1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.352/96 Laxmi Narayan vs. JVVNL & Ors. Date of order : 23/7/2009. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Vigyan Shah for the petitioner. Shri M.S. Raghav for the respondents. ****** Heard learned counsel for the parties. This writ petition has been filed by the petitioner challenging the order of penalty dated 19.8.1995 whereby the respondents in disciplinary proceedings withheld one grade increment with cumulative effect and directed that he was not entitled to any other benefit except the subsistence allowance which he has received for the period of suspension although such period would count towards qualifying service for grant of pension and gratuity. Contention of the learned counsel for the petitioner is that petitioner was served with charge sheet on 1.2.1993 which contained as many as three charges. Petitioner has submitted reply to the charge sheet. By his application dated 20.2.1993, he also demanded certain information and 2 documents especially the copy of the order dated 23.9.92. They were not supplied and in the circumstances the petitioner had to file reply to charge sheet. Learned counsel submitted that as per Rule 22(4)(c) of the Rajasthan State Electricity Board Technical Workmen Service Regulations, 1975, the order of penalty could not be imposed unless the petitioner was supplied with copy of enquiry report and called upon to make representation on the penalty proposed to be imposed. The respondents have neither supplied copy of the enquiry report, nor they have provided him notice of proposed penalty so as to provide him opportunity of hearing before awarding such penalty. Learned counsel submitted that according to Regulation 22(4)(b) if the enquiry was prolonged beyond ninety days, the petitioner would be entitled to three-fourth of the salary and other allowance as subsistence allowance whereas the petitioner was throughout provided only one-half of such allowance. The petitioner was entitled to be paid remaining three-fourth allowance from the period from 23rd January, 1993 to 19 3 August, 1995 especially when the delay in conclusion of the enquiry is not attributable to him. Learned counsel further submitted that the impugned order has vaguely mentioned about the report by observing that charges against the petitioner was found clearly proved. It is not clear as to which of the charges are proved and which are not proved and if anyone of them is proved, the non supply of enquiry report to the petitioner has caused a grave prejudice to him. If the enquiry report is supplied to the petitioner, he would be in a position to persuade the disciplinary authority, not to agree with the same or differ with the same. The impugned order of penalty besides being vague, can also not be considered as a speaking order. Learned counsel further argued that according to proviso of Regulation 22(c) if the ultimate penalty awarded is less than the penalty of dismissal or removal i.e. if the delinquent is awarded penalty of stoppage of annual grade increment or reduction in rank, he shall be deemed to have on duty during the 4 period of suspension and shall be entitled to the same wages as he would have received, had he not been placed under suspension after deducting the subsistence allowances paid to him for such period. If the penalty is only of stoppage of one grade increment, he would have been entitled for the salary of the entire duration. Shri M.S. Raghav, learned counsel for the respondents opposed the writ petition and submitted that full opportunity was provided to the petitioner to deny the charges and that the charges against him were very serious. Petitioner was given the job orders on 29.4.82 and 29.8.92 pertaining to Himmat Nagar Area as well as New Light Colony at Tonk Road, Jaipur. He visited the site along with nine Helpers and after completing the aforesaid job orders, instead of reporting to the office back, he visited another site, near Gopalpura Bye Pass closed to Manna Lal Goyal Farm House. At that site, the petitioner without there being any prior direction / order shifted a pole, meant for supplying electricity, from one place to another. He thus acted in violation of 5 instructions and he indulged in carrying out jobs on private basis. Learned counsel submitted that the petitioner was rightly awarded penalty of stoppage of one grade increment which according to the learned counsel is rightly awarded. No prejudice was caused to the petitioner by non supply of the enquiry report. Upon hearing learned counsel for the parties and perusing the material on record, I find that the respondents are not in a position to deny that they did not supply the copy of the enquiry report to the petitioner and later did not provide him opportunity of hearing before passing the penalty order. Regulation of 1975 in its clause 22(4)(c) provides for not only supplying the enquiry report but also given reasonable opportunity, but nothing as such was done by the respondents. The respondents have not clarified as why when ninety days expired, the subsistence allowance of the petitioner was not to the extent of 75% and why when the penalty of stoppage of one grade increment was awarded with cumulative effect, the petitioner was not paid the 6 entire salary. All the factual assertions made by the petitioner in various paras of the writ petition have either been vaguely answered or have not been denied. The order of the disciplinary authority also leaves much to be desired. What are the charges and to what extent they are proved and which of the charges are proved fully and partly has not at all been discussed in express details. Prejudice by non supply of the enquiry report is proved from the penalty order itself where the disciplinary authority has indicated that charges against the petitioner were only partially proved but has not made it clear as to which of the three charges is partly or fully proved. Had the petitioner been supplied copy of the enquiry report, he would certainly be in a position to make a representation against the correctness or otherwise of the findings recorded by the enquiry report so as to persuade the disciplinary authority to take a view different from the one which he had taken. The impugned order of penalty in the circumstances of the case, therefore cannot 7 be sustained. It is accordingly set aside and the matter is remanded back to the disciplinary authority to pass a fresh order after providing a copy of the enquiry report to the petitioner and obtaining his representation on the findings recorded therein and also on the proposed penalty. The disciplinary authority then shall pass fresh order and while passing such fresh order it shall also pass speaking order with regard to entitlement of the petitioner to receive complete salary with reference to provision to Regulation 22(c) and in the alternative three-fourth in subsistence allowance beyond the period of ninety days on either of the counts. Such fresh order shall be passed within six months from the date copy of this order is produced before the respondents. The writ petition is accordingly allowed. (MOHAMMAD RAFIQ), J. RS/