to pass the dismissal order on 31.8.1995, therefore, sub-rule (5), (10) and (12) of Rule 16 of the Rajasthan Civil Services (Classification Control and Appeal) Rules (for short-`the CCA Rules') were flouted. Learned counsel submitted that petitioner submitted a representation to the Disciplinary Authority with regard to biasness on the part of the Enquiry Officer in proceeding against him ex-parte before any decision was taken by it. Disciplinary Authority however forwarded such representation and obtained comments of the Enquiry Officer thereupon and after 4 considering has awarded the penalty. This clearly prejudiced the mind of the petitioner, which was done without supply of the enquiry report to him. Had the copy of the enquiry report supplied to the petitioner, this would have enabled him to submit his view point. Learned counsel submitted that charge no.3 with regard to earlier absence of the petitioner for the period from 27.1.1993 to 16.3.1993 for total 49 days, for which he was subjected to Disciplinary Authority and that charge was condoned by converting the absence of the petitioner into extraordinary leave, again it could not be subject matter of another disciplinary proceeding, as doing so would be hit by principles of double jeopardize, which is violative of Article 20(2) of the Constitution of India. Learned counsel for the petitioner submitted that the enquiry officer found the charge no.3 partly proved against the petitioner and made a specific note of the fact that period of his absence has already been regularised in the earlier disciplinary proceeding against the petitioner, yet the 5 Disciplinary Authority did not give any notice of dissent to the petitioner prior to imposing penalty on the basis of his conclusion about all the six charges being proved against the petitioner. Learned counsel in support of her arguments relied on the judgement of Supreme Court in SBI & Ors. vs. Arvind K. Shukla-(2004) 13 SCC 797, State of Punjab & Ors. vs. Bakshish Singh- (1998) 8 SCC 222 and judgment of this Court in Rameshwar Lal Meena vs. State & Ors., S.B. Civil Writ Petition No.1801/95 decided on 12.2.2009 and another judgement of this Court in Sardar Singh vs. State & Ors., S.B. Civil Writ Petition No.3109/95 decided on 7.1.2009 and the judgements referred to therein. Shri M.F. Baig, learned Additional Government Counsel opposed the writ petition and submitted that since the disciplinary enquiry against the petitioner was proceeded ex-parte, there was no occasion for the enquiry officer to permit the petitioner to cross examine the witnesses. The petitioner on his own stopped attending the disciplinary proceedings. Learned counsel 6 referring from notice dated 20.8.93 (Annexure-2) submitted that the notice was initially served upon the petitioner whereby he was called upon to examine any document. He was informed that if he wanted to inspect any record or take its extract, he can approach the Disciplinary Authority or his office, but he did not wish to obtain any document. Learned counsel also referred the order of Disciplinary Authority in which it has been mentioned that the petitioner gave in writing on 10.4.1991 that he did not want to produce any witness in such like scenario. Learned counsel submitted that grievance now raised by the petitioner that he was not given proper opportunity to defend himself is wholly unfounded and baseless. It is argued that the petitioner in ground (i) has stated that he submitted a representation, on which comments were obtained by the Disciplinary Authority. It is therefore implied that the petitioner was aware of the enquiry report or else there was no occasion for him to give the representation. Learned counsel submitted that obtaining comments from the 7 Disciplinary Authority did not in any way prejudice the petitioner inasmuch as non supply of the enquiry report also did not prejudice the petitioner. Mere non supply of the enquiry report may not be a sufficient ground to hold the penalty order bad, unless it is shown that the delinquent was prejudiced thereby. Enquiry Officer conducted the enquiry strictly in accordance with the CCA Rules. Petitioner was a habitual absentee from service and had lost interest in serving the respondents. He was earlier also subjected to disciplinary proceedings. In these circumstances, non supply of enquiry report to him may not be taken as a grave prejudice, warranting interference by this Court. No prejudice was caused to the petitioner in examining the prosecution witness by the enquiry officer himself. I have given my anxious consideration to the rival submissions and perused the material on record. Petitioner has categorically pleaded in para 8 of the writ petition, after the pleadings about the change of various 8 enquiry officers, that the lastly appointed enquiry officer recorded his evidence on prosecution witnesses without even issuing any notice to him and he did not pass any appropriate order for changing the enquiry officer and order has been passed ex-parte. The respondents in reply to the plea so set up by the petitioner have merely denied his assertion and stated that the enquiry officer conducted the enquiry by fully following the CCA Rules and no particulars and dates have been given as to when notice was issued/served and when actually the ex- parte proceedings were drawn against the petitioner. Petitioner in ground (C) of the writ petition has asserted that the Disciplinary Authority failed to comply with the requirements of Rule 16(5) of CCA Rules by not appointing Presenting Officer and Enquiry Officer himself assumed the role of prosecuting officer while examining the prosecution witnesses and that too, in the absence of the petitioner. Now what is replied by the respondents to this para is that no prejudice was caused to the petitioner on account of examining the 9 prosecution witnesses by the Enquiry Officer and Rule 16(5) of the CCA Rules was not violated thereby. In ground (F) of the writ petition, the petitioner has submitted that the Disciplinary Authority did not give any show cause notice to the petitioner nor forwarded copy of the enquiry report as per the mandatory requirement of sub-rule (10) of Rule 16 of the CCA Rules, which is the settled proposition of law by following the judgement of Supreme Court in UOI vs. Mohd. Ramzan Khan-AIR 1990 SC 451. Petitioner in ground (G) further stated that Rule 16(12) was also violated because the Disciplinary Authority while passing the punishment order, has not supplied the findings of the Enquiry Officer to the petitioner. Now to this, the reply submitted by the respondents is that Disciplinary Authority upon taking into consideration the enquiry report and other relevant material including the past service record of petitioner has passed the order of penalty. Mere non-serving of show cause notice or non-supply of enquiry report to the petitioner does not result in any prejudice to the petitioner. It has been 10 denied that there has been violation of Rule 16(10) and 16(12) of the CCA Rules. What is more, in ground (I) of the writ petition, the petitioner has asserted that he submitted a representation to the Disciplinary Authority prior to passing of the penalty order, which was forwarded by him to the Enquiry Officer for his comments and having obtained his comments, the penalty order was passed. This gravely prejudiced the mind of the Disciplinary Authority. Now in response to this, the respondents have set up a half hearted defence by stating that on the one hand, the petitioner has taken a ground of non-supply of the enquiry report, on the other, he has stated that he made a representation. Disciplinary Authority has passed the order of penalty with full application of mind and after considering all documents on record and no prejudice was caused to the petitioner. In ground (L), the petitioner specifically averred that even the charge no.3, which was not found proved by the Enquiry Officer against him, has been found proved by the Disciplinary Authority and no 11 notice of disagreement was served upon him. The plea that the respondent has set up appears to have been founded on the constitution bench judgement of Supreme Court in Managing Director, ECIL, Hyderabad vs. B.Karunakar-AIR 1994 SC 1074 that mere non supply of enquiry report may not be taken as a prejudice to annul the penalty order of dismissal, unless the delinquent is able to show that he was prejudiced thereby. In the present case, number of pleas which the petitioner has so specifically raised, clearly show that had he been supplied copy of the enquiry report, he would be able to persuade the Disciplinary Authority to agree to his view point about- i) the effect of non appointment of the Presenting Officer. ii) the examination of the witnesses by the Enquiry Officer himself. (iii) non giving him the notice of proceedings when evidence of the prosecution witnesses were recorded in his absence. (iv) the frequent change of enquiry officers and ultimately the proceedings that were conducted by the lastly appointed enquiry 12 officer were all done without any notice to them. (v) that period of absence covered by one of the charges i.e. charge no.3 was regularised in earlier disciplinary proceedings. Prejudice caused to the petitioner is thus writ large on the record of this case. Had the petitioner been given opportunity by supply of the enquiry report or findings of the enquiry officer, he would have been in a position to raise all these objections before the Disciplinary Authority to persuade him to take a different view than what he has ultimately taken. Moreover, the notice of disagreement on charge no.3 was also not served on the petitioner, which plea has not been disputed by the respondents. In SBI & Ors. vs. Arvind K. Shukla-(2004) 13 SCC 797, it was held by the Supreme Court that if the Disciplinary Authority disagrees with the conclusion and finding recorded by the enquiry officer, it is required to give reasons, which should be furnished before it recorded its ultimate findings. The appellate authority thus has also in this manner acted illegally in not 13 considering the arguments raised by the petitioner. In the normal course, outcome of the argument of this nature should have been resulted in remand of the case, but here I find that the proceedings were held by the enquiry officer in utter disregard of the procedure contained in Rule 16 of the CCA Rules. Despite there being a specific requirement as per sub-rule (5) of Rule 16, Disciplinary Authority did not nominate the Presenting Officer to present the case of the department before the enquiry officer and the enquiry officer himself acted as a Presenting Officer while examining the witnesses. No material has been placed on record, nor any plea to the contrary has been set up that a notice was given to the petitioner by lastly appointed enquiry officer, especially of the dates on which the prosecution witnesses were examined and the proceedings were conducted behind his back ex-parte. The enquiry in the present matter was thus held in violation of the principles of natural justice implicit in Rule 16 of the CCA Rules as also in 14 violation of Article 14 and 16 of the Constitution of India. In the result, this writ petition deserves to be allowed and is accordingly allowed. The impugned order of dismissal dated 31.8.1995 and the order rejecting his appeal by the appellate authority dated 1.3.1996 are both quashed and set aside. Petitioner is held entitled to all the consequential benefits. Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents. (MOHAMMAD RAFIQ), J. RS/