Abdul Majid Naiku vs Director Agriculture and others

Mian Jalal-Ud-Din, J.—The petitioner has brought this writ petition with the following averments:-

That he was working as a Research. Assistant in the Agriculture Department posted at Khudwani Rice Research Main Station in the year 1967

and is at present working as an agriculture instructor High School Bijbehara. On 25-11-1967 responding No. 1 passed an order where by the

petitioner was suspended and asked to show cause why drastic action should not be taken against him (vide Annexure 'A'). The petitioner was

served with yet another communication from respondent No. 3 dated 27-11-1967 (vide annexure 'B') and asked to submit his explanation within a

couple of days. That explanation was duly submitted. But before the same could be considered and disposed of. yet another communication was

addressed to him by the respondent No. 3 (vide annexure 'C') calling for explanation for some alleged irregularities in stocks. Explanation to this

was also submitted. Respondent No. 2 (vide No. 1125-26 dated 7-5-68) passed an order (vide Annexure 'D') issuing another show cause notice

as to why he should not be removed from service. Reply to this communication was also submitted. Respondent No. 1 passed an order dated 19-

9-68 (Annexure 'E') whereby the petitioner was punished. Thereupon, a revision petition was filed before respondent No. 2 which has been

rejected without assigning any reason (vide Annexure 'F'). The petitioner has further averred that the order against which revision was filed is illegal

and has been passed without complying with the statutory rules governing disciplinary action against the Government Servants. The petitioner never

knew what enquiry was held and by whom. The orders (Annexures 'E' & 'F') being illegal and having been passed arbitrarily. It is prayed that

these orders be set aside and the petitioner relieved of the punishment imposed on him. The petition is supported by an affidavit. Alone with the

petition the petitioner has filed copy relating to the note on inspection of Khudwani Rice Research Main Station made by the Director of

Agriculture on 23rd of November 1967 (Annexure 'A'). Explanation for alleged pilferage of paddy (Annexure 'B'). notice from the Rice Specialist

(Annexure 'C'). notice from Director of Agriculture to the petitioner (Annexure 'D'). copy of the impugned order (Annexure 'E'). copy of the order

passed on revision. COPY of the revision petition (Annexure 'F').

Abdul Rashid Hamdani Rice Specialist has sworn in a reply affidavit in which he has averred that he was posted as Rice Specialist and

Khudwani farm was in his charge and under his control. The petitioner was the Research Assistant in the Agriculture Farm on the Rice Research

Station and was working under the deponent. The petitioner was posted at Khudwani and according to the Rules was supposed to stay there, all

the time. He could neither leave the station nor absent himself from duty without previous permission of the competent authority and without

obtaining sanction from the competent officer. The Director of Agriculture directed the deponent to hold an enquiry with respect to suspected

pilferages reported in the above said farm. The deponent went on spot for enquiry with respect to the allegations against the petitioner and some

other employees of the Farm. The inventory of actual stock position in charge of the petitioner was got checked in presence of the petitioner and

the said list bears his signature and those of the officers who assisted in preparation thereof. Shortages or excesses found on spot were also

mentioned therein. With regard to the position of paddy stock the list was made and submitted earlier by the petitioner as per routine and in

accordance with the entries made in the Register form No. 18. Physical verification of the position of the stocks regarding paddy was taken by

making weighments on spot. Excesses found there were recorded in the presence of the petitioner and other employees present during the check

and weighment. The records mentioned above and the statements made therein as prepared on the dates are correct. Show cause notices were

issued to the petitioner from time to time and the petitioner was given sufficient opportunity to submit his explanation and to represent his case.

After through enquiry on spot report was submitted to the Director of Agriculture under whose direction the enquiry was conducted. Also on the

record is the reply affidavit filed by Director of Agriculture Shri H. S. Mann. In his detailed document the deponent has sworn on oath that the

petitioner was given ample opportunity to make representation in respect to the allegations made against him and all the allegations that were made

against the petitioner were based on the statement of facts, and the charges were substantiated by his own statement and signed by him in token of

their correctness. There has been no violation of any statutory rules in the enquiry with respect to the matter. The items of charges with respect to

shortages of articles of stores, excesses in store articles and the absence from duty of the petitioner were within the knowledge of the deponent.

Enquiry was also conducted on spot and the petitioner attended this enquiry during the period of his suspension. The Director further deposed that

he partly on the basis of his personal knowledge and partly on the report of the Rice Specialist who was deputed for conducting enquiry under his

orders, and after examining the record and after examining the explanations tendered by the petitioner from time to time issued the final show cause

notice for punishment. The order was passed after the respondent No. 1 was satisfied about the correctness of the same and after he has examined

and considered the explanation offered by the petitioner which was found neither convincing nor correct. Also it is stated that the writ petition is not

maintainable because the petitioner has failed to avail of the remedy by way of anneal provided under rules. The petitioner is guilty of laches The

impugned order was passed on 19-9-68 and the present petition was preferred on 5-5-71 i. e. after three years of the passing of the impugned

order. The Director of Agriculture has also appended along with the affidavit annexures 1 to 3 which are by way of report of the Rice Specialist

addressed to him copies of list of stocks articles, and statement showing paddy, maize, barley, turnip reddish, paddy grass etc lying in the store of

Rice Research Scheme Khudwani and receipts and issues for the months of October. 1967 of Rice Research Station. Khudwani.

I have heard the learned counsel for the parties.

Section 126 of the State Constitution has got no application to this case as that section applies only to a case where a member of Civil Service

holding a civil post is dismissed, discharged, removed from service or is reduced in rank. That is not the case before us. Here the punishment

awarded to the petitioner is that his period of suspension has been treated as leave without pay. Cost of pilferage quantity of shall and other

shortages is to be recovered and remitted in the State treasury and his increments for two years have been stopped and he has been served with

severe warning. Of course the statutory provisions of Jammu and Kashmir Civil Service (Classification, Control and Appeal) Rules. 1956 do apply

to the present case. Rule 30 of the said Rules prescribes the penalties which a competent authority may impose upon members of a service. This

includes the punishment of withholding of increments or promotion and recovery from pay of the whole or part of any pecuniary loss caused to

Government by negligence or breach of orders. Rule 33 of the said Rules prescribes the mode according to which an enquiry is to be held against

a Government servant against whom an order of dismissal, removal or reduction in rank is to be passed. That rule categorically provides that no

order of dismissal, removal or reduction in rank shall be passed on a person unless he has been informed in writing of the grounds on which it is

proposed to take action and has been afforded adequate opportunity of defending himself etc. etc. This rule, it is clear, will not apply in the present

case because the petitioner has neither been ordered to be dismissed nor has he been removed from service nor reduced in rank. The only rule that

would apply in his case is Rule No. 35 which provides:-

Without prejudice to the provisions of rule 33, no order imposing the penalty specified in clauses, (i). (ii). (iii). (v) & (vi) of rule 30 (other than an

order based on facts which have led to his conviction in a criminal court or by a court martial, or an order superseding him for promotion to a

higher post on the ground of his unfitness for that post) on any Government servant to whom these rules are applicable shall be passed unless he

has been given an adequate opportunity of making any representation that he may desire to make and such representation, if any has been taken

into consideration before the order is passed:

Provided that the requirements of this rule may for sufficient reasons to be recorded in writing, be waived where there is difficulty in observing them

and where they can be waived without injustice to the officer concerned.

According to this rule no order imposing any of the above mentioned penalties can be passed by a competent authority unless the person

proceeded against has been given adequate opportunity of making any representation that he may desire to make and such representation is

considered before the order is passed. The statutory requirement to be followed therefore is that a Govt. servant must be afforded an adequate

opportunity of making representation and that representation must be considered. The rule does not envisage the same procedure of enquiry as has

been laid down in Rules 33 and 34 of the said Rules. Let us see if the statutory obligation cast on the appointing authority by Rule 35 has been

discharged. The material furnished before me by way of annexures and also the counter affidavits filed by the respondents in the case do clearly

establish that an opportunity was given to the petitioner to make representation and his representation has been considered by the Director of

Agriculture who has imposed penalty on him. Rather it is found that the enquiry was held in the very premises of Khudwani farm and within the

knowledge and in the presence of the petitioner. The report furnished by the Rice Research specialist to the Director of Agriculture speaks itself

the involvement of the petitioner in the affair of pilferage of paddy etc. The enquiry report along with the explanation furnished by the petitioner to

the Show Cause Notice has been duly considered by the Director of Agriculture.

Learned counsel for the petitioner has relied upon the observations made by Delhi High Court in Iqbal Singh Vs. Inspector-General of Police

and Others, which are to the effect that the orders passed while exercising quasi judicial authority and even executive or administrative orders

which adversely affect persons can be passed only after complying with the principles of natural justice. There is no dispute with regard to this

proposition. But in that case the petitioner on being reinstated was eventually dismissed from the Police force without issuing any show cause notice

and without affording him any opportunity to be heard. That is not the case before us. therefore the authority is distinguishable.

Again, 1968 Ser LR 622 : (1968) Lab IC 720 (Pat) has got no application to the facts of the case as that was a case of removal from service of

a Government Servant who had prayed for holding full enquiry against him and had sought opportunity to cross-examine the witnesses. It is clear

that the Jammu and Kashmir Civil Services (Classification Control and Appeal) Rules. 1956 do envisage such a procedure, but it is to be observed

in those cases only where the Government servant is to be awarded punishment of dismissal from service, or reduction in rank. As has been stated

above the facts of the present case are quite different from the facts of the case cited by the counsel for the petitioner.

As stated above the petitioner in the present case was given an opportunity to make representation which he did and which was taken into

consideration by the competent authority before passing the impugned order.

In my opinion there has been no violation of any statutory rules or the principle of natural justice as contended by the counsel for the petitioner

before me. If the petitioner really felt aggrieved by the order of Director, he should have immediately preferred an appeal against the impugned

order before the competent authority. This he did not do. On the other hand he filed a revision petition which has been rejected. The grievance of

the petitioner is that the revising authority did not apply his mind to the revision petition and rejected it summarily without assigning any reason, that

of course appears to be correct and this aspect of the matter will be dealt with separately. But the petitioner has not explained as to why he did not

avail of the remedy provided by way of appeal and why he invoked the revisional jurisdiction of the Minister-In-Charge. It is now too late in the

day for him to come before this court to agitate the matter by way of writ. This court while exercising writ jurisdiction cannot sit as a court of

appeal so as to substitute its own judgment for the judgment of the revising authority.

As regards the grievance of the petitioner that his revision was rejected summarily without assigning any reasons and without hearing him I

should like to state that the decision of a revising authority is subject to the supervisory powers of the High Court therefore an order passed in

revision must be a speaking order. The order must not simply say that the revision is 'dismissed' without discussing the matter and without giving

reasons. In Bharat Raja Vs. The Union of India (UOI) and Others, . their Lordships of the Supreme Court observed that in exercising its powers

of revision the Government discharges functions which are quasi judicial. The courts exercising supervisory jurisdiction are placed under great

disadvantage if no reasons are given and the revision is dismissed curtly by the use of the single word 'rejected' or 'dismissed'. When the reasons

given in the order are scrappy and nebulous and the Government makes no attempt to clarify the same the court exercising the jurisdiction may

hear the case de novo.

Again in Mahabir Prasad Santosh Kumar Vs. State of Uttar Pradesh and Others, the view has been laid down that opportunity to a party

interested in the dispute to present his case on questions of law as well as on fact, ascertainment of facts from materials and adjudication by a

reasoned judgment upon findings of facts in controversy are attributes of even a quasi judicial determination. Recording of reasons in support of a

decision by a quasi-judicial authority is obligatory as it ensures that the decision is reached according to law and is not a result of caprice, whim or

fancy or reached on the ground of policy or expediency. An administrative order affecting rights of a party is a quasi judicial order and the same

must be speaking one.

Now in the instant case it is worthwhile to reproduce the judgement given in the revision. Government Order No. 968-Agri of 1970 dated 24-

9-1970.

Revision petition preferred by Shri Abdul Majid Naik. Agriculture Instructor. M. L. H. S. School, Bijbehara Kashmir against the order dated 19-

9-1968 issued by the Director Agriculture vide his endt. No. 9664-68/R dated 19-9-1968 is hereby rejected.

By order of the Govt of Jammu & Kashmir.

Sd/- R. C. Bhargava.

Secretary to Government.

Agriculture Department.

This order does not give any reason for dismissing the revision petition. Were this court not of the opinion, that there was no legal infirmity in the

impugned order of the Director of Agriculture awarding punishment to the petitioner, this court might have asked the Minister Incharge to readmit

this revision petition and dispose it of according to law but because of the fact that the impugned order does not suffer from want of jurisdiction

and no appeal was preferred by the petitioner against that order and time factor has also run out as against him, no useful purpose will be served

now by doing that.

I have also noticed that the writ petition has not been signed by the petitioner himself. It has been signed by his advocate. A writ petition is not

a plaint so that it can be signed and verified by a duly authorised agent. I have not come across any case where a writ petition signed by the lawyer

and not by the petitioner himself has been entertained and acted upon by the court.

For the foregoing reasons I do not see that there has been any statutory violation of any rule. I find myself unable to allow this writ petition, the

same is hereby dismissed, but without any order as to costs.

Petition dismissed.