This writ petition is directed against the order dated 15.3.2016 (Annex.5) passed by the Commissioner of Excise imposing stoppage of one annual
grade increment with cumulative effect against the petitioner and order dated 14.2.2017 (Annex.7) passed by the Secretary, Department of Finance
and Revenue, whereby, the appeal filed by the petitioner has been rejected.
The petitioner was issued a charge-sheet dated 19.9.2011 (Annex.1) alongwith certain other officers of the respondent â€" Department. The inquiry
officer submitted his inquiry report, which was forwarded to the petitioner vide Annex.4. The inquiry officer qua the petitioner came to the conclusion
that both the charges against the petitioner were not proved. The Disciplinary Authority called upon the petitioner to file his written submissions. As
the petitioner had been exonerated, he didn’t file any written submission.
The Disciplinary Authority by its impugned order dated 15.3.2016 (Annex.5) did not agree with the findings of the inquiry officer and punished the
petitioner with stoppage of one annual grade increment with cumulative effect.
Feeling aggrieved, the petitioner filed an appeal before the Appellate Authority. In the appeal, the petitioner raised the issue that if the Disciplinary
Authority did not agree with the findings of the inquiry officer, it was required to communicate the reason of disagreement to the petitioner, in
absence whereof, the order of imposing punishment is bad. However, the Appellate Authority upheld the order passed by the Disciplinary Authority.
Feeling aggrieved, the present writ petition has been filed by the petitioner. It is submitted by learned counsel for the petitioner that in terms of Rule
16(10 A) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (‘the Rules of 1958’), if the Disciplinary Authority
disagrees with the findings of the inquiry officer, it is required to record its findings for such disagreement and record his own findings on such charges
and the petitioner would then be called upon to give his representation regarding the said disagreement by the Disciplinary Authority.
However, in the notice which has been issued to the petitioner, there is no reference of any disagreement and, therefore, the petitioner did not file any
reply to the notice, which was given to the petitioner and as such the Disciplinary Authority had no jurisdiction to disagree with the findings of the
inquiry officer in the order impugned and imposing the punishment against the petitioner.
It is submitted that the action of the Disciplinary Authority was ex-facie contrary to the provisions of the Rules of 1958 and when the appeal was filed
by the petitioner taking specific plea regarding violation of the provisions of the Rules of 1958, the Appellate Authority did not deal with the said
objection and has rejected the appeal. It is submitted that action of the respondents in imposing the punishment and dismissing the appeal filed by the
petitioner cannot be sustained.
Learned counsel for the respondents supported the order impugned. It was submitted that the writ petition for availability of alternative remedy under
Rule 34 of the Rules of 1958 is not maintainable.
Further submissions have been made that the petitioner was issued notice by the Disciplinary Authority and the petitioner chose not to respond to the
said notice and, therefore, it is not open for the petitioner to raise any contention in this regard and, therefore, the writ petition filed by the petitioner
deserves to be dismissed.
I have considered the submissions made by learned counsel for the parties and have perused the material available on record.
It is not in dispute that on the two charges regarding which, the charge-sheet was issued to the petitioner, the inquiry officer after inquiry, held in
favour of the petitioner and it was indicated that the charges were not proved.
Whereafter, the Disciplinary Authority gave the following notice to the petitioner:-
“fo""k; & tkap fjiksVZ ij fyf[kr vfHkdFku izLrqr fd;s tkus ds laca/k esaA
mijksDr fo""k;kUrxZr ys[k gS fd tks/kiqj@ikyh 'kjkc nq[kkfUrdk esa vfrfjDr vkcdkjh vk;qDr tksu tks/kiqj ls izkIr takp fjiksVZ dh QksVks izfr layXu
fHktok;h tk jgh gSA tkap fjiksVZ ij vki viuk fyf[kr vfHkdFku 15 fnol esa bl dk;kZy; dks vko’;d :i ls izLrqr dj nsosA fu/kkZfjr vof/k esa fyf[kr
vfHkdFku izkIr ugha gksus ij fu;ekuqlkj vfxze dk;Zokgh izkjaHk dj nh tkosxhA layXu %& tkap fjiksVZ dh QksVks izfrA
lgh@& ¼egkohj [kjkMh½ vfrfjDr vkcdkjh vk;qDr
¼iz’kklu½] jktLFkku mn;iqjâ€
Provisions of Rule 16(10-A) of the Rules of 1958 reads as under:-
“Rule 16(10 A) The disciplinary authority shall, if it disagrees with the findings of the inquiring authority on any article of charge, record its reasons
for such disagreement and record its own findings on such charge if the evidence on record is sufficient for the purpose and the same to be forwarded
to the Government Servant for his representation along with a copy of the report of the inquiry.â€
A bare perusal of the above provision indicates that the Disciplinary Authority is not only required to record the reasons for disagreement, the said
reasons must be communicated to the petitioner, so as to enable him to respond to the said reasons for disagreement. As the findings of the inquiry
officer were completely in favour of the petitioner, there was no occasion for the petitioner to respond to the nature of notice, which was issued to the
petitioner and, therefore, on face of it, there was violation of provisions of Rule 16(10-A) of the Rules of 1958 and principles of natural justice and
consequently, passing of the order by the Disciplinary Authority was bad in law.
The petitioner specifically raised the above issue before the Appellate Authority, which was noticed by the Appellate Authority in its order dated
14.2.2017 (Annex.7), however, the said aspect has not at all been dealt with and in a mechanical manner the order passed by the Disciplinary
Authority has been upheld and, therefore, the order the passed by Appellate Authority also cannot be sustained.
So far as the issue raised by the respondents regarding availability of the alternative remedy under Rule 34 of the Rules is concerned, the provisions of
Rule 34 of the Rules confer power of review on the Governor. As the said jurisdiction under Rule 34 of the Rules of 1958 is very limited, the same
cannot be said to be efficacious remedy, insofar as, the present case is concerned and, therefore, on account of availability of the said alternative
remedy, the petition filed by the petitioner cannot be rejected.
Besides the above aspect of the matter as there is a clear violation of provisions of Rule 16(10-A) of the Rules of 1958, which goes to the root of the
matter even otherwise, the availability of alternative remedy would not come in the way of the petitioner.
In view of the above discussion, the writ petition filed by the petitioner is allowed. The orders dated 15.3.2016 (Annex.5) and 14.2.2017 (Annex.7) are
quashed and set aside. The petitioner would be entitled to all consequential benefits of such quashing.
