PANWAR, J. - (1.) BY the instant writ petition under Article 226 of the Constitution of India, the petitioner seeks quashing of the order Annx. 9 dated 2. 5. 2005 and Annx. 10 dated 2. 12. 2006.
(2.) THE facts and circumstances giving rise to the instant writ petition are that the petitioner was initially appointed on the post of Assistant Site Engineer with the respondents on 5. 11. 1977 and since then he has been serving with the respondents having absolutely unblemished service career as according to the petitioner, during his whole service tenure for the last thirty years, he had never been served with any chargesheet or imposed any minor or major penalty. THE petitioner has been promoted to the post of senior Regional Manager by the respondents in the year 2001. While the petitioner was discharging the duties and functioning as the Senior Regional Manager with the respondents at Jodhpur, he was issued with a memorandum of charges (Annx. 1) on 13. 11. 2002 under rule 11 (B) of the Rajasthan State Industrial Development and Investment Corporation Limited Employees (Classification, Disciplinary Action Act & Appeal) Rules, 1979 (for short, "the Rules of 1979" hereinafter ). THE memorandum of charges Annx. 1 contains as many as four charges, which read as under:- " Charge No. (1): That Shri G. C. Jain while functioning as Regional Manager in Jodhpur Unit allowed compounding of unauthorised structure measuring 620. 57 sq. mtr for commercial purpose, in front set back (southern side) of industrial plot No. 27-A allotted to M/s Kamla Industries at Light Industrial Area, Jodhpur, at concessional rates on the basis of Circular No. IPI/p-6/c/111 dated 21. 11. 2000. No commercial activity was being carried out in the plot prior to 31. 10. 2000. THE unauthorised construction compounded by Shri Jain was being used for only industrial purposes as on the above date. Moreover, unauthorised construction in front set back considered for compounding by Shri Jain for commercial purposes did not exist at site as per the reports dated 3. 4. 2000, 9. 8. 2000 and 25. 9. 2000. THE unauthorised construction in question is said to have been demolished just after it was compounded as per site report dated 30. 10. 2001. THE land measuring 620. 57 sq. mtr was thus converted for commercial purposes by Shri Jain and new construction for commercial purpose was allowed in front set back on the basis of Circular No. IPI/p- 6/2/c/111 dated 21. 11. 2000. It was the duty of Shri Jain to recover the conversion charges at three times the prevailing industrial rate from the party as per office order No. IPI/p-6/2k/111 dated 21. 11. 2000. But he did not recover the same from the party. THE aforesaid act of the said Shri Jain tantamounts to willful flouting of the prevailing policy of the Corporation and misrepresentation of facts for extending undue favour to the party thereby causing loss to the Corporation. THE aforesaid irregularities committed by Shri Jain caused pecuniary loss of Rs. 7,44,684/- to the corporation. He is also responsible of negligent attitude towards the discharge of his duties for which disciplinary action is required against him under RIICO Employees (Classification, Disciplinary Act & Appeal) Rules, 1979. Charge No. 2: That Shri G. C. Jain while functioning as Regional Manager in Jodhpur Unit allowed compounding of unauthorised structure measuring 1070. 21 sq. mtr for commercial purpose in front set back of industrial plot No. 27 allotted to M/s Mool Chand Sujan Mal & Company, Light Industrial Area, Jodhpur, at concessional rates on the basis of Circular No. IPI/p-6/2/c/111 dated 21. 11. 2000. No commercial activity was being carried out in the plot prior to 31. 10. 2000. THE unauthorised construction compounded by Shri Jain was being used for only industrial purposes as on the above date. Moreover, unauthorised construction in front set back considered for compounding by Shri Jain for commercial purposes did not exist at site as per site report dated 27. 9. 2000. THE land measuring 1070. 21 sq. mtr was thus converted for commercial purposes by Shri Jain and new construction for commercial purposes was allowed in front set back on the basis of Circular No. IPI/p- 6/2/c/111 dated 21. 11. 2000. It was the duty of Shri Jain to recover the conversion charges at three times the prevailing industrial rate from the party as per office order No. IPI/p-6/2k/111 dated 21. 11. 2000. But he did not recover the same from the party. THE aforesaid act of the said Shri Jain tantamounts to willful flouting of the prevailing policy of the Corporation and misrepresentation of facts for extending undue favour to the party thereby causing loss to the Corporation. THE aforesaid irregularities committed by Shri Jain caused pecuniary loss of Rs. 12,84,252/ to the corporation. He is also responsible of negligent attitude towards the discharge of his duties for which disciplinary action is required against him under RIICO Employees (Classification, Disciplinary Act & Appeal) Rules, 1979. Charge No. 3: That Shri G. C. Jain while functioning as Regional Manager in Jodhpur Unit office deliberately approved conversion of industrial land of M/s. Kamla Industries, Plot No. 27-A, Light Industrial Area, Jodhpur at concessional rates as follows:- Land in Sq. mts. Purpose 1326. 61 Residential 292. 64 Residential 292. 64 Residential 201. 60 Residential 1861. 72 Residential 620. 57 Commercial Shri Jain was required to approve conversion of the land and sub-division plan prescribing set backs while maintaining front set backs as per the original layout plan approved by the Director of Industries. Shri Jain deliberately did not prescribe set backs with malafide intention and did not comply with the directions given by the Director of Industries. Moreover, instructions contained in office order No. IPI/p-6/25 dated 23. 7. 1998 wherein set backs norms were prescribed were not complied with. THE aforesaid act of Shri Jain tantamounts to violation of set back and town planning norms. Thus Shri Jain extended undue favour to the party while willfully flouting the policy of observing town planning and set back norms. THE aforesaid act of Shri Jain indicates callous, malafide and negligent attitude towards discharging his duties. THE act of Shri Jain also caused a loss of prestige to the Corporation for which disciplinary action is required against him under RIICO Employees (Classification, Disciplinary Action & Appeal) Rules, 1979. Charge No. 4: That Shri G. C. Jain while functioning as Regional Manager in Jodhpur Unit office deliberately approved conversion of industrial land of M/s. Mool Chand Sujan Mal & Company, Plot No. 27, Light Industrial Area, Jodhpur at concessional rates as follows:- Land in Sq. mts. Purpose Date 1755. 91 195. 09 292. 64 1928. 60 167. 52 1070. 21 Residential Residential Residential Residential Commercial Commercial 27. 11. 2000 19. 12. 2000 20. 12. 2000 24. 12. 2000 24. 12. 2000 24. 12. 2000 Shri Jain was required to approve conversion of the land and sub- division plan prescribing set backs while maintaining front set backs as per the original layout plan approved by the Director of Industries. Shri Jain deliberately did not prescribe set backs with malafide intention and did not comply with the directions given by the Director of Industries. Moreover, instructions contained in office order No. IPI/p-6/25 dated 23. 7. 1998 wherein set backs norms were prescribed were not complied with. THE aforesaid act of Shri Jain tantamounts to violation of set back and town planning norms. Thus Shri Jain extended undue favour to the party while willfully flouting the policy of observing town planning and set back norms. THE aforesaid act of Shri Jain indicates callous, malafide and negligent attitude towards discharging his duties. THE act of Shri Jain also caused a loss of prestige to the Corporation for which disciplinary action is required against him under RIICO Employees (Classification, Disciplinary Action & Appeal) Rules, 1979. The petitioner filed a detailed reply to memorandum of charge vide Annx. 4 denying the charges levelled against him and came with the specific case that what the petitioner has done is in conformity with the Office Order No. IPI/p-6/94 dated 21. 11. 2000 (Annx. 5) and, therefore, whatever action has been done by the petitioner, is strictly in accordance with the Office Order (IDC/2000-2001/6/u/34 No. IPI/p-6/94 dated 21. 11. 2000 (Annx. 5 ). It has also been stated in the reply to the memorandum of charges that no loss has occasioned to the respondents by the acts of the petitioner, on the contrary, the amounts charged by the petitioner from the two industrial units referred in the memorandum of charges is much more than the prescribed rates of penalties. Vide order Annx. 9 dated 5. 4. 2006, the Inquiry Officer gave its conclusion on the inquiry and held that all the four charges have been found proved against the petitioner. By the order Annx. 10 dated 2. 12. 2006, the respondent authority imposed the penalty of demotion upon the petitioner, i. e. from the post of Senior Regional Manager to Regional Manager. Hence this writ petition. A reply to the writ petition has been filed by the respondents taking the stand that an alternative remedy of appeal has been provided and without exhausting the alternative remedy of appeal, the instant writ petition has been filed. I have heard learned counsel for the parties. It is contended by the learned counsel for the petitioner that the alternative remedy of appeal is not an efficacious remedy in the facts and circumstances of the instant case for the reason that the Appellate Authority is the Working Committee, which is headed by the Chairman of the respondent Corporation and the impugned order Annx. 10 has been passed by the Chairman of the respondent Corporation and , therefore, the Authority which has passed the order impugned in this writ petition, cannot hear the appeal against his own order and hearing the appeal against its own order would be nothing more than sitting in appeal against his own order by the Appellate Authority, which is against the well settled legal principle that no person can be Judge of his own cause. Learned counsel further submits that rule 4 of the Rules of 1979 provides Definitions and sub-rule (iv) of rule 4 defines the expression "chairman" which provides that "chairman" means the Chairman of the Board of Directors of the Corporation appointed in accordance with Article 94 of the Association of the Corporation. Rule 14 of the Rules of 1979 pertains to appeal and provides as under:- " 14. Appeal.- (a) An employee who has been awarded punishment has a right to appeal through proper channel against the punishment, to the appellate authority within a period of 60 days from the date, on which the appellant receives the order to be appealed against. (b) The appeal shall be in a proper language and complete in itself, containing all material, statement, and arguments on which the appellant relies. (c) An appeal can be with-held with due intimation to the appellant, if (i) it is time barred; (ii) It is not made in accordance with the rules; (iii) It is repetition of an appeal already decided and contains no new facts and circumstances. (d) No appeal shall lie against the order of the Board. It's decision shall be final. Notes: Only under special circumstances and on valid grounds the period of limitation can be extended by 30 days by the Appellate Authority (for 30 days ). "
(3.) ANNXURE-I , Appendix-7b under rule 6 of the Rules of 1979 pertains to Appointing Authority/ Disciplinary Authority in case of Employees posted in Infra Unit Offices, according to which for the post held by the petitioner, the Appointing Authority is the Chairman, the Disciplinary Authority for imposing minor penalty is the Managing Director, the Disciplinary Authority for imposing major penalty is the Chairman and the Review/appellate Authority is the Working Committee. As per the definition of rule 4 (iii) of the Rules of 1979, "working Committee" means the Committee of Board of Directors constituted by the Board of Directors of the Corporation and as per the definition of "chairman" given in rule 4 (iv) of the said Rules of 1979, the "chairman" means the Chairman of the Board of Directors of the Corporation appointed in accordance with Article 94 of the Article of Association of the Corporation. In the instant case, the Disciplinary Authority for imposing major penalty is the Chairman who passed the impugned order Annx. 10 and the Appeal/review against the order of the Chairman lies with the Working Committee headed by the Chairman itself, therefore, it cannot be said that in the case of the petitioner, the alternative remedy of appeal is an efficacious in nature as no person can be a judge of his own cause. This fact has not been disputed by the learned counsel for the respondents. Therefore, in my view, though the remedy of appeal is provided under rule 14 of the Rules of 1979, but that alternative remedy would be illusory for the reason that the major penalty has been imposed by the Disciplinary Authority i. e. the Chairman of the Corporation and the Appellate Authority is the Working Committee headed by the Chairman and as such the Chairman , who passed the impugned order Annx. 10 cannot be a judge of his own cause. Thus, the preliminary objection raised by the learned counsel for the respondents cannot be accepted. It is next contended by the learned counsel for the petitioner that the petitioner acted strictly in accordance with the Office Order (IDC/2000-2001/6-U-34) No. IPI/p-6/94 dated 21- 11-2000 (Annx. 5 ). Learned counsel further submits that the operative portion of para "l" of the Office Order (IDC/2000- 2001/6-AU) No. IPI/p-6/2k/111 dated 21. 11. 2000 (Annx. 2) has been stayed by the State Government vide order Annx. R/2 dated 21. 1. 2001 till further orders as admitted by the respondents in their reply. It was further contended that a detailed reply to the memorandum of charge has been filed by the petitioner vide Annx. 4, but the Inquiry Officer has not considered and dealt with the reply filed by the petitioner before arriving at the conclusion vide Annx. 9 and, therefore, the findings of the Inquiry Officer, as also those of the Disciplinary Authority are without any foundation, erroneous and contrary to the facts on record. Learned counsel further submits that the Highest Body of the respondent Corporation, i. e. the State Government, considered the representation of one Paras Raj Kothari and vide Communication No. U (15)-2 (1-39) 94 101 dated 17. 4. 2001 (Annx. R/1) stated as under:- " In this connection we are to inform you that the Sr. Regional Manager, RIICO, Jodhpur has granted permission for sub- division of industrial plot along with its conversion for residential and commercial purposes. He has also regularised unauthorised construction for commercial purpose on payment of requisite premium/compounding fee as per policy decided by the Corporation. " Thus, what has been done by the petitioner was identical to that of by Paras Raj Kothari which, as noticed above. has been found to be in conformity with the various Office Orders issued by the respondents in view of the State Government's Order Annx. R/1. The Deputy Secretary, Government of Rajasthan, Industries (Gr. I) Department, Jaipur, vide its letter dated 17. 4. 2001 has examined the matter and concluded as noticed above vide Annx. R/1 and, therefore, according to the learned counsel, the conclusions arrived at by the Inquiry Officer and the Disciplinary Authority are contrary to the decision arrived at by the State Government vide Annx. R/1. Learned counsel further submits that the allegation of violation of Office Order No. No. IPI/p-6/2k/111 dated 21. 11. 2000 (Annx. 2) is unfounded. Annx. 2 deals with allowing conversion of complete allotted or permitted sub-divided industrial plot for commercial and residential activities subject to following the building parameters and bye- laws of the Corporation, on payment of conversion charges at the rate of 3 times and 1. 5 times the prevailing industrial rate respectively, whereas the petitioner has not converted any the land of any person but the charges against him is with regard to regularisation and the order Annx. 2 does not deal with "regularisation" but it precisely deal with "conversion" and, therefore, the conclusions arrived at by the Inquiry Officer and the Disciplinary Authority that the petitioner violated the office order Annx. 2 dated 21. 11. 2000 is contrary to the charges levelled against him though order Annx. 2 so far it relates to Clause "l" has been stayed by the State Government vide Annx. R/2. ;