- (1.) THE petitioner in this case was employed as an Amin in the Revenue Department of the State of Rajasthan. THE case of petitioner is that be was initially employed on the post of an Amin by the order dated December 1, 1948 passed by the Settlement Commissioner of the former State of Udai-pur and that he was subsequently confirmed on the aforesaid post by the order of the Settlement Commissioner, Rajasthan, Jaipur dated March 21, 1957. While the petitioner was working on the post of an Amin, he was served with a memorandum calling upon him to show cause, along with a charge-3heet and a statement of allegations, by the Settlement Officer, Udaipur. THE petitioner was, thus, informed that a disciplinary enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter called 'the Rules'), has been started against him. THE petitioner thereupon filed his written statement of defence and the Settlement Officer conducted an enquiry in which as many as 26 witnesses were examined on behalf of the department in respect of the six charges framed against the petitioner. THE Settlement Officer by his order dated May 24, 1971, after discussing the evidence led before him in the departmental enquiry, came to the conclusion that charges Nos. 2, 5 and 6 were not proved against the petitioner, while charges Nos. 1,3 and 4 were found proved against him. THE Settlement Officer also came to the conclusion that the imposition of the penalty of withholding two yearly grade increments of the petitioner with cumulative effect could be sufficient punishment, looking to the guilt of the petitioner and, therefore, the aforesaid punishment was inflicted upon him. THE petitioner filed an appeal against the order of the Settlement Officer dated May 24, 1971 before the Settlement Commissioner, Rajasthan, but the same was dismissed by the order dated October 18, 1972. A review petition against the aforesaid order was also dismissed by the Settlement Commissioner by his order dated January 31, 1973 on the ground that a review petition was not maintainable in law.
(2.) THE petitioner has challenged by means of this writ petition, the penalty imposed upon him as a result of the aforesaid disciplinary proceedings. THE first contention of the learned counsel for the petitioner is that the proceedings were initiated against the petitioner by the Settlement Officer, who was not the appointing authority of the petitioner and it was only the appointing authority who was entitled to initiate disciplinary proceedings against him According to the petitioner, as already stated above, he was appointed initially by the Settlement Commissioner of the former State of Udaipur and was also confirmed by the order of the Settlement Commissioner, Rajasthan, Jaipur and thus, the appointing authority was the Settlement Commissioner, so far as the petitioner was concerned. Learned Additional Government Advocate argued that the Settlement Officer was the disciplinary authority with regard to the petitioner as he was the Head of the Office and the petitioner was a ministerial Government servant. THEre can be no dispute that the petitioner was a ministerial Government servant and the Settlement Officer of the circle concerned is the Head of the Office, as specified in Schedule 'b' appended to the Rules. Rule 15 of the Rules provides that in respect of the ministerial servants and Class IV servants, the Head of Office shall be authorised to inflict all penalties specified in Rule 14. Of course, on account of the provisions of Article 311 (1) of the Constitution, the penalty of dismissal or removal from service could not have been imposed upon the petitioner by an authority subordinate to that by which he was appointed, namely, the Settlement Commissioner. But as the punishment of dismissal or removal from service has not been imposed upon the petitioner, the disciplinary proceedings cannot be held to be vitiated in the present case on the ground that they were initiated by the Settlement Officer. Under Rule 16 of the Rules, it is the disciplinary authority who is authorised to initiate the disciplinary proceedings by framing definite charges, on the basis of the allegations on which an enquiry is proposed to be held against the government servant concerned. THE first contention of the learned counsel, therefore, that the Settlement Officer could not have initiated the disciplinary enquiry against the petitioner cannot be accepted. The second submission of the learned counsel is that although the disciplinary proceedings against the petitioner were initiated under Rule 16 of the Rules, but thereafter the proceedings were converted into the under Rule 17 and a minor punishment of with holding two grade increments, specified in clause (ii) of Rule 14 was imposed upon him which could not have been done. According to learned counsel, if proceedings are initiated under Rule 16 for imposing a major penalty upon the government servant concerned, then such proceedings could not be converted into one under Rule 17 of the Rules and the decision of the Punjab and Haryana High Court in Roop Lal Nand Lal Rawla vs. The State of Punjab (1) has been relied upon in support of this contention. In my view, the decision in Rooplal's case does not support the contention of the learned counsel. In that case, a charge-sheet was issued to the delinquent government servant stating that action under Rule 7 of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, dealing with the procedure for infliction of major penalties, was intended to be taken but thereafter, a minor punishment was imposed upon the employee concerned, without following the procedure prescribed in Rule 8 of the aforesaid rules, relating to the holding of a disciplinary enquiry. It was held by the Punjab and Haryana High Court that if the procedure prescribed for infliction of major penalties has been followed and thereafter instead of imposing a major penalty, a minor punishment was inflicted, no fault can be found therewith, but if no enquiry was held as envisaged under Rule 7 of those rules and a minor punishment was proposed to be inflicted, then the procedure prescribed under Rule 8 of the Punjab Rules had to be followed. In the present case, however, an enquiry was held under Rule 16 of the Rules and after the completion of the enquiry, a minor punishment was imposed upon the petitioner, which could have been lawfully done in accordance with the provisions of sub-rule (11) of Rule 16 which provides that, "if the Disciplinary authority having regard to its findings is of the opinion that any of the penalties specified in clause (i) to (iii) of rule 14 should be imposed it shall pass appropriate orders in the case. " The present case is not one in which merely a charge-sheet under Rule 16 was given to the petitioner and no enquiry in accordance with the procedure prescribed in that rule was made and after receiving the written statement of defence, the disciplinary authority switched on to impose a minor penalty specified in clauses (i) to (iii) of Rule 14. On the other hand, in the present case, the entire procedure of Rule 16 was followed and after receiving the written statement of defence from the petitioner in reply to the charges framed against him evidence of both the parties was recorded by the disciplinary authority. Thereafter the disciplinary authority recorded its findings in respect of each charges but when it came to the conclusion that only three of the charges were found proved against the petitioner, while the other three could not be established on the basis of the material on record, the disciplinary authority having regard to its finding in respect of the charges, came to the conclusion that imposition of a minor penalty would be appropriate in the circumstances of the case. In this case, there is no question of conversion of proceedings initiated under Rule 16 into those under Rule 17 of the Rules but the entire proceedings, including the imposition of penalty, has been conducted under the provisions of Rule 16. Thus, it cannot be said that there has been any violation of the pro-visions of the Rules or that any illegality has been committed by the disciplin-ary authority in the course of enquiry conducted by it against the petitioner. The last submission advanced by the learned counsel for the petitioner is that in the charge sheet itself, after recounting the six charges the disciplinary authority observed that on the basis of the charges framed against the petitioner, it was proved that he had misconducted himself in the performance of the duties of his office and that he should show cause why penalty specified in item (7) of Rule 14, namely, dismissal from service should not be imposed upon him. Similarly, in the statement of allegations, which accompanied the charge-sheet, it was also stated at the end thereof that the allegations mentioned therein proved the misconduct of the petitioner. The submission of the learned counsel is that the disciplinary authority has prejudged the matter against the petitioner even at the stage of issuing the charge-sheet and the statement of allegations and as such the disciplinary authority could not approach the matter involved in the proceedings with an open mind. In support of his submission, learned counsel relied upon the decision of the Jammu & Kashmir High Court in Abdul Khaliq Shaikh vs. Deputy Commissioner, Baramulla (2 ). In that case, it was held that a composite notice containing the charges and the proposed punishment was in breach of the mandatory constitutional and statutory requirements and the charge-sheet became a meaningless formality as it was clubbed with the punishment proposed to be inflicted on the Government servant concerned. In Gouri Pr. Ghosh vs. State of West Bengal (3), the first show cause notice containing charges also stated that the concerned Government servant was prima facie unsuitable to be retained in service of the State Government and the penally of dismissal was proposed to be imposed upon him. Such a notice was followed by a departmental enquiry and thereafter a second show-cause notice was also given to the concerned Government servant calling upon him to make his representation, if any, as to why he should not be dismissed from service as he was found guilty of the charges levelled against him. In these circumstances, a learned Judge of the Calcutta High Court in the aforesaid case held as under: " It is true that in the instant case a second show-cause notice was issued calling upon the petitioner to show cause why the penalty of dismissal should not be imposed upon him. But, in my view, the issue of such a show cause notice after the report of the enquiring officer cannot gave the first show cause notice from being held to be totally invalid. The principle underlying the doctrine is well-established, namely, that an open mind must be kept not only on the question of the guilt of a Government Servant, but also on the question of the punishment to be imposed, if the charges are proved. The doctrine is clearly violated if a show-cause notice, in which not only the charge, but also the punishment proposed is mentioned. " I am in complete agreement with the aforesaid observations. The principle of natural justice, on which the giving of a show - cause notice to the delinquent Govt. servant is based, requires that the disciplinary authority should keep an open mind with regard to the charges brought against the Government servant until such charges are proved. If an open mind is not kept, but as an enquiry is held on the assumption that the Government servant is guilty of the charges which have been levelled against him and he is also liable to a specified penalty, then such an enquiry should be considered to have been made in violation of the principles of natural justice. It would be clear in such circumstances that the disciplinary authority bad prejudged the matter regarding the guilt of the concerned government servant. At the stage of framing the charges, no question of deciding as to what punishment would possibly be imposed upon the Government servant, in case the charges are proved against him, can arise. The very fact that the proposed punishment is mentioned in the charge-sheet would go to show that even before the charges are enquired in to and a finding is arrived at in respect thereof, on the basis of the enquiry which is yet to be made, the guilt of the delinquent Government servant has been prejudged. It is on this ground that the notice, which includes not only the charges against the delinquent Government servant, but also contains a statement of punishment proposed to be imposed upon him, has been struck down by the courts. The procedure prescribed in the Rules for holding a disciplinary enquiry, gives some assurance to the Government servant concerned that the disciplinary authority maintains an open mind with regard to the charges framed against him. In case the competent authority were to determine even before the charges are proved as a result of the enquiry to be conducted against the concerned government scrvant,that particular punishment would be mated out to him,the employee may be justified in feeling that the disciplinary authority had already formed an opinion against him generally on the subject matter of the charge and also with regard to the quantum of punishment to be imposed upon him. In such circumstances, the competent authority would not be able to approach the matter involved in the enquiry with an open mind and would not be able to consider independently the facts which emerge as a result of the disciplinary enquiry.
(3.) IN the present case, as I have already pointed out above, the disciplinary authority, after enumerating the charges framed against the petitioner stated: *** Besides this, in the statement of allegations which was supplied to the petitioner along with the charge-sheet, after specifying the allegations, the disciplinary authority stated:- *** Thus, that has been mentioned by the disciplinary authority in the charge-sheet as well as the statement of allegations go to show that it had prima facie made up its mind, not only in respect of the guilt of the petitioner, but also in respect of the punishment which was to be imposed upon the petitioner. It clearly appears, therefore, that the disciplinary authority had pre-judged not only the fact that the petitioner was guilty of the charges framed against him but had also determined in advance the punishment which he deserved, even before the enquiry began The disciplinary authority started the enquiry with the assumption that the petitioner was guilty of the charges framed against him and deserves to be punished. Learned Additional Govt. Advocate submitted that the disciplinary authority, after conducting the enquiry, held only three of the six charges proved against the petitioner while he was exonerated of the other three charges and further that the punishment of dismissal from service mentioned in the first show cause notice was not imposed upon the petitioner but his two annual grade increments were withheld with cumulative effect,by the order of the disciplinary authority dated May 24, 1971, which go to show that the disciplinary authority had not really prejudged the matter, but he conducted the enquiry in a fair and impartial manner. I am unable to agree with this contention. A perusal of the charge-sheet and statement of allegations furnished to the petitioner in the present case clearly shows that the disciplinary authority started with the assumption that the petitioner was guilty of the charges framed against him and that even before an enquiry was conducted, it was assumed that the charges were proved against the petitioner. Not only that the punishment which was proposed to be imposed upon the petitioner was also specified in the charge-sheet. Thus, it cannot be said that the disciplinary authority conducted the enquiry with an unbiased and open mind. Moreover, the petitioner also suffered from a feeling from the very beginning that the disciplinary authority had not only prejudged his guilt but had also predetermined the punishment which he intended to impose upon the petitioner. IN these circumstances, it cannot be said that there was a fair and impartial enquiry in the matter. It may also be pointed out in this connection that the disciplinary authority after holding that three charges were found proved against the petitioner while three other charges Nos. 2, 5 and 6 were not so proved, proceeded to observe that the petitioner should have been dismissed from service on the basis of the charges found proved against him but then he took a lenient view of the matter and as such only a minor punishment was imposed upon the petitioner I, therefore, hold that the disciplinary enquiry was not held in the present case with an open and unbiased mind, as the charge sheet and the statement of allegations them-selves contained not only a finding regarding the guilt of the petitioner but also mentioned the proposed punishment which may be imposed upon the petitioner, in case his guilt was proved. IN my view, having regard to all the circumstances of the case, the disciplinary enquiry conducted against the petitioner deserves to be set aside from the stage of the giving of the charge-sheet. In the result, the writ petition is allowed and the order dated May 24, 1971 passed by the Settlement Officer, Udaipur and all subsequent orders passed in respect thereof are set aside and the disciplinary enquiry conducted against the petitioner is quashed from the stage of giving of the charge sheet. However, it shall be open to the Disciplinary Authority to give a fresh charge-sheet to the petitioner and to make a fresh enquiry in to the matter, on the basis of the very same charges, if it considers proper to do so. In the circumstances of the case, the parties are left to bear their own costs. .;