MAHESH CHANDRA SHARMA,J. - (1.) By filing instant writ petition under Article 226 of the Constitution of India, the petitioner has sought following relief : "(i) the entire enquiry proceedings conducted on the basis of charge-sheet dated 6.9.2001, enquiry report dated 26.10.2002, suspension order dated 7.9.2007, punishment order dated 24.6.2011 and the appellate order dated 19.10.2011 be quashed and set aside with all consequential benefits to the petitioner; (ii) during the pendency of writ petition if the petitioner attains the superannuation then also release all retiral benefits; (iii) any other order or direction as may be deemed fit and proper in the facts and circumstances of the case may also be passed in favour of humble petitioner. (iv) cost of this writ petition may also be awarded in favour of humble petitioner." Brief facts of the case as has been mentioned by the petitioner in the petition filed by him are that the petitioner was initially appointed on the post of Amin. After appointment he worked as Amin at various places from time to time in the Settlement Department and for some period he was also on deputation with the Jaipur Development Authority, Jaipur. He was also granted selection scale on completion of 9 and 18 years of service but due to the charge-sheet issued to the petitioner and the departmental proceedings conducted thereupon, the petitioner was denied the benefit of selection scale on completion of 27 years of service. The petitioner was served with a charge sheet vide memorandum dated 06.09.2001 under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules 1958 ("Rules of 1958" for short hereinafter) wherein following charges (four in numbers) were levelled against him : (i) The first allegation levelled against the petitioner is that while the petitioner was posted as Amin under the Assistant Settlement Officer, Sanganer he had committed irregularity for village Bhankrota, Tehsil Sanganer, wherein present Khasra No. 1461 was mentioned in the name of Mangi Lal and Babu Lal - both sons of Shri Gulla Ram, by caste Kumawat after striking of the name of Smt. Chandrarai Surana wife of Shri P.C. Rai Surana R.O. Hugali West Bengal, khatedar of earlier khasra No. 682 and in the Khasra document column 8 where it was mentioned as 682 which was over-written as 708 and in column No. 25 a note was mentioned by the petitioner that it was as per the orders passed by the Assistant Settlement Officer in 'B' file dated 3.7.1987. The allegation was that such order was not available in 'B' file. (ii) The second allegation against the petitioner was that for present Khasra No. 1574 the name of Gullaram son of Gangaram Kumawat was shown as gair-khatedar in column No. 23. The same was strike-off and it was entered as Sawai Chak and in Khasra Book column No. 25, a note was mentioned that it was in accordance with the order passed in 'B' file dated 22.06.1987, although there is no such order available in the B file. (iii) The third charge levelled against the petitioner was that for Khasra No. 1492/2680 measuring 0.28 hectare in village Bhankrota, the entry Sawai Chak was striked-off and Mangilal etc. were entered and in column no. 25 note was mentioned to see Khasra No. 1461. (iv) The fourth charge levelled against the petitioner was that before making such entries he should have got the enquiry conducted by the Inspector but in order to escape from any such conspiracy being opened, the enquiry was not conducted from the Inspector with the purpose to get gainful benefit and to provide unlawful benefit to Mangilal and Babulal both sons of Gullaram. Such corrections and deletions were made on the basis of mentioning fraudulent orders. Upon receiving the aforesaid memorandum, the petitioner submitted a preliminary reply with a request that the charge-sheet be dropped after giving him a personal hearing. He pointed out that the action taken by the petitioner was on the basis of orders issued by the Assistant Settlement Officer Shri K.D. Tripathi dated 3.7.1987. Copy of the order dated 03.07.1987 was available with Shri K.D. Tripathi and when the petitioner after making corrections asked for getting the enquiry conducted from the Inspector then said Shri K.D. Tripathi took the order dated 3.7.1987 and informed that he would himself direct the Inspector to get the enquiry conducted and he will thereafter himself counter-sign the corrections made by the petitioner. In the aforesaid circumstances the petitioner could not be held guilty for the corrections made by him which was purely on the basis of his superior officer under whom he was immediately subordinate. When the petitioner learnt that the inspection has not been conducted, he asked the concerned Amin-Shri Kalyan Sahai Saini, who was looking after the work of Bhankrota, to prepare the badar report and Shri Kalyan Sahai Saini submitted information to get the entry corrected as it was existing earlier and a note at S. No.38 dated 3.10.1988 is available on the file. Thereafter Shri Chand Behari Sharma, Amin has made entries at S.No. 49 and thereafter mutation was done by Shri Hem Kant Sharma, Amin at S. No. 85 for kharsra no. 1461 and 1492/2680. In the meanwhile, the petitioner was transferred from Sanganer, Jaipur to Bikaner. Therefore, he could not be said to be involved in the matter. The entire basis of the charge levelled against the petitioner is that the order dated 3.7.1987 was not available in the file. When the enquiry was conducted, the petitioner submitted an application for getting copy of the order dated 3.7.1987. However, the aforesaid document was not made available to the petitioner on the ground that the enquiry is pending against him relating to the said order. If the order dated 3.7.1987 would have been available to the petitioner at that relevant time, the entire basis of initiating enquiry against him would have been taken away and the charge-sheet would have been dropped but in order to wrongfully continue the charges, the petitioner was made to suffer for a long period on the basis of the assumption that there was no order dated 3.7.1987. However, the same has been made available to the petitioner after passing the order which is under challenge in the instant petition. Be that as it may, on the same facts the Settlement Officer, Jaipur also lodged an FIR on 2.6.1998 at Anti Corruption Bureau which was registered as FIR No. 38/1998. The Anti Corruption Bureau sought prosecution sanction against the petitioner on 24.02.2007 in the matter and the sanction was granted by the department on 18.07.2007. On the basis of such prosecution sanction having been granted, the petitioner was immediately placed under suspension on 7.9.2007. In the FIR which was registered, Mangilal, Babulal, Chandeshwer Khanna, Ramcharan Sharma (present petitioner), K. D. Tripathi, the then ASO, Chand Behari Sharma, the then Amin, Balkishan Srivastava, Tehsiladar, Santulal Sharma, ASO, Bhagwan Sahay, Sarpanch, Prahlad Sharma Sadar, Munsrim, Ramratan Verma and Smt. Mrignayani Jain were named as accused. This FIR clearly reveals that the concerned Assistant Settlement Officer had issued the order dated 3.7.1987, on the basis of which the petitioner had made an entry and it was at his level that the enquiry was not conducted by the Inspector. Although the petitioner was suspended and he remained under suspension, the Competent Court of Special Judge, Anti Corruption Act, Jaipur found on the basis of the report submitted by the ACB authorities that names were entered in the khasra numbers during settlement operation in terms of the orders passed in quasi judicial capacity and decisions and there is no conspiracy found in the matter and they gave their opinion that the matter should be filed. The Court accordingly after considering all the aspects passed an order on 23.2.2011 that no case was/is made out of conspiracy and the matter was closed vide order dated 23.2.2011. Mr. Chand Behari Sharma, Amin was already exonerated of the charge vide order dated 6.2.2002. Copy of this order however, was made available to the petitioner under the Right to Information Act, 2005. Similarly, Shri Hem Kant Sharma who was also served with similar charge sheet was exonerated. The petitioner was served copy of the enquiry report dated 26.10.2002 on 23.1.2003 to which the petitioner submitted his reply on 10.2.2003. To the shock and surprise of the petitioner, he was not even reinstated in service even after the negative final report was accepted by the Competent Court and was served with an order dated 24.6.2011 whereby the petitioner has been removed from service. From the order it is apparent that after the enquiry report was given by the Enquiry Officer, the enquiry was stopped on the ground that the same related to the criminal case and till the decision in the criminal case, no enquiry could be further conducted. After the decision, the petitioner was called for personal hearing and the petitioner was held guilty of the charges and the concerned Commissioner proceeded to even record that the petitioner had accepted his mistake, whereas the petitioner has been since beginning pointing out that he had not committed any mistake and it was in terms of the orders passed by his Superior Officers that the petitioner had made corrections.
(2.) On receiving the order dated 24.6.2011 the petitioner submitted an appeal to the respondent No.1 giving in detail all the facts and also pointed out that the enquiry was wholly uncalled for after the final report had been given in the matter. He also cited that the proceedings had taken inordinately delayed and were not on account of the petitioner. Moreover, he also pointed out that in the said allegations levelled against the petitioner and his superior officers, all the other persons have been exonerated. However, by a cursory order dated 19.10.2011 the Revenue Secretary has dismissed the appeal of the petitioner. The petitioner aggrieved with the enquiry proceedings conducted on the basis of charge-sheet dated 6.9.2001, enquiry report dated 26.10.2002, suspension order dated 7.9.2007, punishment order dated 24.6.2011 and the appellate order dated 19.10.2011 has preferred instant writ petition before this Court for quashing and setting aside the same.
(3.) Learned counsel for the petitioner has submitted that the punishment order dated 24.6.2011 by which the petitioner has been removed from service, is wholly illegal, arbitrary and unjustified. Counsel submitted that the entire departmental enquiry proceedings were initiated on the charges for which the ACB case was registered against the petitioner. In the ACB case it has clearly been revealed that the petitioner cannot be said to have committed any offence or any misconduct. Moreover, it has also come on record in the orders passed by the Special Court, Anti Corruption that the orders regarding the disputed land were quasi judicial in nature, and, therefore, no offence can be said to have been committed by the petitioner. Counsel submitted that the charge levelled against the petitioner is with the presumption that there was no order of the Superior Authority dated 3.7.1987 on record in the 'B' file and since there was no order passed by the Superior Authority, the action taken against the petitioner was illegal and unjustified but it has now come on record very clearly that there was actually an order passed by the then Assistant Settlement Officer Shri K.D. Tripathi and that order was further affirmed by the subsequent Settlement Officer also. Certified copies of these orders however were not made available to the petitioner in-spite of his requests and therefore, the entire enquiry proceedings are wholly baseless and it can be safely said that it is a case of no evidence and it is only on surmises and conjectures that the petitioner was charge-sheeted and the entire edifice of the departmental proceedings being on flimsy grounds, the enquiry and the subsequent punishment order deserve to be quashed and set aside. Counsel submitted that moreover even with regard to the departmental enquiry when the charge levelled against the petitioner is in relation to the orders passed by his Superior Officers, the enquiry ought to have been conducted under Rule 18 of the Rules of 1958. On the other hand while all the others have been exonerated of the charges, the petitioner has been punished. This aspect of the matter has been completely overlooked by the disciplinary authority as well as by the appellate authority and the petitioner has been subjected to pick and choose arbitrary action on the part of the respondents. Counsel further submitted that neither the Enquiry officer nor the Disciplinary Authority or the Appellate Authority have been able to show as to how the petitioner can be said to have committed any misconduct. Counsel submitted that performing action on the basis of instructions issued by the superior authorities cannot come within the ambit of misconduct under the conduct Rules of 1971. Moreover the order passed by the Superior Authority has not been held to be bad either by the competent court or by any authority. Moreover no departmental action has been taken against the said officer who passed the order which was complied with by the petitioner. Hence it is a case where the petitioner has been subjected to hostile discrimination and it is apparent that the order has been passed without application of mind.;