DWARKA PRASAD, J. - (1.) IN this writ petition the question which calls for determination is as to whether a disciplinary enquiry could be initiated against the petitioner after proceedings were dropped against him as a result of an earlier preliminary enquiry.
(2.) THE facts which have given rise to this writ petition may be briefly stated. THE petitioner is employed as a Copyist in the court of District and Sessions Judge, Jodhpur. A complaint was filed against him by one Kalyan Das Joshi on December 11, 1967. Another complaint was filed by the same person on January 21, 1968. A third complaint was also filed by Kalyan Das against the petitioner on February 14, 1968. In the last complaint, an allegation was also made amongst others that the petitioner was residing with his father and although he was not residing in a rented house, but he was drawing house rent allowance. THE learned District Judge, Jodhpur appointed the Judge, Small Causes Court, Jodhpur to make a preliminary enquiry in respect of two matters namely, as to whether the petitioner prosecuted higher studies without obtaining prior permission and as to whether he was illegally drawing house rent allowance. THE Enquiry Officer directed the petitioner to submit his explanation. In his reply dated May 25, 1968 the petitioner Om Prakash admitted that he had prosecuted further studies without obtaining permission. As regards the question of drawing house rent allowance, the petitioner Om Prakash submitted that he was not residing with his father or in the house of his father, because of strained relations between them. In the course of the preliminary enquiry, the complainant did not appear and the Enquiry Officer in his report dated January 7, 1971 held that the petitioner prosecuted further studies and appeared at the B. A. Examination without the permission of the department, as admitted by him. However, as regards the question of illegally drawing house rent allowance, the allegation was not found proved as no evidence was led by the complainant in respect there of. THE learned District Judge, by his order dated February 9, 1971, held that the allegations were not proved as the complainant failed to produce any evidence, except that the petitioner Om Prakash himself admitted that he pro-secuted further studies and appeared at B. A. Examination without obtaining permission Acting upon the admission of the petitioner, the learned District Judge imposed the penalty of stoppage of grade increment for a period of 6 months without future effect, upon the petitioner in respect of the charge of prosecuting further studies without obtaining permission for the same. Thereafter the complainant Kalyan Das made further complaints before the High Court which were forwarded to the learned District Judge for examination and report. The learned District Judge made an enquiry and submitted a report dt. March 24, 1973, on the basis of the preliminary enquiry now conducted by him to the effect that the petitioner appears to have resided with his father and that he received house rent allowance from year 1965 to 1969, which claim appeared to be false and unjustified and that the question regarding the receipt of house rent allowance by him from the year 1965 to 1969 required further examination. The record of the proceedings taken on the subsequent complaint filed by Kalyan Das was placed before me by the learned Additional Government Advocate and it appears that this Court in its letter dated August 20, 1973 expressed the view that no enquiry, either under Rule 16 or Rule 17 of the C. C. A. Rules, was held against the petitioner on the earlier occasion and the whole matter was handled in a manner not provided for in the said rules. This Court took the view that the District Judge should hold a proper enquiry in regard to the drawing of the house rent allowance by the petitioner, during the relevant period. The learned District Judge, Jodhpur thereafter served a charge sheet along with a statement of allegations and a memorandum upon the petitioner on September 24, 1973 which was received by him on October 1, 1973. The petitioner raised a preliminary objection that the enquiry in respect of the house rent allowance had already taken place and he had been exonerated of the charge and as such a fresh enquiry in respect of the same charge could not be held. The Enquiry Officer, namely, the Additional District Judge, Jodhpur by his order dated March 27, 1974 rejected the preliminary objection raised by the petitioner, holding that as no charg sheet was served upon the petitioner nor any departmental enquiry was conducted either under Rule 16 or Rule 17 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958 (hereinafter called "the Rules") and so a departmental enquiry in the matter is not barred. It was also observed by him that the High Court has given a direction under Rule 32 (c) of the C. C. A. Rules to make an enquiry in accordance with the Rules. The order passed by the Enquiry Officer on March 27, 1974, rejecting the preliminary objection raised by the petitioner before him, has been challenged in this writ petition. Learned counsel for the petitioner contended that the petitioner hav-ing been exonerated at the first enquiry in respect of the charge realating to his drawing house rent allowance, a second departmental enquiry in respect of the very same charge cannot be held and reliance was placed on a division bench judgment of this Court in Dwarka Chand vs. State of Rajasthan (1), It was also argued by the learned coun-el for the petitioner that the objection went to the very root of the matter and it should have been decided by the Disciplinary Officer, namely, the District Judge and not by the Enquiry Officer. It was lastly submitted by learned counsel that rule 32 (c) was not applicable as no revision petition was filed in the High Court by any person.
(3.) THE proposition which has been propounded by the learned counsel for the petitioner is that if a disciplinary enquiry has been held earlier in respect of a specific charge resulting in the exoneration of the employee, then a second disciplinary enquiry on the same facts cannot be ordered, unless there is a provision for reviewing an order of exoneration, in the relevant service rules or in any other law for the time being in force. In Dwarka Chand's case (supra), a division bench of this Court held that it was not open to a higher authority to order a fresh disciplinary enquiry, ignoring the result of the earlier disciplinary enquiry exonerating the public servant and the following observations were made in this regard :- "it was urged on behalf of the State that if this view is taken, it might result in great prejudice to the State inasmuch as the person holding the first enquiry might have held it in a very slipshod manner fas alleged in this case) or even dishonestly and the State would be helpless. We must say that we are not impressed by this argument for two reasons. In the first place, if a superior officer holds a departmental enquiry in a very slip-shod manner or even dishonestly, the State can certainly take action against that superior officer and in an extreme case even dismiss him for his dishonesty in the departmental enquiry which he conducts. That would in our opinion, be a salutary check which would prevent those holding departmental enquiries from acting in a slipshod manner or dishonestly. In the second place, if the case is one like the present, it would, in our opinion, be open to the State to prosecute a person like the applicant in a Court of law in spite of what a d partmemtal officer might have decided in the departmental enquiry one way or the other. THErefore, the danger to the State is really not so great as has been submitted. On the other hand, if we were to hold hat a second departmental enquiry could be ordered after the previous one has resulted in the exoneration of a public servant, the danger of harassment to the public servant would, in our opinion, be immense. If it were possible to ignore the result of an earlier departmental enquiry, then there will be nothing to prevent a superior officer, if he were so minded, to order a second or a third or a fourth or even a fifth departmental enquiry after the earlier ones had resulted in the exoneration of a public servant. " But the question in the present case is as to whether the earlier proceedings were in the nature of a departmental enquiry and whether the petitioner was exonerated at an earlier departmental enquiry, which would have the effect of debarring a fresh departmental enquiry against him, in respect of the question of drawing house rent allowance by him. It appears from the writ petition that on October 9, 1965 the petitioner filed an application before the learned District Judge, Jodhpur, stating that he was residing in a rented house and as such he should be allowed house rent allowance as per rules and he also appended a certificate along with his application that he was residing in a rented house. In the year 1969, the petitioner was transferred out of Jodhpur. Then in October 1970 the petitioner was again transferred to Jodhpur and then he gave a fresh application claiming house rent allowance. When a discrepency was discovered in his versions, the petitioner submitted an affidavit (Ex. R/1) on November 15, 1972 to the effect that he has separated from his father and was living in a sepa-rute rented house since October 23,1972 and further that the petitioner has 9/48th share in his ancestral house, which did not provide him sufficient accommodation for his residance. In fact the variation between the two declaration made by the petitioner, one in the year 1965 and other in the year 1972 appears to have led to the filing of a fresh complaint by Kalyan Das on March 12, 1973 before the High Court in which he referred to the two different declarations made by the petitioner at different times. This complaint was forwarded by the High Court to the District Judge for an enquiry and when the District Judge thereafter submitted in his report dated March 24, 1973 that the matter renquires further examination, the High Court directed the learned District Judge to proceed with a regular enquiry into the matter. The order passed by the learned District Judge, on the earlier occasion on March 12, 1968, on three complaints filed by Kalyan Das, clearly go to show that merely a preliminary enquiry in respect of two matters contained in those complaints was proposed to be held at that stage. The Judge, Small Causes Court, Jodhpur, who made the preliminary enquiry, submitted his report on January, 7, 1971 to the learned District Judge. The petitioner claims that the earlier enquiry was a disciplinary enquiry because on the basis of the report submitted by the Enquiry Officer, the learned District Judge by his order dated February 9, 1971 imposed a penalty upon the petitioner for contravention of Rule 14 (b) of Government Servant and Pensioners Conduct Rules. It may be pointed out that the aforesaid penalty was imposed upon the petitioner by the learned District Judge, not as a result of any disciplinary enquiry but on the basis of the admission made by the petitioner in the course of preliminary enquiry proceedings, namely, that he had prosecuted further studies and appeared at the B. A. Examination without obtaining prior permission of the competent authority. As a matter of fact no disciplinary enquiry of any sort, either under Rule 16 or Rule 17, was taken against the petitioner on the earlier occasion. The High Court, while examining the matter under Rule 32, clearly took the view that the earlier proceedings did not constitute a disciplinary enquiry, either under Rule 16 or Rule 17 of the C. C. A. Rules. The learned Administrative Judge, Justice P. N. Shinghal, as he then was, observed in the order passed under Rule 32 that the whole matter was handled on the earlier occasion in a manner not provided under the Rules. I find myself fully in agreement with the view taken by the then Administrative Judge in this matter. ;