G. M. LODHA, J. - (1.) THE petitioner, Surya Prakash Gothwal, was the Peon in the Office of the Officer on Special Duty, office of the Conversion of Agricultural and, Tilaknagar, Jaipur, in Rajasthan. On September 19, 1975, a letter was served on the petitioner intimating him of taking of the disciplinary proceedings under Rule 16 of the Rajasthan Civil Services ( Classification Control and Appeal ) Rules, 1958 (hereinafter called as 'the Rules of 1958' ). A charge-sheet and the statement of allegations were also served on the petitioner. Shri Babu Lal Mittal, S. D. O. , was appointed Enquiry Officer to conduct inquiry against the petitioner. After the inquiry, a show-cause notice was served on the petitioner and ultimately the petitioner has been dismissed from service on the ground that mis-conduct has been proved against him on all the three charges for which inquiry was conducted.
(2.) MR. Bandhu who appeared for the petitioner in this case has mainly made three fold submissions. Firstly, it is submitted that the list of witnesses and documents was not filed within 10 days as contemplated by Rule 16 of the Rules of 1958. It was then argued that there has been violation of Rule 16 (10) of the Rules, in-asmuch as, even though the departmental authority and the Enquiry Officer were different persons, separate finding was not recorded on the report of the Enquiry Officer by the disciplinary authority, as would be evident from the show-cause notice. Lastly, it was submitted that the evidence of the department was closed on January 20, 1976 and on the same day, the petitioner was called upon to produce his evidence in defence. No opportunity, whatsoever, was given to him for filing the lists of witnesses and documents within 10 days as required by Rule-16 (6) (a) of the Rules of 1958. Not only that, the inquiry was again taken up on January 29, 1976 when the petitioner filed an application that copies of some of the documents have not been given to him and the same should be given. No order was passed in his presence and, lateron, as it now appears some proceedings have been fabricated having been taken on 29th and 31st of January and the evidence has been closed on 31st in the absence of the petitioner and without intimating him the date. It has also been argued that while the petitioner was awaiting reply of his application for grant of copies and time, he was served with a show cause notice on February 4, 1976 The petitioner prayed for grant of time by application dated, February 6, 1976, but on time was granted and on February 9, 1976 an order of dismissal was passed and there again earlier conduct of the petitioner was taken into consideration for inflicting extreme punishment of dismissal without providing him an opportunity to say anything against it. Mr. Mathur, appearing for the respondents, has vehemently opposed the writ application. He has not disputed the factual aspect that the department did not file any list of witnesses and documents within 10 days. He also did not dispute that 10 days' time as contemplated by Rule 16 (6) (a) of the Rules of 1958 was not granted to the petitioner for filing list of witnesses and documents in his defence. However his principal contention was that no prejudice, whatsoever has been caused by all this to the petition because, sufficient opportunity was given to him as contemplated by Article 311 of the Constitution. It was argued that since sufficient and reasonable opportunity was given to the petitioner, he cannot be allowed now to submit that the impugned order of dismissal should be queshed only on technical ground. So far as the recording of finding is concerned, Mr. Mathur's contention is that in a case where disciplinary authority concurs with the finding of the Enquiry Officer separate finding need not be recorded I have considered the respective submissions of the learned counsel for the parties. So far as the first point is concerned, it is true that technically the department is required to file list of witnesses and documents within a period of 10 days. Rule 16 (6) (a) of the Rules is as under: - "where the Government servant has pleaded not guilty to the charges, at the commencement of the enquiry, the Inquiring, Authority shall ask the Presenting Officer appearing on behalf of the Disciplinary Authority to submit the list of witnesses and documents within 10 days, who shall also simultaneously send a copy to the Government servant. Inquiring Authority on receipt of such list shall summon the relevant evidence a per the list and record the evidence giving opportunity to the Presenting Officer for Examina-tion-in-Chief and also to the Government servant or his Assisting Officer, whosoever may be present, for cross-examination. The Presenting Officer shall be entitled to re-examine the witnesses on any points, on which they have been cross-examined, but not on any new matter, without the leave of the Inquiring Authority. After the close of the prosecution evidence the Government servant shall be called upon to submit the list of the witnesses and the documents within 10 days which he would like to produce in his defence. The Inquiring Authority after considering the relevancy of the witnesses and the documents and record the evidence thereof while giving opportunity of examination-in-chief and cross-examination/re-examination to the parties and then close the evidence. The Inquiring Authority shall consider the relevancy of the witnesses and the documents called for by both the parties and in case of his refusal to summon any witnesses or documents, he shall record the reasons in writing. The Inquiring Authority may also put such questions to the witnesses of the parties as it thinks fit in the interest of justice An opportunity for hearing the arguments shall be given to the parties. " Note : - If the Government servant applied orally or in writing for the. supply of copies of the statement of witnesses mentioned in the list referred to in sub-rule (6) (a), the Inquiring Authority shall furnish him with such copies as early as possible and in any case not later than three days before the commencement of the examination of the witnesses on behalf of the disciplinary authority. " This rule requires that the Inquiring Authority shall ask the Presenting Officer appearing on behalf of the Disciplinary Authority to submit the list of documents and witnesses within 10 days, who shall also simultaneously send copies to the Government servant. Undoubtedly, this has not been done in the instant case. However, in the facts and circumstances of this case the inquiry cannot be quashed, because, no prejudice has been caused to the employee by technical violation of this rule.
(3.) COMING to the second point regarding recording of the finding, Rule 16 (10) of the Rules of 1958 is as under: - "rule 16 (10) (i) : If the Disciplinary Authority, having regard to its findings on the Charges is of the opinion that any of the penalties specified in classes (iv) to (vii) of rule 14 should be imposed, it shall - (a) furnish to the Government servant a copy of the report of the Inquiring Authority and where the Disciplinary Authority is not the Inquiring Authority a statement of its finding together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority. " In the instant case, the show-cause notice, Annexure-10 is as under: - ...[VERNACULAR TEXT OMITTED]... This would show, all that the Disciplinary Authority said was that he is in agreement with the report of the Inquiry Officer and proposes to dismiss the petitioner. Undoubtedly, it is not a case where the Disciplinary Authority disagreed with the finding of the Inquiry Officer because, the Inquiry Officer found the petitioner guilty of all the three counts and disciplinary authority agreed with him. In Tarachand vs. Delhi Municipality (1), an analogous provision was considered. Regulation 8 (10) (a) which is mentioned in Para-9 of the above judgment was as under: - "(10) - If the Disciplinary Authority having regard to its findings on the charges, is of the opinion that any of the penalties specified in regulation 6 should be imposed, it shall : (a) furnish to the municipal officer or other municipal employee a copy of the report of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority;" A similar objection was raised but repelled by Supreme Court in that case also which is as under : - "the third contention advanced by Mr. Ramamurthi that the impugned order of the appellant's dismissal from service is vitiated as the disciplinary authority has neither recorded its findings with respect to the charge drawn up against the appellant as required by regulation-8 (9) of the Regulations nor has it given its reasons for passing the order cannot also be countenanced as it overlooks the decisions of this Court, which fully cover the case. 16. Regarding the first limb of the contention it may be stated that although it may be necessary for the disciplinary authority to record its provisional conclusions in the notice calling upon the delinquent officer to show cause why the proposed punishment be not imposed upon him if it differs from the findings arrived at by the enquiring officer with regard to the charge, it is not obligatory to do so in case in disciplinary authority concurs with the findings of the enquiring officer. We are supported in this view by two decisions of this Court in State of Orissa vs. Govinddas Panda, (Civil Appeal No. 412 of 1958) decided on December 10, 1962) (SC) and State of Assam vs. Bimal Kumar Pandit, (AIR 1963 S. C. 1612 ). In Govinddas Panda's case (supra) where the notice issued under Article 311 (2) did not expressly state that the State Government had accepted the findings recorded by the enquiring officer against the Government servant in question and where even the nature of the punishment which was proposed to be inflicted on him was not specifically and clearly indicated, this Court while reversing the conclusions of the Orissa High Court that the notice was defective and so the provisions of Article 311 (2) had been contravened observed : - "in the context, it must have been obvious to the respondent that the punishment proposed was removal from service and the respondent was called upon to show cause against that punishment. On a reasonable reading of the notice, the only conclusion at which one can arrive is that the appellant (the State) accepted the recommendation of the Administrative Tribunal and asked the respondent to show cause against the proposed punishment, namely, that of removal from service " The court therefore, observed that the submission that findings were not recorded and copies were not given were found to be untenable. The court has observed as under: - "in the instant case, the incorrectness of the first limb of the contention is apparent from a bare reading of the aforesaid order passed by the Deputy Commissioner on May 20, 1969 which clearly states that he agrees with the findings of the enquiring officer. Reading the order as a whole, it becomes crystal clear that the disciplinary authority held the charge drawn up against the appellant as proved. " ;