Khursheed Ahmed vs State of Rajasthan and Another

Mohammad Rafiq, J.—This writ petition has been filed by the petitioner assailing the order dated 28/1/1997 by which he was removed from service and also the order dated 1/7/1997 by which his appeal filed thereagainst was dismissed with the prayer to direct the respondents to grant him Selection Scale after he has completed 9, 18 and 27 years of service, as the case may be.

Dr. Mahesh Sharma, learned Counsel for the petitioner has argued that petitioner in this matter was served with the charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, "CCA Rules") on 5/8/1991 containing three charges and even before the petitioner could file reply to the charge-sheet, District Collector proceeded to appoint enquiry officer vide order dated 21/10/1991. Enquiry officer submitted its report. There were three charges against the petitioner. Charge No. 1 was to the effect that he while issuing certified copy of Jamabandi to one Shri Sunder Singh received the copying charges from him and yet did not deposit the same in the Treasury. Charge No. 2 was to the effect that he received a sum of Rs. 1,250/- from said Shri Sunder Singh without the authority of law and did not pass on any receipt to him which fact he has admitted in his statement dated 21/8/1991. Charge No. 3 was to the effect that he further demanded Rs. 800/- from said Shri Sunder Singh for giving him patta which was serious misconduct.

Learned Counsel for petitioner has further argued that petitioner produced two witnesses before the enquiry officer namely; Deen Mohammad and Kamruddin. Deen Mohammad in his statement has clearly stated that Sunder Singh possibly took away the copy of Jamabandi before it was entered in the concerned register and Kamruddin stated that petitioner prepared the certified copy of the Jamabandi only when Sunder Singh requested for the same but he took away the copy without even before it was entered in the register. Those statements were not believed by the enquiry officer, who entirely based his report on the basis of preliminary enquiry report prepared by the District Collector and on statements of petitioner and that of complainant Shri Sunder Singh recorded by the District Collector himself on 21/8/1991. It was argued that a strange procedure was adopted by the disciplinary authority that he himself recorded the statements of the complainant and the delinquent. The delinquent was not given any opportunity to cross-examine the complainant. Disciplinary authority prepared the preliminary enquiry report but he did not supply copy thereof to the petitioner-delinquent and then he appointed a subordinate officer to him to hold the regular enquiry under Rule 16 of the CCA Rules. This procedure which has been adopted by the disciplinary authority namely; District Collector was totally uncalled for and rather unheard of. In normal course, if the disciplinary authority decides himself to hold enquiry for which the law permits as is evident from Rule 16 of the CCA Rules, he should have then proceeded to serve charge-sheet upon the delinquent and then require him to file reply and thereafter statements of the departmental-witnesses should have been recorded but no such course has been adopted in the case of petitioner-delinquent. He was neither given opportunity to cross examine the departmental- witnesses nor to produce his own witnesses. In the present case however, disciplinary authority recorded statements of delinquent and that of the complainant and then proceeded to appoint the Assistant Collector Alwar, a subordinate officer to him as enquiry officer. The enquiry officer has totally based his report on the basis of the preliminary enquiry report of the disciplinary authority and forwarded the same to the disciplinary authority because he was even otherwise bound to follow his line being his subordinate. Even though statements of 14 witnesses were recorded but not a single witness has been produced to prove those documents inasmuch as, no witness even of the complainant was produced before the enquiry officer to support the charges. The statements recorded in the preliminary enquiry could not have been relied on by the enquiry officer, muchless, certified copy whereof was not supplied to the petitioner nor he was allowed to cross-examine those witnesses. Petitioner was subjected to this course / procedure adopted by the enquiry officer when he filed reply to the notice served upon him by the disciplinary authority / District Collector on 20/9/1996 proposing the penalty of removal. In his case, petitioner categorically raised the plea that provisions contained in Rule 16(7), (8) and (9) prescribing procedure for holding departmental enquiry has not at all been adhered to. The appellate authority also failed to consider all these arguments. The penalty of removal was awarded to the petitioner in an absolutely illegal departmental proceedings at a stage when he already completed 58 years of service and was left with only four years before his retirement. Appellate authority has while deciding the appeal merely completed the ritual of _________ without considering any of the provisions contained in Rule 30 of the CCA Rules. It is also prayed that petitioner was entitled to benefit of Selection Scale on completion of 9, 18 and 27 years of service which was not awarded to him. It is therefore prayed that writ petition be allowed, impugned-order be set-aside and petitioner be held entitled for reinstatement in service with all consequential benefits and also benefit of Selection Scale.

Per contra, Shri S.D. Khaspuria, learned Additional Government Counsel opposed the writ petition and submitted that the objection which the petitioner is raising ought to have been raised before the enquiry officer/disciplinary authority. In fact, petitioner in his statement before the disciplinary authority admitted his guilt and therefore non giving copy of the preliminary enquiry report and liberty to cross- examine two witnesses cannot be said to have caused any prejudice to him more particularly when he did not raise such objection before the disciplinary authority when those statements were being recorded even before the enquiry officer thereafter. Many of the arguments were also not before the appellate authority. Petitioner did not deposit the copying fees with the Treasury despite having received the same from the complainant and he also unauthorizedly charged Rs. 1250/- for preparing patta and thereafter received additional amount of Rs. 800/- in an illegal manner. All the three charges were therefore rightly held proved. Impugned orders do not call for any interference. Writ petition be dismissed.

It is indeed a strange matter where disciplinary authority / enquiry officer whileconducting the departmental enquiry against the petitioner have thrown the procedure contained in Rule 16 of the CCA Rules through the window. Detailed procedure that is prescribed in Rule 16 for holding departmental proceedings has been given complete go-bye. What is surprising is that the disciplinary authority himself recorded the statements of the complainant and one more witness apart from recording the statement of the delinquent and even if those statements are accepted for the purpose of holding such proceedings before preliminary enquiry, then also, sending the matter to the Assistant Collector was absolutely uncalled for and illegal because in that case, that would have definitely and gravely prejudiced case of the delinquent as Assistant Collector being subordinate to the District Collector was bound to line of action settled by him. It would have been proper if the District Collector entrusted the preliminary enquiry to some other officer and then would have appointed Assistant Collector as the enquiry officer. Moreover, neither copy of the preliminary enquiry report nor copies of three of the statements of complainant Sunder Singh, Sher Singh and the petitioner himself was supplied to the petitioner and those statements have been fully relied on by the enquiry officer in preparing the enquiry report in the present matter. Even the petitioner was not given liberty to cross-examine those two witnesses. Not a single witness was produced before the enquiry officer by the department to prove any of the three charges, not even the complainant Sunder Singh. The petitioner was served with the notice of penalty along with copy of the enquiry report and at that stage he specifically raised objection with regard to Rule 16(7), (8) and (9). None of these arguments were considered by the disciplinary authority while awarding penalty of removal. It is not necessary for the delinquent to meticulously raise every single argument with reference to relevant rules and even if some of the objections are raised weakly giving reference of rules then also, disciplinary authority or in that matter appellate authority are not absolved of their duty to adhere to the rules or to ensure compliance of the rules or procedure. They are not to be reminded by the delinquent that while proceeding in the departmental enquiry they are under obligation to follow the procedure and rule and that howsoever grave charges against the delinquent, no order of penalty muchless major penalty of removal depriving a person of his right to livelihood can be awarded without the adherence to the procedure contained in the rules.

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Additionally, in that case, petitioner has asserted that he was entitled to be granted benefit of Selection Scale on completion of 9, 18 and 27 years of service which plea has not been specifically decided by the respondents nor they have denied plea set up by the petitioner in ground (c). Respondents have no reason why the petitioner was not entitled for benefit of Selection Scale if he was appointed as Patwari and continued to remain on the post of Patwari throughout his service; he was thus definitely entitled for the benefit of Selection Scale because vise of which benefit was granted to the members of the subordinate service that if they are not able to get one promotion in span of 9 years, he was atleast entitled for one benefit of selection scale, he would be entitled to. Disciplinary authority has thus committed violation of principles of natural justice and fairplay.

In view of above, writ petition is allowed. Impugned charge-sheet dated 20/10/1991 (Ann.1), impugned-order of penalty of removal 28/1/1997 (Ann.5) and impugned order of dismissing appeal dated 1/7/1997 (Ann.6) are quashed and set-aside. Petitioner is held entitled to reinstatement with all consequential benefits. Petitioner if he is not being paid benefit of Selection Scale, he is entitled to such Selection Scale on completion of 9, 18 and 27 years of service. It is further clarified that if any benefit of Selection Scale has already been granted to the petitioner then, he would be entitled to only remaining Selection Scale. Petitioner is also entitled for the interest @6% per annum.

Compliance of the judgment shall be made within a period of three months from the date certified copy thereof is submitted before the respondents.