Mohammad Rafiq, J.@mdashThis writ petition has been filed by petitioner-Rameshwarlal Meena against the order dt. 06.03.1990 whereby he was dismissed from service and against the order dt. 07.12.1994 whereby his appeal filed against the aforesaid penalty order was rejected.
2. Petitioner was appointed on the post of Constable in the year 1984 with the police department and posted under the Superintendent of Police, District Jaipur Rural Jaipur. Petitioner was served with the charge-sheet by the disciplinary authority on 18.09.1989 under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, �CCA Rules�). There were as many as seven charges against the petitioner, out of which, Charge Nos. 1 to 6 were with regard to wilful absence of 1, 2, 2, 3, 4 and 14 days respectively whereas, Charge No. 7 was to the effect that petitioner was habitual in absenting from duties and during his entire service career, he has absented for 105 days including period of absence covered by the aforesaid six charges. Petitioner filed reply to the charge-sheet and denied all the charges. Enquiry Officer however found Charge Nos. 1, 2, 3, 5 and 6 fully proved whereas Charges No. 4 and 7 only partially proved. Disciplinary Authority vide order dt. 06.03.1990 dismissed the petitioner from service for wilful absence of total period of 22 days. Appeal filed against the aforesaid order of penalty was also dismissed by the appellate authority vide order dt. 30.5.1990. Petitioner filed review petition before the Governor of the State who accepted the same and remanded the same to the disciplinary authority vide order dt. 03.06.1994 with direction that copy of the enquiry report be supplied to the petitioner and then he be provided fresh opportunity to file appeal against the order of penalty. Disciplinary Authority then supplied copy of the enquiry report to the petitioner. Petitioner thereafter again filed appeal before the appellate authority. Appellate authority dismissed the appeal vide order dt. 07.12.1994 thus maintaining the order of dismissal.
3. I have heard Shri B.L. Gupta, learned Counsel for petitioner and Shri Aklesh Jain, learned Deputy Government Counsel.
4. Shri B.L. Gupta, learned Counsel for the petitioner has argued that according to Charges No. 1 to 6, absence of the petitioner from duty was for 22 days and that disciplinary authority himself regularized the aforesaid period of absence by grant of extraordinary leave without pay. For these 22 days, penalty of stoppage of one annual grade increment without cumulative effect had already been awarded vide order dt. 16.03.1983, therefore imposing further penalty is hit by doctrine of double jeopardy and would be violative of Article 20(2) of the Constitution of India. It was argued that neither the disciplinary authority nor the appellate authority has applied its mind to the explanation submitted by the petitioner for his absence. Not a single word was uttered in their respective orders about the facts situation stated by the petitioner in his reply to the charge-sheet. Subsequently, the Reviewing Authority remanded the matter to the disciplinary authority with the direction to it to supply copy of the enquiry report to the petitioner with opportunity to again file appeal before the appellate authority. Such a course was adopted due to non supply of the enquiry report. In view however of the law laid down by the Supreme Court in
5. The enquiry officer fixed 26.12.1989 as the date for evidence and intimated the same to the defence-nominee Shri Harmukh Singh, Inspector Anti Corruption Department, Jaipur. Shri Harmukh Singh timely informed the enquiry officer on 26.12.1989 that he would be busy in connection with the government work on that day and he would not be in a position to participate in the enquiry proceedings till 10.01.1990, therefore, he requested for adjournment. Enquiry Officer however did not bother to wait for him and hastened to proceed against the petitioner ex-parte and recorded the statements of departmental witnesses on 26.12.1989 to 30.12.1989. Poor Constable himself being ignorant of the relevant rules and procedure as to in what manner to cross-examine the departmental witnesses, could not avail of opportunity and thus could not cross-examine the witnesses. The statutory provisions contained in Rule 16(5) of the CCA Rules was thus violated and enquiry was vitiated being improper and unfair. It was argued that petitioner was not supplied with relevant documents which he demanded vide letter dt. 30.08.1994. Inspite of the request, petitioner was not provided opportunity to produce his witness Shri Madan Singh Constable No. 1045. There was thus total failure of principles of natural justice. Learned Counsel for the petitioner in this connection has placed reliance on the judgment of Supreme Court in
6. Learned Counsel for the petitioner argued that petitioner was compelled to remain away from duty owing to unavoidable overwhelming circumstances. In earlier spell of time, due to serious illness of his wife followed by her death and thereafter due to illness of his mother, he had to rush to hospital, he remained away from duty. There was no other male member in the family of the petitioner except him therefore he himself had to rush for treatment of both, his wife and his mother. But, unfortunately, the authorities did not sympathetically consider the the critical situation and circumstances of the petitioner which he went through. He was prevented by the circumstances to remain on duty. Action of the respondents in dismissing the petitioner from service was wholly arbitrary and illegal being contrary to Articles 14, 16, 20(2) and 21 of the Constitution of India.
7. Learned Counsel for the petitioner alternatively argued that out of the absence of 22 days, petitioner was already penalized for absence of 4 days thus there remained only 18 days absence. For this absence of 18 days, extreme penalty of dismissal was imposed upon him, which was wholly disproportionate to the gravity of the charges. Order of the disciplinary authority is therefore liable to be quashed and set-aside. Learned Counsel relied in this behalf on the judgment of Supreme Court in Bhagwa Lal Arya v. Commissioner of Police, Delhi and Ors. 2004(3) S.L.R. 70, Deputy Inspector General, Central Industrial Security Force, Eastern Zone v. Govt. of India and Ors. 1995(1) SLR 133, Syed Zaheer Hussain v. Union of India and Ors. JT 1999 (1) SC 319 ,
8. Per contra, Shri Aklesh Jain, learned Deputy Government Counsel opposed the writ petition and argued that mere grant of extraordinary leave to the petitioner for the period of aforesaid absence does not wash out his conduct. Although the leave was regularized for the period of absence till the petitioner was in service but then petitioner remained absent willfully without obtaining leave. It was argued that it is not a case of double jeopardy because petitioner was penalized for the period of his absence including the period when he was separately charge sheeted and penalty was imposed only with a view to showing the conduct of the petitioner. Petitioner was granted full opportunity of defence. Defence-nominee of the petitioner, Shri Harmukh Singh was called on 23.12.1989. This fact was recorded in the order-sheet dt. 29.12.1989. Witness was also summoned on that day but the defence-nominee did not present himself either on 19.12.1989 or on 23.12.1989. He was again called vide letter dt. 23.12.1989 but he did not avail of that opportunity either. He therefore prayed that writ petition be dismissed.
9. I have given my anxious consideration to the arguments aforesaid and perused the material on record as well as the cited case law on the subject.
10. Charge Nos. 1 to 3 against the petitioner are for the period of willful absence of one day that was when he suddenly left for his native place on 10.03.1989 upon being informed by his cousin about the serious illness of his wife. Thereupon, petitioner went to his native place and arranged for the treatment of his wife and returned back to resume duty on the following day of 11.03.1989. Petitioner submitted his detailed explanation of his such absence but neither the enquiry officer nor the disciplinary authority nor even the appellate authority, had given ears to his genuine graveness. The conduct of the petitioner has to be judged from the fact that on hearing about serious illness of his wife, he went to his native place on 10.03.1989 and after making arrangements for her treatment, he resumed duty on the following day of 11.03.1989 forthwith and submitted application for casual leave for three days wanting one government holiday to be availed of with permission to leave headquarter and thus left for his native place. He was to report duty on 16.03.1989 but he could report on 18.03.1989 at 3.25 p.m. Though petitioner reported duty on 18.03.1989 at 3.25 p.m. yet, respondents treated absence of complete three days. Then, this is to be viewed from the circumstances through which petitioner was then passing in that his wife had than suddenly expired on 11.03.1989 and he had to rush back to his village. Immediately after returning back, he applied for extension of leave. He wanted to go back to his native place for her 12 day-ceremony and for performing the �shraad� on the 15th day of the death of his wife. He has explained all these things in his leave application that in what manner he could not be able to resume duty within stipulated time. He went to his village on 23.03.1989 with permission of the Station House Officer who gave him permission to leave the headquarter and go on leave for performing the �shraad� ceremony of his wife. After performing the �shraad� ceremony, petitioner resumed duty on 25.03.1989. Petitioner has produced on record copy of his leave application, copy of his entry in the concerned Rojnamcha and copy of the death certificate of his wife. But, all these things have been completely lost sight of by all the three authorities i.e. enquiry officer, disciplinary authority and the appellate authority.
11. Charge No. 4 against the petitioner is for willful absence for 2 days. It is alleged in this charge that he was found absent for two days for 13.04.1989 and 04.05.1989. It has been accepted by the enquiry officer in his enquiry report that petitioner was served with the charge sheet under Rule 17 of the CCA Rules for absence of four days and he was awarded penalty of stoppage of one annual grade increment without cumulative effect vide order dt. 16.06.1989. Though, the enquiry officer has observed that as per law, petitioner could not be again penalized for delinquency for which he had already been punished which view has been dissented from by the disciplinary authority as also the appellate authority without any notice to the petitioner. Finding of the disciplinary authority on that aspect of matter is therefore contrary to the settled proposition of law and is thus illegal. When already petitioner was awarded penalty for this part of absence, finding of guilt against the petitioner on such a charge, reflects total non application of mind. This was hit by the principle of double jeopardy envisaged under Article 20(2) of the Constitution of India. This even could not be taken into consideration for the charge of 22 days of absence, total of which, would in any case would remain only 18 days after excluding such four days. The disciplinary authority and the appellate authority have both cumulatively failed to answer this specific argument of the petitioner judiciously.
12. Charge No. 5 against the petitioner was for absence of about 14 days. In this charge also, petitioner proceeded on duly sanctioned leave on 08.06.1989. He was granted four days casual leave and two days government holidays. He was thus required to report back on duty on 15.06.1989. However, he resumed his duties on 29.06.1989. Now, this was explained by the petitioner by stating that he wanted to proceed to Ahmedabad to his sister but when he went to native place, he came to know that his mother was seriously ill due to which reason, petitioner could not go to Ahmedabad. He had to stay there to look after his mother because there was no other adult male member in the family and his children were very young. When his mother did not improve in her health even for 3-4 days, he had to take her to Government Hospital Srimadhopur, where she remained hospitalized from 13.06.1989 to 24.06.1989. PW-10 Purshottam Lal L.D.C. and PW-11 Bhanwarlal Chouhan T.I., both the witnesses of the department, have admitted that petitioner produced medical certificate of his mother dt. 27.06.1989 proving the fact of her hospitalization. The said medical certificate is exhibited on record as Exh.P-11. Certificate was enclosed with the joining report Exh.P-14. This period of leave including the absence period was regularized by the respondents by grant of extraordinary leave without pay. This explanation however, was not at all considered by any of the authorities either, enquiry officer, disciplinary authority or the appellate authority. For technical reason, it was of course absence of the petitioner but it has to be viewed from the stand point of the petitioner which is also consistent with his conduct that he initially proceeded with duly sanctioned leave and on reaching home when he knew about serious illness of his mother, he was looking after her and when health of his mother did not improve for some days, he got her hospitalized in Govt. Hospital at Sawai Madhopur. He produced medical certificate which was even admitted by the departmental witnesses. The enquiry officer did not at all consider this aspect of the matter in his report. Disciplinary authority has also not mentioned anything about such explanation of the petitioner.
13. Charge No. 6 against the petitioner has also been taken to have been proved by the enquiry officer which finding was upheld by both, the disciplinary authority and the appellate authority, even though there is not an iota of evidence to sustain the charge. This charge is to the effect that petitioner on 06.08.1989 abused his colleague Constable No. 1045 Madan Singh in the state of intoxication, while he was under the influence of liquor and when Reserve Inspector of Police Station (Rural) wanted to get him medically examined, he ran away from the place. Petitioner in reply to this charge explained that Madan Singh was on leave on 06.08.1989 and in fact, he had left the Police Line on 05.08.1989 itself and an entry to this effect was made in the Rojnamcha of Police Station on 05.08.1989. Petitioner submitted that Rojnamcha could be called to verify this fact. As against this, explanation of the petitioner is that if the enquiry report is examined, it is found that enquiry officer in the findings recorded on Charge No. 6 has merely referred to the entry of Rojnamcha at Exh.P-9 to the effect that petitioner refused to be medically examined but no discussion whatsoever was made in what manner the enquiry officer held this charge proved against the petitioner. Though, in earlier part of the report, the enquiry officer has referred to the statement of one Indra Singh PW4, who has stated that petitioner was drunk and was abusing Madan Singh. Surprisingly enough, department has chosen not to even examine Madan Singh as a witness. They have not given any explanation why Madan Singh was left from being examined as a witness before the enquiry officer. Therefore, an adverse inference obviously ought to be drawn against them withholding Madan Singh because he was best witness to say as to if he was not on leave on 06.08.1989 and he had not left police line on 05.08.1989 or that he was abused by the petitioner. The department also did not produce Rojnamcha of 05.08.1989 although it has produced relevant entry of Rojnamcha of 06.08.1989 but the Rojnamcha of 18.03.1989 (Ex.P.1) was produced. Adverse inference is liable to be drawn against them for non production of relevant entry of 05.08.1989 or else it would have proved that Madan Singh had left the police line on 05.08.1989 itself.
14. Charge No. 7 against the petitioner is to the effect that he during his service career starting from 1984 till issuance of charge-sheet, remained absent on 18 times and for a total period of 105 days. This included Charge Nos. 1 to 5 in the charge-sheet in the present matter for absence of 39 days. Petitioner in reply to this charge-sheet categorically stated that earlier period of absence stood regularized by grant of leave of the kind due and that the same charge could not be made basis for a fresh enquiry as it would amount to double jeopardy. This aspect of the matter has also not been examined by any of the authorities either the enquiry officer or the disciplinary or the appellate authority.
15. Although it is true that scope of jurisdiction of this Court in exercise of its powers of judicial review under Article 226 of the Constitution of India is not so wide so as to re-appreciate the evidence with a view to arriving at a different conclusion than the one reached by the enquiry authority and/or the disciplinary authority. But at the same time, if this Court finds that the enquiring authority has not adhered to the procedure contained in Rule 16 of the CCA Rules or the principles of natural justice or that the conclusions arrived at by the enquiring authority/disciplinary authority are such that no reasonable man of ordinary prudent on available material could reach to such conclusion, the Court can certainly make interference. Such conclusions and findings recorded on the basis thereof, would be perverse findings. In the present case, not only the enquiring authority but also the disciplinary authority as well as the appellate authority have completely ignored the explanation submitted by the petitioner on all the charges. Request of the defence nominee of the petitioner Shri Harmukh Singh, Inspector Anti Corruption Department for postponing the departmental enquiry for some other date so as to enable him to participate in the departmental proceedings was also not accepted with the result that none of the departmental witnesses could be cross-examined by the petitioner before the enquiry officer from 26.12.1989 to 30.12.1989. Petitioner would be justified in complaining that he being the less educated and quite ignorant about the relevant rules and procedure as to how and in what manner, he should cross-examine the departmental witnesses. He availed of the facility of defence nominee and was provided defence nominee precisely for this reason but all this purpose was frustrated when departmental witnesses could not be subjected to cross-examination due to absence of departmental representative. Madan Singh, Constable, was not called by the enquiry officer inspite of the request of the petitioner and this witness was withheld by the department. He would have been the most important witness to disprove the guilt of the petitioner on Charge No. 6. Not only this, despite the request of the petitioner, Rojnamcha for the date of 05.08.1989 which could prove the fact that Madan Singh left the police line on the same day proceeding on leave on 06.08.1989, was not called. Besides above, petitioner was also not supplied with the number of documents which he applied for by his application dt. 30.08.1984 as per provisions of Rule 16 of the CCA Rules. In this manner, provisions of Rule 16(5) of the CCA Rules have been violated.
16. None of the pleas raised by the petitioner in Grounds (G), (H), (I) & (J) of the writ petition with regard to violation of principles of natural justice have been specifically denied by the respondents. Although they have denied them only formally but no details have been given as to how and in what manner respondents intend to meet the factual contents of these arguments raised by the petitioner except to the extent that respondents have stated that defence-nominee of the petitioner was called to appear on 19.12.1989 and 23.12.1989 but he did not appear. But then, this was the only time for which defence-nominee of the petitioner wanted accommodation for few days because he himself being Inspector of the Anti Corruption Department of the Police, was not spared by the department and he could not appear before the enquiry officer on account of his compulsion to remain present on duty. There was thus total negation and violation of the principles of natural justice and thus, the enquiry proceedings against the petitioner are vitiated not only on the ground of violation of statutory provisions of Rule 16 of the CCA Rules but also violative of Articles 14 & 16 of the Constitution of India.
17. Supreme Court in Mohd. Ramzan (supra) held that supply of enquiry report to a delinquent would be a mandatory requirement, in the absence of which, penalty in departmental proceeding cannot be imposed. In the case of
18. For all the aforesaid reasons, therefore, the argument raised by the petitioner with regard to penalty being disproportionate to the gravity of the proven charges, need not be gone into because this Court for the detailed reasonings discussed hereinbefore is satisfied that the order of penalty and subsequent order of dismissing appeal, are unsustainable in law being wholly illegal and unconstitutional, having been passed in violation of the provisions of Rule 16 of the CCA Rules as well as Articles 14, 16, 20 and 21 of the Constitution of India.
19. In the result, writ petition is allowed. The order dt. 06.03.1990 to the extent petitioner has been dismissed is quashed and set-aside but that part of the order by which absence of the petitioner was regularized by grant of extraordinary leave is upheld. Order rejecting appeal dt. 07.12.1994 is also quashed and set-aside. Petitioner shall be deemed to have continued in service throughout and shall be entitled to all the consequential benefits together with interest @6% per annum.
20. Compliance of the judgment be made within a period of three months from the date its copy is produced before the respondents. Costs are made easy.
