SBCWP No.2636/94. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.2636/1994. Bhairo Ram Vs. R.S.E.B. & Ors. Date of order : October 15, 2008. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ None present for the petitioner. Shri Sandeep Saxena for the respondents. **** BY THE COURT :- Heard learned counsel for the respondents. 2) Even though this matter was passed over and was taken in second round but none is present for the petitioner hence, it is being decided by this order. Respondent has however made submissions. 3) Petitioner has challenged the order dated 3/6/1988 whereby he was awarded penalty of stoppage of one annual grade increment with cumulative effect and order dated 15/4/1994 whereby second selection scale given to the petitioner was withdrawn. 4) Petitioner in the writ petition has contended that though he was promoted on 27/12/1990 but the respondents cancelled the order of his promotion vide order dated 18/4/1991 on the premise that he had earlier foregone promotion on 27/12/1990. Contention of the petitioner is that he did not ever SBCWP No.2636/94. 2 forego his promotion and in fact he insisted that he should be promoted on the post of Assistant Store/Assistant Store Verifier. Instead, he was promoted on the post of Office Superintendent Gr.II. Respondents could not on that basis withdrew the selection scale already given to the petitioner assuming that he had foregone the promotion. On the question of penalty, petitioner has stated that enquiry against him was not conducted as per the prescribed procedure inasmuch as, the petitioner was neither supplied with the documents relied on by the enquiry officer nor was he supplied copy of the enquiry report. The petitioner has relied on the judgment of Supreme Court in Mohammad Ramjan Vs. Union of India & Ors. : S.L.R. 1991(1) 157 according to which, the respondents were required to supply him copy of the enquiry report prior to passing of the order of penalty. But, in the present case, this requirement was not fulfilled. It has, therefore, been prayed that the writ petition may be allowed and the impugned-order may be quashed and set-aside. 5) Shri Sandeep Saxena, learned counsel for the respondents has opposed the writ petition and submitted that in fact petitioner was promoted as Office Superintendent Gr.II on 27/12/1990 and was posted in the Central Stores Office, Jaipur but petitioner did not join the said post and had foregone his promotion and therefore his selection scale was withdrawn. Petitioner could not insist for promoting him on another post. Selection Scale is SBCWP No.2636/94. 3 granted to the government employee on completion of 9, 18 & 27 years for inability of the employer to give him promotion in a span of 9 years. In fact, petitioner was promoted but he had foregone his promotion as he did not join the promoted post of O.S. Gr.II. Therefore, at the same time, he was not entitled to get the selection scale and the selection scale was therefore rightly withdrawn. As regards penalty, it has been contended that the procedure applicable for major penalties contained is contained in clause 7 of the Employees (Classification, Control & Appeal) Regulations, 1962 (for short, "Regulations of 1962") and the recovery order was issued against the petitioner on the allegation of causing loss of 101 cement bags, which were found short in the Stores in Falna. The recovery of this amount was initiated with the consent of the petitioner which was started from his salary from the month of December 1992. It is therefore prayed that the writ petition be dismissed. 6) The law is well settled following the judgment of Supreme Court in Mohammad Ramjan supra that disciplinary authority is under a legal obligation to supply copy of the enquiry report to the delinquent if it is going to impose penalty against the delinquent. Though, subsequently, the Supreme Court has clarified that mere non-supply of enquiry report by itself may not be taken as basis for anulling the order of penalty and that the delinquent shall have to show as to what prejudice SBCWP No.2636/94. 4 was caused to him while challenging the order of penalty on the ground of non-supply of the enquiry report. In the present case, the respondents have deducted the value of 101 cement bags from the salary of the petitioner whereas the allegation against him was that there was shortage of 101 cement bags because petitioner, who was in-charge of the Store, did not timely verify the store. In any case, in the face of allegations of this nature, if the petitioner would have been supplied the copy of the enquiry report, this would have been enabled him to represent before the disciplinary authority his view point as to how and in what manner, it could not be possible for him, to verify the stock leading to shortage thereof. It cannot therefore be said that petitioner was not prejudiced because of non-supply of the enquiry report. 7) As regards the order withdrawing the selection scale granted to the petitioner, however, contention of the petitioner that he had not foregone the promotion and that resondents on their own assumed that petitioner had foregone promotion, cannot be accepted because non-joining of the petitioner consequent upon his promotion to the new place of posting was proof enough to show that he did not avail the benefit of promotion. Moreover, petitioner for not joining on the promoted post of OS Gr.II, could not insist for his promotion on the post of Assistant Store/Assistant Store Verifier. The petitioner has not shown as to the pay scale of the SBCWP No.2636/94. 5 post of OS Gr.II was in any manner lower or the said post was inferior to the post of Assistant Store/Assistant Store Verifier. At the same time however, respodents have also not able to show that second selection was granted to the petitioner on account of any misrepresentation or fraud on his part. Respondents can therefore only prospectively rectify their mistake by correcting payscale of the petitioner but they could not certainly make any recovery from him. 8) In the result, the writ petition is allowed in part. While the order of penalty dated 3/6/1988 is set-aside with the direction to the respondents to serve copy of the enquiry report upon the petitioner enabling him to submit his representation and thereupon pass a fresh order of penalty in accordance with law. Order of recovery on both the counts is therefore is quashed and set-aside. In so far as Selection Scale is concerned, the respondents are at liberty to prospectively make correction in the pay scale of the petitioner, as a result of withdrawal thereof. 9) Copy of this order be endorsed to the petitioner for information. Compliance of the order shall be made within a period of four months. (MOHAMMAD RAFIQ), J. anil