S. N. BHARGAVA, J. - (1.) THIS is plaintiff's second appeal.
(2.) THE plaintiff was working as Male Nurse Grade-III at M. B. S. Hospital, Kota. He was served with a memorandum dated 28. 7. 1970 along with a charge sheet, and an enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the 'cca Rules') was proposed to be held against him. THE allegation against the appellant was that on 29. 5. 70 he pointed out Shri Murli Manohar Moondra to three persons who lateron gave beating to Shri Moondra. Enquiry was held under Rule 16 of the CCA Rules, and after the enquiry was over under Rule 16 of the CCA Rules, without any notice to the appellant regarding the change of procedure from Rule 16 to Rule 17 of the CCA Rules, a minor penalty of stoppage of two grade increments without future effect was straightaway imposed against the appellant, without calling any explanation from him and without furnishing him even copy of the enquiry report. Plaintiff in his plaint further alleged that the enquiry was held in breach of principles of natural justice and the charge does not refer to his conduct as an employee and had nothing to do with the discharge of his duties. THErefore, there is no question of any misconduct. He further submitted that the charge was not proved and the whole proceedings were mala fide. Appellant challenged the said order by filing the present suit, seeking to set aside the order dated 11. 5. 1971. The suit was contested by the defendants. The trial court, after framing issues and recording evidence, dismissed the suit of the plaintiff vide his judgment and decree dated 7. 4. 75. On appeal by the plaintiff appellant, the learned Additional District Judge, Kota by his judgment and decree dated 5. 4. 77 also dismissed the appeal, Hence, this second appeal. Learned Single Judge while admitting this appeal, framed the following substantial question of law:- "whether a prior notice to the appellant was necessary before changing the procedure from Rule 16 to Rule 17 of the CCA Rules".
(3.) LEARNED counsel for the appellant has placed reliance on Dr. Kishan Singh V. State of Rajasthan (1) in which the Division Bench held as under:- "it is permissible for the disciplinary authority to proceed under Rule 17 for imposing minor penalties, although 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. " Learned counsel for the appellant further submitted that the appellant was not served with a copy of the enquiry report which was essential and therefore, he could not make an effective appeal which clearly amounts to violation of principles of natural justice. On this ground alone, the impugned order should be quashed and in this connection, has placed reliance on Ramsingh Rathore V. R. S. R. T. C. (2 ). On the other hand, learned counsel for the respondents has submitted that it is not necessary to give a prior notice to the appellant before changing the procedure from Rule 16 to Rule 17 CCA Rules. If after conclusion of the enquiry, the Disciplinary Authority thinks that major penally is not warranted, on the basis of findings of the enquiry officer, he is well within his jurisdiction to inflict a minor penalty. In the present case, there is no question of changing the procedure because the enquiry had already been completed and enquiry report had been submitted. Therefore, case of Dr. Kishan Singh (supra) is not applicable to the facts of the present case. ;