ASHOK KUMAR MATHUR, J. - (1.) PETITIONER by this writ petition has challenged the orders Exs. 16, 37 and 39.
(2.) PETITIONER while working as a Patwari at Patwar Circle Maheda, a complaint was filed against Hakaria and Ramju with reference to the unauthorised encroachment by them on the Charnot Land Khasra No. 1192 measuring 2 -1/2 bighas since Sam vat Year 2032. Proceedings were taken against them by Naib Tehsildar and a notice under Section 91 was given to them in case No. 730 of 1975. A penalty was imposed on them to forefeit the standing crops and they were dispossessed from the land. Hakaria filed a complaint before the Collector, Chittorgarh alleging there in that petitioner while working as Patwari on this Patwar Circle, obtained Rs. 400/ - on a promise made to him by the petitioner that he would get the land allotted in his favour. The Assistant Collector, Pratapgarh held enquiry, recorded the statemnts of Hakaria and his brother Ramju and Valia and submitted his report on 9 -1 -1976 holding that the complaint is false and frivolous. The Collector did not agree with this report and served a charge sheet to the petitioner by the memo dated 19 -6 -1976 and Inquiring Officer was appointed to hold an enquiry against the charges levelled against the petitioner. Petitioner filed a reply and thereafter the enquiry was conducted by the Tehsildar and the Tehsildar found the petitioner guilty of the charges. On the basis of this enquiry report, the petitioner was given a show cause notice and ultimately the Collector, Chittorgarh found the petitioner guilty and removed him from service, vide Ex. 16 dated 23 -1 -1977. Aggrieved by this, petitioner preferred an appeal before the Board of Revenue. Petitioner was heard by the Member, Board of Revenue and the learned Member of the Board found him guilty of the charges and dismissed the appeal of the petitioner and confirmed the order of the Collector dismissing the petitioner from service. Thereafter a review application was filed by the petitioner before the Board of Revenue and the Member reviewed his own order dated 5 -5 -1978 and directed that the Collector, Chittorgarh should again look into the matter after holding a fresh enquiry. On this, the case was remanded back to the Collector, Chittorgarh with certain directions. The Collector again got the matter enquired into by the Sub -Divisional, Officer, Partap Garh. The enquiry officer after holding the enquiry afresh found the petitioner not guilty and submitted his report to the Collector. The Collector thereafter did not agree with the finding of the report of the Enquiry Officer and passed an order dated 21 -2 -1980 removing the petitioner again from service. Aggrieved against that order petitioner preferred an appeal before the Board of Revenue and the Board of Revenue after hearing the petitioner dismissed his appeal by order dated 4 -3 -1981 Ex. 39 and affirmed the dismissal of the petitioner. Aggrieved against this order petitioner has filed the present writ petition. Learned counsel for the petitioner has placed two principal submissions for my consideration. Learned counsel submits that rule 16(10) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (here in after referred to as the Rules) clearly lays down that when ever a Disciplinary Authority does not agree with the findings of the Enquiry Officer, then a show cause notice along with the brief reason of disagreement should be given to the delinquent officer. In this connection it may also be relevant to mention here that Sub -rule (10) of Rule 16 has now been amended in the year 1983 but we are concerned with the unamended provisions. The unamended provision of Sub -rule (10) of Rule 16 is reproduced as under: (10) If the Disciplinary Authority having regard to its finding on the charges is of the opinion that any of the penalties specified in clauses (iv) to (vii) of Rule 14 should be imposed on the Government Servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government Servant any opportunity of making representation on the penalty proposed to be imposed. Provided that in every case in which it is necessary to consult the Commission the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for it's advice and such advice shall be taken into consideration before making an order imposing such penalty on the Government Servant. Learned Counsel submits that this objection was raised by him before the Appellate Authority in para 11 of his menu of appeal and it was specifically submitted that the Collector when received the report of the Enquiry Officer and did not agree with the finding given by him, no fresh show cause notice was given to him. He further submits that this ground has specifically been mentioned by him in the ground (g) of the writ petition, but this has not been denied. It is a fact that is clearly borne out after the perusal of the record that when the matter was remanded by the Board of Revenue for holding a fresh enquiry and the Collector appointed Enquiry Officer who conducted the enquiry afresh and recorded the finding that the petitioner is not guilty of the charges. In that case if the Collector was in disagreement with the finding, then as per Sub -rule (10) of Rule 16 it was incumbent upon him to give a show cause notice to the petitioner along with his reason for disagreement. This has admittedly not been done in the present case. This objection was raised before the Board of Revenue in appeal but the learned Member of the Board did not consider this aspect at all. I think this question goes to the root of the matter. Sub -rule (10) of Rule 16 is mandatory and it has been held by this Court in S.N. Misra v. State of Rajasthan 1970 RLW 287 that where disciplinary authority disagrees with findings of Inquiry authority or where it disagrees with recommendation of the Public Service Commission and imposes major penalty, reasons must be given. Thus mandatory provision of Sub -rule (10) of Rule 16 has not been complied with. Therefore, l am inclined to accept this contention of the learned Counsel for the petitioner.
(3.) SECONDLY it has been submitted by the learned Counsel for the petitioner that the material evidence which was placed before the Enquiry Officer has not been considered either by the Collector or by the Appellate Authority. In this connection learned Counsel for the petitioner has invited my attention to para 4 of the order of the Board of Revenue dated 4 -3 -1981 in which it has been observed by the Member that if petitioner wanted to support his defence that this complaint has been actuated on account of malice of the complainant because he was dislodged from the land in question and the crop which has been sown by him has also been forefeited under Section 91 of the Land Revenue Act. Learned Member observed that if this was so, the Patwari could have produced the order issued under Section 91 and necessary evidence for this purpose. In this connection learned Counsel for the petitioner invited my attention to Ex. 1. This was the order produced by the petitioner dated 22 -9 -1975 in case No. 730 of 1975. This order along with two other documents have been filed by the petitioner before the Inquiry Officer vide Ex. 34 dated 14 -5 -1979. Therefore, it is not correct to say that the petitioner has not placed the necessary material in order to substantiate his defence. Thus this finding of the Board of Revenue is also without any basis. Similarly the Disciplinary Authority has also not taken into consideration this aspect of the matter. Thus both the authorities have completely ignored the material on record. On account of this also the case of the petitioner has been seriously prejudiced. Thus I am inclined to uphold this objection also.;