Onkarlal Meena @APPELLANT@Hash State of Rajasthan

This writ petition is directed against the orders dated 30.3.2001 (Annex.P/10) passed by the Disciplinary Authority and order dated 1.12.2001

(Annex.P/12) passed by the Appellate Authority, whereby, the Disciplinary Authority imposed punishment of stoppage of one annual grade increment

without cumulative effect and also ordered that the petitioner would not be entitled to emoluments other than the subsistence allowance paid during the

suspension period, however, the period of suspension would be counted for all other purposes and the Appellate Authority partly allowed the appeal

and modified the punishment to censor, respectively.

The petitioner was served with a charge-sheet dated 22.4.1997, the charges pertained to unauthorized absence without leave, non-maintenance of

daily diary, failure to inspect the offices under him, misbehavior on 30.1.1996, not taking interest in National Literacy Mission etc. and not deciding

proceedings under Section 91.

A response was given by the petitioner to the said chargesheet and an Inquiry Officer was appointed on 12.5.1999. Statements of certain witnesses

were recorded for which, it is submitted that statements of few of the witnesses were recorded in absence of the petitioner.

The Inquiry Officer submitted his report dated 30.9.2000 and found that the charges No. 1, 4, 5 & 6 were not proved and the charges No.2 & 3 were

partially proved. A copy of the inquiry report was given to the petitioner. The petitioner filed his representation dated 15.1.2001. Whereafter, the

Disciplinary Authority, as noticed hereinbefore, by its order dated 30.3.2001 imposed the punishment, against which, the petitioner filed appeal

alongwith certain documents. The Appellate Authority by its impugned order dated 1.12.2001 (Annex.P/12) modified the punishment.

It is submitted by learned counsel for the petitioner that the Disciplinary Authority and the Appellate Authority fell in error in recording a finding of

guilt against the petitioner. It was submitted that during the course of inquiry, no document was exhibited, the oral evidence qua the documents, were

taken into consideration and the petitioner was not afforded any opportunity to crossexamine the departmental witnesses, who were all examined on

one single date. It was submitted that the crucial register in support of the charges was not produced and in absence thereof, the finding of the Inquiry

Officer, Disciplinary Authority as well as the Appellate Authority, cannot be sustained.

It was submitted that before the Appellate Authority, the petitioner had filed the material to contradict the findings of the Disciplinary Authority,

however, while deciding the appeal, the said documents were not taken into consideration and, therefore, the orders impugned deserve to be quashed

and set aside.

A submission was also made that before forfeiting the amount by the Disciplinary Authority, the Disciplinary Authority was required to provide an

opportunity of hearing to the petitioner and in absence thereof, the emoluments for the period of suspension, could not be forfeited. The Appellate

Authority did not deal with the said aspect at all and, therefore, on that count also, the orders passed by the Disciplinary Authority as well as the

Appellate Authority deserve to be interfered with.

Reliance was placed on judgments in Hemendra Kumar v. State of Raj. & Ors.: RLR 1991 (2) 98; Prabhu Lal Agarwal v. State of Raj. & Ors.: RLR

1991(2) 630; Mangat Lal Sidana v. State of Rajasthan & Anr.: S.B. Civil Writ Petition No.3705/2004, decided on 29.5.2007 and State of Rajasthan &

Anr. v. Mangat Lal Sidana : D.B. Civil Special Appeal (W) No.493/2008, decided on 28.4.2016.

Learned counsel appearing for the respondents supported the orders impugned. It was submitted that minimum punishment as prescribed in the

service Rules, has been imposed and as the petitioner had failed to do the needful and the charges were proved against him, the orders impugned

doesn’t call for any interference.

I have considered the submissions made by learned counsel for the parties and have perused the material available on record.

The charges found proved against the petitioner pertain to non-maintenance of daily dairy under charge No.2 and alleged supervisory inefficiency in

not inspecting the offices under him. The Inquiry Officer came to the conclusion that though the daily dairy was maintained / written by the petitioner,

he didn’t submit the monthly synopsis and that the petitioner didn’t produce any material to indicate submitting of such monthly synopsis. Qua

charge No.3, it was concluded that the petitioner did not inspect the offices of sub-Tehsildar and his own office and again it was found that the

petitioner didn’t produce any material to disprove the charges.

The Disciplinary Authority, after the petitioner filed his response to the Inquiry report, came to the following conclusion:-

“esjs }kjk vkjksih vf/kdkjh dks fn;s x;s vkjksi i= muls izkIr tokc ,oa tkap vf/kdkjh ls izkIr tkap fjiksVZ rFkk lquokbZ ds nkSjku crk;s x;s rF;ksa dk

i=koyh ds lkFk ijh{k.k fd;k x;kA vkSj ;g ik;k fd tkap vf/kdkjh }kjk vkjksi laÅ'&2 o 3 tks vkaf'kd :i ls izekf.kr gS o lgh izfrr gksrs gSA

vr% Jh vksdkj yky ehuk] rRdkÅ' mi rglhynkj esjiqj dh ,d okf""kZd osru o`f) valp;h izHkko ls jksdus ds n.M ls nf.Mr fd;k tkrk gSA buds fuyEcu dky esa

budks fu;ekuqlkj fn;s fuokZg HkRrs ds :i esa fn;s ifjykHk ds vfrfjDr vU; ykHk ugha fn;s tk;saxs] fdUrq fuyEcu dky dh lsok dh x.kuk isa’ku o vU;

,sls ifjykHkksa ds fy, ekU; gksxhAâ€​

The petitioner challenged the findings of the Disciplinary Authority by filing appeal alongwith certain documents. The Appellate Authority, after

noticing the submissions, came to the following conclusion.

“vihykFkhZ dh nyhyksa dk miyC/k fjdkMZ ds vk/kkj ij euu fd;k x;k] O;fDrxr lquokbZ ds nkSjku vihykFkhZ }kjk mUgha fcUnqvksa dks nksgjk;k

tks mlds }kjk vihy vkosnu i= esa vafdr fd;s x;sA fu;fer tkap esa tkap vf/kdkjh }kjk foLr`r foospu ds vk/kkj ij vkjksi la- 2 o 3 dks vkaf’kd :i ls

izekf.kr ekuk gSA

tkap vf/kdkjh us ;g ekuk gS fd nSfud Mk;jh ugha fy[kk tuk vko’;d izdV gksrk gS fdUrq fjdkMZ ds vk/kkj ij ekfld lkjka’k] Hkze.k dk;ZØe

izLrqr ugha fd;k tkuk ik;k x;k] tcfd mDr dk;ZØe fu;ekuqlkj vko’;d FkkA vihykFkhZ }kjk Lo;a us ;g Lohdkj fd;k gSA muds }kjk ekfld lkjka’k

,oa Hkze.k dk;ZØe izLrqr fd;s x;s Fks] fdUrq deZpkfj;ksa }kjk fof/kor i=koyh esa ugha j[ks x;sA fjVZu izLrqr djus dh ftEesnkjh Lo;a vihykFkhZ dh

Fkh] blds vfrfjDr mlds v/khuLFk deZpkfj;ksa }kjk jktdk;Z esa fdlh izdkj dh dkSrkgh cjrh xbZ Fkh] rks mlds fy, Hkh vihykFkhZ Lo;a mRrjnk;h gSA

blls Li""V gksrk gS fd vihykFkhZ }kjk Hkze.k ,oa ekfld lkjak’k izLrqr ugha fd;s x;sA vihykFkhZ dks vodk’k vof/k dks NksM+dj vU; fnuksa dk

ekfld lkjka’k izLrqr fd;k tkuk pkfg;s Fkk] tks ugha fd;k x;kA

tgka rd vkjksi la- 3 dk iz’u gS] vihykFkhZ }kjk ,sls dksbZ izek.k izLrqr ugha fd;s x;s gS] ftlds vk/kkj ij mlds }kjk iVokjh Hkwv-fu- o`Rr ,oa Lo;a ds

dk;kZy; ds fujh{k.k fd;k x;k gksA vihykFkhZ ds fo:) izR;kjksfir 6 vkjksiksa esa ls 2 vkjksi vkaf’kd :i ls izekf.kr fl) ik;s x;s gSA mDr vkjksiksa ds fy,

jktLo e.My }kjk ,d okf""kZd osru o`f) valp;h izHkko ls jksds tkus dk n.M ikfjr fd;k x;k gS og vR;f/kd gSA vr% vihy vihykFkhZ vkaf’kd :i ls Lohdkj

djrs gq, jktLo e.My Lrj ls tkjh n.Mkns’k fnukad 30-03-2001 esa la’kksf/kr djrs gq, ^^ifjfuUnk** ds n.M ls nf.Mr fd;k tkrk gSAâ€​

It would be noticed that the Appellate Authority came to the conclusion that though the documents pertaining to monthly synopsis etc. were submitted

by the petitioner, the same were not properly filed and even for the said purpose, the petitioner himself was liable and, therefore, the finding of guilt

regarding nonproduction of documents was justified and qua charge No.3, again it was concluded that the petitioner did not prove the said aspect that

he inspected the offices.

The findings recorded by the Inquiry Officer, Disciplinary Authority and the Appellate Authority appears to be against the settled position, wherein, the

Department has to first establish the charge and if the said aspect is prima facie established, the burden shifts on the delinquent to produce the

evidence in rebuttal. As noticed hereinbefore, all the three authorities, have concluded that the petitioner has failed to produce the material to rebut the

charges, however, none has come to a conclusion that the evidence led by the Department establish the charges.

The material on record also indicates that the petitioner had produced the material before the Appellate Authority, specifically indicating the

incorrectness of the findings, the same was not taken into consideration at all and on the other hand, it was determined that if the subordinate staff of

the petitioner didn’t properly file the documents produced by the petitioner, for that also, the petitioner was responsible. Such finding, in absence of

any charge regarding supervisory negligence in relation to nonfiling of particular documents, cannot be sustained.

There is also substance in the submissions made by learned counsel for the petitioner that once the Appellate Authority came to the conclusion that

the penalty imposed on the petitioner was excessive and deserved to be reduced, non-dealing of the aspect pertaining to the refusal of emoluments

during the suspension period i.e. 20.2.1996 to 29.9.1996, cannot be sustained.

In view of the above discussion, the writ petition filed by the petitioner is allowed. The orders dated 30.3.2001 (Annex.P/10) passed by the

Disciplinary Authority and order dated 1.12.2001 (Annex.P/12) passed by the Appellate Authority, are quashed and set aside. The petitioner is

acquitted from the charges as levelled / served on him vide memorandum dated 22.4.1997 (Annex.P/1) with all consequential benefits.

It is brought to the notice of the Court that the petitioner has since retired. In that eventuality, the emoluments for suspension period and/or other

consequential benefits flowing from setting aside of punishment would be accorded to the petitioner within a period of three months from the date of

this order.Â