Heera Bharti vs State of Rajasthan and Others

Rajesh Balia, J.—Brief fact which led to filing of the aforesaid writ petition are as under:

While the petitioner was posted as Patwari, Sankarna, he was placed under suspension vide order dated 8/2/1973. Thereafter, petitioner was served with a memorandum of charge sheet Annex. 2 alongwith details of charges Annex. 3, Sub Divisional Officer, Jalore was appointed Enquiry Officer by the Collector (Revenue) Jalore, who was Disciplinary Authority vide his order dated 17.9.73. After Enquiry Officer submitted his report to the Disciplinary Authority, the petitioner was served with a show cause notice against proposed penalty of dismissal. Petitioner submitted a detailed reply Annex. 8 and also demanded personal heating. The Disciplinary Authority who was Collector (Revenue), Jalore, respondent No. 3, passed the orders Ex. 9 & 10 dated 20th April 1976 imposing penalty of dismissal. Aggrieved with the order of dismissal, petitioner preferred an appeal before the Board of Revenue, Rajasthan, Ajmer which too, was dismissed vide order dated 24/4/78 Annex. 12. The petitioner also preferred a second appeal before the State Government Annex. 12 and that was dismissed on the ground that since amendment in Rule 23(4) of the Rajasthan Civil Services (C.C.& A) Rules, 1958 with effect from 9/10/1974, the second appeal is not maintainable. Hence the above petition.

Learned Counsel for the petitioner contended that the Disciplinary Authority being different from the Enquiry Officer, the Disciplinary Authority ought to have recorded his own conclusions on each charge of misconduct levelled against the petitioner and his conclusion about the guilt or otherwise of petitioner in respect of any charge, should have been supported by reasons by a perusal of the impugned orders Ex. 9 & 10 clearly shows that it is not at all a speaking order. It is submitted by Mr. Mridul that the orders passed by the Disciplinary Authority imposing penalty is a quasi judicial order in nature and the order must inform of the reasons on which it is based but the perusal of the order shows that the order does not conform to the fundamental norm of a quasi judicial nature so as to be called as a speaking one. The Disciplinary Authority is under an obligation to examine objectively the submissions contained in the representation made against show cause notice about proposed punishment. But in the present case, the Disciplinary Authority has not even referred to various submissions contained in the reply submitted by the petitioner which shows that the Collector has not considered the said reply of the petitioner and the order has been passed without application of mind. Learned Counsel places reliances in this respect on two decisions of this Court in Umaid Charitable Trust Vs. Commissioner of Income Tax, and 546 respectively.

Mr. Mridul reiterated the objections raised in the written submissions and contended that the guilt of the petitioner in respect of each charge has not at all been satisfactorily proved. Counsel further contended that the order of his punishment is far too disproportionate to the guilt established. In this connection counsel pointed out that all the charges levelled against the petitioner and ultimately found to have been proved by the Enquiry Officer only establish that the petitioner has been negligent in maintaining records. So much so that all the charge relate to incompleteness of record supposed to be maintained by the petitioner but no motive or mala fide has been found to have been established against the petitioner for such incomplete maintenance of records. On the contrary, in most of the cases, Enquiry Officer himself has found the lapse to be only of trivial nature, and merely amounting to irregularity and not illegality. In this respect, reliance has been placed on the decisions of lordships of the Supreme Court rendered in Bhagat Ram Vs. State of Himachal Pradesh and Others, and Ranjit Thakur Vs. Union of India (UOI) and Others,

In respect of the appellate order dismissing appeal Ex. 12, counsel submitted that the same being also passed in a mechanical manner without disclosing any reasons, suffers from the same vice from which the original order suffers and he further contended that the order does not conform to the norms required to be adhered to by the Appellate Authority under the Rajasthan Civil Services (C.C. & A) Rules, 1958 and, therefore, the said order-cannot be allowed to stand. Mr. Mridul places reliance in this connection on a decision of their lordships of the Supreme Court in Ram Chander Vs. Union of India (UOI) and Others,

Lastly, learned Counsel submitted that petitioner was served with charge sheet dated 8th Feb. 1973 and the Departmental Enquiry was instituted against the petitioner prior to 1974, the date of which Rule 23(4) of the Rajasthan Civil Services (C.C. & A) Rules, 1958 was amended, hence State Government has committed an apparent error in denying the petitioner the right of second appeal. The right of second appeal is vested in the petitioner as per the existing rules on the date when the enquiry was instituted and the amendment being not of retrospective effect, the vested right of second appeal could not have been taken away so as to deny the petitioner a consideration of his second appeal on merits by the State Government.

Learned Deputy Government Advocate refuted all the contentions of learned Counsel for the petitioner. He contended that the impugned order Ex. 9 was an order of confirmation of the findings given by the Enquiry Officer and, therefore, the fact that the order is not reasoned one, will not affect its validity. Learned Dy. Government Advocate also supported the order of the Appellate Authority and further contended that since on the date when the petitioner filed his second appeal, amendment of Rule 23(4) has already taken place second appeal was not maintainable and has rightly been dismissed on the same ground.

I have considered the rival submissions made before me and perused the record.

The principle that all quasi judicial orders must be reasoned one showing the application of mind by the Authority passing the order so that effective remedy can be availed by the person against whom the order has been passed, is too well established to require any elaboration. It also cannot be disputed that the order imposing punishment on the Government servant is quasi judicial in nature and must conform to above norm. It is trite law that where the Disciplinary Authority is not an Enquiring Authority, a copy of enquiry report has to be submitted to the Delinquent (Government employee) enabling him to make an effective representation against any findings recorded against him by the Enquiry Officer before the Disciplinary Authority to reach his own conclusion. This obligation which conforms to the bare minimum principle of natural justice has been held to be applicable by the Hon''ble Supreme Court even in cases where rules do not specifically require such course to be adopted. While after the amendment of Article 311 by forty second amendment, it is not required that a second show cause notice before imposing any penalty is required to be issued yet the aforesaid salutary safeguard has been held to be applicable by their lordships of the Supreme Court in respect of disciplinary proceedings conducted after the said amendment. In this connection, reference may be made to a decision of their lordships of the Supreme Court in Union of India and others Vs. Mohd. Ramzan Khan, wherein their lordships of the Supreme Court observed as under:

Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Inquiry Officer holding that the charges or some of the charge are established and holding the delinquent guilty of such charges.

Present is a case which had arisen before the amendment of Article 311 vide 42nd Constitutional Amendment and as required under the provisions of Chapter 11, the notice to show cause against proposed penalty was served on the petitioner. The Disciplinary Authority is under an obligation to consider the representation against the proposed punishment objectively. Term ''consider'' has within its ambit an examination of the circumstance with objectively rather than a mere subjective conclusion and that any objective consideration necessarily implies the examination of two sides. An objective examination of the submissions would imply that the Disciplinary Authority must record its reasons for the said submissions. The aforesaid principle finds ample support from the two decisions of this Court in Phool Chand''s and Hari Narain''s case (supra).

In Phool Chand''s case, this Court observed as under:

In my opinion the interpretation placed by this Court on the word "consider" in Kuldeep Singh''s case (supra) can equally be applied to the said word contained in Rule 16(10)(ii)(b) of the Rules. This would mean that the aforesaid provisions impose on the Disciplinary Authority a duty to make an objective examination of the submissions contained in the representation submitted by the Government servant in reply to the show cause notice. An objective examination of the submissions would imply that the Disciplinary Authority must record its reasons for rejecting the said submission. In other words Rule 16(10)(ii)(b) of the Rules postulates that the Disciplinary Authority must record its reasons for rejecting the submissions made by a Government servant in his representation. In the present case, the reply submitted by the petitioner to the show cause notice served on him, shows that the petitioner had raised various objections with regard to the conduct of the Enquiry Officer.... The order dated September 23, 1977, passed by the Disciplinary Authority does not show that the various submissions contained in the representation have been given due consideration by the Disciplinary Authority. In the circumstance, it must be held that the Disciplinary Authority has failed to consider the representation submitted by the petitioner in reply to the show cause notice and the order dated September 23, 1977 was passed by the Collector, Jalore in contravention of the provisions of Rule 16(10)(ii)(b) of the Rules.

In Hari Narain ''s case also, this Court observed as under:

The bare perusal of the orders Exhibits-31 and 33 makes it abundantly clear that both the orders do not assign any reasons whatsoever. Exhibit 31 does not speak as to what ground were urged by the petitioner in his reply to the show cause notice and how these grounds have been dealt with?

Similarly the appellate order also does not disclose how and in what manner the grounds raised in appeal were considered by the Appellate Authority. It was the duty of the Disciplinary Authority as well as the Appellate Authority to have considered those grounds and recorded their findings on those grounds and recorded a reasoned order but they have failed to do so.

In all quasi judicial orders, the orders should be reasoned one showing the application of mind by the authority passing the order so that effective remedy can be availed by the person against whom the order has been passed. As considered above, both the orders do not satisfy this requirement.

Even when the petitioner absented from the proceedings before the Enquiry Officer, still, when he had submitted reply to the show cause notice and submitted memorandum of appeal against the order of removal, it was obligatory for the Disciplinary Authority as well as for the Appellate Authority to have passed reasoned orders.

Although there is only legal technical flaw in the two orders but they are quite apparent and obvious, so they have to be quashed.

Examining Ex. 9 & consequential order Ex. 10 on the anvil of the aforesaid principles, I find that bare perusal of the order Ex. 9 makes it abundantly clear that the order does not conform to the norms of speaking order. Ex. 9 while dealing-with the petitioner''s objections and arriving at Disciplinary Authorities conclusion, reads as under:

Jh Hkkjrh us mDr dkj.k crkvks uksfVl dk izR;qRrj fnukad 15-4-75 dks fn;k A rFkk iVokjh }kjk O;fDrxr lquokbZ dh ekax dh xbZ ftl ij Jh ghjk Hkkjrh dks fnukad 7-1-76 dks O;fDrxr lquokbZ dk volj fn;k x;k A ijUrq mlus viuh lPpkbZ es dqN ugh dgkA

gekjs ewy dkxtkr] iVokjh }kjk izLrqr izR;qRrj] tkap fjiksZV ,oa vU; lacf/kr jsdkM+Z dk voyksdu fd;k iVokjh }kjk izR;qRrj drbZ larks"kizn ugh gqvk] u mlus Loa; dh lquok;h ds le; gh ,sls dksbZ rF; izLrqr fd;s ftles mlds fo:) yxk;s x;s vkjksi izekf.kr u gks lds A

Ex. 9 does not speak as to what grounds were urged in reply to show cause notice and how these grounds were not sustainable. On the contrary, it discloses that the Disciplinary Authority was probably under an impression that it is for the petitioner to have proved that charges of misconduct levelled against him are not established. This casual approach of dealing with representation made by the petitioner against show cause notice proposing the grave penalty of dismissal shows total non application of mind by the Disciplinary Authority to various contentions raised in the representation by the petitioner. In these circumstances, it must be held that the Disciplinary Authority has failed to consider the representation made by the petitioner in reply to show cause notice and the order dated 20th April, 1976 passed by the Collector, Jalore was in breach of the principles of natural justice being a non speaking order. Ex. 10 is the office order which has been issued in pursuance of Ex. 9.

Even the appellate order does not disclose as to how and in what manner, the grounds raised by the petitioner were considered by the Appellate Authority. It was the duty of the Appellate Authority to have considered the grounds raised by the appellant and recorded his findings on those grounds and recorded a reasoned order but they have failed to do so. In this connection, it will be profitable to reproduce Rule 30 of the Rajasthan Civil Services (C.C. & A) Rules, 1958 which governs the consideration of appeals by the Appellate Authority:

Consideration of appeals-(1)....

(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 14, the appellate authority shall consider:

(a) whether the procedure prescribed in these rules has been complied-with and if not, whether such non-compliance has resulted in violation of any provisions of Constitution or in failure of justice;

(b) whether the facts on which the order was passed have been established.

(c) whether the facts established afford sufficient justification for making an order; and

(d) whether the penalty imposed is excessive, adequate or inadequate:

(and after giving a personal hearing to Government Servant to explain his case, if he desires so.

Provisions of Rule 30(2) in express terms require the Appellate Authority to record it findings on the aspects stated therein. Rule 30 provides that in the case of appeal against as order imposing any of the penalties specified in Rule 14, the Appellate Authority ''shall consider'' as to the matters indicated therein. The word ''consider'' used in the context of Rule 32 means an objective consideration by the Appellate Authority after due application of mind which implies the giving of reasons for its decision. While implies the giving of reasons for its decision. While examining the scheme of Rule 27(2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 which is in pari materia with the Rule 30 of the Raj. Civil Services (C.C. & A) Rules, the Hon''ble Supreme Court in R.P. Bhatt v. Union of India reported in 19S6 Lab IC 790, observed as under:

It is clear upon the terms of Rule 27(2) that the appellate authority is required to consider (1) whether the procedure laid down in the rules had been complied-with; and if not, whether such non-compliance has resulted in violation of any of the provisions of the Constitution of India or in the failure of justice;(2) whether the findings of the Disciplinary Authority are warranted by the evidence on record, and (3) whether the penalty imposed is adequate, inedequate or severe and pass orders confirming, enhancing, reducing or setting aside the penalty, or remit back the case to the authority which imposed or enhanced the penalty, etc.

The same view was reiterated by their lordships of the Supreme Court again in Ram Chander Vs. Union of India (UOI) and Others, . The Hon''ble Supreme Court emphasized that the Appellate Authority discharging quasi judicial functions in accordance with natural justice must give reasons for its decision. In the case at hand, there is no indication in the impugned order that the Appellate Authority was satisfied as to the aforesaid requirements of Rule 30. The Appellate Authority had not recorded any finding on the crucial question as to whether the findings recorded by the Enquiry Officer and affirmed by the Disciplinary Authority were warranted and whether penalty imposed was justified. The order passed by the Appellate Authority is mechanical reproduction of the provisions of Rule 30(2). Applying the principles enunciated hereinabove, that order also is not sustainable.

As a result of the aforesaid discussion, orders Ex. 9 and 10 dated 20.4.1976 and Ex. 12 dated 24.4.1978 respectively are not sustainable and are hereby quashed.

In the aforesaid circumstances, I do not propose to examine the last submission made by the counsel for the petitioner regarding maintainability of the second appeal.

The question which now arises as to what relief should be given in this petition. Ordinarily where the order holding a departmental enquiry has been shown to have been made without application of mind by a non speaking order violating the principles of natural justice, the order is vitiated and such order is quashed by issuance of a writ of certiorari. It is also well settled that in such situation, it is open to the Disciplinary Authority to decide all the objections raised by the delinquent afresh. But looking to the fact that there is no finding of mala fide dereliction of duty in maintaining incomplete record against the petitioner even by the Enquiry Officer and there has been minor infractions of duty and it has not been found that the Government has suffered any loss, I am of the opinion that it would not be fair to this low paid Government servant to face the hazard of a fresh enquiry at this distance of time when merely a couple of years remains before his retirement. It is equally true that the penalty must commensurate with the gravity of the misconduct and that any penalty disproportionate to the misconduct would be violative of the Article 14 of the Constitution. Having been influenced by these considerations. I am of the Opinion that no useful purpose would be served by allowing fresh innings of enquiry. Justice and fair play demands that without being unduly technical, this court should make an appropriate order by taking into consideration the entire material on record. I am fortified in my this view on principle enunciated in Bhagat Ram''s case (supra) which runs as under:

The question is once we quash the order, is it open to us to give any direction which would not permit a fresh inquiry to be held? After all what is the purpose of holding a fresh inquiry? Obviously, it must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution. Having been influenced by all these relevant consideration, we are of the opinion that no useful purpose would be served by a fresh inquiry. What option is open to us in exercise of our jurisdiction under Article 136 to make an appropriate order. We believe that justice and fair play demand that we make an order of minor penalty here and now without being unduly technical apart jurisdiction, we are fortified in this view by the decision of this Court in Hindustan Steels Ltd., Rourkela Vs. A.K. Roy and Others, where this Court after quashing the order of reinstatement proceeded to examine whether the party should be left to pursue further remedy. Other alternative was to remand the matter that being a case of an industrial dispute to the Tribunal, It is possible that on such a remand this Court further observed, that the Tribunal may pass an appropriate order but that would mean prolonging the dispute which would hardly be fair or conducive to the interest of the parties. This Court In such circumstances proceeded to make an appropriate order by awarding compensation. We may adopt the same approach.

Keeping in view the nature of misconduct, gravity of charge and there being no finding of consequential loss having been caused to the Government or to other parties, in my opinion, a penalty of withholding three increments with cumulative effect meets the ends of justice. Accordingly, this petition is allowed and the orders Ex. 9 and 10 dismissing the petitioner from service are quashed. Consequently, the appellate order Ex. 12 dated 24.4.1978 and Ex. 14 dated 28.11.78 are also quashed. The petitioner is reinstated in service. Penalty of withholding three increments with cumulative effect is imposed. He will be paid fifty percent of emoluments from the date of termination to the date of reinstatement. The period between the date of termination and reinstatement of service for other purposes will be treated as on duty. The order reinstating the petitioner in service be carried out within one month from today and arrears be paid within three months thereafter. There will be no order as to costs.