J.C. Verma, J. - (1.) The petitioner had joined the service on the post of Lower Division Clerk (LDC) in the year 1969 in Public Works Department. He was also given promotion to the post of Upper Division Clerk (UDC) on which he joined on 30th January, 1982. Initially, he proceeded on two days casual leave w.e.f. 5th March, 1982 as per his application Annexure R-1. He was informed vide (Annexure-R2) on 16th March, 1982 that the petitioner was absent from duty/office without submitting any leave application which was not justified and therefore, he was asked to submit his explanation within seven days, failing which, a disciplinary action under the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, herein after referred to as the CCA Rules, could be taken. According to the respondents, the letter was not replied too. He was so informed time and again and ultimately, a publication was made and even charge-sheet was issued to him. The Chief Engineer, vide its order (Annexure-R9) dated 14th August, 1984 had informed him that his reply is not being received and therefore, action under Rule 86 of the Rajasthan Service Rules and Rule 19 of the CCA Rules, was contemplated to be taken against him. The petitioner acknowledged the same vide (Annexure-R/11) on 20.10.84. He was issued a notice (Annexure-R/12) dated 15.10.1985, that in case, he did not join the duty he would be removed from service under Rule 19 of the CCA Rules. He presented himself, vide (Annexure-R/13) on 22.11.1985 and was given the posting. Even though, he was asked to join his duty, it seems vide (Annexure-R/14), the petitioner had not joined the duties.
(2.) The impugned order (Annexure-11) dated 11.2.1986, was passed against the petitioner wherein the fact have been stated about his absence. It is also mentioned in the said order that he was asked to join his duty vide order (Annexure-R/13) dated 22.11.1985 and posted at Sub Division, Bheem but he had failed to join his duty till 24.12.1985 at Bheem. He was removed from service w.e.f. 5.3.1982, which order is said to have been passed after invoking the provisions of Rule 19 of the CCA Rules, by dispensing with the enquiry.
(3.) The petitioner is challenging the impugned order and all other connected orders on the ground that it was a mandatory duty of the respondents to hold a departmental enquiry in which the petitioner could have justified his absence or would have proved that he was not absconding and his absence was not willful. It is further submitted that in any case, the petitioner was entitled to an opportunity to be heard and especially when in response to the directions given by the respondents, he had submitted his joining report on 28.11.1985 which fact stands admitted. For the reason that the enquiry itself was dispensed with, the department did not appoint any enquiry officer. Learned counsel for the petitioner has placed reliance on a decision rendered in the case of Union of India and Ors. v. Tulsi Ram Patel and Ors., 1985 LIC (2) 1393 : [1985(2) SLR 576 (SC)] , wherein the Apex Court had discussed the scope of dispensing of the enquiry under Sub-clause (2) of Article 311 of the Constitution of India, of which Rule 19 is analogous. A disciplinary authority is not expected to dispense with a disciplinary enquiry lightly or arbitrarily or out of ulterior motives or merely in order to avoid the holding of an enquiry or because the Department's case against the Government servant is weak and must fail. The finality given to the decision of the disciplinary authority by Article 311(3) is not binding upon the Court so far as its power of judicial review is concerned and in such a case, the Court will strike down the order dispensing with the inquiry as also the order imposing penalty.;