Ganpat Ram vs State of Rajasthan and Others

Sandeep Mehta, J—By way of the instant writ petition, the petitioner has approached this Court assailing the legality and validity of the order dated 10.08.1999 (Annexure-9), whereby the petitioner''s disciplinary authority imposed upon him, the penalty of termination from service and the order dated 08.04.2002 (Annexure-19), whereby the appeal preferred by the petitioner against the order of termination was dismissed and the termination order was affirmed.

Facts in brief are that at the relevant point of time, the petitioner was posted as a Patwari at Tehsil Chhatargarh. A charge sheet under Rule 16 of Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ''CCA Rules, 1958'') came to be served upon the petitioner on 13.03.1992. It was alleged in the charge sheet that owing to incorrect reports made by the petitioner, various chunks of Forest land were wrongly allotted to Shri Shankar Singh and Shri Ram Singh. It was also alleged that owing to a few more incorrect reports made by the petitioner, in the capacity of a Patwari, lands which were not covered within the ambit of small patch, were illegally allotted as small patch lands to (a) Shri Pankaj Kumar, (b) Kishna Ram, (c) Tilok Singh, (d) Madan Singh, (e) Pratap, (f) Khinya Ram, (g) Jee Sukh, (h) Aswar, (i) Durga, (j) Bhadar, (k) Akha Ram and (l) Bhoma Ram. It was further alleged that the petitioner deliberately made the wrong reports in order to favour and to extend unlawful gain to these persons and, thereby caused corresponding loss to the Government.

After following the requisite procedural formalities, the Deputy Colonization Commissioner, Chittorgarh was appointed as an inquiry officer to conduct the disciplinary inquiry against the petitioner. During course of the proceeding, the inquiry officer was changed and the Dy. Colonization Commissioner, Bikaner was appointed to continue the inquiry. It is asserted in the writ petition that the inquiry officer did not conduct the inquiry fairly and did not follow the mandatory procedure provided down in the Rules of 1958. It is averred that on 11.06.1998, the Departmental Representative was not present before the inquiry officer. On that day, the petitioner was made to admit his signatures on the small patch allotment files. The Departmental Representative was directed to place on record of the inquiry, the relevant Girdawaris and other documents. The matter was adjourned to 20.07.1998 for recording department''s evidence. The requisite and essential documents were not placed on record by the departmental representative despite specific directions of the inquiry officer. On 08.01.1999, the Departmental Representative was given last opportunity to place the Girdawaris and other documents on record and it was specifically ordered that if the needful was not done by the next date then the department''s evidence would be closed. The petitioner was directed to submit the list of proposed defence witness on the next date which was fixed as 02.02.1999. The petitioner as well as the Departmental Representative were not present before the inquiry officer on the next date i.e. 02.02.1999. On that day, for the single absence of the petitioner, the inquiry officer directed the proceedings to be conducted ex-parte against the petitioner. The department was directed to file written submissions for establishing its case. The matter was adjourned to 18.02.1999. However, for some reason, instead of the scheduled date i.e. 18.02.1999, the file was taken up on 06.03.1999 on which date also, the case was adjourned and file was directed to be put up on an unspecified date during the proposed visit of the inquiry officer at Bikaner Headquarters. The file was then taken up at Bikaner on 05.05.1999. The order sheet records that on that day, the Departmental Representative requested the inquiry officer that as per the documents filed by the department, the charges were proved and accordingly an inquiry report be submitted to the disciplinary authority. On the very next day on 06.05.1999, acting at the request of the Departmental Representative that the charges were proved by the documents Ex.P/1 to Ex.P/38, the inquiry officer drew up a detailed inquiry report finding the petitioner guilty of all the charges. The petitioner has set up a specific plea in the writ petition that no intimation was given to him that 06.03.1999, 05.05.1999 and 06.05.1999 were the scheduled dates of hearing in the inquiry. On these dates, the inquiry proceedings were conducted behind the back of the petitioner without any intimation. It is further asserted in the pleadings that no witness was examined by the department during course of the inquiry so as to establish the charges. The petitioner has set up a further case that the allotments made on the basis of the disputed reports attributed to him were challenged by the State Government right upto the Board of Revenue. The challenge thus made was rejected and the allotments were sustained. Copies of certain orders passed in the revenue litigation instituted in relation to the disputed allotments have been placed on record.

The disciplinary authority, however, agreeing with the findings of the inquiry officer passed the order dated 10.08.1999 (Annexure-9) dismissing the petitioner from service and treating the period of his absence from duty as leave without pay. The petitioner challenged the order passed by the disciplinary authority by preferring an appeal which too was rejected by the appellate authority by order (Annexure-19) dated 08.04.2002. Hence this writ petition.

Shri Vikas Bijarnia, learned counsel appearing on behalf of the petitioner, vehemently urged that the inquiry officer acted in an absolutely arbitrary and high-handed fashion while conducting the disciplinary inquiry against the petitioner. For a single day''s absence, ex-parte proceedings were ordered against the petitioner, but at the same time the frequent absence of the Departmental Representative on numerous dates of hearing was condoned and repeated opportunities were given to the department for leading evidence. He thus submitted that the manner in which the inquiry officer conducted the inquiry smacks of arbitrariness and unfair treatment. He further urged that the department did not examine a single witness to bring home the charges against the petitioner. The inquiry dragged on for almost seven years. The inquiry officer wrongly concluded in the inquiry report that since the petitioner had admitted his signatures on the questioned reports, the charges could be held proved by the documents alone. Learned counsel urged that it is mandatory as per Rule 16 of the CCA Rules that the department must lead oral evidence to prove the charges. He contended that merely because the petitioner admitted his signatures on the disputed documents, the contents thereof could not read as evidence, unless oral evidence was led to prove the same. He further contended that the State Government challenged the allotments made to various persons on the basis of the alleged incorrect reports made by the petitioner in the revenue courts. However, the challenge thus made failed and therefore, it has to be assumed that the reports made by the petitioner were factually correct and were made as per law. He therefore urged that the impugned orders are grossly illegal and were passed in total contravention of the principles of natural justice and thus deserve to be quashed. He prayed that the writ petition deserves acceptance and while setting aside the illegal order of termination and the order passed by the appellate authority, the petitioner be directed to be reinstated in service with all consequential benefits.

Per contra, Mr. A.R. Godara, learned Dy. Govt. Counsel representing the respondent department vehemently tried to defend the orders under challenge. He submitted that since the petitioner admitted his signatures as well as the contents of the disputed reports, the inquiry officer was perfectly justified in reading the contents of the documents and considering the same to be admissible in evidence so as to bring home the charges. He further contended that there were grave allegations against the petitioner in the charge sheet of making totally wrong reports and thereby fraudulently facilitating alienation of precious government land and non-transferable forest land to private persons and that too at throw away prices. As per him, owing to the illegal acts of the petitioner, huge chunks of precious government and forest land were illegally distributed as bounty to undeserving persons thereby causing wrongful loss to the Government. Thus, he contended that it is a fit case wherein the minor technical deficiencies in the manner of conducting the inquiry should be ignored and the writ petition should be dismissed as being devoid of any merit.

I have heard the arguments advanced by the learned counsel for the parties and have gone through the material available on record.

Firstly, the challenge made by the petitioner''s counsel to the fairness of the procedure and manner of conducting inquiry as adopted by the inquiry officer needs to be examined. A few of the order sheets drawn by the inquiry officer have been placed on record of the writ petition as Annexures-3, 4, 5, 6 and 7 respectively and are quoted hereinbelow for the sake of ready reference:-

From a bare perusal of the order sheets, the following conclusions can be drawn:

(i) that numerous opportunities were provided to the Departmental Representative for filing the relevant Girdawaris and other documents on record but the Departmental Representative failed to do so.

(ii) that for a single day''s absence of the petitioner i.e. on 02.02.1999, ex-parte proceedings were drawn up against him whereas, the absence of the Departmental Representative on that very day and on number of other dates was condoned in a lopsided manner.

(iii) that no intimation of the dates 06.03.1999, 05.05.1999 and 06.05.1999 was given to the petitioner and the file was taken up on these dates arbitrarily and without putting up any notice of hearing.

It is relevant to state here that ex-parte proceedings were drawn up against the petitioner on 02.02.1999, the stage when the proceedings were going on for evidence of the department. Therefore, even if the petitioner was not permitted to participate in the recording of the department''s evidence, still he had a right to lead defence and address the inquiry officer before he concluded the inquiry. Therefore, obviously the entire inquiry proceedings were undertaken in an overwhelmingly arbitrary fashion purely aimed at favouring the department. The manner in which the inquiry proceedings were conducted depict that the same were conducted with a predetermined oblique motive of penalising the petitioner and nothing beyond. The inquiry officer as well as the disciplinary authority heavily banked upon the alleged admissions made by the petitioner in his statement recorded on 11.06.1998. The procedure adopted by the inquiry officer in recording the petitioner''s statement on that day is also totally illegal and leads to the irrefutable conclusion that the inquiry officer coerced the petitioner into making the admission. The department''s evidence had not even commenced by that date and therefore, there was no occasion for the inquiry officer to record the petitioner''s evidence. In this background, the assertion made by the petitioner that his statement was induced by coercion appears to be perfectly justified. Be that as it may, upon going through the orders impugned and as per the pleadings of the parties, it is not in dispute that the department did not examine even a single witness to bring home the charges against the petitioner. The procedure required to be followed while conducting an inquiry under Rule 16 of the CCA Rules was examined in detail by this Court in the case of Harak Chand Dangi vs. State of Rajasthan & Ors. (SB Civil Writ Petition No. 4459/2001, decided on 15.01.2015. This Court held that recording of evidence is mandatory in an inquiry instituted under Rule 16 of the CCA Rules. Failure to do so would vitiate the inquiry report and also the order passed by the disciplinary authority based on such faulty inquiry report. This Court relied upon the judgment rendered by the Hon''ble Supreme Court in the case of State of U.P. and Others Vs. Saroj Kumar Sinha, AIR 2010 SC 3131 : (2010) 124 FLR 857 : (2010) 1 JT 617 : (2010) 2 LLJ 334 : (2010) 2 SCALE 42 : (2010) 2 SCC 772 : (2010) 1 SCC(L&S) 675 : (2010) 3 SCR 326 : (2010) 2 SLJ 59 : (2010) 2 SLR 159 : (2010) 2 UJ 788 , wherein it was held:-

"26. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the inquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the inquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the inquiry officer. This is so as to avoid the charge that the inquiry officer has acted as a prosecutor as well as a Judge, inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

Apart from the above by virtue of Article 311(2) of the Constitution of India the departmental inquiry had to be conducted in accordance with rules of natural justice. It is a basic requirement of rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceeding which may culminate in a punishment being imposed on the employee."

Viewed in light of the ratio of the above judgments, it is evident that the inquiry conducted against the petitioner and the disciplinary authority''s order (Annexure-19) dated 08.04.2002 directing termination of the petitioner from service are totally vitiated as the inquiry report was based on no evidence, whatsoever. The petitioner challenged the order passed by the disciplinary authority by filing an appeal and raised pertinent grounds in support thereof. Upon going through the order (Annexure-19) passed by the appellate authority, it is reflected that the appellate authority did not advert to the grounds taken by the petitioner in his appeal. Thus, the impugned orders ex-facie do not stand to scrutiny as being totally illegal, perverse and arbitrary.

As a consequence of the above discussion, the writ petition deserves to be and is hereby allowed. The impugned order of termination dated 10.08.1999 (Annexure-9) passed by the disciplinary authority and the order dated 08.04.2002 (Annexure-19) passed by the appellate authority are declared illegal and are quashed and set aside. The petitioner shall be entitled to be reinstated in service with all consequential benefits including back wages. If the petitioner has crossed the age of superannuation, he shall be given actual benefits of continued service right from the date of his illegal termination till the date of his superannuation, whereafter he shall be entitled to all terminal benefits.

No order as to costs.