YADAV, J. - (1.) THE petitioner by means of this writ petition under Art. 226 of the Constitution of India has challenged the order of his dismissal dated 5. 3. 84 (Annx. 8) passed by the Executive Engineer, Public Health & Engineering Department, Drilling & Hand Pump Division, Udaipur (Respondent No. 2 ).
(2.) BRIEF facts of the case in nutshell can be recapitulated are that the petitioner was appointed as a Helper on work-charge basis on 26. 3. 1981 and since then he was continuing on the post of Chowkidar-cum-Helper in the department of Public Health and Engineering Department. The petitioner was served with article of charges under Rule 27 of the Rajasthan Public Works Department (Building & Road) including Gardens, Irrigation, Water Works and Ayurvedic Department Work-charge Employees Rules, 1964 (hereinafter referred to as 'the Rules of 1964') to the effect that the petitioner committed a theft of articles belonging to the Government in the night at 10 p. m. on 29. 5. 1983. The petitioner was given an opportunity to give his explanation to the article of charges Annx. l to the writ petition within 15 days but instead of filing explanation to the article of charges, he proposed to move an application demanding certain documents in order to file an effective reply. Respondent No. 2 refused to supply the documents demanded by the petitioner vide his order dated 18. 11. 83 (Annex. 4 ). The main thrust of argument of the learned counsel for the petitioner is that he was not given an opportunity of hearing by the disciplinary authority and he passed the impugned order dated 5. 3. 84 (Annx. 8) dismissing the petitioner with close mind. Learned counsel for the petitioner has brought to my notice the allegations made in paragraph 8 of the reply filed by the contesting respondents, which reveals that after serving the article of charges to the petitioner instead of proceeding ex- parte against the petitioner and recording the evidence of Heera Lal, Fateh Singh, Ashok Kumar, Munowar Khan and Mahesh Chandra. The petitioner was dismissed from service causing serious stigma on him on the ground that he could not be able to produce any proof in support of his innocence. It is true that strict principles of the Evidence Act are not attracted in the domestic and departmental enquiry but the general principles are always attracted. In the present case, if the petitioner did not appear before the disciplinary authority, he ought to have recorded the evidence ex parte but that has not been done, therefore, it has to be presumed that the petitioner has been denied an opportunity of hearing. Second argument of the learned counsel for the petitioner is that the impugned dismissal order dated 5. 3. 84 (Annx. 8) is a cryptic and non-speaking order while an order of dismissal of the petitioner from service causing aspersion ought to have been passed on the reasons; and logic and the disciplinary authority while passing such dismissal order ought to have given reasons in support of finding of guilt but no reasons or logic have been given in support of the order impugned. The impugned dismissal order (Annx. 8) does not disclose the points, which were considered and reasons for believing the petitioner to be thief. The disciplinary authority has not named any definable materials in support of his finding of guilt of the petitioner. In my humble opinion, this is totally unsatisfactory method of disposal of a case in exercise of quasi judicial powers vested in disciplinary authority in the State of Rajasthan. As a matter of fact, necessity to give sufficient reasons, which disclose proper appreciation of the problem to be solved and mental process by which conclusion is reached in the cases where non-judicial authority exercises the judicial functions, is obvious. When judicial power is exercised by the authority performing normally administrative and executive function, this Court would require to be satisfied that the decision has been reached after due consideration of the merit of the dispute uninfluenced by extraneous considerations or expediency. This Court insisted upon disclosure of reasons in support of the order on two grounds; one, that the party aggrieved in a proceeding before this Court has an opportunity to demonstrate with the reasons which persuaded the authority to reject his case, were erroneous; the other, that the obligation to record reasons operates as a deterrent against possible arbitrary action by the Executive Authority invested with the judicial power.
(3.) RESPONDENTS No. l and 2 have filed counter affidavit alleging in paragraphs (b) and (c) before giving parawise reply to the writ petition that the Executive Engineer, Drilling & Hand Pump Division, Public Health and Engineering Department, Udaipur issued letter No. 1271 dated 9. 6. 83 appointing Shri R. D. Gupta, Assistant Engineer, Drilling & Hand Pump Sub Division-I, Public Health & Engineering Department, Udaipur to submit preliminary enquiry report about the incident and in compliance of the said order of respondent No. 2, Shri R. D. Gupta conducted the preliminary enquiry and recorded the statements of Shri Fateh Singh, Shri Heera Lal, Shri Ashok Kumar, Shri Umesh Chandra and Shri S. K. Verma. The preliminary enquiry report was submitted by Shri R. D. Gupta to respondent No. 2 on 13. 9. 83 who after being satisfied with the ex parte preliminary submitted by Shri R. D. Gupta, Assistant Engineer, Drilling & Hand Pump Sub-Division-I, PHED, Udaipur, placed the petitioner under suspension on 24. 9. 83 and charge-sheet dated 27. 9. 83 (Annex. 1) was served to the petitioner. Annex. 2 to the writ petition reveals that after service of the charge sheet to the petitioner he moved an application demanding copies of the statement of witnesses whose statements were recorded behind his back during preliminary enquiry and disclosure of their names and addresses along with the copy of the preliminary report for filing an effective explanation. The petitioner also demanded various other documents which were not relevant to decide the controversy. However, the application moved by the petitioner demanding the aforesaid documents, was rejected on 18. 11. 83 vide Annex. 4 to the writ petition by the respondent No. 2. A close scrutiny of the charge sheet dated 27. 9. 83 (Annx. 1) to the writ petition throws a flood of light that the disciplinary authority had not disclosed the materials which were sought to be relied in support of the charge of theft levelled against the petitioner. In my humble opinion, in view of the aforesaid circumstances, the petitioner was perfectly justified to make an application demanding copies of the statements of witnesses recorded behind his back by Shri R. D. Gupta during preliminary enquiry and the petitioner was further justified to request for the disclosure of the names and addresses of the witnesses whom administration proposed to rely in order to prove the charge of theft framed against him. The order rejecting the said application by the Executive Engineer (respondent No. 2) vide order dated 18. 11. 1983 (Anx. 4), in my opinion, was per-se illegal and arbitrary being against the principle of natural justice and fair play, inasmuch as, unless the material relied upon in support of the charge is not disclosed to the petitioner, it was not possible for the petitioner to file an effective explanation to the charge-sheet served to him. As a matter of fact non-disclosure of the material which was proposed to be relied upon in support of the charge sheet by the administration and denial by the respondent No. 2 to supply he copies of the statements of the witnesses recorded during preliminary enquiry by Shri RD Gupta is sufficient prejudice caused to the petitioner. Thus it is borne out from the aforesaid discussion that the petitioner has not been afforded reasonable opportunity of being heard as contemplated under Art. 311 of the Constitution of India. ;