- (1.) THE subject matter of challenge is the judgment and order dated 8.2.2010 passed in S.B.Civil Writ Petition No.2691/1996 adjudging the disciplinary proceedings under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, hereafter referred to as 'the Rules') and consequential dismissal of the respondent/writ petitioner from service, to be invalid.
(2.) WE have heard Mr.Dinesh Yadav, learned Additional Advocate General for the appellants/writ respondents and Ms.Naina Saraf, learned counsel for the respondent/writ petitioner. Facts in brief, necessary to be noticed, are that the respondent/writ petitioner, while posted as constable in CID, Crime Branch, Rajasthan, Jaipur, under the appellants/writ respondents, was subjected to departmental enquiry under Rule 16 of the Rules, and in connection therewith, was placed under suspension vide order dated 13.8.1993. Subsequent thereto, a memorandum of charges was issued on 20.8.1993 together with statement of allegations in support thereof. The respondent/writ petitioner submitted his reply denying the charges, whereafter the Disciplinary Authority appointed, in succession, enquiry officers from time to time. The respondent/writ petitioner was, during the pendency of the departmental enquiry, reinstated in service without prejudice thereto (departmental enquiry). According to the respondent/writ petitioner, the Enquiry Officer last appointed, proceeded ex parte against him without however, giving proper notice of the dates thereof and recorded evidence of the witnesses of the disciplinary authority and he was not afforded any opportunity of cross -examining them. He has further pleaded that no Presenting Officer was appointed on behalf of the Disciplinary Authority and the Enquiry Officer acted in the said capacity as well. Eventually, the Enquiry Officer submitted his report recording a finding that the charges levelled against the respondent/writ petitioner had been proved, whereafter according to him (respondent/writ petitioner), the Disciplinary Authority without issuing any notice to him alongwith a copy of the enquiry report or affording any opportunity of hearing to him, imposed the penalty of dismissal from service vide order dated 31.8.1995. The respondent/writ petitioner has alleged that even the order of dismissal did not carry with it the report of the Enquiry Officer. As his departmental appeal failed, he sought to invoke the writ jurisdiction of this Court for redress. The appellants/writ respondents, in their reply, endorsed the validity of the disciplinary proceedings contending that the same had been conducted strictly in accordance with the provisions of the Rules. They asserted that the respondent/writ petitioner wilfully avoided the proceedings, inspite of due notice thereof, and that therefore, his plea of want of fairness in action was untenable. According to the appellants, the omission to furnish copy of the report of the Enquiry Officer to him per se did not invalidate the proceedings, in absence of any proof of prejudice arising therefrom. The learned Single Judge however, on a consideration of the pleaded averments and the documents on record, returned a finding that the disciplinary proceedings had been held in utter disregard of the procedure contained in Rule 16 of the Rules. In arriving at this conclusion, the learned Single Judge recorded as follows: - (a) The lastly appointed Enquiry Officer had recorded the evidence of the witnesses of the Disciplinary Authority without issuing notice to the petitioner and without passing any appropriate order to hold the enquiry ex parte. The appellants, in reply, have merely denied this assertion, without disclosing the dates and other particulars as to when notice(s) had been issued/served on the respondent/writ petitioner. (b) The respondent/writ petitioner asserted that the Disciplinary Authority had failed to comply with the requirements of Rule 16(5) of the Rules by not appointing the Present Officer, and that, the Enquiry Officer had assumed the role of Prosecuting Officer, and that too, in his absence. The appellants have, in reply, only pleaded that no prejudice had been caused to him on account of examination of the witnesses of the Disciplinary Authority by the Enquiry Officer. (c) The respondent/writ petitioner has pleaded that the Disciplinary Authority had neither issued any show cause notice to him nor had forwarded a copy of the enquiry report as opposed to the prescriptions of sub -rule (10) of Rule 16 of the Rules, and that, the Disciplinary Authority before imposing the penalty had not supplied the findings of the Enquiry Officer on the charges. The appellants, in reply, have only pleaded that the Disciplinary Authority had taken into consideration the enquiry report and all relevant materials, including past service record of the respondent/writ petitioner, and had determined and imposed the penalty. Further, mere omission to issue the show cause notice or to furnish the enquiry report per se did not prejudice him. (d) The respondent/writ petitioner had submitted a representation before the Disciplinary Authority prior to the passing of the order of penalty, which was forwarded to the Enquiry Officer, and on obtaining comments from him (Enquiry Officer), the Disciplinary Authority passed the order of penalty. The appellants, in reply, contended that the fact that the respondent/writ petitioner had submitted representation, firmly attests against any prejudice suffered by him by the omission to furnish a copy of the Enquiry Officer's report. (e) Though charge No.3 was not found to have been proved by the Enquiry Officer as averred by the respondent/writ petitioner, it was held to be proved by the Disciplinary Authority without first issuing notice of disagreement to him (respondent/writ petitioner). To this, the appellants have averred that mere failure to furnish a copy of the enquiry report did not ipso facto render the disciplinary proceedings illegal, as the respondent/writ petitioner had failed to prove any prejudice thereby.
(3.) THE learned Single Judge, by taking note of the contentions of the respondent/writ petitioner individually and collectively, concluded that had he been furnished with the copy of the report of the Enquiry Officer, he could have highlighted the procedural and other illegalities vitiating in the disciplinary proceeding, and thus, the omission to do so (furnishing a copy of the enquiry report) did patently result in his prejudice. The learned Single Judge, in particular, also referred to the omission on the part of the appellants to issue notice on the point of disagreement and reasons in support thereof qua the Enquiry Officer vis -a -vis charge No.3. The omission to appoint the Presenting Officer and the consequent conduct of the departmental proceedings by the Enquiry Officer as the Presenting Officer while examining the witnesses, was also noticed. That the departmental Appellate Authority did not apply his mind to these violations, was also noted by the learned Single Judge. The learned Single Judge recorded as well that no material had been placed to demonstrate that notice had been issued to the respondent/writ petitioner to the effect that the disciplinary proceedings would be conducted ex parte and/or of the dates on which its witnesses would be examined. The disciplinary proceeding was therefore, held to be violative of the Rules and also of the principles of natural justice.;