PALLI, J. - (1.) THE petitioner has died during the pendency of this petition and the legal representatives have been brought on record in this case.
(2.) THE petitioner was an Audit Inspector in the Cooperative Department. On 15. 6. 1977 he proceeded on leave for one day. As averred in the petition his condition deteriorated. On 17. 6. 1977 a neighbour was requested to take his application but he could not carry it and instead a phonogram was sent on 18. 6. 1977. THE petitioner received a letter on 20. 6. 1977 that his leave has been refused and he should proceed to Raisinghnagar to audit the accounts there. THE petitioner did not carry out this direction and applied for leave by telegram. On 21. 6. 1977 a registered letter was sent to the petitioner which he refused to receive but received when the same letter was sent him in open manner. On 4. 7. 1977 the petitioner moved an application on the desired form for grant of leave from 15. 6. 1977 to 3. 7. 1977. This was accompanied by a medical certificate. It is also said that the special Auditor , Sri Ganganagar had also written to the Regional Auditor, Bikaner for grant of leave to the petitioner. On 12. 8. 1977 when the Regional Auditor visited Sri Ganganagar he directed the Special Auditor to serve a charge sheet upon the petitioner and, Serve a charge-sheet upon the petitioner, thus a charge-sheet was drawn up and on 6. 10. 1978 the Chief Auditor, Cooperative Societies , Rajasthan , Jaipur informed the petitioner that it was proposed to hold an enquiry against him under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (referred to hereinafter as 'the Rules of 1958') on four charges enumerated in the Statement of Charges. THE petitioner put in his reply on 14. 02. 1979 (Annex. 2 ). THE Regional Auditor was appointed as the Enquiry Officer, who on 24. 11. 1979 intimated to the petitioner that the enquiry shall be held on 3. 12. 1979. THE petitioner came to know that the Presenting Officer is not going to attend the enquiry, therefore, he too did not go and thereafter the date of enquiry was fixed as 10. 1. 1980. By this time the period of enquiry had come to an end and petitioner did not go to attend the same. Another letter was received by the petitioner but since fresh order extending the term had not been made the petitioner did not attend the enquiry and it was on 6. 2. 1980 that the period of enquiry was further extended. THE petitioner was informed that the enquiry shall be held on 6. 7. 1980 but on this date the petitioner's wife fell ill and he could not attend the enquiry. Vide communication dated 14. 7. 1980 the petitioner was intimated that the enquiry is proposed to be held on 19. 7. 1980 and since there was a strike of the Rajasthan State Road Transport Corporation the petitioner had no means to reach the place of enquiry and the petitioner was informed that the Enquiry Officer had submitted the report and a tentative conclusion had been arrived at to remove the petitioner from services. Before doing that an opportunity by way of show cause notice is given to the petitioner to show cause why this should not be done. THE show-cause notice and the enquiry report are Annexs. 3 and 4 on the record. A reply was placed on 20. 12. 1980 to show-cause notice which is Annex. 5 on the record. After hearing the petitioner on 13. 1. 81 the order dated 26. 3. 81 was served upon the petitioner before imposing the punishment of removal from service. Another order was passed that the petitioner shall not be paid salary for the period of suspension beyond what has been paid to him as subsistence allowance. This order is Annex. 6. Aggrieved against the order Annex. 6 an appeal was preferred under Rule 23 of the Rules of 1958 and vide the order Annex. 8 dated 19. 2. 83 the appeal preferred by the petitioner was dismissed. It is said by the petitioner that the enquiry has been ex-parte, without affording him proper opportunity and without even looking into the reply which he had submitted. On the eventful day because of the strike he was unable to attend and it was obligatory on the part of the Enquiry Officer to have taken into account this fact. But the same has been conveniently ignored. Total absence of the petitioner in the circumstances was from 15. 6. 77 to 3. 7. 77 i. e. less than 20 days. He had sent a telegram and then a formal application on 4. 7. 1977. The authority had taken his past conduct into account which is not permissible under the law and Rule 30 requires that the appeal has to be considered by the appellate authority after looking into the justification for the punishment imposed on the delinquent and since the charges framed were not proved, there was no material on the record for imposing such an excessive and inadequate penalty. The appellate order is absolutely non-speaking order and has not touched any of the points raised by the petitioner in the appeal and thus, the order cannot be allowed to be sustained. In reply from the side of the respondents, it is said that the petitioner had failed to move an application for leave and the telegram received was considered but leave was refused and, thus, the petitioner was informed of this and directed to proceed for the audit of the accounts and having failed to proceed without explaining any reason the petitioner was guilty of disobeying the order of the Special Auditor and that he was guilty of wilful absence from duty, without prior sanction of leave and that the petitioner though joined duty on 4. 7. 1977 but failed to submit the application on requisite form alongwith the medical certificate and the same was actually submitted by him on 19. 7. 1977. It is further said in the reply that during the enquiry the petitioner did not cooperate and did not present himself though he was being informed from time to time to attend the enquiry. It is further said in the reply that the appellate authority had arrived at the conclusion on the basis of the charges against the petitioner stood fully proved and it was the decision of the disciplinary authority that was upheld and there was no illegality in the order. Mr. Mridul, learned Senior Advocate appearing for the petitioner, vehemently argues that the fact that there was a strike is not denied. In the Rejoinder at page 107 the petitioner has placed the circumstances under which he could not appear. It is further argued that the enquiry report on the face of it reveals the non- application of mind and so was the case in respect of the appellate authority while dismissing the appeal of the petitioner. It is further stated that the previous conduct of the petitioner could not be taken into account. My attention has been specifically invited to Rules 14, 16, 16 (10) (ii) (b) and Rule 30 of the Rules of 1958. It is contended by the learned counsel that there is hardly any occasion to conclude that there was wilful absence on the part of the petitioner or that there was disobedience on his part and that no charge stood established as mentioned in the enquiry repots. No reasons for imposing the penalty as required by Rule 14 have been recorded. Rule 16 further makes its obligatory that a finding has to be arrived at on each charge. It is further high lighted that inspite of demand being raised for the supply of the documents as required by Rule 16 (6) (a), the documents were not supplied to the petitioner.
(3.) IN fact, the learned counsel appearing for the respondents has reiterated the points taken in the reply and high lighted the conduct of the petitioner in deliberately avoiding to receive the letters, not making a proper application for leave, disobeying the orders by not joining for the audit and non-cooperation on the side of the petitioner and his conduct during the enquiry. After having heard the learned counsel for the parties and after having gone through the pleadings and the relevant material in the form of Annexures placed by the parties on the record, the four charges i. e. deliberate absence, disobeying the orders, not receiving the post and not having taken the prior sanction of the leave are inter dependable and inter related. There is no denying of the fact that on 15. 7. 1977 the petitioner applied for one day leave. He was ill and the condition further suffered and in such circumstances the Enquiry Officer should have looked into the circumstances particularly in view of the fact that the receipt of the telegram dated 18. 6. 1977 is not denied. The petitioner was informed that his request for grant of leave has been refused. Admittedly, the petitioner reported for duty on 4. 7. 1977. The absence for 15 days was not such scandalous that all adverse inference could be drawn against the petitioner culminating into the four charges. If admittedly the period of enquiry had run out and the petitioner did not attend the enquiry on that account, though not appreciable but could not be taken into account for such a severe punishment. On the eventful day the evidence was taken and the enquiry was concluded i. e. 19. 7. 1977, the petitioner has come out with the explanation that there was a strike of the Roadways. The same could be enquired into to find out as to what the petitioner was stating was a lie. Further from the enquiry it appears that the past record of the petitioner has been taken into account as would appear from Annex. 6 the order of removal. At typed page 4 running page 55 of Annex. 6 it is said that the previous record of the petitioner has also not been good and that on earlier occasions also the petitioner has been behaving in the same fashion. Some reports and remarks of the year 1977 were noticed about his conduct and immediately thereafter it is written that in view of this conduct it is not proper to retain the petitioner in service any long. To further strengthen this argument, learned counsel has pressed into service a decision of the Hon'ble Supreme Court rendered in The State of Mysore Vs. K Manche Gowda (1), wherein their Lordships of the Supreme Court observed as under : - "if the proposed punishment is mainly based on the previous record of the Government servant and that is not disclosed in the notice, it would mean that the main reason for the proposed punishment is withheld from the knowlege of the Government servant. It would be no answer to suggest that every Government servant must have had knowledge of the fact that his past record would necessarily by taken into consideration by the Government in inflicting punishment on him. " On wilful absence, my attention has been drawn to a decision of the Hon'ble Supreme Court delivered in the case of Jai Shanker Vs. State of Rajasthan (2), wherein their Lordships held that a removal if it is a punishment for overstaying one's leave an opportunity must be given to the person against whom such an order is proposed. In the present case, the enquiry was concluded in the absence of the petitioner on 19. 7. 1977. The petitioner has explained that there was a strike by the Roadways Corporation and he could not manage to reach the place of enquiry which fact has not been rebutted from the other side by any evidence. Rather in the petition at page 7 para 3 (i) the petitioner mentions about this data and the strike and on a reading of the corresponding reply of this para the same has not been denied and it is rather said that the petitioner could manage to reach by rail or by a private bus, meaning thereby that what the petitioner says is not denied. In my considered opinion, the petitioner should have been given a final opportunity by the Enquiry Officer telling him in clearest terms that he has not been cooperating and in case he fails to attend the enquiry on the next date of hearing the proceedings will be held in his absence and a decision may be given. It has also been said by him in the appeal that the Special Auditor had requested and recommended that the leave of the petitioner be sanctioned. This fact could be denied only by the Special Auditor who incidentally happened to be the Enquiry Officer. In the grounds of appeal before the appellate authority, the petitioner has stated that on 5. 7. 1980 when he could not go to attend the enquiry on account of the serious condition of his wife, an application expressing his inability was sent and also a request was made vide the application dated 5. 7. 1980 that the copies of the statements recorded may please be supplied to him. It was therefore, incumbent upon the enquiring authority to ensure compliance of the requirements of Rule 16 (6) (a) of the Rules of 1958. Incidentally it was on 5. 7. 1980 the prosecutor i. e. the presenting officer himself appeared in the witness-box and the statement was recorded and further the documents were proved by him, whereas according to the petitioner, the presenting officer had nothing to do with these documents. The procedure, thus, vitiated the enquiry and adversely affected the petitioner. I have further found in respect of charge No. 4 that the finding of the Enquiry Officer in his report at page 3 under discussion of charge No 2 where there is a mention of the medical certificate having been submitted on 4. 7. 1977. Where as while discussing the charge No. 4 it has been arbitrarily found that the medical certificate was submitted on 19. 7. 1977. There appears to be thus contradiction in the report and it cannot be ruled that there was bias in the mind of the Enquiry Officer as well as by the punishing authority in the removal order where his past conduct had been taken into account. The Registrar i. e. the disciplinary authority also appears to have endorsed the report of the enquiring authority in a mechanical way. The principles of natural justice, thus, appear to have been not followed and there was some malice working in the mind of the disciplinary authority. ;