Madan Lal vs The State of Rajasthan and Another

Rajesh Balia, J.—The petitioner while he was employed as Lower Division Clerk in the office of Officer Commanding, 1 Rajasthan Naval Unit N.C.C., Udaipur was served with a memorandum dated 21st May, 1975 along with charge, sheet and statement of allegations for holding an inquiry under Rule 16 of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ''the C.C.A Rules''). The parties are not at dispute that in the first instance, the inquiry report was submitted by the Board of Inquiry constituted for the purpose, exonerating the petitioner for all the charges. The petitioner was communicated vide order dated 8th November, 1975 that a Board of Inquiry consisting of Captain V.S. Bains, Mr. J.J. Kumar-MCPO-I1 and Mr. D.C. Ganchha--L.D.C., has been constituted for holding an inquiry against him. The date and time was to be notified by the Presiding Officer of the Board, who was stated to be Captain V.S. Bains. The order is Ex. 14 on record. Vide yet another V communication dated 14th November, 1975 (Ex. 15), the petitioner was informed that the said Board of Inquiry will hold a "fresh inquiry ", on the findings of the Inquiry Officer of the Disciplinary proceedings held against him on 30th July and 31st July, 1975. The petitioner raised an objection to the holding of fresh inquiry, vide application Annex. 17 dated 17th November, 1975 and invited the attention of the respondents that after once holding an inquiry the proceedings should be finalised only under Rule 16(9) of the C.C.A. Rules. The petitioner was informed vide letter dated 17th November, 1975 that Rule 16(9) of the CCA. Rules permits holding of fresh inquiry and, therefore, he is required to present himself for fresh inquiry. The letter dated 17th November, 1975 is Annex. 18 on record. The petitioner also raised an objection as to the constitution of the Board of Inquiry, which included name of Shri D.C. Ganchha--L.D.C on the ground that he is a person junior to him in service and he cannot be subjected to face an inquiry by a person junior to him, to which he was replied that Mr. D.C. Gunchha will only act as a "writer" and not as "member" of the Board, vide Annex. 20 dated 19th November, 1975. The Presiding Officer of the Board of Inquiry then intimated to the petitioner that Board is going to inquire into the additional charges, to which the petitioner replied that since competent authority to impose charges has not informed the petitioner about the additional charges and appointing Shri (Capt.) V.S. Bains as Inquiry Officer for going into additional charges, he cannot be called upon by him to subject himself (petitioner) to the inquiry in respect of additional charges and unless he receives orders from the. competent authority, he will not participate in the inquiry in respect of additional charges. No further information was given to the petitioner. However, thereafter he was served with a show cause notice dated 19lh December, 1975 by which the petitioner was informed that the record of inquiry has been submitted to the Disciplinary Authority and after careful consideration of the same, the Governor has decided that the petitioner should be dismissed from service. Alongwith the notice Annex. 25 dated 19th December, 1975, the petitioner was served with copies of proceedings of the inquiry as well as findings of the Board of Inquiry. From that report, the petitioner came to know for the first time that since 20th November, 1975 one Shri Assumal Sanwalani had been participating in proceedings as Member of the Board of Inquiry. No order of appointing Mr. Sanwalani as member of the Board was ever communicated to the. petitioner.

The petitioner made a representation against the show cause notice Annex. 25. Vide order dated 21st January, 1976 (Annex. 28), the Disciplinary Authority ordered imposing punishment of removal from service against the petitioner. The order of removal was followed by an office order dated 3rd February, 1976 (Annex. 29). Vide order Annex. 29 it was also stated that the petitioner was allowed subsistence allowance and, from 4th November, 1975 till 20th January, 1976, the. pay and allowances other than subsistence allowance shall be forfeited.

The petitioner preferred an appeal against the order of removal, on 11/17th March, 1976. The appeal was not decided for considerable period and the petitioner had to give a notice u/s 80 C.P.C. for getting his appeal decided. After service of notice u/s 80 C.P.C. the petitioner was informed vide letter dated 2nd January, 1978 that his appeal has been rejected by the Director, N.C.C. (Rajasthan), Jaipur, which is placed on record as Annex. 35. The petitioner made a Second Appeal in the first instance vide Annex. 36, on being informed that no Second Appeal lay, he filed a Review Petition, copy whereof has been placed on record as Annex. 37. The petitioner''s Review Petition was decided vide order dated 13th March, 1981 (Annex. 39). The Review Petition was partly allowed by ordering that penalty of removal from service on the petitioner imposed vide order No. 314/A/NCC dated 21st January, 1976 by the Commanding Officer, No. 1 Raj. N.C.C. is reduced to withholding of three grade increments with cumulative effect and accordingly he was reinstated with effect from the date of rejoining. It was further held that the petitioner will not be paid any salary from the date of removal from service to the date he rejoins. The period was treated as "dies-none".

The petitioner has challenged the order of his removal dated 21st January, 1976 (Annex. 28), the order of Appellate Authority communicated to the petitioner vide Annex. 35 dated 2nd January, 1978 and the final order passed on Review Annex. 39 dated 13th March, 1981. It may be noticed that while the petitioner in the prayer clause has not specifically made a prayer for quashing the order of punishment altogether, however, he has in grounds of his petition challenged the very validity of the inquiry and raised grounds against the validity of inquiry and holding him guilty on the basis of an inquiry which, according to the petitioner was not competent. In these circumstances, the petitioner, during the course of arguments, was permitted to raise and rely on all those grounds, which are taken in the writ petition against the proceedings of inquiry.

It is not in dispute, as is apparent from Annex. 39, that the earlier inquiry has resulted in full exoneration. The first inquiry report before initiation of fresh inquiry has exonerated the petitioner fully. It is true that findings of the earlier report was not supplied to the petitioner and he was not aware of the same. Lately, the impugned order Anntex. 39 was communicated to him that he was fully exonerated from the charges levelled against him as per the earlier inquiry report. But the fact remains that, as soon as the petitioner was informed that a (resh inquiry into the findings of the earlier inquiry is being conducted by a Board of Inquiry, he raised an objection that the proceedings should be finalized under Rule 16(9) of the CCA. Rules and there is no power with the authorities for holding of inquiry de novo. This position was not also disputed that power to hold inquiry de novo is in Rule 16(9) of the CCA. Rules as is apparent from Annex. 18 itself. Rule 16(9), which would be relevant to quote here, reads as under:

16(9). The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge.

The Disciplinary Authority may while considering the report of the Inquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/de novo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other.

The proviso to Sub-rule (9) of Rule 16 added vide notification dated 11th March, 1966, enjoins a duty on the Disciplinary Authority before he exercises power to order further or de novo inquiry, to record his reasons in writing for remanding the case if he has reasons to believe that inquiry conducted has been laconic in some respect or the other.

The petitioner has specifically averred in his petition that no reasons have been recorded by the Disciplinary Authority and there is nothing to show that the Disciplinary Authority has reasons to believe that inquiry already conducted was laconic in some respect or the other, in Ground II/C of the petition. These averments have not been challenged in the reply on behalf of the respondents, nor any record has been placed before me to show that any reasons were recorded in respect of the laconic nature of the inquiry, for ordering de novo inquiry into charges on which the earlier inquiry report already exonerated the petitioner. The recording of reasons required by Rule 16(9) is salutary safeguard against the arbitrary action in holding successive inquiries against delinquent officer. It is true guard against the efforts of authorities concerned to secure the desired result from the inquiry by ordering successive de novo inquiries on whim or caprice. Proviso to Sub-rule (9) of Rule 16 added enjoining a duty to record the reasons in writing for their belief that inquiry held earlier is defective or laconic in some way before new inquiry could be ordered into the same charges. This-salutary safeguard cannot be discarded likely or taken it to be directly. Even if it can be argued that reasons need not be communicated, it is implicit the provisions that the reasons must be registered on record and when existence of such reasons for holding inquiry de novo is challenged before a competent court then the reasons must be placed before the Court. Whether reasons at all existed or whether the reasons recorded have rationale nexus to the purpose for which the inquiry is to be re-conducted, are the questions which are open for the Court while exercising power of judicial review. Adequacy and sufficiency of the reasons may not be open to scrutiny but to the limited extent of showing their existence and relevancy at all, when the existence of such reasons are in challenge the reasons must be placed before the Court. There is nothing on record to suggest that reasons were at all recorded by the Disciplinary Authority before ordering enquiry de novo. This has resulted in breach of mandatory requirements of Rules.

On this finding alone, the petition deserves to be allowed.

It may also be observed that from the undisputed facts, it is apparent that no order was passed for re-constituting the Board of Inquiry, which was constituted by order dated 8th November, 1975 (Ex. 14). The objection of the petitioner as to the inclusion of a person junior to him in the constitution of the Board was tacitly accepted when he was informed that said Shri D.C. Gunchha will act only as a writer and not as member of the Board. Yet it defies the logic that how and in what manner without an appropriate order while re-constituting the Board, without the same being communicated to the petitioner, a third person, namely, Assumal Sanwalani was allowed to participate in the inquiry as member of the Board from 20th November, 1975 in continuance of an inquiry which was being conducted by the Board of Inquiry as constituted vide Annex. 14. The cryptic reply which is given in the return that since Shri Assumal Sanwalani was person senior to the petitioner, he could not have any objection to his being allowed to participate in the inquiry proceedings. Suffice it to say, no person has any right to conduct an inquiry into affairs of others unless he is duly authorised in that regard by law or by an authority competent to confer such power. In the absence of any order, placed on record, and communicated to the petitioner, the inquiry stands vitiated on this ground also that a person not duly authorised had participated in the proceedings of inquiry as member of the Board of Inquiry.

Apart from above, from the findings recorded by the Reviewing Authority, the quantum of punishment which have come to be imposed on the petitioner per se appears to be grossly out of proportion to the guilt proved. The punishment which has come to be imposed on the petitioner as a result of Annex. 39 is not merely stoppage of three grade increments with cumulative effect but total loss of service for more than 5 years, for the trivial nature of misconduct held out to be proved against him. Denying the emoluments of the period during suspension except subsistence allowance and loss of 5 years service not only of emoluments but including continuity, affecting pension and seniority in addition to apparent punishment imposed make a cumulative effect, which rocks any body''s conscience.

In view of my aforesaid findings, I allow the petition, quash the orders Annexs. 28,25 and 39 by holding the inquiry held against the petitioner to be invalid and illegal. As consequence thereof, all the orders imposed on the petitioner are also illegal and he is reinstated, with all consequential benefits flowing therefrom.