Brij Mohan Singh Bareth vs State of Raj. and Others

Veerender Singh Siradhana, J.—As a consequence of joint charge-sheet dated 30th March, 1993, (Annexure-2), issued to the petitioner and one Shri Radhey Shyam Gupta, the petitioner has been inflicted with the penalty of withholding of pension for all time. Aggrieved of the penalty imposed, vide impugned order dated 8th December, 2000 (Annexure-32), writ proceedings have been instituted praying for the following relief(s):

"a) the respondents may be directed to produce relevant record before this Hon''ble Court.

b) the impugned charge-sheet dated 30.03.1993, the impugned notice dated 12.11.1997 and 10.4.1999 as well as the impugned order dated 8.12.2000 may kindly be declared ultra-vires and unconstitutional and may be quashed and struck down with all consequential benefits.

c) Rule 7 of the Rajasthan Civil Service (Pension) Rules 1996 may kindly be declared ultra vires and unconstitutional and may kindly be struck down.

d) any other appropriate writ, order or direction which this Hon''ble Court may deem just and proper in the facts and circumstances of the case may also kindly be passed in favour of the petitioner."

Shorn off unnecessary details, the indispensable skeletal material facts necessary for appreciation of the controversy needs to be first noticed. The petitioner, while serving as a Teacher, successfully participated in the recruitment process, conducted by the Rajasthan Public Service Commission, Ajmer, (hereinafter referred to as ''RPSC'', for short), to the Rajasthan Administrative Service (for short, ''RAS'') and was appointed on 6th November, 1978, as a member of RAS. In due course of time, Senior Scale and thereafter Selection Scale, was accorded to him on 22nd March, 1989. The petitioner retired, from service attaining the age of superannuation, on 29th February, 1996. It is pleaded case of the petitioner that, but for the impugned order(s), his service record has been unblemished so much so that no adverse remarks were ever entered in his Annual Performance Appraisal Reports, (''APARs'', for short) and no disciplinary proceeding was initiated. The petitioner, along with Shri R.S. Gupta, was served with a joint charge-sheet, dated 30th March, 1993, with reference to judicial orders and actions that related to the period from 19th May, 1989 to 14th December, 1990 and 16th August, 1991 to 22nd August, 1992, while the petitioner was posted as Settlement Officer, Jaipur. Shri R.S. Gupta, was holding the post of Assistant Settlement Officer. The petitioner was called upon to respond to the charge-sheet within 21 days. However, without considering the petitioner''s reply to the charge-sheet, an order, for joint enquiry, was made on 19th April, 1993. While Shri R.S. Gupta, was placed under suspension, having regard to the nature and gravity of charges. The petitioner continued in active service for the allegations levelled against the petitioner, were minor and related to supervisory negligence.

2.1. A detailed reply to the charge-sheet was submitted on 6th December, 1993. The Enquiry Officer submitted his report dated 31st July, 1996 (Annexure-26), with a finding of guilt on all the nine charges levelled against the petitioner, as would be evident from the enquiry report.

2.2. On 18th September, 1996, the petitioner submitted his representation, assailing the findings arrived at by the Enquiry Officer for being, contrary to the pleas raised by the petitioner and materials available on record as well as without an objective consideration. On 16th December, 1997, responded to the show cause notice on 12th November, 1997, to the proposed penalty of withholding his pension for a period of five years.

2.3. The petitioner was served with another show cause notice dated 10th April, 1999, proposing to withhold his entire pension for all times to come, to which, the petitioner responded, vide reply dated 30th May, 1999. The petitioner, vide impugned order dated 8th December, 2000, (Annexure-32), has been inflicted with the penalty of withholding of entire pension permanently.

Learned counsel for the petitioner, Mr. Mahendra Singh, reiterating the pleaded facts and grounds of the writ application, has vehemently contended that the impugned order, merely purports to affirm the so called findings arrived at by the Enquiry Officer, without discussing the evidence collected during the course of enquiry and without dealing with all the contentions raised. The impugned order did not reflect that the relevant record, including the charge-sheet, reply, evidence, enquiry report, findings and petitioner''s representation, were considered by the Hon''ble Governor before the impugned order dated 8th December, 2000, was passed.

The disciplinary proceedings have been assailed for being ultra vires to Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal), Rules, 1958, (hereinafter referred to as the ''Rules of 1958'', for short), for the enquiry was ordered without bothering to wait for and consider the petitioner''s reply to the charge-sheet. Neither the impugned proceedings have been continued and concluded nor the impugned order has been passed and signed by the same person, who issued the impugned charge-sheet.

The findings, arrived at and reasoning furnished in the impugned order, ignoring the explanation furnished by the petitioner, are perverse. The impugned order is also ultra vires Rule 7 of the Rajasthan Civil Services (Pension) Rules, 1996.

It is further submitted the representation on 2nd August, 1995 and 7th August, 1995, (Annexures 6 and 7), were addressed to the Enquiry Officer, to provide the documents, files and record, referred to therein, but no effective action was taken thereon.

The learned counsel, referring to the statements of prosecution witnesses, namely, Shri Durga Sahai Kohli PW-1, Shri Phool Chand PW-2, Shri Harish Agarwal PW-3, Shri Jagdish Prasad Gupta PW-4, Shri Lalit Prasad Sharma PW-5, Shri Pooranmal Sonwal PW-6, Shri Surendra Singh PW-7 and Shri Madan Mohan Gupta PW-8, asserted that the witnesses aforesaid, were merely holding clerical posts and did not claim to be the authors of the documents, which were referred to, in the charge-sheet and were exhibited on the basis of the statements of the witnesses aforesaid. Moreover, the witnesses did not claim to have any personal knowledge either in respect of the allegations levelled in the charge-sheet or even in respect of the contents of the documents, which were shown to them. Neither any clarification was sought by the Enquiry Officer from the petitioner nor he was examined.

The Enquiry Officer, merely referring to the charges/allegations levelled, against the petitioner and some of the pleas of the reply, has arrived at the findings in absence of any evidence of a witness by the prosecution who had first-hand knowledge. Thus, there is no effective consideration and application of mind to the pleas, which were raised in the reply to charge-sheet as also in the written arguments.

A detailed representation on 18th September, 1996, was submitted by the petitioner having received a copy of the Enquiry Report with communication dated 24th August, 1996, pointing out that the findings arrived at by the Enquiry Officer were erroneous as well as contrary to the record based on ipse-dixit, conjectures and surmises. The State-respondents, without objectively considering the aforesaid representation, issued a show cause notice on 12th November, 1997, calling for explanation to the proposed penalty of withholding of entire pension of the petitioner for a period of five years in a cyclo-styled fashion without indicating reasons therefor. The petitioner submitted a detailed representation on 6th December, 1997, but was shocked on receipt of another notice dated 10th April, 1999, proposing to withhold the entire pension for ever, in exercise of powers under Rule 170 of the Rajasthan Civil Service Rules. Again, the action was in a cyclo-styled manner without considering any of the submissions made by the petitioner in his representation referred to above. However, the petitioner submitted his reply on 3rd May, 1999, indicating that Rule 170 of the RSR was no longer in existence and the conclusions, arrived at by the Enquiry Officer, were based on conjectures and surmises. After a period of more than three years, the impugned order dated 8th December, 2000, was passed on the premise that the allegations levelled against the petitioner have been proved and the petitioner has been deprived of his entire pension for all times to come. It is urged that the impugned order has been passed without objectively considering the pleas raised by the petitioner in his reply to the charge-sheet as also in the subsequent representations and without application of mind.

It is further contended that despite requests, the petitioner was not furnished even with the statements of the witnesses recorded by the Enquiry Officer; depriving the petitioner of the benefit of referring to the said statements to substantiate the fact that there was no proper evidence against him. The aforesaid statements were furnished to the petitioner only when confronted with the order dated 8th December, 2000. He submitted his representation to this effect on 29th December, 2000, to avail of legal remedy. Thus, it is evident that the relevant material has not been considered by the Hon''ble Governor before issuance of the impugned order dated 8th December, 2000. The impugned order has neither been signed and considered by the Hon''ble Governor nor by the concerned Secretary or any person duly and properly authorised by the Hon''ble Governor.

In the alternative, the learned counsel for the petitioner submits that the penalty of withholding of full pension permanently, is too harsh and disproportionate having regard to the nature of alleged delinquency of the petitioner. Moreover, the co-delinquent who too was charge-sheeted and proceeded with in the same enquiry proceedings, has been inflicted with the penalty of withholding of 50% of pension for 10 years, and therefore, the matter calls for interference by this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India. In support of his submissions, the learned counsel has placed reliance on the opinion in the following cases:

"1. Bhagwati Prasad Dubey Vs. Food Corporation of India and Another, AIR 1988 SC 434 : (1987) 4 JT 182 : (1988) LabIC 948 : (1988) 1 LLJ 231 : (1987) 2 SCALE 867 : (1987) 1 SCC 579 Supp : (1987) SCC 579 Supp : (1988) 1 UJ 152

Gauri Shankar Mishra v. State of Rajasthan: 1987 (2) RLR 560.

Dr. B.K. Choudhary v. State of Rajasthan: 1992 (1) RLR 210.

Union of India (UOI) and Others Vs. J. Ahmed, AIR 1979 SC 1022 : (1979) 38 FLR 344 : (1979) 2 LLJ 14 : (1979) 2 SCC 286 : (1979) 3 SCR 504 : (1979) 1 SLJ 308

State of M.P. v. Chinta Man: AIR 1961 SC 1623

Sawai Singh Vs. State of Rajasthan, AIR 1986 SC 995 : (1978) LabIC 964 : (1986) 2 LLJ 390 : (1986) 1 SCALE 1282 : (1986) 3 SCC 454 : (1986) 2 SCR 957 : (1986) 2 SLJ 265 : (1986) 2 UJ 605

State of Punjab Vs. V.K. Khanna and Others, (2000) 3 JT 349 Supp : (2000) 7 SCALE 731 : (2000) 5 SCR 200 Supp : (2000) AIRSCW 4472 : (2000) 8 Supreme 105 .

H.C. Das Chhabra v. State of Raj. and Ors-22: 1999 (1) RLR 104.

Smt. Urmila Johari v. State of Raj. and Ors.: 1992 (2) WLC (Raj.) 284.

Randheer Singh v. State of Rajasthan: 1992 (3) RLR 519

Bagda Ram Vs. State of Rajasthan and Others, (1992) WLN 407

Union of India Vs. K.A. Kittu And Others, AIR 2000 SC 3727 : (2001) 88 FLR 244 : (2000) 3 JT 17 Supp : (2001) 1 LLJ 157 : (2000) 7 SCALE 435 : (2001) 1 SCC 65 : (2001) SCC(L&S) 8 : (2000) AIRSCW 4168 : (2000) 7 Supreme 717

Hemendra Kumar v. State : 1991 (2) RLR 98.

Hanuwant Prasad Nandwana v. State of Raj.: 1996 (2) WLC 425

Shri Lal v. State of Rajasthan: 1991 (2) RLR 700.

Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, AIR 2003 SC 511 : (2002) 10 JT 55 : (2003) 2 SCC 111 : (2003) 1 UJ 80 .

Anirudhsinhji Jadeja and another Vs. State of Gujarat, AIR 1995 SC 2390 : (1995) CriLJ 4154 : (1995) 3 Crimes 518 : (1995) 6 JT 146 : (1995) 4 SCALE 715 : (1995) 5 SCC 302 : (1995) 2 SCR 637 Supp : (1995) 2 UJ 610

Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, AIR 1997 SC 3400 : (1997) CriLJ 4059 : (1997) 3 Crimes 301 : (1997) 7 JT 695 : (1997) 5 SCALE 667 : (1997) 7 SCC 622 : (1997) SCC(L&S) 1784 : (1997) 3 SCR 705 Supp : (1997) AIRSCW 3478 : (1997) 8 Supreme 178

Ramchandra Keshav Adke (Dead) by Lrs. and Others Vs. Govind Joti Chavare and Others, AIR 1975 SC 915 : (1975) 1 SCC 559 : (1975) 3 SCR 839

B.S. Vadera Vs. Union of India (UOI) and Others, AIR 1969 SC 118 : (1968) 17 FLR 411 : (1970) 1 LLJ 499 : (1968) 3 SCR 575

Gujarat Electricity Board Vs. Girdharlal Motilal and Another, AIR 1969 SC 267 : (1969) 1 SCR 589 .

Nand Lal Bajaj Vs. State of Punjab and Another, AIR 1981 SC 2041 : (1981) CriLJ 1501 : (1981) 3 SCALE 1393 : (1981) 4 SCC 327 : (1981) SCC(Cri) 841 : (1982) 1 SCR 718

Committee of Management v. U.P. Secondary Education: 1996 Vol.1 SLR 1992."

In response to the notice of the writ application, the State-respondents have filed their counter affidavit supporting the enquiry report and the findings arrived therein as well as the impugned order dated 8th December, 2000. The State-respondents have specifically pleaded that the action in issuing the charge-sheet dated 30th March, 1993, for a joint enquiry against the petitioner and Shri R.S. Gupta, under the Rules of 1958, as well as notice to show cause informing the petitioner of the enquiry report submitted by the Enquiry Officer against him, with a copy enclosed therewith to enable him to file his response, cannot be faulted.

It is further pleaded that the tentative decision of the State Government to withhold 100% pension of the petitioner for five years, was reconsidered by the Hon''ble Governor with a proposal to withhold 100% pension for ever. Consequently, a second notice dated 10th April, 1999, (Annexure-30), was issued affording an opportunity of representation to the petitioner. Having considered the representations of the petitioner, gravity of the charges, which were found proved by the Enquiry Officer on the basis of evidence collected during the course of enquiry; the impugned order dated 8th December, 2000, was passed inflicting a penalty for withholding 100% pension of the petitioner for ever.

Repelling the assailment of Rule 7 of the (Pension) Rules of 1996, as ultra-vires and unconstitutional, it is pleaded that the Rule is perfectly legal and valid and the challenge to the vires cannot be sustained. Further, there is no legally tenable ground to assail the Constitutional validity of Rule 7 aforesaid.

Mr. B.L. Awasthi, learned Additional Govt. Counsel, reiterating the stand in the counter affidavit, asserted that the petitioner while posted as Settlement Officer, Jaipur, in the year 1989-90, without making an enquiry issued directions to his subordinate (Assistant Settlement Officer, Sanganer), to provide tenancy to one ''New Pink City Housing Cooperative Society'', which is a serious misconduct. In the year 1992, the petitioner did not comply with the directions issued by the Settlement Commissioner on 30th April, 1992, to carry out correction in the entry, in the land record, in which the land belonging to the Rajasthan Housing Board was wrongly entered in the name of ''New Pink City Housing Cooperative Society''. The petitioner, as a Settlement Officer, Jaipur, during the period 1990 to 1992, despite repeated directions from the Settlement Commissioner, did not make enquiry in the performance of the Settlement work regarding the mistakes and irregularities committed in the Settlement work. No action was initiated against the Tehsildar, Amer and Chomu for the irregularities committed by them despite a decision taken to this effect by the Revenue Secretary in a meeting and copy of which was furnished to the petitioner by the Settlement Commissioner. Thus, the misconduct and negligence in performance of his duty, is apparent on the face of the record. The petitioner also sent a proposal to close the land settlement work, without getting the work of settlement fully completed, as per the directions of the Settlement Department. In the year 1989, as Settlement Officer, Jaipur, the petitioner decided an appeal related to land measuring 15 Bighas and 5 Biswas situated in Village Kishorepura, Tehsil Sanganer, owned by Mandir Shri Gopalji Maharaj, upholding the judgment of the Assistant Settlement Officer, and thus, failed to exercise the supervisory jurisdiction as well.

In the year 1989, the petitioner made an order in favour of the Settlement Commissioner, who purchased a land of Khasra No. 386, measuring 16 Bighas and 13 Biswas, situated in village Kishorepura, Tehsil Sanganer, favouring Shri Ganpat Ram Yadav, rather than on merits. The petitioner also retained file No. 8/1991, presented by Shri Raj Gopal and others, to the Collector, Jaipur. Neither he decided the matter nor furnished any information about the same to the Settlement Commissioner, Jaipur. The petitioner was also found responsible for loss of working hours in the year 1991, for carrying out the work of Settlement in an illegal manner, which was within the jurisdiction of the Assistant Settlement Officer. The petitioner posted number of employees under him for performing this work illegally.

According to the learned counsel, the petitioner was afforded ample opportunity to defend himself and was also accorded hearing. The procedure prescribed for conducting enquiry under the Rules of 1958, was complied with in letter and spirit. The enquiry was conducted under Rule 18 of the Rules of 1958, which provides for joint enquiry in a common proceeding. The procedure prescribed under Rule 16 of the Rules of 1958, for major penalty, was scrupulously followed. Owing to the retirement of the petitioner pending the enquiry proceedings, a show cause notice was issued to the petitioner seeking his response as to why the powers under Rule 170 of the Rajasthan Service Rules may not be exercised and his pension may be withheld, was issued, followed by a reminder. His response was received on 3rd May, 1999 (Annexure-31) with statement that there was no necessity of issuing second notice. Moreover, mentioning of a wrong provision does not make the entire decision unlawful if the decision has been taken in accordance with the existing Rule by the Competent Authority. The petitioner has been imposed with the penalty after concurrence of the Rajasthan Public Service Commission and the order has been passed by His Excellency, the Governor of the State of Rajasthan. Availability of alternative remedy, under Rule 32 of the Rules of 1958, has also been pleaded as an objection as to the very maintainability of the writ application.

Referring to the order sheet dated 17th January, 2013, drawn by the Division Bench, the learned counsel for the State-respondents submitted that the challenge made to the validity of the Rules of 1996 is no longer pressed, and therefore, the matter was placed before Single Bench, incharge of the roster.

Learned counsel would further submit that the scope of judicial review, with this Court, while examining matters arising out of disciplinary proceedings, is very limited. Re-appreciation or reappraisal of the evidence led before the Enquiry Officer and to examine the findings arrived at by the enquiry officer, as a Court of appeal and to reach possible contrary conclusions, is not within the scope of writ jurisdiction under Artilce 226 of the Constitution. The judicial review, in such matters, is permissible only to the extent of decision making process and not to the merits of the decision itself.

After consideration of the reply submitted by the petitioner to the charge-sheet; the competent authority decided that a detailed enquiry was necessary, against the petitioner and co-delinquent (Shri R.S. Gupta). The inquiry has been conducted by the Commissioner, Departmental Enquiries, Government of Rajasthan. The petitioner failed to establish that there is absolutely no prima facie case against him. Considering the reply to the charge-sheet, the decision to hold a detailed enquiry, in accordance with the procedure prescribed for major penalty, was arrived at. Furthermore, no prejudice has been caused to the petitioner.

The petitioner was afforded ample opportunity to examine the entire record on 20th April, 1993, except for the last item of the list of documents, submitted to the Department of Personnel, Government of Rajasthan, by him, as would be reflected from Annexure-R/1. The petitioner examined the record on 9th June, 1993, and affixed his signatures. The petitioner also perused certain other documents on 25th October, 1993 to 27th October, 1993, which have been mentioned in Annexure- R/1. The evidence of the witnesses cannot be discarded for they were holding the ministerial posts.

The representation made by the petitioner, was duly considered and the matter was referred to the RPSC, Ajmer, and concurrence was received from the RPSC on 10th October, 2000, to the tentative decision of the State to impose penalty of withholding of full pension. The matter was thereafter placed before His Excellency, the Governor of Rajasthan, leading to impugned order dated 8th December, 2000. The petitioner participated in the enquiry proceedings and the Enquiry Officer provided him all the documents. The petitioner being well aware of the witnesses produced and examined as prosecution witnesses; could have received the copies of the statements, if so desired.

Referring to Article 166 of the Constitution of India, the learned counsel further submits that all executive action of the Government of a State shall be expressed to be taken in the name of the Governor. Article 166 also contemplates authentication in such a manner as may be specified in the Rules to be made by the Governor of an order or instrument which is so authenticated, is not to be called in question on the ground that it is not an order or instrument made or executed by the Governor.

Learned counsel for the State-respondents has placed reliance on the opinion of a Coordinate Bench of this Court in the case of S.N. Dyadwal v. The State of Rajasthan and another, decided on 26th February, 2010, wherein reliance has been placed on the opinion of the Hon''ble Supreme Court in the case of State of U.P. and Another Vs. Man Mohan Nath Sinha and Another, AIR 2010 SC 137 : (2009) 123 FLR 162 : (2009) 12 JT 479 : (2009) 11 SCALE 377 : (2009) 8 SCC 310 : (2009) 2 SCC(L&S) 435 : (2009) 14 SCR 348 : (2010) 1 SLJ 236 : (2009) 8 SLR 522 .

I have heard the learned counsel for the parties and with their assistance perused the materials available on record and gave my thoughtful consideration to the rival submissions at Bar.

The charges levelled against the petitioner as surmised by the petitioner reads thus:

"Charge 1.a) The petitioner while posted as Settlement Officer upon receiving a communication from the Settlement Commissioner, in turn, addressed communications/reminders to the Assistant Settlement Officer without himself examining the issue in the matter of issuance of pattas in the name of the Housing Society.

b) The Assistant Settlement Officer sought guidance from the petitioner but the petitioner instead of giving any guidance or directions asked the Assistant Settlement Officer to himself conduct an inquiry in the matter and did not give any response to further guidance/directions sought by the Assistant Settlement Officer.

Charge 2. The petitioner despite receiving communication dated 30.4.1992 from the Settlement Commissioner did not take requisite measures to remove the name of the Housing Society from the relevant land record and substitute the name of the Housing Board therein.

Charge 3. While the petitioner was posted as Settlement Officer, Jaipur several communications were addressed to him by the Settlement Commissioner for rectifying the errors and anomalies in the land record of Sanganer Tehsil but the petitioner did not take effective action thereon.

Charge 4. While the petitioner was posted as Settlement Officer Jaipur during the period 1988-1992, the Settlement Commissioner vide his communication dated 8.11.1988 directed him to inquire into and submit a report in respect of irregularities committed in the settlement proceedings of villages in Tehsils of Sanganer, Amber and Chomu but the petitioner did not take effective steps thereon.

Charge 5. While the petitioner was posted as Settlement Officer, Jaipur in the year 1990, the Settlement Commissioner vide his communication dated 23.12.1989 sought proposals for closing settlement proceedings in Sanganer Tehsil whereupon the petitioner vide his communication dated 20.3.1990 sent proposals for closing the settlement proceedings.

Charge 6. While the petitioner was posted as Settlement Officer, Jaipur in the year 1989, he dismissed an appeal filed against an order passed by the Assistant Settlement Officer.

Charge 7. The petitioner while he was posted as Settlement Officer, Jaipur in the year 1989, decided an appeal against the order passed by the Assistant Settlement Officer and set aside the order under appeal in order to favour the erstwhile Settlement Commissioner.

Charge 8. While the petitioner was posted as Settlement Officer, Jaipur during the period 1991-92 a communication was addressed to him by the Settlement Commissioner on 28.11.1991 enclosing a communication dated 22.8.1991 addressed by the Additional Divisional Commissioner directing that the appeal filed by one Shri Ram Gopal Kumawat and 12 other khatedars of village Waria Tehsil Sanganer may be decided expeditiously but the petitioner did not take any action in the matter and gave different replies in respect of the fate of the said appeal.

Charge 9. While the petitioner was posted as Settlement Officer, Jaipur in the year 1991, he deployed 70 Surveyors and 70 Inspectors during the period April to November, 1991 for resolving the boundary disputes although under Land Revenue Act, only the Assistant Settlement Commissioner was competent to resolve such boundary disputes."

Indisputably, at the initial stage, the petitioner challenged the validity of the Rajasthan Civil Service Rules of 1996, however, the challenge was no longer pressed as is evident from the order-sheet drawn by the Division Bench of this Court on 17th January, 2013, on the statement made by the learned counsel for the petitioner, while directing the Registry to ensure that the case is listed before the Single Bench, incharge of the roster.

A glance of the enquiry report dated 31st July, 1996, would reveal that the Enquiry Officer arrived at the findings on each of the nine charges, on the basis of documentary evidence brought on record during the course of enquiry proceedings, and also considered the defence of the petitioner while arriving at the conclusion. The Enquiry Officer returned a finding of guilt on all the nine charges, levelled against the petitioner. The petitioner was found negligent in duty, while making an order directing the Assistant Settlement Officer (Co-delinquent, Shri R.S. Gupta), for mutation of the land, in the name of the ''New Pink City Housing Cooperative Society'', without carrying out the necessary enquiry. The Enquiry Officer, on the basis of evidence and materials available on record, as well as having considered the written arguments, concluded that the petitioner despite having been instructed by the Settlement Commissioner, vide communication dated 13th April, 1992, along with instructions of the Government dated 22nd April, 1992, illegally transferred the land of the Rajasthan Housing Board to ''New Pink City Housing Society''. While returning a finding of guilt, against the petitioner on charge No. 3, the Enquiry Officer has relied upon the documentary evidence Ex. P/3 to Ex. P/8, admitted by the petitioner and were proved by PW-3-Harish Agarwal, with reference to the relevant record being Ex. P.152 and 154 to 165. The written arguments, submitted by the petitioner, were duly considered by the Enquiry Officer, while arriving at the finding of guilt aforesaid.

On Charge No. 4 for irregularities committed in the Settlement proceedings of Villages in Tehsils of Sanganer, Amber and Chomu and failure to submit a report thereto, contrary to the directions issued by the Settlement Commissioner vide communication dated 8.11.1988; for the period 1988-1992; the Enquiry Officer concluded that no enquiry was conducted by the petitioner. Thus, the petitioner was found negligent in discharge of his official duties despite instructions, repelling the written arguments and defense of the petitioner for that several other officers also held the post and did not do the needful. The petitioner proposed for closing of the settlement proceedings while he was posted as Settlement Officer, Jaipur, in the year 1992 vide his communication dated 23rd December, 1989, which was subject matter of charge No. 5. From the documentary evidence and the statements deposed by prosecution witnesses, the Enquiry Officer concluded that the proposal was sent by the petitioner without completion of the settlement proceedings with reference to 232 villages of Tehsil Sanganer, Jaipur, which also included the area of J.D.A. This proposal was also found contrary to the D.O. letter dated 23rd August, 1990, issued by the then Settlement Commissioner Shri Tara Prakash Joshi, and thus, the charge was found proved. Similarly, the petitioner has also been found guilty of deciding of an appeal with reference to land measuring 15 Bighas and 5 Biswas, situated in village Kishorepura, Tehsil Sanganer, Jaipur, in the name of Mandir Shri Gopal Ji Maharaj, while upholding the order of the Assistant Settlement Officer.

In an order while acting as Settlement Officer, in the year 1989, the petitioner favoured the Settlement Commissioner, who purchased a land of Khasra No. 386, measuring 16 Bighas and 13 Biswas, situated in village Kishorepura, Tehsil Sanganer, Jaipur, rather than, to decide the matter on merits.

The petitioner neither decided the matter nor transmitted any information with reference to file No. 8/1991, presented by Shri Raj Gopal and others, to the Collector, Jaipur, while the petitioner was posted as Settlement Officer in the year 1991-92. The findings on charge No. 9, have been returned as proved, for the petitioner deployed 70 Surveyors and 70 Inspectors during the period from April to November, 1991, for resolving the boundary disputes although under Land Revenue Act, 1956; only the Assistant Settlement Commissioner was competent to do so. Thus, the finding is based on the statutory provisions of Land Revenue Act, 1956. The petitioner continued to do so ignoring loss of working hours to the department for oblique motives.

The co-delinquent Shri R.S. Gupta was also subjected to the same enquiry proceedings and the Enquiry Officer while concluding the proceedings found charge No. 1 partly proved and rest of the three charges fully proved.

From the materials available on record it is evident that the petitioner was served with a copy of the enquiry report, along with communication dated 24th August, 1996, which was responded, by a detailed representation on 18th September, 1996. Assailment of the findings and the conclusions arrived at by the Enquiry Officer on conjectures and surmises, was considered by the competent authority in view of the findings arrived at by the Enquiry Officer and the representation, in the light of the evidence and material available on record. A show cause notice on 12th November, 1997, was issued on the petitioner, calling upon him to explain the reasons for not inflicting a penalty of withholding the pension of the petitioner for a period of five years; which was responded by the petitioner by a detailed representation on 6th December, 1997. The petitioner was thereafter served with another show cause notice dated 10th April, 1999, proposing to withhold his entire pension for ever, to which the petitioner responded on 30th May, 1999. Having received the representation of the petitioner, the matter was referred to the RPSC for concurrence, which was accorded on 10th October, 2000, to impose a penalty of withholding of entire pension permanently. The matter was thereafter place before his Excellency, the Governor of Rajasthan, who made an order dated 8th December, 2000, after having considered the inquiry report, evidence and materials available on record as well as the representations of the petitioner and the co-delinquent.

It is trite law that the decision of departmental authorities, while exercising jurisdiction under Article 226 of the Constitution of India, can be interfered with if the authority held the proceedings in violation of principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authorities is vitiated by consideration of extraneous reasons to the evidence and merits of the case or the conclusions arrived at, on the face of it, are found wholly arbitrary or capricious and no reasonable person could have arrived at such conclusions or the grounds very similar to the aforesaid. The view has been expressed in the case of the High Court of The High Court of Judicature at Bombay, Through Its Registrar Vs. Shashikant S.Patil and Another, AIR 2000 SC 22 : (2000) 67 ECC 16 : (1999) 8 JT 493 : (1999) 6 SCALE 673 : (2000) 1 SCC 416 : (2000) SCC(L&S) 144 : (1999) 4 SCR 205 Supp : (2000) 2 SLJ 98 : (2000) 1 UJ 134 : (1999) AIRSCW 4137 : (1999) 9 Supreme 42 , by a three Judge of the Hon''ble Supreme Court, reiterating the earlier view in the case of B.C. Chaturvedi Vs. Union of India and others, AIR 1996 SC 484 : (1995) 8 JT 65 : (1996) LabIC 462 : (1996) 1 LLJ 1231 : (1995) 6 SCALE 188 : (1995) 6 SCC 749 : (1995) 4 SCR 644 Supp : (1996) 1 UJ 80 , of the same Bench Strength. From the materials available on record and findings arrived at by the Enquiry Officer, it is apparent that there was sufficient evidence and material on record to sustain the charges levelled against the petitioner.

In the case of Chairman cum Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others, AIR 2010 SC 75 : (2009) 123 FLR 601 : (2009) 11 JT 472 : (2009) 4 LLJ 672 : (2009) 11 SCALE 608 : (2009) 15 SCC 620 : (2009) 13 SCR 487 : (2009) 7 SLR 546 : (2009) 7 SLR 251 : (2009) 9 UJ 4097 : (2009) AIRSCW 5596 , the Hon''ble Supreme Court after an extensive survey of earlier opinions observed that it is not open to the High Court to examine the findings recorded by the Inquiry Officer as a Court of appeal and reach its own conclusions power of judicial review is not directed against the decision but is confined to the decision making process. It will be relevant to extract paragraph No. 13 and 14 of the judgment in the case of Chairman cum Managing Director, Coal India Limited and Anr. (supra), which reads thus:

"13. It has been time and again said that it is not open to the High Court to examine the findings recorded by the Inquiry Officer as a Court of Appeal and reach its own conclusions and that power of judicial review is not directed against the decision but is confined to the decision making process. In a case such as the present one where the delinquent admitted the charges, no scope is left to differ with the conclusions arrived at by the Inquiry Officer about the proof of charges. In the absence of any procedural illegality or irregularity in conduct of the departmental enquiry, it has to be held that the charges against the delinquent stood proved and warranted no interference.

The Single Judge of the High Court in paragraphs 43 and 44 of the judgment observed thus:

"43. This Court is of the view that the so-called order dated 29.11.2000 is a mere communication WITHOUT ACTUALLY serving the original Order of the Disciplinary Authority. Merely transmitting the decision of the Disciplinary Authority was not sufficient since this was a matter involving the punishment of removal from service entailing civil consequences.

We are dealing with a case of removal from service for an alleged absence of 6(six) months. This Court is of the view that the Respondents were bound to adhere to a fair and transparent procedure by firstly serving the actual order of the Disciplinary Authority upon the petitioner and then, by giving reasons as to why they chose not to agree with what the Petitioner wanted to say qua his absence when, after admitting the absence, he gave reasons as to why he had remained absent. They were also obliged to strictly obey with the Orders of this, court. In that view of the matter, the argument of Mr. Aloke Banerjee to the effect that the Respondents were not required to give reasons, are not acceptable to this Court. Consequently the Judgments cited by him namely: Ram Kumar Vs. State of Haryana, AIR 1987 SC 2043 : (1987) 3 JT 357 : (1987) LabIC 1890 : (1987) 2 LLJ 504 : (1987) 2 SCALE 340 : (1987) 1 SCC 582 Supp : (1987) SCC 582 Supp : (1987) 3 SCR 1057 : (1987) 2 UJ 644 and the other Judgments such as Maharashtra State Board of Secondary and Higher Secondary Education Vs. K.S. Gandhi and Others, (1991) 2 JT 296 : (1991) 1 SCALE 187 : (1991) 2 SCC 716 : (1991) 1 SCR 773 are held to be not applicable because in this case, it was the desire and Order of the Hon''ble Division Bench that the Respondents should deal with the matter in accordance with law. In the opinion of this Court, "in accordance with law" means and includes observing the principles of natural justice and giving reasons because the Respondents were supposed to be dealing with his pleas relating to his explanations which were so very very crucial to his case. Consequently and in the facts and circumstances of this case, none of the Judgments cited by Mr. Banerjee can be said to have any Application."

In what we have already discussed, we find it difficult to accept the view of the Single Judge. The Division Bench like the Single Bench fell into grave error in not adequately adverting to the fact that the charges were admitted by the delinquent unequivocally and unambiguously and, therefore, misconduct of the Respondent No. 1 was clearly established. We are, therefore, unable to persuade ourselves to concur with the view of the High Court."

The issue of proportionality of penalty inflicted has been subject matter of adjudication before the Hon''ble Supreme Court in a catena of judgments. The Hon''ble Supreme Court elaborately dealt with the issue of proportionality in the backdrop of some important decisions in the case of Union of India and another Vs. G. Ganayutham (Dead) by LRs., AIR 1997 SC 3387 : (1997) 7 JT 572 : (2000) 2 LLJ 648 : (1997) 5 SCALE 606 : (1997) 7 SCC 463 : (1997) SCC(L&S) 1806 : (1997) 3 SCR 549 Supp : (1997) AIRSCW 3464 : (1997) 8 Supreme 269 , and summarizing the position of proportionality in administrative law in England and India, the Hon''ble Supreme Court under paragraphs 31 to 34, held thus:

"31. The current position regarding proportionality in administrative law in England and India can be summarised as follows:

(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test.

(2) The Court would not interfere with the administrator''s decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles.

(3)(a) As per Bugdaycay, Brind and Smith, as long as the Convention is not incorporated into English Law, the English Courts merely exercise a secondary judgment to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he has done.

(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.

(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.

(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of ''proportionality'' and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the Courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14."

In the case of Lucknow K. Gramin Bank (Now Allahabad, U.P. Gramin Bank) and Another Vs. Rajendra Singh, (2013) 8 AD 445 : AIR 2013 SC 3540 : (2013) 139 FLR 290 : (2013) 10 JT 500 : (2013) LabIC 3848 : (2013) 5 LLN 100 : (2013) 9 SCALE 653 : (2013) 12 SCC 372 : (2013) 4 SCT 118 : (2013) AIRSCW 4731 , the Hon''ble Supreme Court while dealing with the issue of quantum of punishment in the event of proven misconduct under paragraph 13 to 19, held thus:

"13. Indubitably, the well ingrained principle of law is that it is the Disciplinary Authority, or the Appellate Authority in appeal, which is to decide the nature of punishment to be given to a delinquent employee keeping in view the seriousness of the misconduct committed by such an employee. Courts cannot assume and usurp the function of the Disciplinary Authority. In the matter of Apparel Export Promotion Council Vs. A.K. Chopra, AIR 1999 SC 625 : (1999) 1 CTC 316 : (1999) 81 FLR 462 : (1999) 1 JT 61 : (1999) 1 LLJ 962 : (1999) 1 SCALE 57 : (1999) 1 SCC 759 : (1999) 1 SCR 117 : (2000) 1 SLJ 65 : (1999) 1 UJ 508 : (1999) AIRSCW 274 : (1999) AIRSCW 4818 : (1999) 9 Supreme 103 : (1999) 1 Supreme 110 this principle was explained in the following manner:

22...The High Court in our opinion fell in error in interfering with the punishment, which could be lawfully imposed by the departmental authorities on the Respondent for his proven misconduct......The High Court should not have substituted its own discretion for that the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone."

Yet again, in the case of State of Meghalaya and Others Vs. Mecken Singh N. Marak, AIR 2008 SC 2862 : (2008) 3 CLT 517 : (2008) 118 FLR 372 : (2008) 11 JT 119 : (2008) 7 SCC 580 : (2008) 2 SCC(L&S) 431 : (2008) AIRSCW 4726 , this Court reiterated the law by stating:

"14. In the matter of imposition of sentence, the scope of interference is very limited and restricted to exceptional cases. The jurisdiction of the High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment-imposed by the disciplinary authority or the appellate authority unless shocking to the conscience of the court, cannot be subjected to judicial review. In the impugned order of the High Court no reasons whatsoever have been indicated to why the punishment was considered disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice.

Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The High Court in this case has not only interfered with the punishment imposed by the disciplinary authority in a routine manner but overstepped its jurisdiction by directing the appellate authority to impose any other punishment short of removal. By fettering the discretion of the appellate authority to impose appropriate punishment for serious misconducts committed by the Respondent, the High Court totally misdirected itself while exercising jurisdiction under Article 226. Judged in this background the conclusion of the Division Bench of the High Court cannot be regarded as proper at all. The High Court has interfered with the punishment imposed by the competent authority in a casual manner and, therefore, the appeal will have to be accepted."

As is clear from the above that the Judicial Review of the quantum of punishment is available with a very limited scope. It is only when the-penalty imposed appears to be shocking disproportionate to the nature of misconduct that the Courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/Appellate Authority to take a decision afresh and it is not for the court to substitute its decision by prescribing the quantum of punishment. In the present case, however, we find that the High Court has, on the one hand directed the appellate authority to take a decision and in the same breath, snatched the discretion by directing the Appellate Authority to pass a particular order of punishment. In normal course, such an order would clearly be unsustainable, having regard to the legal position outlined above.

The peculiar feature, however, is that the High Court has done so proceeding on the presumption that these three Respondents are equally and identical placed as the other three employees who had admitted the charges, though this parity is not spelled out in the impugned order. Whether this approach of the High Court is tenable, looking into the facts of this case, is the moot question.

If there is a complete parity in the two sets of cases imposing different penalties would not be appropriate as inflicting of any/higher penalty in one case would be discriminatory and would amount to infraction of the doctrine of Equality enshrined in Article 14 of the Constitution of India. That is the ratio of Rajendra Yadav''s case, already taken note above. On the other hand, if there is some difference, different penalty can be meted out and what should be the quantum is to be left to the appellate authority. However, such a penalty should commensurate with the gravity of misconduct and cannot be shockingly disproportionate. As per the ratio of Obettee (P) Ltd. Case even if the nature of misconduct committed by the two sets of employees is same, the conduct of one set of employee accepting the guilt and pleading for lenient view would justify lesser punishment to them than the other employees who remained adopted the mode of denial, with the result that charges stood proved ultimately in a full-fledged enquiry conducted against them. In that event, higher penalty can be imposed upon such delinquent employees. It would follow that choosing to take a chance to contest the charges such employees thereafter cannot fall back and say that the penalty in their cases cannot be more than the penalty which is imposed upon those employees who accepted the charges at the outset by tendering unconditional apology.

This, according to us, would be the harmonious reading of Obettee (P) Ltd. and Rajendra Yadav cases.

The principles discussed above can be summed up and summarized as follows:

19.1. When charge(s) of misconduct is proved in an enquiry the quantum of punishment to be imposed in a particular case is essentially the domain of the departmental authorities;

19.2. The Courts cannot assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and nature of penalty to be awarded, as this function is exclusively within the jurisdiction of the competent authority;

19.3. Limited judicial review is available to interfere with the punishment imposed by the disciplinary authority, only in cases where such penalty is found to be shocking to the conscience of the Court;

19.4. Even in such a case when the punishment is set aside as shockingly disproportionate to the nature of charges framed against the delinquent employee, the appropriate course of action is to remit the matter back to the disciplinary authority or the appellate authority with direction to pass appropriate order of penalty. The Court by itself cannot mandate as to what should be the penalty in such a case.

19.05. The only exception to the principle stated in para (d) above, would be in those cases where the co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct was identical or the co-delinquent was foisted with more serious charges. This would be on the Doctrine of Equality when it is found that the concerned employee and the co-delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable."

In the instant case at hand, from the facts, circumstances of the case, evidence collected during the course of enquiry and the materials available on record, it is evident that the nature of charges levelled against the petitioner and the co-delinquent (Shri R.S. Gupta), were not identical. Moreover, the co-delinquent was a subordinate officer to the petitioner and charge No. 1 was partly proved.

Hence, it will not be open for this Court to exercise the writ jurisdiction under Article 226 of the Constitution of India to assume the function of disciplinary/departmental authorities and to decide the quantum of punishment and the nature of penalty, which is a function within the exclusive domain of the competent authority.

For the reasons and discussions hereinabove, the writ application is devoid of any substance and lacks in merit, and therefore, deserves to be dismissed.

Ordered accordingly.

However, in the facts and circumstances of the case, there shall be no order as to costs.