Harak Chand Dangi vs State of Raj.

Sandeep Mehta, J.—Heard learned counsel for the petitioner.

The petitioner has approached this Court against the order dated 9.8.1999 (Annex. 6) passed by the disciplinary authority being the Municipal Board, Kanore, imposing upon him, punishment of stoppage of two annual grade increments with cumulative effect, and the order dated 28.7.2001 (Annex. 10) passed by the appellate authority being the Deputy Director (Regional), Local Bodies, Government of Rajasthan, Udaipur affirming the order dated 9.8.1999 and rejecting the petitioner''s appeal.

Facts in brief are that the petitioner was posted as a U.D.C. in Municipal Board, Kanore at the relevant point of time. It is averred in the writ petition that ever since his induction in service as a L.D.C. and his promotion to the post of U.D.C., the petitioner was never communicated any adverse remarks and his services were found satisfactory by all concerned authorities.

However, on 5.7.1993, the petitioner received a communication from the Administrator, Municipal Board, Kanore along with a charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, referred to herein after as ''the Rules of 1958''). It was alleged in the charge-sheet that the petitioner supplied wrong information in pursuance of a star question raised in the Assembly regarding the alleged removal of encroachments and thereby, committed misconduct.

The petitioner has claimed in the writ petition that the information earlier given by him in response to the query was the result of an inadvertent error and was rectified by a letter dated 13.9.1992 addressed to the respondent no. 2. Be that as it may, the petitioner submitted his reply to the charges and statement of allegations on 5.10.1993. A specific plea was taken in the reply that the information sent by the petitioner, which was treated to be incorrect, was as a matter of fact, a result of inadvertent typing error and was corrected later on by way of a supplementary reply. The date of removal of the encroachment, which was mentioned in the information given initially by the petitioner, was 5.3.1992. The said date came to be typed inadvertently in the information furnished by the petitioner and was subsequently corrected to 5.4.1992 by way of a supplementary communication.

Nonetheless, the reply/explanation furnished by the petitioner was not found satisfactory and the Municipal Board passed a resolution dated 8.8.1995 constituting an enquiry committee of three members to hold a disciplinary enquiry against the petitioner in furtherance of the charge-sheet served to him. It is averred in the writ petition that the enquiry committee, which has been arrayed as respondent no. 3 in the writ petition, without following procedure laid down in the Rules of 1958, proceeded to hold the petitioner guilty of the charges and proposed to impose upon him the penalty of stoppage of two annual grade increments with cumulative effect vide letter Annex. 6 dated 9.8.1999. It is claimed that the enquiry proceedings conducted by the enquiry committee are bad in the eye of law as neither any charge was framed/read over to the petitioner nor any evidence was adduced by the department in support of the allegations. Though the petitioner submitted a list of witnesses, but the committee did not provide any opportunity to the petitioner to adduce his evidence and proceeded to hold him guilty of the charges, in total disregard to the procedure of conducting departmental enquiry as prescribed in Rule 16 of the Rules of 1958. The respondent no. 2 in a mechanical fashion accepted the enquiry report and passed the order dated 9.8.1999 (Annex. 6) imposing penalty against the petitioner.

It is specifically averred in the writ petition that the order imposing penalty was passed without supplying the copy of the enquiry report to the petitioner. Being aggrieved of the order imposing penalty, the petitioner filed an appeal before the appellate authority. The appellate authority dismissed the petitioner''s appeal vide order dated 28.7.2001 (Annex. 10) and upheld the order imposing penalty dated 9.8.1999 (Annex. 6) passed by the respondent no. 2 Municipal Board, Kanore. Now, the petitioner has approached this Court by way of instant writ petition assailing the aforesaid two orders.

A reply has been filed to the writ petition by the respondents but when the matter was taken up for arguments, none appeared to argue the matter on their behalf.

The ground no. (ii) which has been raised by the petitioner for assailing the proceedings of the enquiry committee on the ground of non-compliance of the mandatory procedure laid down in the Rules of 1958 and the reply thereto, have material bearing on the case, and are reproduced hereunder :-

Ground (ii) of the writ petition :-

"ii) That the order dt. 09.08.1999 (Annex. 6) passed by the Disciplinary Authority (Respondent No. 2) being unreasonable and not speaking order and also having been passed without following the proper procedure laid-down in this respect is liable to be quashed and set-aside. It is otherwise, is required from the Disciplinary Authority under the Rules of 1958 that it would record a finding on each charge after considering the record, material and other relevant papers. A bare perusal of order dt. 09.08.1999 (Annex. 6) would reveal that it does not disclose how the Disciplinary Authority has considered the enquiry report if any and the other record and what was the evidence against the Petitioner which appealed the Disciplinary Authority (Respondent No. 2) for reaching to the conclusion that the Petitioner was guilty of the charge. It may be submitted that no evidence was adduced either on behalf of the Department nor any document was exhibited and nor the Petitioner was afforded an opportunity to lead his defence evidence, then how it arrived at a finding of guilt a against the Petitioner that the delinquency alleged against him vide charge Annex. 1 stands proved. In this view of the settled legal position such an order being violative of the principle of natural justice is liable to be quashed.

Reply to ground (ii) of the writ petition :-

(ii) That in reply to the averments contained in para No. (ii) of the grounds of the writ petition it is submitted that the respondent No. 2 passed the order of imposing the penalty of withholding 2 annual grade increments with cumulative effect is based on the detailed inquiry and also based on a decision of board taken on 6.7.1999. Therefore, the same does not required to pass a detailed reasoned order. The order is based on the decision of the board and detailed reasons have been given by the board while taking a decision to imposing the penalty as aforesaid. Therefore, the order Ann. 6 is rightly passed by the respondent No. 2 in view of the decision of the board. The petitioner has not any prejudice by not only having a detailed order of imposing the penalty. The entire procedure required to be followed under the rules, 1958 is appears to be followed by the authority concerned and the petitioner has given ample opportunity to produced his defense. Therefore, it is denied that the petitioner has not given any opportunity of being heard. It is also denied that the procedure under rules 1958 was not followed either by the inquiry committee or by the disciplinary authority. It is also submitted that the order Ann. 6 itself shows that the sole decision of imposing penalty is taken on the basis of decision of the board dated 6.7.99 therefore, the order Ann. 6 is nothing but a communication order for imposing the penalty as per the decision of the board dated 6.7.99 and detailed and reasoned decision has been taken by the board vide its decision dated 6.7.99. It is therefore, not necessary to issue again a detailed and reasoned order by order Ann. 6.

A copy of the decision of the board dated 6.7.99 is being produced herewith and marked as Annexure-R/2."

Learned counsel for the petitioner drew attention of this Court to the following portion of the appellate authority''s order dated 28.7.2001 :-

He submitted that the appellate authority, whilst dismissing the appeal filed by the petitioner vide order Annex. 10, clearly accepted that the Municipal Board conducted procedural error whilst holding the petitioner guilty but thereafter, brushed aside the defect observing that as the charges were proved, therefore, the procedural lapses could be ignored. While referring to Rule 16(9) of the Rules of 1958, he submitted that the disciplinary authority has not passed a reasoned order giving finding on each charge as provided in the Rule 16(9) and thus, the order imposing penalty Annex. 6 has no sanctity of law. In support of his contentions, he relied on the following decisions rendered by the Hon''ble Supreme Court:-

(1) S.N. Mukherjee Vs. Union of India, .

(2) Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and Others, .

(3) G. Vallikumari Vs. Andhra Education Society and Others, .

He further submitted that the copy of the enquiry report was not supplied to the petitioner despite demand. As per him, as the enquiry in this case was conducted by the enquiry committee and not by the disciplinary authority, the delinquent has to be provided a copy of the enquiry officer''s report. He relied upon the following decisions of the Hon''ble Supreme Court and urged that the non-supply of the copy of enquiry report vitiates the entire disciplinary proceedings :-

(1) Union of India and others Vs. Mohd. Ramzan Khan, .

(2) Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., .

(3) Union of India (UOI) and Others Vs. R.P. Singh, .

He further urged that on going through the enquiry report Annex. R/1 and as admitted in the reply, no witness was examined by the enquiry committee while conducting the enquiry. He argued that even in case of an ex-parte enquiry, departmental witnesses have to be examined to prove the guilt of the delinquent. Failure to do so vitiates the enquiry. In support of this contention, he relied on the decision of the Hon''ble Supreme Court in the case of State of U.P. and Others Vs. Saroj Kumar Sinha, .

He further submitted that the enquiry committee''s report and the finding of guilt recorded against the petitioner are grossly bad in the eye of law as the same were passed with a total non-application of mind. He referred to the following portion of Annexure-R/2, minutes of the Municipal Board, Kanore, which has been filed along with the reply :-

Referring to the aforequoted board resolution, learned counsel contended that the decision to hold the petitioner guilty was taken on the basis of a telephonic direction received from the Director, Local Bodies, Government of Rajasthan. Thus, as per him, the finding of guilt recorded against the petitioner is not based on independent appreciation of the material available on the record by the disciplinary authority but as a matter of fact, was purely influenced by the direction given by the Director, Local Bodies and, therefore, the order imposing penalty is grossly unjust, arbitrary and illegal. He also assailed the validity of the order imposing penalty on the ground that the same was passed by the Executive Officer whereas the appointing authority of the petitioner under Section 310 of the Rajasthan Municipalities Act, is the Municipal Board. He, therefore, prayed that the writ petition deserved to be accepted and the impugned orders are liable to be quashed.

Since the case of the respondents is uncontested as the learned counsel appearing for the respondents, failed to turn up, the matter is examined in reference to the contentions raised by the learned counsel for the petitioner and the documents available on the record as well as the plea taken by the respondents in their reply.

As has been narrated above, specific ground (vi) [wrongly mentioned in the writ petition as (iv)] was raised in the writ petition that the copy of the enquiry report was not supplied to the petitioner before recording finding of guilt and imposing penalty on him. In response to the said ground, a bald denial has been offered by the respondents in their reply, wherein it is averred that the petitioner never demanded for the copy of the report prior to the passing of the order Annex. 6. It is also pleaded that no prejudice was caused to the petitioner on account of non-supply of copy of the enquiry report.

The Hon''ble Apex Court considered this controversy in the case of Managing Director, ECIL. (supra) and held that the delinquent is entitled to copy of the enquiry report before the disciplinary authority takes decision of guilt or innocence of the delinquent. Refusal or failure to provide copy of enquiry report, amounts to denial of reasonable opportunity. It was also held in the aforesaid decision that copy of enquiry report has to be furnished to the delinquent irrespective of the fact that he demands for it or not. It was conclusively held that, in any event, in order to provide right to defend, the employee has to be supplied a copy of the enquiry officer''s report.

Admittedly, in the case at hand, the enquiry was conducted by the enquiry committee formed by the Municipal Board. As such, on the principle of fair enquiry and for providing opportunity of reasonable defence to the delinquent-petitioner, he was entitled to be supplied the copy of enquiry officer''s report irrespective of the fact whether he asked for it or not. The petitioner has come out with a specific case that he demanded for the copy of the enquiry report but was not supplied the same. Thus, the whole enquiry proceedings and the order imposing penalty are vitiated because of the non-supply of the enquiry officer''s report to the petitioner.

The order Annex. 6 imposing penalty reads as below :-

The enquiry committee submitted its report Annex. R/1 to the Municipal board, Kanore. The report does not bear any date whatsoever. The order imposing penalty does not mention that the petitioner was afforded any opportunity of hearing by the Disciplinary Authority i.e. the Municipal Board before passing the order imposing penalty upon him. On the other hand, the minutes of the Municipal Board, Annex. R/2, the relevant portion whereof has been quoted supra, read that the Executive Officer informed the Board that the Director, Local Bodies had sent a telephonic instruction/direction that Harak Chand Dangi be punished and compliance report be sent, whereupon, it was decided to inflict the punishment on the petitioner.

Thus, obviously, the disciplinary authority''s order imposing penalty was not arrived at with an independent application of mind to the material available on record but was as a matter of fact, influenced by the direction given by the Director, Local Bodies to punish the delinquent. The discretion to punish the delinquent or not, lies with the disciplinary authority and if the authority''s decision is influenced by extraneous considerations, which in this case is the direction given by the Director, Local Bodies, then obviously, such decision would be liable to be struck down as being arbitrary and without application of mind. Therefore, also, the order imposing penalty upon the petitioner is grossly unreasonable, arbitrary and unsustainable in the eye of law. The order imposing penalty Annex. 6 also suffers from the vice of being in violation of the principles of natural justice in as much as, the same was passed without providing any opportunity of hearing to the petitioner.

Coming to the second ground to challenge to the order imposing penalty. It cannot be gain said that it is the settled principle of law of evidence that unless specifically provided otherwise, the burden to prove a fact is upon the person who pleads it. The statements of allegations/charges were levelled against the petitioner by the employer i.e. the Municipal Board, Kanore. Thus, in order to prove, establish and bring home the charges, it was obligatory for the employer Municipal Board to lead evidence in support of the charges during the course of enquiry, particularly, in view of the fact that the enquiry was under Section 16 of the Rules of 1958 which also lays down the mode of enquiry. It is not in dispute that no evidence was recorded by the enquiry committee before proposing an adverse report against the petitioner.

Rule 16(6) of the Rules of 1958 reads as below :-

"(6)(a) Where the Government Servant has pleaded not guilty to the charges, at the commencement of the enquiry, the Inquiring Authority shall ask the Presenting Officer appearing on behalf of the Disciplinary Authority to submit the list of witnesses and documents within 10 days, who shall also simultaneously send a copy to the Government Servant. Delinquent Officer, within ten days of the receipt of the list of prosecution witness and documents, shall submit the list of documents required by him for his defence. The Inquiring Authority shall then summon the documents of both sides and ask the parties to admit or deny them. It shall then summon such evidence as is necessary, giving opportunity to the presenting officer for examination-in-chief and also to the Government Servant or his assisting officer, whosever may be present, for cross-examination. The Presenting Officer shall be entitled to re-examine the witness on any point on which they have been cross-examined but not on any new matter, without the leave of the Inquiring Authority, after the close of the prosecution evidence the Government Servant shall be called upon to submit the list of the witnesses within 10 days which he would like to produce in his defence. The Inquiring Authority after considering the relevancy of the witnesses and the documents shall summon only the relevant witnesses and the documents and record the evidence thereof, while giving opportunity of Examination-in-Chief and cross-examination/re-examination to the parties and then close the evidence. The Inquiring Authority shall consider the relevancy of the witnesses and the documents called for by both the parties and in case of his refusal to summon any witnesses or documents, he shall record the reason in writing. The Inquiring Authority may also put such questions to the witnesses of the parties, as it thinks fit, in the interest of justice. An opportunity for hearing the arguments shall be given to the parties.

Note:-If the Government Servant applied orally or in writing for the supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule(6) (a), the Inquiring Authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the Disciplinary Authority.

(6)(a)(1). The evidence of any person which is of a formal character may be given by affidavit and may, subject to all just exception, be accepted in evidence in departmental proceedings. Where the enquiry officer thinks fir that the person should be summoned and examined personally, or if either party, namely the presenting officer or the delinquent officer insists on the personal attendance of the witness, arrangements should be made for the personal attendance of such witness.

(6)(b) The enquiring Authority may, for good and sufficient reasons to be recorded in writing, recall witnesses for examination in part-heard cases being conducted by him.

(6)(c) The Inquiring Authority shall give a notice within 10 days of the order or within such further time not exceeding 10 days as the Enquiring Authority may allow, for the discovery or production of any documents which are in the possession of Government but not mentioned in the list referred to in sub-rule (6)(a).

Note :-The Government Servant shall indicate the relevance of the documents required by him to be discovered or produced by the Government. The Inquiring Authority shall, on receipt of the notice for the discovery or production of documents, forward the same or copies thereof to the authority in whose custody or possession the documents are kept, with as requisition for the production of the document by such date as may be specified in such requisition:

Provided that the Enquiring Authority may, for reasons to be recorded by it in writing, refuse to requisite such of the documents as are in its opinion, not relevant to the case. On receipt of the requisition, every authority having the custody or possession of the requisitioned documents shall produce the same before the Inquiry Authority:

Provided that if the authority having the custody or possession of the requisitioned documents is satisfied for reasons to be recorded by it in writing that the production of all or, any of such documents would be against the public interest or security of the State, it shall inform the Inquiring Authority accordingly and the Inquiring Authority shall, on being so informed, communicate the information to the Government Servant and withdraw the requisition made by it for the production or discovery of such documents.

(6)(d) In case of joint departmental enquiry under rule 18 or in the case of enquiry under rule 16 of these rules, the Government Servant/s/fail/fails to appear without sufficient cause on the date fixed for the hearing of which he had the notice, the Inquiry Authority, may proceed with the enquiry in the absence of such Government Servant(s).

(6)(A) If it shall appear necessary before the close of the case on behalf of the Disciplinary Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not including in the list given to the Government Servant or may itself call for new evidence or re-call re-examine any witness and such case the Government Servant shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the Inquiry for three clear days before the production of such new evidence, exclusive of the days of adjournment and the day to which the inquiry is adjourned. The Inquiring Authority shall give the Government Servant an opportunity of inspecting such documents before they are taken on the record. The Inquiring Authority may also allow the Government Servant to produce new evidence, if it is of the opinion that production of such evidence is necessary in the interest of justice.

Note:-New evidence shall not be permitted or called for or, any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna or defect in the evidence which has been produces originally.

(6)(B)(a) Where a Disciplinary Authority competent to impose any of the penalties specified in clauses (i) to (iii) of Rule 14, but not competent to impose any of the penalties specified in clauses (iv) to (vii) of Rule 14, has itself inquired into or caused to be inquired into the articles of any charge and that authority, having regarding to its own findings or having regard to its decision on any of the findings of any Inquiring Authority appointed by it, is of the opinion that the penalties specified in clauses (iv) to (vii) of Rule 14 should be imposed on the Government Servant, that authority shall forward the records of the inquiry to such disciplinary authority as is competent to impose the last mentioned penalties.

(b) The Disciplinary Authority to which the records are so forwarded may act on the evidence on the record or may, if it is of the opinion that further examination of any witnesses is necessary in the interest of justice, recall the witnesses and examine, cross-examine and re-examine the witness and may impose on the Government Servant such penalty as it may deem fit in accordance with rules.

On a plain reading of the aforesaid Rule, it is evident that whenever, it is proposed to inflict a major penalty on a delinquent, recording of the evidence in support of the departmental case is mandatory and cannot be avoided in any circumstance. The appellate authority, while dismissing the appeal filed by the petitioner, observed in its order Annex. 10 dated 28.7.2001 that the procedure of holding the enquiry was not properly followed by the employer. The Hon''ble Supreme Court in the case of Saroj Kumar Sinha (supra), relied upon by the learned counsel for the petitioner, after considering Rule 7(x) of the Rules, which is analogous to Rule 16(6) of the Rules of 1958, held that when during the course of enquiry, no oral evidence was led and the documents could not be proved, the same could not be taken into consideration to bring home the charges against the delinquent. Thus, recording of evidence in an enquiry held under Rule 16 of the Rules of 1958 is mandatory. In absence of the evidence being led, it has to be assumed that the department failed to bring home the charges for lack of proof. The Hon''ble Supreme Court held in paras no. 26 and 27 of the above judgment as under :-

"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 enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry 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 enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a Judge. Enquiry 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."

Coming to the third argument advanced by the learned counsel for the petitioner that the order of the disciplinary authority is without jurisdiction because the same was issued by the Executive Officer whereas the petitioner''s appointing authority under Section 310 of the Rajasthan Municipalities Act is the Municipal Board. Suffice is to say that the minutes, Annex. R/2, of the Municipal Board, Kanore, which have been placed on record along with the reply, clearly show that the decision to impose penalty was taken by the Municipal Board itself. The order Annex. 6 imposing penalty was simply a communication issued by the Executive Officer on behalf of the Municipal Board and nothing beyond that. The order itself reads that the Municipal Board considered the report of the enquiry committee and thereafter, took a decision to impose penalty on the petitioner. Thus, it is evident that the argument that the order imposing penalty was passed by the Executive Officer and not Municipal Board, is not tenable.

From the above discussion, it is evident that the whole enquiry proceedings conducted against the petitioner are grossly illegal and violative of principles of fair trial/enquiry and were conducted in total disregard of the mandatory procedure of the enquiry provided in Rule 16 of the Rules of 1958. Furthermore, the decision taken by the disciplinary authority to punish the petitioner vide order Annex. 6 was not an independent decision taken by the employer Municipal Board after an independent and unbiased consideration of the material available on the record. The decision was clearly influenced and biased by the direction received from the Director, Local Bodies. Thus, the order imposing penalty is totally illegal, unreasonable, arbitrary and contrary to the principles of natural justice and cannot be sustained. The order imposing penalty is also vitiated and liable to be quashed as neither any evidence was led by the department to bring home the charges nor the copy of the enquiry report was supplied to the delinquent. The order imposing penalty Annex. 6 is also unsustainable in the eye of law as the same was passed in total disregard to the rule of audi alteram partem i.e. after providing any opportunity of hearing to the petitioner. Furthermore, looking to the fact that the decision to impose penalty was taken acting on the directions issued by the Director, the decision of the petitioner''s appeal by the Deputy Director vide order Annex. 10 is also farcical because the authority, who decided the appeal preferred by the petitioner, was the Deputy Director who is obviously lower in rank to the Director, on whose mandate the decision to impose penalty was taken.

In view of the above discussion, the instant writ petition deserves acceptance and is hereby allowed. The orders dated 9.8.1999 (Annex. 6) and 28.7.2001 (Annex. 10) passed by the disciplinary authority and the appellate authority are hereby quashed. The petitioner shall be entitled to all the consequential benefits flowing from the quashment of the order imposing penalty.

No order as to costs.