Bagh Singh Rao vs State of Rajasthan and Others

B.S. Chauhan, J.—Instant writ petition has been filed challenging impugned order of suspension dated 25th April, 2000 (Annx. 2) as also order dated 27th May, 1999 (Annx. 4) passed by Special Secretary (Revenue) to the Government, by which certain directions had been issued in the matter.

So far as order dated 27th May, 1999 is concerned, it is only in respect of holding preliminary inquiry in respect of complained instances of conversion of agriculture land into commercial/residential plots. In view of Constitution Bench judgment of Hon''ble Supreme Court in case of Amalendu Ghosh Vs. District Traffic Superintendent North Eastern Railway, Katihar, , a preliminary inquiry held in respect of a particular instance is for the purpose of finding a particular fact and, prima facie, to know as to who may be the person responsible for negligence/misconduct alleged. However, on the basis of findings of facts recorded in the preliminary inquiry, no order of punishment can be passed. Rather, if in view of result of the preliminary inquiry the competent authority is of the opinion that it require certain disciplinary proceedings against delinquent (s), a regular inquiry may be held under the rules applicable. Nonetheless, a preliminary inquiry can not be the basis for imposing any punishment upon delinquent (s) for misconduct.

In Champaklal Chimanlal Shah Vs. The Union of India (UOI), again a Constitution Bench of Hon''ble Supreme Court held as under:

...a preliminary inquiry is usually held to determine whether a prima facie case for a formal departmental enquiry is made out, and it is very necessary that the two (preliminary inquiry & regular inquiry) should not be confused... Therefore, so far as the preliminary enquiry is concerned, there is no question of its being governed by Article 311(2) for that enquiry is really for the satisfaction of government to decide whether punitive action should be taken or action should be taken under the contract or the rules in the case of a...government servant....In short, a preliminary enquiry is for the purpose of collection of facts in regard to the conduct and work of a government servant in which he may or may not be associated so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry necessary under Article 311 for inflicting one of the three major punishments mentioned therein. Such a preliminary inquiry may even be held ex parte, for it is merely for the satisfaction of the government, though usually for the sake of fairness, explanation is taken from the servant concerned even at such an enquiry. But at that stage he has no right to be heard for the enquiry is merely for the satisfaction of the government and it is only when the government decides to hold a regular departmental enquiry for the purposes of inflicting one of the three major punishments that the government servant gets the protection of Article 311 and all the rights that the protection implies as already indicated above, There must, therefore, no confusion between the two enquiries and it is only when the Government proceeds to hold a departmental enquiry for the purpose of inflicting on the government servant one of the three major punishments indicated in Article 311 that the government servant is entitled to the protection of that Article, nor prior to that.

(emphasis supplied)

The contentions raised by Shri Vyas that preliminary enquiry has been conducted, at one stage, on a limited issue, by a junior officer of the same cadre, is irrelevant in view of aforesaid judgment of Hon''ble Supreme Court.

In The Government of India, Ministry of Home Affairs and Others Vs. Tarak Nath Ghosh, , Hon''ble Supreme Court observed:

...even before a formal departmental enquiry is launched, a preliminary enquiry is usually held to find out against a government servant. This preliminary enquiry is directed to the collection of facts in regard to the work and conduct of a government servant in which he may or may not be associated, so that the authority concerned may decide whether or not to subject the servant concerned to the enquiry...and such a preliminary enquiry may even be held ex parte.

In Narayan Dattatraya Ramteerthakhar Vs. State of Maharashtra and others, Hon''ble Supreme Court has held that a preliminary enquiry is nothing to do with the enquiry conducted after issue of charge-sheet. The preliminary enquiry is only to find out whether disciplinary enquiry should be initiated against the delinquent. Once regular inquiry is held under the Rules, the preliminary enquiry losses its importance and, whether preliminary enquiry was held strictly in accordance with law or by observing principles of natural justice or not, remains of no consequence.

Thus, in view of the above, the order impugned dated 27th May, 2000 does not require any interference by this Court, as it was only for holding a preliminary enquiry. ,

I also find no force in the contention of Shri Vyas that preliminary enquiry on a particular point, though not whole, has been conducted by an officer of the same cadre as that of the petitioner but junior to him and it was not so permissible in view of circular issued by the Government, for the simple reason that it is not petitioner''s case that entire preliminary enquiry has been conducted by an officer junior to him. It was merely for clarification on a particular point that the said officer was asked to hold an enquiry and submit his report, though main preliminary enquiry has been conducted by some other senior officer. More so, in absence of any allegation of mala fides against said junior officer, it is difficult to believe as how cause of the petitioner has been prejudiced and, if the petitioner was aggrieved of such act, he ought to have approached this Court at that stage. Merely because now on the basis of said report, a regular enquiry is likely to be held against the petitioner, he can not approach this Court at such belated stage.

It is settled law that writ petition under Article 226 of the Constitution is maintainable for enforcing the statutory or legal right or when there is a complaint by the petitioner that there is a breach of the statutory duty on the part of the respondents. Therefore, there must be judicially enforceable right for the enforcement of which the writ jurisdiction can be resorted to. The Court can enforce the performance of a statutory duty by public bodies through its writ jurisdiction at the behest of a person, provided such person satisfies the Court that he has a legal right to insist on such performance. The existence of the said right is the condition precedent to invoke the writ jurisdiction. State of Kerala and Others Vs. K.G. Madhavan Pillai and Others, , State of Kerala Vs. Smt. A. Lakshmikutty and others, Mani Subrat Jain and Others Vs. State of Haryana and Others, and The Calcutta Gas Company (Proprietary) Ltd. Vs. The State of West Bengal and Others, .

In Rajendra Singh Vs. State of Madhya Pradesh and others, , it has been held that even violation of each and every provision of law does not furnish a ground for the Writ Court to interfere and if it is shown that substantial compliance of law has been made and unless it is shown that violation of law has caused substantial prejudice to the rights of the petitioner, no interference is called for. Similar view has been taken by Hon''ble Supreme Court in Rani Laxmibai Kshetriya Vs. Chand Behari Kapoor and Others,

In the facts and circumstances of the case, I fail to understand how the cause of the petitioner is prejudiced as the action of the respondents has to be tested on the touch-stone of Doctrine of Prejudice [Vide Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , State Bank of Patiala and others Vs. S.K. Sharma, , Major G.S. Sodhi Vs. Union of India (UOI), , S.K. Singh Vs. Central Bank of India and Others, and Monika Jain v. State of Rajasthan and Ors. RLW1998 (1) 71.

So far as impugned order of suspension dated 25th April, 2000 is concerned, petitioner has alternative remedy to make a representation against said order under Clause (5) of Rule 13 of the Rules before the competent authority.

Shri G.K. Vyas, learned Counsel appearing for the petitioner, stated that petitioner has already filed a representation but the competent authority has not yet passed any order.

If it is so, petitioner is at liberty to make a fresh representation before the competent authority within one week from today along with a certified copy of this order, and if he does so, the competent authority, is requested to pass appropriate order, strictly in accordance with law, expeditiously preferably within period of four weeks thereafter.

The petition stands disposed of accordingly. No order as to costs.