S.K.MAL LODHA, J. - (1.) BY this appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, the State of Rajasthan (appellant) questions the correctness of the order dated December 11, 1974 of the learned single Judge of this Court by which he allowed the petitioner -respondent's petition under Article 226 of the Constitution and quashed the order Ex. 5 dated September 17, 1965 by which the penalty of stoppage of two grade increments with cumulative effect was imposed upon the petitioner -respondent.
(2.) SHRI Amolak Chand Sanghi who is respondent in this appeal and was petitioner in the writ petition will hereinafter be referred as the petitioner. While the petitioner was posted as an Assistant Engineer, Irrigation, Jaipur, he was served with the following charge: That the said Shri Amolak Chand Sanghi, while functioning as Assistant Engineer, Irrigation at Baran and Kalisote Project during the period from 1954 to 1959 abused his official position by authorising, making and claiming unauthorised payments through fabrication of records with a view to cheating the Government thereby causing wrongful loss thereto, as indicated in the statement of allegations. The charge was accompained by the statement of allegations. A perusal of the statement of allegations shows that the petitioner had employed one Naney Khan as a driver for his private Car No. RJL -2851, and instead of paying him from his own pocket prepared false vouchers showing that Naney Khan was employed as Chowkidar -cum -Beldar and Mistry and arranged payments of his salary from the Irrigation Department though he had never worked as Chowkidar -cum -Beldar and Mistry during the relevant period. Three vouchers were mentioned in the statement of allegations: one voucher was for the month of February 1958 by which Naney Khan was paid Rs. 45/ - second voucher was for the month of August 1958 by which Naney Khan was paid Rs. 45/ - and third voucher was for the month of December 1958 by which Naney Khan was paid Rs. 60/ -Besides that there was a further allegation that the petitioner had not undertaken a tour from Ghatti to Nahargarh on July 9, 1959 yet he had charged his T.A. The petitioner denied the charge as well as the allegations against him. The departmental enquiry was held by the Commissioner of Departmental Enquiries, In support of the allegations, six witnesses viz., P.W, 1 Punjilal, Circle Inspector, P.W. 2 Gopal Lal, Retired Overseer, P.W. 3 Naney Khan, P.W, 4 Surendra Khan, Assistant Engineer, P.W. 5 Ram Kishan Sarpanch of Nahargarh and P.W. 6 Jairam Dass, Chemist Ramganj Mandi were examined. In defence, the petitioner examined Kailash Pd. Sharma, U D C. in the Office of the Assistant Engineer, Minor Irrigation Works, Bundi, who had worked as L.D.C. in the Office of Assistant Engineer, Kalisote Sub -Divisional Office in July 1952. The Enquiry Officer submitted his report Ex. 6 dated September 26, 1964. He recorded the following findings: 1. Point No. 1; that Naney Khan did not do any Government work during the months of February and March, 1958 and his salary was wrongfully drawn and paid to him by the petitioner in collusion with Gopal Lal, Overseer and that it is just possible that he may have arranged this payment by way of reward of gift to him or he may have paid his salary for two months by deducting Rs. 90/ - which were paid from Government funds. Point No. 2: that Naney Khan was a private servant of the petitioner for the months of February, March and December, 1958 and that he arranged drawal of Rs. 150/ - from Government funds by preparing false records. Point No. 3: that it has not been proved that the petitioner charged T.A. for the journey from Ghatti to Nahargarth and back on July 9, 1959 when he actually did not perform this journey. In view of the aforesaid findings on the charges the Enquiry Officer reached the following conclusion' My finding on this charge as stated above is that it is established that Rs. 150/ - were down by Shri Sanghi false drawa's of pay in the name of Shri Niney Khan who was Shri Sanghi's private servant causing wrongful loss to the Government to that extent as Shri Naney Khan never did Govt. work and thus, he abused his official position. The charge of drawing false T.A. has not been established beyond doubt. Before I part with this case, I would like to mention that it is a matter of common experience and knowledge that a large number of officers placed on field duties take private work from Govt. Class IV servants. Taking private work from Govt. servant is not inherently different from the instant case. In the circumstances when all fishes slink it is idle to select one and say that stank This is, however, a matter for the Government to consider when the question of punishment comes up. On the basis of the enquiry report, the Government passed the order Ex. 5 dated September 17, 1965, the material portion of which is as under: Government have considered your written statement along with the report of the Enquiry Officer. It has been held that Rs. 150/ -were falsely drawn by you as pay in the name of Shri Naney Khan who was your private servant but was paid from Government funds. You thus abused your official position. This is quite a serious thing for which Government have been pleased to order that the penalty of stoppage of two grade increments with cumulative effect be imposed upon you. The petitioner preferred a review petition which was rejected as is clear from the letter Ex. 7 dated June 16, 1956. Thereafter, the petitioner filed the writ petition under Article 226 of the Constitution on April 13, 1970 praying, inter -alia, that the order dated September 17, 1965 imposing the penalty of stoppage of two grade increments with cumulative effect upon the petitioner, of the State Government may be quashed. In the writ petition, the order Ex. 5 was challenged on the following grounds: (1) that the report Ex. 6 of the Enquiry Officer was never made available to the petitioner for his comments, and when it was made use of without given an opportunity to him to have his say against it and so, there was violation of the principles' of natural justice; (2) that the finding that was recorded against him is not supported by any evidence; (3) that the entire approach of the Enquiry Officer was wrong in as -much as he placed the burden of proof of innocence on the petitioner; (4) that rules 16 and 17 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short 'the Rules' herein) were not complied with.
(3.) THE State of Rajasthan contested the writ petition. It was refuted that the enquiry was in violation of the principles of natural justice or that it was against the Rules. It was submitted that it was not necessary to have supplied the copy of the enquiry report to the petitioner under the Rules as only minor penalty of stoppage of two grade increments was imposed upon the petitioner. It was pleaded that there was evidence in support of the finding recorded by the Enquiry Officer, which was accepted by the Govern -and, therefore, under Article 226 of the Constitution this Court should not go into the question of finding of fact. The learned single Judge by the impugned order dated December 11, 1974 held that the finding arrived at by the Enquiry Officer was based on no legal evidence or at any rate the conclusion recorded by him was such which could not have been reached by a reasonable person, on the basis of the material that was on record. In view of this, he did not examine the other contentions. He allowed the write petition and quashed the order Ex. 5 and directed that effect should not be given to it. Aggrieved, the State of Rajasthan has filed this appeal as aforesaid.;