- (1.) PRAYER made in this writ petition is for quashing of order dated 23. 4. 92 (Ex. 1) passed by the Superintendent of Police, C. R. P. (Railways) Rajasthan, Ajmer for suspension of the petitioner and exhibit-8, dated, 31. 12. 92 passed by the same authority dismissing the petitioner from service. Petitioner has prayed that these orders be quashed and he be ordered to be reinstated with all consequential benefits.
(2.) PETITIONER was serving as a Constable and was posted under the Superintendent of Police (Railways ). He was suspended by an order (Ex. 1) dated, 23. 4. 92. This was followed by a memo dated, 5. 6. 92 for holding an inquiry against him under Rule- 16 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958. PETITIONER submitted his reply dated, 16. 7. 92. Thereafter his suspension was revoked by order dated 18. 7. 92. Assistant Superintendent of Police (Railways), Ajmer was appointed as inquiry officer. At the end of the inquiry proceedings the petitioner submitted his written brief. The inquiry officer submitted his report dated, 30th December 1992 and on 31. 12. 92 the disciplinary authority passed the impugned order (Ex. 8) dismissing the petitioner from service. Petitioner has questioned the legality of the order of his suspension as well as the punishment order on several grounds enumerated in the writ petition but it is not necessary for me to make a detailed reference to all these grounds, because, in my opinion, the writ petition deserves to be allowed only on the ground that before passing the order of punishment dated, 31. 12. 92, the disciplinary authority did not give a copy of the inquiry report to the petitioner and no opportunity of making representation was given to the petitioner. In the writ petition the petitioner has specifically stated that copy of inquiry report was not furnished to him before passing of the impugned order of punishment instead, it was made available only with the final order of punishment and that this is not real compliance of provisions of Art. 311 of the Constitution as also Rule 16 of 1958 Rules. The respondents have not disputed the statement of the petitioner that copy of inquiry report was not furnished to him before passing of the final order, but they have come out with the case that furnishing of copy of inquiry report was not a condition precedent for passing an order of dismissal. Respondents have also raised a plea of availability of alternative remedy. On the question of requirement of furnishing a copy of inquiry report their Lordships of the Supreme Court have in Union of India vs. Mohammed Ramzan Khan (1) held that the disciplinary authority is under an obligation to give a copy of the inquiry report to the delinquent employee before a major penalty is imposed on such employee. Their Lordships have examined the position of law as it stands after 42nd amendment of the Constitution whereby Art. 311 (2) was amended and the requirement of second show cause notice regarding the proposed penalty has been dispensed with.
(3.) THERE had been some controversy about the observations made in Mohammed Ramzan Khan's case that the said decision would be applicable prospectively. However, that controversy is not relevant in the case of the petitioner because, in his case, the disciplinary proceedings were initiated much after the decision in Ramzan Khan's case and impugned order of punishment has been passed after almost two years of the judgement of Supreme Court in Mohammed Ramzan Khan's case. The admitted facts which have come on record show that the petitioner had not been given a copy of inquiry report and he was not given opportunity to make representation against the findings recorded by the inquiry officer. It is therefore, clear that the order of punishment has been passed in patent violation of Art. 311 of the Constitution of India. Once it has been found that there has been a clear violation of the constitutional provisions, the petitioner cannot be denied relief only on the ground of failure to avail remedy of alternative remedy of appeal. ;