MISRA, J. - (1.) THE petitioner Sri, S. S. Darbari who is a member of the Indian Police Service (IPS) and is presently functioning as a Deputy Inspector General of Police (DIG) has filed this writ petition challenging the order of the Central Administrative Tribunal, Jaipur Bench dated 27. 3. 97 by which the learned Members of the Tribunal have refused to quash and set aside the charge-sheet dated 17. 6. 94 issued to the petitioner by the State of Rajasthan through respondent No. 2, Secretary, Department of Personnel, Government of Rajasthan under Rule 8 of the All India Service (Discipline and Appeal) Rules, 1969. THE Tribunal refused to do so on the ground that the Tribunal can neither interfere with the charge-sheet at the stage of issuance of charge-sheet nor can given any direction to the respondents to hold DPC for consideration of his claim for promotion. Consequently, the application of the petitioner was rejected by the Tribunal.
(2.) THE petitioner on his part has initially related the background under which the charge-sheet has been issued to him in order to predominantly emphasize that the charge-sheet was issued as a sequel of one round of litigation relating to his claim for promotion and his challenge to adverse ACRs which went upto the Supreme Court where the petitioner Shri Darbari succeeded and it was directed to the respondents not to take into consideration the adverse ACRs for the period of 1992-93. Thus the petitioner's one of the plank while challenging the charge-sheet is that the impugned charge-sheet dated 17. 6. 94 was slapped on the petitioner as a consequence of the previous litigation which is not only, malicious and flimsy but is also extremely vague and unsustainable which do not call for any enquiry. In order to test the strength and sustainability of the petitioner's plea, it is appropriate that the nature of the charges be looked into which are as follows : " (i) Proceeded to sick leave from 3. 11. 92 to 7. 11. 92 without getting it sanctioned, assumed duties on 9. 11. 92 without sick and fitness certificates produced fitness certificate dated 13. 11. 92, whereas found, to assume duties an 8. 11. 92 and violated Rule 23 of All India Service Rules. (ii) For unauthorised absence. Though proceeded on leave after obtaining sanction for casual leave from 3. 2. 93 to 14. 2. 93; therefore thereafter sent telegram on 16. 2. 93 for medical leave without mentioning the period of leave, nor gave address. Letter sent to him at recorded address but he remained absent till 28. 4. 93 and assumed duties on 29. 4. 93. Applied for conversion of earlier casual leave from 3. 2. 93 to 4. 3. 93 into commuted leave with optional holidays and official holidays which was not sanctioned and entire period from 3. 2. 93 to 28. 4. 93 deemed to be unauthorised period. (iii) Used unparliamentary language against his Office Assistant. (iv) Obtained copies of note-sheet from official files without authority (v) Non-performance of work entrusted to him and disobedience of the workers of the Senior Officers. (vi) Was found absent on specified dates when called by the Addl. Director General of Police. " The facts of the case in so far as it is relevant for considering the question involved herein is that on 17. 6. 94 a charge-sheet for major penalty was issued to the petitioner under Rule 8 of the All India Service (Discipline and Appeal) Rules, 1961 wherein the charges noted hereinbefore were levelled against the petitioner. The charge-sheet was initiated at the instance of respondents No. 3 and 4 by conducting a concocted preliminary enquiry only on one charge out of several charges and further pursuing it by several letters with malafide intention without conducting a preliminary enquiry or any of the other charges inspite of Government of Rajasthan's Instructions issued by Circular dated 22. 8. 56 which makes it incumbent to hold a preliminary enquiry in case of serious delinquency. The petitioner's first and foremost plea is that the allegations even a it stands reveal no misconduct on the part of the petitioner much less serious as the petitioner proceeded on leave by duly informing the authorities and the requirement of information regarding leave on the prescribed format is not mandatory since the intention of the rule is that there should be a medical certificate from the competent Doctor which had been duly submitted. The respondent-State however could have converted the leave availed into another type of leave admissible to the petitioner and in any case, not submitting the prescribed medical certificate is not a misconduct. However the petitioner had submitted the certificate on 13. 11. 92 and not submitting the certificate at the time of assuming duties cannot be held to be a misconduct as defined under Rule 3 of the All India Service (Conduct) Rules, 1963. The petitioner has further explained that there is no necessity of prior sanction of leave if a person proceeds on medical leave for the reason that medical inability may occur at any time and the rule does not provide for approval or prior sanction. In this context it has been narrated that the petitioner had been examined by Dr. Habeeb on 3. 11. 92 and 7. 11. 92 at the residence of the petitioner and after the Doctor expressed his opinion that the petitioner is fit to resume duty, he did so on 9. 11. 92 since 8. 11. 92 was a Sunday. The petitioner further resumed duties submitting medical fitness certificate issued by Dr. Habeeb-A Sr. Government Doctor. However, it was insisted that the certificate in the proforma prescribed in the Rajasthan Service Rules be submitted and hence the petitioner obtained a copy of the prescribed proforma from the Police Branch of Head quarters who got it certified by Dr. Habeeb who eventually issued a certificate of fitness on 13. 11. 92 inspite of this, a charge-sheet has been issued to the petitioner alleging that he is guilty of misconduct since he did not produce the fitness certificate in the prescribed format.
(3.) IN regard to the third charge, regarding use of unparliamentary language in letter dated 11. 6. 93, the petitioner has produced the letter itself in order to establish that the contents of the letter itself are self-explanatory which do not disclose any misconduct calling for an enquiry. The contents of letter (marked as Annex-12 to this writ petition) may be perused in this context which reads as follows : " No. PHQ/93/39-40 Dated 11. 6. 93 To, The Director General of Police, Rajasthan, Jaipur. Sub : Sanction of commuted Leave for the month of Feb. to April, 1993 and payment of the same and also duty pay for the month of May, 1993. Ref. : Your No. 5551-54 dt. 8. 6. 93, requiring me to attend the course 'management of Training' w. e. f. 12. 7. 92 to 17. 7. 93 at S. V. P. Hyderabad. Sir, I am required to attend the above mentioned course at Hyderabad, as communicated to me vide copy of your letter referred to above. IN this connection, I would like to mention that I have not been paid my salary for the last four months. Salary of Feb. to April, 1993 has been held up for want of sanction of I. G. (Adm.) who has raised a number of trivial and baseless objections (No. V 15 (27) Police-Adm.-A/92/803 dated 6. 5. 93 enclosed) even though the medical certificates and fitness certificate are from very senior doctors of reputed Govt. Hospitals in Delhi, and are on the format prescribed by the Central Govt. As such, the objections are not worthy of reply. And my duty pay for the month of May, 93 has also not been paid. This is the treatment being meted out to the senior-most DIG in the State under your regime, and the same amounts to wilful harassment. It is regrettable that things have come to such a pass only in my case. I would, therefore, request that salary of the above period may please be made payable to me at the earliest in order to avoid financial hardship and to meet urgent requirements of the family, and also to enable me to get necessary AIR reservations made in time to enable me to attend the said course. I would also request sanction of 5 days C. L. w. e. f. 5. 7. 93 to 9. 7. 93 with permission to avail G. H. failing on 4th, 10th and 1 l. 07. 93 to enable me to attend to some personal work on way. Yours faithfully, sd/- (S. S. Darbari) Dy. INspr. Genl. of Police, (Adm.) Rajasthan, Jaipur, Copy submitted to the Principal Secretary, Home, Govt. of Rajasthan, Jaipur for favour of information. sd/- Dy. INspr. Genl. of Police, (Adm.) Rajasthan, Jaipur The petitioner, however, was quite surprised when the charge of using unparliamentary language in the aforesaid letter was alleged and he tried to enquire from the Government vide his letter dated 31. 8. 94 for clarification as to which portion pertains to unparliamentary language but the same was not responded. A copy of the letter dated 31. 8. 94 has also been submitted alongwith the writ petition marked as Annex. 13. The petitioner has further given a detailed account in order to prove his plea of malafide against several police officers which we do not consider necessary to elaborate as we deem it sufficient to state that he has alleged malafides for levelling such a charge against the petitioner which according to him is not sustainable since an opinion by any reasonable person can be formed by going through the letter itself. He has rather alleged that on account of serious friction between him and some police officers, discourteous letter were issued to him frequently. It has, therefore, been urged that the respondents instead of proceeding in a rational manner, chose to issue a charge-sheet for major penalty to the petitioner and that too after a period of one year without conducting preliminary enquiry on any of the charges except, one for which there is no explanation. The petitioner has also pressed his view point and contended that the respondent-State could have issued memo or even charge-sheet even earlier but it waited and issued charge-sheet on the day when all the senior officers of the Police Department assembled at Jaipur for a meeting and a news was flashed regarding issuance of charge-sheet against him even before the charge-sheet was despatched by the Department of Personnel to the petitioner. The petitioner has sought to highlight this fact in order to substantiate that the whole exercise has been done with a malafide intention by the respondents alleging use of unparliamentary language by him in his letter dt. 11. 6. 93 which on the face of it is utterly without any sense. However, no preliminary enquiry was conducted to verify such allegations nor the letter of the petitioner was responded in the enquiry as to which portion of the letter can be alleged to have used unparliamentary language. In so far as the charge regarding procurement of copy of letters and note-sheets of File No. 27 relating to the petitioner is concerned, it has been submitted that the aforesaid file related to his leave and office accommodation and there was absolutely nothing secret in the note-sheet and file nor it was a confidential file. The petitioner, however, had also submitted and requested to supply the photostat copy of the note-sheets of the leave applications and the concerned clerk on the basis of requisition, himself requested the petitioner that a photostat copy of the note-sheets will be issued to him from the Branch and the petitioner who is a high-ranking officer, was not required to obtain sanction from any authority for this purpose. If at all it was necessary, it was for the clerk concerned to obtain permission for this purpose. However, it has been submitted that obtaining copy of one's own application and note-sheet for tallying it with the actual leave availed by the petitioner cannot be treated as a misconduct. The petitioner has further pointed out that the alleged incident of taking note-sheets related to the month of June, 1993 but the respondents took more than one year six months in treating it as a charge and the delay itself indicates the malafide intention of the respondents in this regard to somehow find fault with the petitioner's conduct. ;