- (1.) THIS is a writ application under Art. 226 of the Constitution of India by Dr. Kishan Singh Inda who is C. A. S. Class II in the Medical Department of the Rajasthan State.
(2.) IT is directed against the order of the respondent dated 25th August, 1960, whereby the petitioner was punished on two charges. The first charge against him was that he used service stamps in his private correspondence, from his home-town Balesar, with the Chief Medical Officer, Sirohi, when he was on leave between 22nd October, 1954 and 12th March, 1955 and thus he misappropriated government funds. This charge was held to be proved and he was given a warning to be more careful in future. The next charge against him was that in June, 1957 when he was posted at Banklee, he was transferred from there to Bassi. He did dot carry out this order under false pretext and appelied for sick leave without being sick. Moreover, he approached higher authorities for getting his transfer set aside and thus committed a breach of discipline. Eventually, he was posted at Maroth and then he joined at that place on 11th March, 1958. This charge was also found proved and he was punished with stoppage of two increments with cumulative effect. It is contended by the petitioner that the Government had proceeded against him under Rule 16 of the Rajasthan Civil Servants ( Classification, Control and Appeal ), Rules, 1958, which will hereinafter be called the 'rules', that he was charge-sheeted and also supplied with statement of allegations and asked if he wanted personal hearing and witnesses to be examined in his defence ; but insted of making any enquiry thereafter, the respondent straight-way proceeded under Rule 17 of the Rules and awarded him punishment without giving him any opportunity of hearing and examining any evidence in his defence. It is strenuously urged by the petitioner's learned counsel that his client was seriously prejudiced in his defence and that he has been penalised by violating the very first principles of natural justice. In the reply tiled on behalf of the respondents, an attempt has been made to justify the action taken against the petitioner. We have gone into the notice dated 2nd February, 1960 (Ex. 1) given to the petitioner as also the charges (Ex. 2), the statement of allegations ( Ex. 3), the reply filed by the petitioner (Ex. 4), the order punishing the petitioner (Ex. 5) and the order passed on review on 31st January, 1961 (Ex. 7 ). A perusal of Ex. 1 clearly shows that the respondent wanted to proceed against the petitioner under Rule 16 of the Rules. In the very first sentence of the notice, the petitioner was intimated that "the Government proposed to hold an enquiry against him under Rule 16 of the Rules. " It was further mentioned that the statement of allegations and the charges framed on its basis were being sent to him and in para 2, he was required to submit a written statement of his defence within fifteen days and to state (a) if he desired to be heard in person, (b) if he wanted to call witnesses in support of his defence, (c) If he wanted to produce any documentary evidence in his defence and if so, he was called upon to furnish the list of documents as also the list of witnesses together with their names and addresses. A perusal of the petitioner's reply (Ex. 4) shows that he made it explicitly clear that he wanted a personal hearing and he further stated the he would furnish the list of documents and the names of the witnesses to be examined in his defence after a personal hearing is given to him. At the same time, he stoutly denied the correctness of both the charges levelled against him. It may be noted here that the notice Ex. 1 was given to the petitioner on 2nd February, 1960 for using service stamps during the period between 22nd October, 1954 and 12-3-1955 that is, after a lapse of about five years. Similarly, the second charge was about some wrong which was said to have been committed by him in the middle of 1957, that is two and a half years earlier. Under the circumstances, though the disciplinary authority when it gave notice, was considerate enough to ask the petitioner to let it know if he wanted a personal hearing and if he wanted any documentary or oral evidence to be produced in his defence, it suddenly adopted a different procedure and proceeded against him under Rule 17 instead of proceeding under Rule 16, without disclosing any reasons for the change and punished the petitioner without giving him any personal hearing or examining any evidence for or against him in his presence. It is true that for imposing minor penalties, it is open to the disciplinary authority to proceed under Rule 17 instead of Rule 16, but if the disciplinary authority proposes to proceed under Rule 17, that Rule requires that the Government servant must be informed in writing of the proposed action to be taken against him and also of the allegations on which action is proposed to be taken. He should be given an opportunity to make a representation which he may wish to make. We find that no intimation was given to the petitioner what action the disciplinary authority proposed to take against him and whether it wanted to proceed under Rule 17. We do not mean to say that it is not permissible for the disciplinary authority to proceed under Rule 17 for imposing minor penalties, simply because it has proceeded initially under Rule 16 but it is certainly necessary that if it proposes to change the procedure from Rule 16 to Rule 17, a clear notice to that effect must be given to the person concerned before proceeding under Rule 17. In a case like the present one, where the respondent wanted to proceed against the petitioner in respect of some wrong which was alleged to have been committed by him five years earlier or, for that matter two and a half years earlier, it was all the more necessary that he should have been given a personal hearing and the evidence on whose basis he was sought to be punished should have been examined in his presence. If he had used service stamps for his private purposes, the envelope sent by him and the stamps it bore ought to have been shown to him. When a period of five years had elapsed, the petitioner could not be expected to remember what kind of stamps he had used on a particular envelope and whether the said stamps were affixed by him or somebody else in order to bring him into trouble, or by inadvertance. Similarly, when it was alleged against him that be obtained sick leave without being sick,or on other false pretexts, or that he committed breach of discipline in approaching higher authorities,the evidence to prove these facts ought to have been examined in his presence. The questions (a) whether he was really sick or not, (b) whether he had raised false pretext for avoiding his transfer to a particular place and (c) which particular authority he had approached for getting the order of transfer changed, were those of facts and they could not be determined without examination of evidence and without giving an opportunity to the petitioner to test the veracity of the witnesses by their cross-examination. The further question whether an approach to the higher authorities constituted breach of discipline could be properly decided only when necessary facts were established. He should have also been given an opportunity to rebut the evidence produced against him by production of oral or documentary evidence in defence. He was deprived of all this opportunity and punished by assuming that the charges were proved. In our opinion, this is a glaring case in which the very first principles of natural justice were clearly violated and the petitioner was punished almost ex parte. We, therefore, allow the writ application and quash the impugned orders dated 25th August, 1960 and 31st January, 1961, Exs. 5 and 7 respectively. In the circumstances of the case, we leave the parties to bear their own costs. . ;