1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. O R D E R Dr.Anil v. State of Rajasthan S.B.CIVIL WRIT PETITION NO.5570/1993 under Article 226 of the Constitution of India. Date of Order : 3rd August, 2005 P R E S E N T HON'BLE MR.JUSTICE GOVIND MATHUR Mr. Ramandeep Singh, for the petitioner. Mr. L.R.Upadhyay, Dy.Govt.Advocate. BY THE COURT : By this petition for writ a challenge is given by the petitioner to the order dated 27.11.1991 passed by Secretary to the Government of Rajasthan, Department of Personnel, Group-III, exercising powers as disciplinary authority on behalf of Government of Rajasthan and the order dated 26.7.1993 passed under the orders of Governor of Rajasthan rejecting review petition preferred by the petitioner giving challenge to the order dated 27.11.1991. The facts in brief required to be noticed for adjudication of present writ petition are as follows:- 2 The petitioner entered in the services of the respondent being appointed as Senior Demonstrator in the year 1983 and at the time of his initial appointment he was posted at Dr.S.N.Medical College, Jodhpur in the department of pathology. The petitioner was transferred from Dr.S.N.Medical College, Jodhpur to S.P.Medical College, Bikaner under an order dated 4.12.1989. The petitioner for various reasons as mentioned in para 5 of the writ petition remained absent from duties, however, he joined duties at S.P.Medical College, Bikaner on 3.12.1990. The petitioner again remained absent from duties and ultimately under an order dated 27.11.1991 he stood removed from services as a consequence of imposition of major punishment. By order dated 27.11.1991 the penalty of removal was imposed upon the petitioner by resorting to exercise of powers under Rule 19(2) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as “the Rules of 1958”). Being aggrieved by order dated 27.11.1991 the petitioner preferred a review petition before the Governor of Rajasthan and the same was rejected by an order dated 26.7.1993. Hence the instant petition is preferred by the petitioner. The petitioner has given challenge to the orders impugned mainly on two counts, those are (1) 3 the order dated 27.11.1991 is illegal as the respondent have no just and valid reason to dispense with regular disciplinary proceedings as provided under Rule 16 of the Rules of 1958 and to resort to exercise of powers under Rule 19(2) of the said Rules, and (2) the respondent discriminated with the petitioner while imposing punishment of removal from service as for the same charge i.e. of unauthorised absence from duties a lesser punishment was imposed on number of other similarly situated persons name and other details pertaining to whom are given in schedule-A appended to the writ petition. A reply to the writ petition has been filed on behalf of the respondent stating therein that the procedure under Rule 19(2) of the Rules of 1958 was resorted as in spite of best efforts the respondent failed to serve charge sheet upon the petitioner. The reason given by the respondent for resorting to procedure prescribed under Rule 19(2) of the Rules of 1958 is mentioned in para 9 of the reply to the writ petition which reads as under:- “the charge sheet dated January 17, 1991, was sent by the DOP to the Principal for delivering it to the petitioner. When the service of the charge sheet was not effected, even through registered post, then there was no alternative except to get it published in the news paper and only after publication in the news paper, the resort to rule 19(ii) was 4 taken and the order dated November 27, 1991, was passed after seeking advice from the R.P.S.C.” The respondent also averred that the disciplinary authority decided to impose the punishment of removal upon the petitioner on basis of peculiar facts of present case and also looking to seriousness of the delinquency of the petitioner. It is further averred that the facts and circumstances of each case are different and, therefore, the disciplinary authority in some cases chose to impose the punishment of stoppage of increments and in some cases imposed major punishments like removal by proper application of discretion. Heard counsel for the parties. The first contention of the counsel for the petitioner is that the respondent without any just and valid reason dispense with the proceedings under Rule 16 of the Rules of 1958 and resorted to the procedure prescribed under Rule 19(2) of the said Rules. According to the counsel for the petitioner there was no circumstance available to hold that it was not reasonably practicable to hold an inquiry against the petitioner. Rule 19 of the Rules of 1958 prescribes special powers whereby a regular inquiry provided 5 under Rule 16 of the Rules of 1958 can be dispensed with. Rule 19(2) of the Rules of 1958 is in consonance with the provisions of clause(b) of second proviso to Article 311(2) of the Constitution of India. The powers under Rule 19 of the Rules of 1958 are extra ordinary powers which are required to be exercised quite cautiously and in extra ordinary circumstances. Hon'ble Supreme Court in the case of Union of India v. Tulsiram Patel, reported in AIR 1985 SC 1416, prescribed certain guidelines with regard to circumstances in which the extra ordinary powers to dispense with an inquiry can be exercised. The relevant portion of the judgment referred above reads as under:- “(para 130)The condition precedent for the application of clause (b) is the satisfaction of the disciplinary authority that “it is not reasonably practicable to hold” the inquiry contemplated by clause(2) of Article 311. What is pertinent to note is that the words used are “not reasonably practicable” and not “impracticable”. According to the Oxford English Dictionary “practicable” means “Capable of being put into practice, carried out in action, effected, accomplished, or done feasible”. Webster's Third New International Dictionary defines the word “practicable” inter alia as meaning “possible to practice, done or accomplished: feasible”. Further, words used are not “not practicable” but “not reasonably practicable”. Webster's 6 Third New International Dictionary defines the word “reasonably” as “in a reasonable manner: to a fairly sufficient extent”. Thus, whether it was practicable to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. It is not a total or absolute impracticability which is required by clause (b). What is requisite is that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing situation. It is not possible to enumerate the cases in which it would not be reasonably practicable to hold the inquiry, but some instances by way of illustration may, however, be given. It would not be reasonably practicable to hold an inquiry where the government servant, particularly through or together with his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from himself or together with or through others threatens, intimidates and terrorizes the officer who is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In this connection, we must bear in mind that numbers coerce and terrify while an individual may not. The reasonable practicability of holding an inquiry is a matter of assessment to be made by the disciplinary authority. Such 7 authority is generally on the spot and knows what is happening. It is because the disciplinary authority is the best judge of this that clause(3) of Article 311 makes the decision of the disciplinary authority o this question final. A disciplinary authority is not expected to dispense with a disciplinary inquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an inquiry or because the Department's case against the government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the court so far as its powers of judicial review is concerned and in such a case the court will strike down the order dispensing with the inquiry as also the order imposing penalty.” Hon'ble Supreme Court in quite unambiguous terms held in the case of Union of India v. Tulsiram Patel (supra) that the disciplinary authority is required to exercise powers to dispense with the disciplinary proceedings quite cautiously and not with view to avoid the holding of an inquiry prescribed under the Rules. It is also clear that such powers can be exercised where the government servant himself or through his associates, so terrorizes, threatens or intimidate witnesses who are going to give evidence against him with fear of reprisal as to prevent them from himself or together with or through others threatens, intimidates and terrorizes the officer who 8 is the disciplinary authority or members of his family so that he is afraid to hold the inquiry or directed to be hold. It would also not be reasonable practicable to hold the inquiry where an atmosphere of violence or of general indiscipline and insubordination prevails, and it is immaterial whether the concerned government servant is or is not a party to bringing about such an atmosphere. In the present case the respondent avoided regular disciplinary proceedings only on the count that they failed to serve charge sheet upon the petitioner. In my considered opinion this cannot be a reason to resort the powers under Rule 19(2) of the Rules of 1958. To meet such exigency the disciplinary authority is clothed with ample powers. If the disciplinary authority fails to serve the charge sheet in normal course, the same can be served on the employee concerned by adopting the process of substitute service as provided under Rule 20 of Order 5 CPC. The respondent in fact adhered the said procedure by publication of charge sheet itself in a news paper widely circulated in State of Rajasthan. The appropriate course available with the respondent to proceed with inquiry by appointing an inquiry officer to hold inquiry. In the event of failure on part of delinquent employee to participate in inquiry the inquiry officer could have proceeded exparte. 9 In view of it there was no just and valid reason available with the respondent to say that they were not in a position to serve the charge sheet upon the petitioner and, therefore, adopted the special procedure as prescribed under Rule 19(2) of the Rules of 1958. In my considered opinion no circumstance was available with the respondent to dispense with the inquiry as provided under Rule 16 of the Rules of 1958 and, therefore, the adoption of procedure under Rule 19(2) of the Rules of 1958 was absolutely unwarranted in the present case. In view of it the order impugned Anx.1 dated 27.11.1991 deserves to be quashed. The reviewing authority also failed to appreciate the real thrust of the provisions prescribed under Rule 19 of the Rules of 1958. In view of it the order of reviewing authority also deserves to be quashed and set aside. The second contention of the petitioner with regard to discrimination while imposing punishment for the same charge is not required to be adjudicated in the present case as I have already held that the order of disciplinary authority is not in consonance with the Rules of 1958 and, therefore, it is open for the respondent to proceed against the petitioner afresh under Rule 16 of the Rules of 1958. The disciplinary authority shall be at liberty to consider this aspect 10 of the matter if the petitioner is found guilty for the allegations levelled against him. Consequently this writ petition is allowed. The impugned orders dated 27.11.1991 and 26.7.1993 are hereby quashed with all consequential benefits. No order as to costs. ( GOVIND MATHUR ),J. kkm/ps.