State of Rajasthan vs Ram Babu Gupta and Others

Nisha Gupta, J.—The instant civil second appeal has been preferred against the judgment and decree dated 06/09/1993 passed by the court of Additional District Judge No. 2, Jaipur City, Jaipur by which appeal filed by the defendant-appellant-State of Rajasthan has been dismissed and the judgment and decree dated 31/01/1992 passed by the court of Additional Munsif and Judicial Magistrate No. 2, Jaipur City, Jaipur decreeing the suit in favour of the plaintiff-respondent, has been upheld.

The facts giving rise to this appeal in brief are that the plaintiff-respondent filed a suit for declaration in respect of the order dated 03/01/1985 whereby, he was dismissed from service after holding departmental enquiry. It has been alleged in the suit that principles of natural justice have not been followed. The court below has held that prejudice has been caused to the respondent and decreed the suit in favour of the respondent and appeal filed by the appellant-State there against has been dismissed. Hence, this second appeal.

The second appeal has been admitted on 01/11/1996 on the following substantial questions of law:-

"1. Whether finding recorded by Lower Appellate Court that the inquiry was not fair is perverse and is beyond the record?

"2. Whether in case the Court comes to the conclusion that the inquiry was not fair, whether the respondent can be reinstated and the order of termination can be set-aside on that ground?

Heard learned counsel for the parties, perused the impugned judgments and decree as well as original records of the case.

The court below has held that dismissal order is bad in law and principles of natural justice have not been followed as copy of the inquiry report as well as the documents have not been furnished to the respondent-employee and opportunity of defence has not been allowed to him and list of five witnesses has been submitted but only three witnesses have been examined and no efforts have been made for examination of other two witnesses. For the same allegations, FIR was lodged in which, negative final report has been filed but that document has not been called on record. Hence, prejudice has been caused to the respondent and order of dismissal has been quashed. Per contra, the contention of the appellant is that opportunity of defence has been allowed to the respondent and hence, findings of the courts below are perverse and against law.

The first contention of the respondent before the court below was that no defence lawyer is allowed to engage as he was not in a position to defend himself and for the same, reliance has been placed on the judgment of Supreme Court in C.L. Subramaniam Vs. Collector of Customs, Cochin, , where facts were quite different. Government has appointed a trained Prosecutor to present its case against the government servant hence, refusal to him to engage a legal practitioner has been held to be vitiating the enquiry, whereas in the present matter, government has not employed any legal practitioner to present their case and in view of the provisions of Rule 16(5) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, where a specific bar is there that the government servant may not engage a legal practitioner, no prejudice has been caused to the respondent and it could not be said to be violation of principles of natural justice.

The other contention of the respondent before the court below was that five witnesses have to be examined as defence witnesses but only three have been examined and for procuring attendance of remaining two, nothing has been done and to support his contention, counsel for the respondent has placed reliance upon Rule 4 of the Rajasthan Disciplinary Proceedings (Summoning of Witnesses and Production of Documents) Act, 1959, which is enabling provision for the inquiring authority to enforce attendance of witnesses and compel production of documents and reliance has also been placed on the judgment of Supreme Court in Union of India (UOI) and Others Vs. Prakash Kumar Tandon, , where application for summoning witnesses was filed but without passing any order on the said application, inquiry has been concluded and the disciplinary authority has refused to consider the same, which is not the case here. Furthermore, reliance has been placed on the judgment of Punjab High Court in Shiv Datt Sharma Vs. State of Punjab and Others, , where witnesses were government employees and inquiry officer has refused to summon witnesses in defence and in the facts and circumstances of the case, it was found to be improper and perverse but here in the present case, no such facts exist. Three witnesses have been examined and, thereafter, respondent has not prayed for summoning of rest of the two witnesses. Hence, there was no violation of the principles of natural justice on the part of the appellant and no prejudice is said to have been caused to the respondent. Niranjan (DW 1) has specifically stated that list was submitted for five witnesses but respondent has chosen to examine only three witnesses. Hence, facts of the case referred to above are different from the present case and in the facts and circumstances of the present case, it cannot be said that action on the part of the department was improper or perverse or unjustified. Per contra, it seems that a reasonable opportunity of defence has been allowed to the respondent.

Next contention of the respondent was that copies of the documents have not been supplied to him and vide Exh. A-2, his application has been rejected, which is denial of reasonable opportunity of defence and reliance has been placed on the judgment of Supreme Court in Kashinath Dikshita Vs. Union of India (UOI)and Others, in which, copies of the statements of the witnesses examined at the stage of preliminary inquiry were refused and even the government employee has not been allowed to take extract from the relevant portions of the documents hence, it has been held that reasonable opportunity of defence has been denied but here in the present case, Ex. A. 7 has been referred rightly by the counsel for the appellant, which clearly speaks that government servant/respondent himself has submitted that he has submitted his reply on 11/09/1981 and he even does not want to inspect the record hence, in view of above facts, it could not be said that principles of natural justice have not been followed or reasonable opportunity of defence has been denied.

The other contention of the respondent before the court below was that for the same incident, FIR was lodged in which negative final report has been submitted but document has not been brought on record and the contention of the respondent is that burden to prove charges lies on department and reliance has been placed on the Division Bench judgment of this Court in Devi Singh Vs. State of Raj. and Ors. : 2008(3) WLC (Raj.) 157. There is no doubt about the proposition that burden to prove charges lies on department but here in the present case, negative final report was not a relevant record to prove charges against the government employee. Contention of the respondent is that it was a relevant and important document to be placed on record. It may be important or relevant for the defence but when the document, which has been referred is in favour of defence, it was the duty of the government servant to get it on record. It was not duty of the inquiry officer to call for the same on which, the government is not relying. Counsel for the appellant has rightly pointed out that standard of proof in two proceedings i.e. criminal proceedings and departmental proceedings are different and independent of each other. Hence, it can safely be concluded that it was not duty of the department to call for the negative final report and respondent has not tried anything to call for the document and even he has not submitted before the inquiry officer to get the document called for. Hence, in view of above, no prejudice has been caused to the government servant by not calling for the negative final report and it cannot be termed as denial of reasonable opportunity of defence or violation of principles of natural justice.

Lastly, contention of the respondent is that copy of the inquiry report has not been furnished to him and it is violation of principles of natural justice. Preliminary objection in this regard of the counsel for the appellant is that appellate court has decided this ground against the respondent and no cross objection has been filed by the respondent against the finding of the appellate court. Hence, this issue cannot be agitated in the second appeal. Both the courts below have relied on the larger bench judgment of the Apex Court in Union of India and others Vs. Mohd. Ramzan Khan, . Counsel for the respondent has relied on the judgment of Supreme Court in Managing Director, ECIL, Hyderabad, Vs. Karunakar, etc. etc., , where it has been held that report of inquiry officer has to be furnished to the employee even if the statutory rules do not permit the furnishing of the report or are silent on the subject or against it and contention of the respondent is that admittedly, report of the inquiry officer has not been furnished to him and hence, order of termination is illegal but counsel for the respondent has not submitted, which is evident from the law laid down in the judgment of Supreme Court in B. Karunakar supra that punishment order passed prior to 20/11/1990 will have to be decided according to law that prevailed prior to the said date and it has been made clear that in absence of furnishing copy of the inquiry report, punishment order, which has been passed or inquiries, which have been made, would not be disturbed and disciplinary proceedings should not be reopened and the Apex Court has categorically held that ratio of the judgment in Mohd. Ramzan Khan supra would apply prospectively from the date of the judgment only to the cases in which decisions are taken and orders made from that date and does not apply to all matters, which are to be finalized or pending decisions at the appellate forum or in the High Court or Tribunal or in the Apex Court. Admittedly, here in the present case, inquiry has been concluded and dismissal order has been passed on 03/01/1985. Hence, denial of copy of the inquiry report, is if no consequence. Respondent has further relied on the judgments of this Court in Mahendra Kumar Vs. State of Rajasthan and Others : 2009 (2) Service Cases Today 312 and Karan Singh thorough his LRs. Vs. The Collector and Anr. : 2007 (4) Service Cases Today 50 as well as the judgment of the Punjab and Haryana High Court in Jasbir Kaur Vs. State of Punjab and Others--> but as pointed out earlier that the impugned-order has been passed way back in 1985 hence, as per law prevailed at that time, non-furnishing of copy of the inquiry report could not be termed as violation of principles of natural justice.

Hence, in view of above that reasonable and proper opportunity has been allowed to the respondent for his defence and principles of natural justice have been followed, the finding of the court below that the inquiry was not fair, is perverse and hence, Substantial Question No. 1 is decided in favour of the appellant and as the Substantial Question No. 1 has been answered in favour of the appellant, there is no occasion to answer Substantial Question No. 2 and in view of above, the findings of both the courts below are perverse and accordingly, they are liable to be set-aside.

Hence, this civil second appeal is allowed. The judgment and decree of the first appellate court viz. Additional District Judge No. 2, Jaipur City, Jaipur dated 06/09/1993 as well as judgment and decree of the trial court viz. Additional Munsif and Judicial Magistrate No. 2, Jaipur City, Jaipur dated 31/01/1992 are set-aside. The records be sent back to the courts below forthwith. The suit stands dismissed.