Mohan Lal vs The Deputy Secretary, Revenue (Group-1) Department and Another

Govind Mathur, J.—The petitioner, a retired Tehsildar, by this petition for writ is questioning correctness of the order dt. 01.09.2011, passed under the orders of the Governor of Rajasthan exercising powers under Rule 7 of the Rajasthan Civil Services (Pension) Rules, 1996 (for brevity, hereinafter referred to as ''the Rules of 1996''). The facts giving rise to this petition for writ are that the Board of Revenue, Rajasthan, Ajmer under a memorandum dt. 15.10.1988 desired to initiate proceedings against the petitioner under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for brevity, hereinafter referred to as ''the Rules of 1958''). After considering the explanation submitted by the petitioner, an enquiry officer was appointed vide order dt. 14.08.1989. The enquiry officer submitted his report to the disciplinary authority on 19.03.1996. As per the findings given under the report of the enquiry officer, the charge No. 2 and 5 were not found established, however, the charge No. 1, 3 and 4 were found established in part. At the time of submission of the enquiry report, the petitioner stood retired from service, therefore, the report of enquiry was forwarded to the State Government as per the provisions of Rule 170 of the Rajasthan Service Rules, 1951 (for brevity, hereinafter referred to as ''the Rules of 1951''). On promulgation of the Rules of 1996, the proceedings remitted to the State Government under Rule 170 of the Rules of 1951 were treated as proceedings under Rule 7 of the Rules of 1996. A notice to show cause was given to the petitioner alongwith a copy of the enquiry report to submit comments about the findings given and also with regard to the proposed punishment. A detailed explanation was submitted by the petitioner. An order of penalty then was passed on 08.07.1999 subjecting the petitioner with a penalty of stoppage of one-fourth part of the pension for a period of three years.

By way of filing a petition for writ before this Court, a challenge was given to the order dt. 08.07.1999. The writ petition (S.B. Civil Writ Petition No. 4889/1999) came to be accepted on 26.02.2007 on the count that the order dt. 08.07.1999 was passed without proper application of mind and without prescribing adequate reasons. The State Government preferred an appeal giving challenge to the order dt. 26.02.2007 and that came to be disposed of by a Division Bench of this Court on 24.01.2008, keeping it open for the respondents to pass an order afresh by due application of mind. After disposal of the appeal, the order impugned came to be passed on 01.09.2011.

The argument advanced by learned counsel for the petitioner is that the order dt. 01.09.2011 too is not in consonance with the principles of natural justice and reasonable opportunity. It is submitted that though the impugned order is running in six pages, but as a matter of fact, it does not disclose required application of mind. The disciplinary authority, as per learned counsel for the petitioner, has not taken into consideration the response given by the petitioner to the notice to show cause dt. 16.09.1998.

A reply to the writ petition has been filed on behalf of the respondents with assertion that after holding a regular enquiry, the petitioner was subjected to penalty and that does not require any interference of this Court while exercising powers under Article 226 of the Constitution of India on the count that the same does not suffer from any material irregularity or any such perversity that may warrant interference.

Heard learned counsel for the parties and also examined the record.

The petitioner was subjected to disciplinary action under the memorandum dt. 15.10.1988. A report of enquiry was submitted by the enquiry officer on 19.03.1996 and thereafter an order of penalty was passed on 08.07.1999. This order came to be set aside by this Court on 26.02.2007. The special appeal preferred by the State Government also came to be disposed of on 24.01.2008 and now the order dt. 01.09.2011 has been passed. In totality, a period of 23 years has already passed from the date of initiation of the disciplinary proceedings and a period of about 17 years has been passed from the date of petitioner''s retirement.

Be that as it may, this Court while accepting the earlier petition for writ preferred by the petitioner held that the order imposing penalty dt. 08.07.1999 was passed without application of mind. The Court on examination of the record found that no finding on each and every charge was given by the disciplinary authority. While passing the order dt. 01.09.2011, the disciplinary authority has certainly extended and enhanced the contents of the order imposing penalty, yet it discloses non-application of mind. The disciplinary authority has reproduced the penalty and contents of the report given by the enquiry officer, however, no discussion is made by taking into consideration the explanation submitted by the petitioner to arrive at a specific finding. It is well-settled that a report of enquiry officer, if the disciplinary authority himself is not an enquiry officer, if is taken into consideration then that is an adverse material. Such adverse material is required to be supplied to the delinquent employee and if any explanation is submitted by the delinquent employee to meet the adverse material, then that is also required to be examined in lucid before recording any finding of misconduct. Such consideration is patently missing in the instant matter. The authority competent has not taken into consideration even a single contention of the petitioner relating to the reasons and findings given by the enquiry officer. No consideration of the delinquent''s version makes the order impugned bad.

Accordingly, the petition for writ is allowed. The order impugned dt. 01.09.2011 is declared illegal and therefore, is quashed. No order as to costs.