Pushpendra Singh Bhati, J. - (1.) The petitioner has preferred this writ petition making the following relief:- "It is, therefore, most humbly and respectfully prayed that this writ petition may kindly be allowed and by an appropriate writ, order or direction, order dated 30.09.1992 (Annex.7) whereby the petitioner has been removed from service and the communication dated 31.03.2010 whereby the petitioner's appeal has been rejected may kindly be quashed and set aside and the respondents may kindly be directed to give pensionary benefits admissible to him and the arrears of pension may also be paid to the petitioner with interest @ 24% per annum. Any other appropriate wit, order or direction, which this Hon'ble Court may deem fit and appropriate in favour of the petitioner, in the facts and circumstances of the case, may also kindly be passed in the interest justice."
(2.) The brief facts as noticed by this Court in the petition are that the petitioner was appointed as Civil Assistant Surgeon on 12.01.1967 as he was having a qualification of MBBS and Post Graduation in Surgery. The petitioner was charged with the allegation of remaining absent form 14.12.1983 to 17.06.1987. The charge-sheet could not be served upon the petitioner and therefore the same was published in Nav Bharat Times on 23.02.1991 whereby, the petitioner was directed to remain present for the inquiry within 30 days of receiving such notice. Even after such publication in Nav Bharat times the petitioner did not file any reply and also did not contest or defend his case for want of knowledge. Since the petitioner did not come to defend himself in spite of the publication of notice, the Disciplinary Authority proceeded ex-parte under Rule 19 Sub-Rule 2 of the Rajasthan Civil service (Classification and Appeal) Rules 1958. While invoking and exercising such powers the disciplinary Authority terminated the services of the petitioner which was further approved by the RPSC and State Government. As per Para 9 of the writ petition, the petitioner did not get the copy of the impugned order until 18.07.2009. It is further mentioned in ground g of the wit petition that the petitioner came to know about the impugned order only on 16.07.2009. He preferred an appeal under Rule 33 of the Rules of 1958 but the same was rejected in limine vide communication dated 31.03.2010. After such information of the termination order dated 30th September 1992 and after dismissal of the appeal, the petitioner has challenged the same by way of this writ petition. The respondent s have filed a detailed reply and stated that the petitioner remained absent from duty from 14.12.1983 to 17.06.1987 without any information and without any application for leave, therefore, Disciplinary proceeding was rightly initiated against the petitioner under Rule 16 of the Rules, 1958. It was also averred in the reply that since the charge-sheet was sent through Registered Post on the address of the petitioner available on record and also through the department and still the same could not be delivered therefore, a publication was made on 23.02.1991 in the Nav Bharat times. Since inspite of such publication, the petitioner did not remain present for defending himself, therefore, proceeding under Rule 19(2) of the CCA Rules, 1958 was undertaken. While invoking Rule 19(2) the services of the petitioner were terminated. The respondent in their reply to ground g have stated that the order of punishment could not be served upon the petitioner as he was not performing his duty in the disputed period and was was not present at the Head Quarter. It was also submitted that the petitioner preferred an appeal under Rule 33 of the CCA Rules, 1958 for the prescribed period and, therefore the order dated 31.03.2010 was grossly illegal. Counsel for the petitioner argued that the provision of Rule 19 Sub-Rule 2 of the Rules of 1958 was to be adopted only in extreme circumstances when in the inquiry it was not reasonably practical to follow the procedure prescribed in the said rules. Such reasons ought to have been recorded by the Disciplinary Authority. Counsel for the petitioner stated that since the order of punishment was admittedly not served upon him and was served by him only on 16.07.2009, therefore, the petitioner could not challenge the same within the prescribed period. Counsel for the petitioner has relied upon the judgment passed in Shyamnarain Versus Union of India, 1965 AIR(Raj) 87. The relevant portion of the judgment is as follows:- "13. We might make it clear that we do not mean to approve the petitioner's attitude, if he knowingly remained absent on the date or dates fixed by the Inquiry Officer. The inquiry Officer could certainly proceed ex parte if the petitioner did not care to appear before him on the date or dates fixed by him, but the ex parte proceedings do not mean that the finding should be recorded against the absentee without any kind of inquiry that is, without examining any evidence oral or documentary against him. If the Inquiry Officer had Ex. A-3 before him as asserted by the opposite parties, It was his duty to call the person who had recorded that statement and verify its correctness from him. That document should also have been put to the petitioner and an opportunity ought to have been given to him to explain the same. It would still be open for the non-petitioners to make a proper enquiry if it is considered desirable. What we mean to stress is, that the impugned order of dismissal against the petitioner cannot be maintained, because the findings against him are based on no evidence."
(3.) The counsel for the petitioner thus, submitted that the exparte proceedings do not mean that finding should be recorded against the absentee without examining the evidence orally or documentary against him.;