State Of Raj And Ors vs Khalil Khan
2021 Latest Caselaw 2264 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

            D.B. Civil Special Appeal (Writ) No. 628/2011

                                       In

                S.B. Civil Writ Petition No.5791/1997

1.      State Of Rajasthan Through The Secretary, Department Of
        Home, Rajasthan, Jaipur.
2.      The Director General Of Police, Rajasthan, Jaipur
3.      The Deputy Inspector General Of Police, Range Bharatpur,
        Bharatpur
4.      The Superintendent Of Police, Dholpur
                                                                   ----Appellants
                                    Versus
Khalil Khan Son Of Shri Alumuddhin Mohammeden, aged 39
years, R/o Mohalla Talya, Jagan Choraha, District Dholpur
Working On The Post Of Driver Constable No.332, Police Line,
Dholpur.
                                                                ----Non-Appellant


For Appellant(s)          :    Mr. Prakhar Gupta, Advocate for
                               Dr. Vibhuti Bhushan Sharma,
                               Additional Advocate General
For Respondent(s)         :    Ms. Naina Saraf, Advocate with

Mr. Pritam Singh, Advocate

HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE MANOJ KUMAR VYAS

Judgment/Order

26/03/2021 [Per : Manoj Kumar Vyas, J.]

This appeal has been preferred against the judgment

dated 22.04.2010 passed by learned Single Judge, whereby the

writ petition filed by petitioner-respondent was allowed with the

following directions :-

(2 of 18) [SAW-628/2011]

"In the result, writ petition is allowed. Impugned orders dated 31.08.1994 and 25.02.1995 are set-aside. Petitioner is held entitled to be reinstated in service with continuity. However, keeping in view the length of time which has elapsed between the order of penalty and now when this judgment is being passed and in totality of circumstances, petitioner is held entitled to only 50% of the consequential monetary benefits although he would be otherwise entitled to other benefits arising out of such continuity including retiral benefits and other consequential benefits.

Compliance of the judgment shall be made within a period of three months from the date copy of this order is produced before the respondents."

The petitioner-respondent had filed a writ petition.

Case of the petitioner-respondent was that he was initially

appointed as Constable and continued on the post of Driver-

Constable. During the said period, the petitioner-respondent had

applied for the acquired leave for thirty days and the

Superintendent of Police, Dholpur vide order No. 45/1992 dated

27.01.1992 accepted the application for leave and granted the

said leave to the petitioner. The petitioner before proceeding on

leave, sought the permission from Reserve Inspector, Dholpur

(being immediate Officer). Then the Reserve Inspector refused

the same but the petitioner kept mum, but being in the need of

leave, he again made a request on 01.02.1992 to the Reserve

Inspector. Then he orally permitted the petitioner to proceed on

sanctioned leave. When the petitioner-respondent was proceeding

on leave, he got injured and as a matter of result, he sustained

grievous injuries on his nose and remained sick for weeks

together. He was having severe pain in his stomach for long

period. The Doctors of the General Hospital, Dholpur had advised

him bed-rest for a period till complete recovery of health and

because of this, the petitioner-respondent could not report for the

duty upto 02.03.1992 (the date on which the 30 days leave comes

to end). He sent an application through UPC to the Reserve

(3 of 18) [SAW-628/2011]

Inspector, Dholpur and the Superintendent of Police, Dholpur for

extension of his leave in such circumstances. When the

petitioner-respondent recovered and went to report for duty and

submitted his joining report, the Superintendent of Police sent a

notice to the petitioner-respondent on 23.02.1993 and asked him

to join his duties within seven days from the receipt of notice. The

said notice was received by the petitioner-respondent on

11.03.1993. The petitioner-respondent was served with a charge-

sheet dated 18.05.1993 along with the memorandum on

02.06.1993 with particulars of the charges levelled against him

and detailed list of the witnesses giving him 15 days time for

submitting his reply or explanation regarding the same. The

petitioner-respondent submitted an application dated 22.03.1994

to the Reserve Inspector, Police Line Dholpur and explained

therein his inability to appear and attend the inquiry scheduled for

22.03.1994 on account of his illness and requesting him for fixing

a new date enabling him to appear before the Inquiry Officer for

justifying his case. During the period of treatment of the

petitioner-respondent, he got a letter dated 02.03.1994 of the

Reserve Inspector regarding the Departmental Inquiry and the

petitioner-respondent was informed to attend proceedings before

the Reserve Inspector on 07.03.1994 for producing the

evidence/reply against the charges levelled against him. The

petitioner-respondent attended the office on 07.03.1994 while his

health did not permit him to leave the bed. The petitioner-

respondent requested the Reserve Inspector to supply him copies

of the report but the same were not supplied to him. Thereafter,

he again submitted another application on 15.03.1994 before the

Reserve Inspector demanding duplicate copies of the documents

(4 of 18) [SAW-628/2011]

relating to the Departmental Inquiry and copies of the charges

levelled against him, but no such copies were supplied to him. No

preliminary inquiry was conducted prior to initiation of

Departmental Inquiry against him. The Inquiry Officer recorded

the statements of seven witnesses in his absence. The

Departmental Inquiry was not conducted properly. The petitioner-

respondent was not informed about it nor the Inquiry Officer had

given any notice to the petitioner-respondent for opportunity of

hearing. The inquiry was ex-parte, which is not permissible in the

eye of law. Inquiry Report was sent by the Reserve Inspector to

the Superintendent of Police and the Superintendent of Police

issued a show-cause notice under Rule 16(10)(1) Rajasthan Civil

Services (Classification, Control And Appeal) Rules, 1958

(hereafter referred as 'the Rules of 1958') to the petitioner-

respondent and the petitioner-respondent submitted reply to the

show-cause notice and explained his innocence in this regard. The

Disciplinary Authority passed an order dated 31.08.1994 by which

the punishment of termination of services was awarded and

arrears of salary and allowances were also forfeited. Aggrieved by

this order of the Disciplinary Authority, the petitioner-respondent

challenged the same by way of filing an appeal before the Deputy

Inspector General of Police, Bharatpur Range under Rule 23 of the

Rules of 1958, but appeal was also rejected by the Appellate

Authority vide order dated 25.02.1995. The petitioner-respondent

being aggrieved, preferred a Review Petition before His Excellency

the Governor of Rajasthan as contemplated under Rule 34 of the

Rules of 1958, but that Review Petition was not decided in spite of

lapse of considerable period of time. The Departmental Inquiry

was conducted in violation of Rules of natural justice. No

(5 of 18) [SAW-628/2011]

opportunity was afforded to the petitioner-respondent to

participate in the inquiry. Proper hearing was not allowed.

Inquiry Officer was prejudiced against the petitioner-respondent

and his appointment as Inquiry Officer was vitiated on this ground

alone. Copy of the Inquiry Report was not supplied to the

petitioner-respondent before the passing of impugned orders

dated 31.08.1994 and 25.02.1995. On these grounds, the

petitioner-respondent filed the writ petition with following

prayers :-

"(i) issue an appropriate writ, order or direction in the nature thereof thereby the impugned orders dated 31-8- 94 (Annexure-13) and 25-2-95 (Annexure-15) passed by the Disciplinary Authority and Appellate Authority respectively, may kindly be quashed and set-aside and further the petitioner be reinstated with all consequential benefits;

(ii) issue any other relief as it deem just and proper by this Hon'ble Court in the facts and circumstances of the case, may also be passed in favour of the poor petitioner;

(iii) cost of the writ petition be also allowed in favour of the petitioner."

After hearing both the parties, learned Single Judge

allowed the writ petition and impugned orders dated 31.08.1994

and 25.02.1995 were set aside. The petitioner-respondent was

held entitled to be reinstated in service with continuity. The

petitioner-respondent was also held entitled to 50% of the

consequential monetary benefits.

Aggrieved from the order of learned Single Judge, this

appeal has been filed.

It has been argued on behalf of appellant that learned

Single Judge did not consider the fact that even though the

respondent had proceeded on leave after sanction by SP Dholpur

for a period of thirty days, however, even after lapse of thirty days

he did not join his duties and had thus remained willfully absent

(6 of 18) [SAW-628/2011]

for a period of almost two years, for which no plausible reason or

explanation was given by the respondent. Thus, the willful

absence of respondent beyond a period of thirty days, was wholly

unjustified. The respondent belonged to Disciplined Force,

wherein the discipline is of utmost significance, however, the

respondent had remained absent, which was unbecoming of a

member of Disciplined Force. Therefore, the Disciplinary Authority

was fully justified in imposing the penalty of removal from service

against respondent due to gravity of the misconduct. The

Appellate Authority had also re-examined the matter in the appeal

filed by the respondent and confirmed the penalty order vide its

order dated 25.02.1995. The penalty order dated 31.08.1994, as

also the appellate order dated 25.02.1995, were just and proper

and the quantum of punishment was proportionate to the

misconduct committed by the respondent, hence the impugned

judgment and order dated 22.04.2010 passed by learned Single

Judge, is liable to be set aside. The disciplinary proceedings had

been conducted against the respondent as per the Rules of 1958.

The respondent had himself preferred not to participate on his

own choice in the inquiry, for which respondent himself is

responsible. In spite of giving time and opportunity to the

respondent, he had failed to produce any evidence and, therefore,

there was no other option for the Disciplinary Authority but to

conduct proceedings ex-parte. The respondent had pleaded

before learned Single Judge that he had requested for

sanction/extension of leave, however, the said averment of the

respondent was not substantiated and only after issuance of the

charge-sheet, the respondent came with a plea of sickness, which

clearly was an afterthought and reveals the uncallous attitude on

(7 of 18) [SAW-628/2011]

the part of respondent. The Inquiry Officer was not prejudiced

against the petitioner-respondent.

It has been submitted on behalf of respondent that the

departmental inquiry was conducted against the procedure

established under the Rules of 1958. Principles of natural justice

were not followed. The respondent was not afforded any

opportunity of hearing. The Departmental Inquiry was conducted

ex-parte, hence, respondent had no opportunity to cross-examine

the witnesses. Respondent was not supplied the copy of the

Inquiry Report. No opportunity was granted to the respondent to

appoint Defence Nominee. In such circumstances, the order

passed by learned Single Judge dated 22.04.2010 is just and valid

and appeal is liable to be dismissed. In support of arguments,

learned counsel for the respondent has relied upon following

judgments :-

               (i)      Union of India & Ors v. Ram Lakhan Sharma
                        (2018) 2 SCC (LS) 356

               (ii)     Vijay Singh v. Union of India & Ors
                        (2007)2SCC(LS)664

               (iii)    Ram Singh v. Union of India & Ors
                        RLW (2004) 1 (Raj) 546

               (iv)     Ashok Dhariwal v. University of Jodhpur
                        RLW (1992) 2 (Raj) 130

               (v)      Sardar Singh v. State of Rajasthan & Ors
                        [S.B. Civil Writ Petition No. 3109/1995
                         decided on 07.01.2009]

Heard both the parties and perused the record available

on the file carefully.

As per the record available on file, Annexure-1 is the

application of petitioner-respondent, which was submitted to the

Reserve Inspector, Police Line, Dholpur for permission to proceed

on leave for thirty days. The petitioner-respondent had sought

permission of the Reserve Inspector, Dholpur to allow him to

(8 of 18) [SAW-628/2011]

proceed on leave for thirty days, which was sanctioned by the

Superintendent of Police, Dholpur. On that application, following

officer report was recorded :-

"Jheku~th]

bl le; MT esa nks pkyd CL ij gS o ,d pkyd P.S. fngksyh M~;wVhy esa x;k iq-yk- esa pkyd dh deh gS lsok esa fjiksVZ is'k gSA g0 1-2-92"

Thereafter, following endorsement was made by the

Reserve Inspector, Dholpur :-

"R.I. DLR lqfo/kkuqlkj gh jokuxh nh tkosA g0 1-2-92"

Thus, perusal of Annexure-1 reveals that the petitioner-

respondent had sought permission of the Reserve Inspector,

Dholpur for proceeding on leave sanctioned by order of SP,

Dholpur but the petitioner-respondent was not immediately

relieved of his duties, and looking to the office report that there

was a shortage of drivers, it was directed that he be relieved as

per convenience. Charge-sheet dated 25.06.1993 was issued to

the petitioner-respondent and the Reserve Inspector, Dholpur was

appointed as the Inquiry Officer. Copy of the charge-sheet was

sent to the petitioner-respondent. The Departmental Inquiry was

initiated. The petitioner-respondent was informed to remain

present and to appoint his Defence Nominee vide letters dated

04.07.1993, 16.07.1993, 04.08.1993, 10.08.1993, 03.09.1993,

13.09.1993, 17.09.1993, 27.09.1993 and 11.10.1993. The notice

was also sent through Special Messenger and the information was

also published in daily local newspaper, but despite several

communications, the petitioner-respondent did not appear in the

Departmental proceedings and no request was made for

appointment of any Defence Nominee. In this situation, ex-parte

proceedings were started and departmental evidence was

(9 of 18) [SAW-628/2011]

recorded. In all, statements of seven witnesses were recorded for

the Department and documents were exhibited. After completion

of the departmental evidence, the delinquent employee was again

afforded opportunity to lead his evidence in defence. A notice

dated 02.03.1994 was issued for this purpose, which was served

upon the petitioner-respondent. He was informed to present

himself on 07.03.1994 in the Departmental Inquiry and

opportunity was granted to him to produce any evidence or

documents in his defence, if he so desired. On 07.03.1994, the

petitioner-respondent appeared. He did not produce any evidence

and time was sought by him. Next date was fixed as 15.03.1994

for defence evidence and further opportunity was granted to seek

appointment of Defecne Nominee. On 15.03.1994, the petitioner-

respondent again sought time, hence 22.03.1994 was fixed as

next date and last opportunity was granted to the petitioner-

respondent. On 22.03.1994, the petitioner-respondent again

remained absent and no information was received on his behalf,

hence the inquiry was concluded. Inquiry Report Exhibited-10 was

sent to Disciplinary Authority (SP, Dholpur). Vide Annexure-11,

copy of the Inquiry Report was sent to the petitioner-respondent

and opportunity was given to submit his explanation within fifteen

days of the receipt of the notice. The petitioner-respondent

submitted his written representation, which was considered by the

Disciplinary Authority. The Disciplinary Authority vide order dated

31.08.1994, passed the following direction :-

"Jh [kyhy [kk¡ dkfu0 ua- 332 iqfyl ykbZu /kkSyiqj dks mlds fo:) vkjksfir vkjksiksa ds foHkkxh; tk¡p ls iw.kZr;k izekf.kr ik;s tkus ij jkT; lsok ls i`Fkd fd;s tkus ds n.M ls nf.Mr fd;k tkrk gSA [kyhy [kk¡ dkfu0 ua- 332 dks LosPNk ls xSjgkftj vof/k fnukad 2-2-92 ls 5-8-94 rd dh M~;wVh esa ugha ekuk tkosxk vkSj uk gh bl vof/k dk dksbZ [email protected] dkfu0 dks ns; gksxkA"

                                             (10 of 18)                   [SAW-628/2011]



           Appeal      against       the     order       dated     31.08.1994          was

preferred before the Appellate Authority. The Appellate Authority

after considering entire facts and evidence on record, dismissed

the appeal vide order dated 25.02.1995 (Annexure-15), and

upheld the order of Disciplinary Authority dated 31.08.1994.

A perusal of the inquiry proceedings reveals that the

petitioner-respondent had willfully remained absent for a very long

period (02.02.1992 to 05.08.1994). Due procedure was followed

in the conduct of the Departmental Inquiry. The petitioner-

respondent was informed through several notices to participate in

the inquiry proceedings. Service through Special Messenger was

also effected upon him and information was also published in the

daily local newspaper. Despite ample opportunities having been

granted to him, the respondent failed to participate in the

Departmental Inquiry. Thus, the Inquiry Officer was left with the

only option of proceeding ex-parte against the petitioner-

respondent. After recording evidence of the Department,

opportunity was again given to the petitioner-respondent to

produce evidence in his defence.

The petitioner-respondent appeared in the

departmental proceedings but on several occasions he sought time

for the purpose of appointment of Defence Nominee and to lead

his defence evidence. Thereafter, he again voluntarily remained

absent from the proceedings. Thus, no option was left with the

Inquiry Officer but to conclude the Departmental Inquiry.

Speaking order was passed against the petitioner-respondent and

Inquiry Report was submitted to the Disciplinary Authority. The

Disciplinary Authority gave notice of the Inquiry Report to the

petitioner-respondent and after considering his written

(11 of 18) [SAW-628/2011]

representation, passed the impugned order of punishment dated

31.08.1994. Thereafter, appeal was preferred by the petitioner-

respondent. The Appellate Authority also considered all the facts

of the case and by speaking order, dismissed the appeal.

It has been submitted on behalf of respondent that the

first charge that petitioner-respondent was willfully absent from

duty from 02.02.1992, does not appear to hold good at-least for

initial period of one month because petitioner-respondent was

already granted leave for one month vide order dated 27.01.1992.

Thus, period for which the petitioner-respondent was granted

leave, could not be made part of the charge and the petitioner-

respondent proceeded on leave on 01.02.1992. A perusal of the

Inquiry Report discloses that though the petitioner-respondent

was granted leave for one month w.e.f. 01.02.1992, but

Annexure-1 also reveals the fact that the petitioner-respondent

had not been relieved before proceeding on leave. The Reserve

Inspector had recorded on his application that he be relieved as

per convenience because other drivers of the Police Line were on

leave. Thus, it appears that the petitioner-respondent was not

relieved in pursuance to his sanctioned leave and he was directed

to remain on duty till he was relieved, but despite that he

proceeded on leave without there being any entry in the

roznamcha. Thus, the subsequent inspection of the Police Line

and marking of his absence in the roznamcha, cannot be held to

be a fabricated entry and there is no ground to substantiate the

allegation that the Inquiry Officer was prejudiced against the

petitioner-respondent.

It has also been argued on behalf of the respondent

that the third charge against the petitioner-respondent that he

(12 of 18) [SAW-628/2011]

remained absent on thirteen occasions earlier, was vague as it was

not pointed out either in the charge or statement of allegations

specifically as to the period of absence. Hence, the charge was

wholly vague.

Charge no. 3 Annexure-4 (charge-sheet), reads as

under :-

"vkjksi la[;k %& 3 vkids lsok fjdkMZ ds vuqlkj vki iwoZ esa fnukad 19-12-84 ls fnukad 22-12-84 rd 4 ;kse] fnukad 18-12-84 dks ,d ;kse fnukad 16-7-85 ls 31-7-85 rd 16 ;kse] fnukad 2-8-85 ls fnukad 14-9-85 rd 44 ;kse] fnukad 6-6-89 ls 15-6-89 rd 10 ;kse] fnukad 16-6-89 ls 23-6-89 rd 8 ;kse] fnukad 16-8-89 ls 18-8-89 rd 3 ;kse] fnukad 19-8-89 ls 27-8-89 rd 9 ;kse] fnukad 5-8-90 ls fnukad 12-8-90 rd 8 ;kse] fnukad 30-5-91 ls 4-6-91 rd 6 ;kse] fnukad 19-4-90 ls 10-5-90 rd 22 ;kse] vFkkZr~ vc rd ds lsokdky esa dqy 13 ckj vyx&vyx vof/k rd LosPNk ls xSj gkftj jgs ftldk fHkUu fHkUu vodk'kksa ds :i esa fuLrkj.k fd;k x;kA"

Thus, charge no. 3 specifically mentions dates

regarding which allegation of absence on earlier occasions was

levelled against the petitioner-respondent.

Learned counsel for the respondent has further

submitted that the inquiry was held in utter violation of the

principles of natural justice, which is also infraction of procedure

contained in the Rule 16 of the Rules of 1958. It has also been

argued on behalf of the respondent that there was denial of

opportunity to avail services of Defence Nominee and that has

occasioned miscarriage of justice, but the record of the inquiry

proceedings as discussed above, clearly brings out the fact that

the petitioner-respondent was informed to appear before the

Medical Board for his medical examination, but no compliance was

made by the petitioner-respondent. He did not appear before the

Medical Board. Notices of inquiry were sent to him several times,

even through Special Messenger. Publication in daily local

newspaper was also made informing the petitioner-respondent to

remain present in the departmental inquiry proceedings, but

despite several opportunities having been granted, the petitioner-

(13 of 18) [SAW-628/2011]

respondent willfully remained absent from the Departmental

Inquiry proceedings, hence in such circumstance ex-parte

evidence was recorded against him. Thereafter, he was again

informed to remain present for producing defence evidence and

for availing the opportunity of services of Defence Nominee. The

petitioner-respondent sought time on two occasions and

thereafter, he again remained absent from the proceedings. Thus,

the Inquiry Officer was left with no option but to close the

Departmental Inquiry. The findings of the Inquiry Officer as per

Inquiry Report, Annexure-10, reads as under :-

"mDr vkjksi i= dkfu0 Jh [kyhy [kaku 332 dks fnukad 02-06-93 dks izkfIr gqvkA foHkkxh; tkWp esa vfHk;kstu i{k dh vksj ls Jh ykyeqfu lgk;d mi fujh{kd dks miLFkkid vf/kdkjh fu;qDr fd;k x;kA mDr vkjksiks ds ckcr fu;ekuqlkj foHkkxh; tkWp izkjEHk dh xbZA vkjksih dkfu0 Jh [kyhy [kkW 332 dks foHkxh; tkWp dk;Zokgh esa mifLFkr gksus ckcr o viuk cpko izfrfuf/k fu;qDr djus ckcr rgjhjs fnukad dze 4-7-93] 16-7-93] 4-8-93] 10-8-93] 3-9-93] o 13-9-93] 17-9-93] 27-9-93] 11-10-93 dks tkjh dh xbZA rFkk rkehy gsM Lis'ky eslsUtj Hkh Hksts x,] ,oa LFkkuh; lekpkj i= "frjaxk" es foKfIr Hkh izdkf'kr djkbZ xbZA ftlesa dkfu0 dks foHkkxh; tkWp esa mifLFkr vkus ckcr vafdr djk;k x;kA fdUrq mDr vkjksih dkfu0 tkucw>dj foHkkxh; tkWp esa mifLFkr ugh gqvk] vkSj uk gh dksbZ cpko izfrfuf/k gh fu;qDr dj;kA ,slh fLFkfr esa fu;ekuqlkj foHkkxh; tkWp esa ,d rjQk dk;Zokgh izkjEHk dj vfHk;kstu i{k dh lk{; fjdkMZ ij yh xbZA nkSjkus tkWp fuEufyf[kr xokgku ,oa njLrkosth; lk{; fjdkMZ ij yh xbZA "

Thereafter, copy of the Inquiry Report was also sent to the

petitioner-respondent. He was afforded opportunity to file written

representation. Written representation was submitted by the

petitioner-respondent to the Disciplinary Authority. Medical

certificates on which the respondent relied, were submitted by him

for the first time before the Disciplinary Authority at the time of

submission of written representation. The Disciplinary Authority,

by a speaking order, passed the punishment order. Observation of

Disciplinary Authority in the order dated 31.08.1994, Annexure-

13, is important which reads thus :-

"vkjksfir dkfu0 dks lk{kkRdkj dk ekSdk fn;k tkdj ryc fd;k x;k pwafd dkfu0 fnukad 2-02-92 ls gh yxkrkj xSj gkftj py jgk gS vr% fnukad 5-8-94 dks esjs le{k mifLFkr gqvk ftlus lquokbZ ds nkSjku vius vH;kosnu esa gh vafdr rF;ks dks nqgjk;kA vH;kosnu dk gh tkWp izfrosnu] vkjksi i= dh rqyuk esa xgu v/;u voyksdu fd;k x;k A dkfu0 dk ekuuk gS fd og chekjh ds dkj.k xSj gkftj Fkk o le; le; ij ;w0ih0lh0 i= ds tfj;s vkj0vkbZ dks lwpuk nhA ;g fcYdqy >wB gsS D;ksfd ,d Hkh i= vkj0 vkbZ0 dks o bl dk;kZy; ls izkIr ugh gqvkA ;fn dkfu0 us dksbZ i= Hkstk gksrk ;k og Lo; gh mifLFkr gksdj viuh chekjh ckcr v/kksg{kjdrkZ vkok vkj0 vkbZ0 iqfyl ykbZu] /kkSyiqj ls djrk rks bl rF; dh vo'; gh iqf"B foHkkxh; tkWp ds nkSjku ;k tkWp ls iwoZ gksrh fdUrq ;g rF; okLro esa fujk/kkj ,oa vlR; gS tks Li"V gSA vkjksih dkfu0 dk ;g Hkh dguk o

(14 of 18) [SAW-628/2011]

ekuuk gS fd og foHkkxh tkWp dk;Zokgh esa Hkkx ysus gsrq chp chp esa vkj0vkbZ0 iqfyl ykbZu /kkSyiqj ¼tkWp vf/kdkjh½ ls feyrk jgk gS d;kfd foHkkxh; tkWp i=koyh ls ;g rF; Li"V gS fd vkjksih dkfu0 ek= blfy;s vkj0 vkbZ0iqfyl ykbZu] /kkSyiqj ls feyk fd mlds ikl viuh xSj gkftj ckcr dksbZ i;kZIr lcwr ugh gSA mldk ;g dguk Hkh vlR; gS fd og iqfyl ykbZu /kkSyiqj esa vk;k D;ksfd vxj og iqfyl ykbZu] /kkSyiqj esa vkrk rks viuh vken D;ksa ugha dkjbZ tcfd dkfu0 us viuh vken fnukad 5-8-94 dks le; 8-30 ih0,e0 ij iqfyl ykbZu] /kkSyiqj esa djkbZ gSA vkjksih dkfu0 us lkjs rF; >wBs o cukoVh izLrqr fd;s gS ftUgs mlds cpko gsrq drbZ i;kZIr lk{; ugh ekuk tk ldrk gSA mlds }kjk izLrqr chekjh dk fpfdRlk izek.k i= Hkh dksbZ egRo ugh jgrk d;ksafd mlds }kjk izLrqr izFke fpfdRlk izek.k i= 5 fnu dk gS o nwljk izek.k i= lok lky dk ,d lkFk tkjh fd;s x;s gS tcfd fu;ekuqlkj o vPpkf/kdkfj;ksa ds funsZ'k&uqlkj lkr fnu ls vf/kd vof/k dk fpfdRlk izek.k i= dsoy esMhdy cksMZ }kjk gh tkjh fd;k tk ldrk gS vr% ;g lok lky dk fpfdRlk izek.k i= dks dkfu0 vkjksih us vius cpko gsrq >wBk is'k fd;k gSA blds vykok fpfdRlk izek.k i= 9 ekg dk izLrqr fd;k gS tks izkbosV MkDVj dk gS fu;ekuqlkj ;g Hkh ekU; ugh gSA ;g ckr drbZ ekU; ugh gks ldrh fd vkjksih dkfu0 iqfyl ykbZu /kkSyiqj ls fnukad 2-2-92 ls xSj gkftj gksdj yxkrkj chekj jgk o vf/kdrj viuk bykt Hkh /kkSyiqj esa gh dj;k fdUrqa lwfpr gksus ds i'pkr Hkh viuh M;wVh ij mifLFkr ugh gqvk vkSj uk gh viuh chekjh ckcr le; le; ij fdlh vf/kdkjh dks voxr djk;k ;gh ugh 'kkjhfjd fpfdRlk gsrq lwfpr gksus ds ckn Hkh vkjksih dkfu0 cksMZ }kjk fu;r rkjh[k ij cksMZ ds le{k u rks mifLFkr gqvk vkSj uk gh fdlh dkj.k ls fdlh dks voxr djk;k vkSj uk gh viuh M;wVh ij gkftj gqvkA"

Appellate Authority also dismissed the appeal by a detailed

speaking order, and observed in the appellate order dated

25.02.1995 as under :-

"¼d½ vihykFkhZ us Loh--r'kqnk mikftZr vodk'k ij jokuxh gsrq vkj0vkbZ0 lkcg iqfyl ykbZu] /kkSyiqj dks tks izkFkZuk i= izLrqr fd;k gS] ml ij Li"V vafdr gS fd iqfyl ykbu esa nks pkyd vodk'k ij gS vkSj ,d pkyd M~;wVh esa Fkkuk fngkSyh ij gSA pkydksa dh deh py jgh gS ijUrq vihykFkhZ us mPpkf/kdkfj;ksa ds vkns'k dh vogsyuk dj] LoSPNk ls M~;wVh ls vuqifLFkr gks x;kA mldks fu;ekuqlkj vius vf/kdkfj;ksa ls btktr ysdj iqfyl ykbu] /kkSyiqj ds jkstukepk vke esa jokuxh crkdj mikftZr vodk'k ij tkuk pkfg, FkkA vxj og fxj tkus ds dkj.k pksV ls ihfM+r Fkk rks mls vodk'k ds fy, is'k gksuk pkfg, Fkk ijarq mlus ,slk ugha fd;k vkSj MkWDVjh izek.k i= tks izsf"kr fd;s x;s gS] og rc vius esa dksbZ egRo ugha j[krs gSa vkSj fu;ekuqlkj lgh ugha gSA mls 'kkjhfjd fpfdRlk gsrq lwfpr gksus ds mijkUr Hkh cksMZ }kjk fu;r fnukad ij u rks og mifLFkr gqvk vkSj uk gh vuqifLFkr gksus dh ckcr fdlh dkj.k ls voxr djk;k x;kA chekjh ds dkj.k vuqifLFkr jgus o le;&2 ij jk-ih-lh- i= ls lwpuk nsus ds laca/k esa mldh vksj ls ,d Hkh izkFkZuk i= izkIr ugha gqvk gSA ;g rF; fujk/kkj gSA vihykFkhZ dk ;g dguk fd og foHkkxh; tkap dh dk;Zokgh esa Hkkx ysus gsrq chp&2 esa vkj-vkbZ- iqfyl ykbu /kkSyiqj ls feyrk jgk rks og viuh vuqifLFkfr dh vken djk ldrk Fkk vkSj vf/kdkfj;ksa ls fuosnu Hkh dj ldrk Fkk ijUrq mlds }kjk tkucw> dj fu;eksa dh vogsyuk ,oa mYya?ku fd;k x;k gSA og ckj ckj vuqifLFkr jgus dk vknh gS D;ksafd og ckj ckj lwfpr fd, tkus ds i'pkr Hkh mifLFkr ugha gqvkA vihykFkhZ }kjk U;k;ky; dh tks nyhy izLrqr dh xbZ gS] mudk bl izdj.k ls dksbZ lEcU/k ugha gSA"

In view of this, it is proved that the departmental

proceedings were held as per the provisions of the Rules of 1958.

Ample opportunity of hearing was afforded to the petitioner-

respondent. The principles of natural justice were followed. No

infraction of principles of natural justice can be inferred. The

petitioner-respondent himself voluntarily remained absent from

the Departmental Inquiry proceedings. Hence, the petitioner-

respondent cannot take advantage of his own wrong.

Learned counsel for the respondent placed reliance

upon the judgment of rendered in Union of India & Ors v. Ram

(15 of 18) [SAW-628/2011]

Lakhan Sharma (supra). In this judgment, Hon'ble Supreme

Court has held that the question whether the requirements of

natural justice have been met by the procedure adopted in a given

case must depend to a great extent on the facts and

circumstances of the case. It has been held by Hon'ble Supreme

Court as under :-

"Rules of natural justice have been recognised and developed as principles of administrative law. Natural justice has many facets. Its all facets are steps to ensure justice and fair play. This Court in Suresh Koshy George vs. University of Kerala and others, AIR 1969 SC 198 had occasion to consider the principles of natural justice in the context of a case where disciplinary action was taken against a student who was alleged to have adopted malpractice in the examination. In paragraph 7 this Court held that the question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of Tribunal and the rules under which it functions. Following was held in paragraphs 7 and 8 :

7... The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions.

8. In Russel v. Duke of Norfolk, Tucker, L.J.

observed :

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."

As discussed above, in the facts of the case in hand,

the requirements of natural justice have been met by the

procedure adopted by the appellant in the departmental inquiry

proceedings. This judgment also deals with the question of effect

of non appointment of Presenting Officer in a departmental

inquiry, but no such controversy has been raised in this matter.

                                              (16 of 18)                        [SAW-628/2011]



Hence,     this   judgment       does      not     advance          the        case   of   the

respondent.

             Hon'ble      Supreme          Court       in     several           cases,     has

propounded        the    scope       of    judicial         review        in     disciplinary

proceedings.

In S. Sreesanth v. The Board of Control for Cricket in

India and Ors (2019) 4 SCC 660, it has been held as under :-

"..This Court further held that jurisdiction of the High Court under Article 226 is a supervisory jurisdiction and the High Court does not exercise a jurisdiction of an appellate court. The findings of the fact reached by a tribunal as result of the appreciation of the evidence cannot be questioned in the writ proceedings. In paragraph 23 of the judgment, following has been laid down:

23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan.

This Court again in Union of India v. P. Gunasekaran, reiterated the same principles regarding judicial review of disciplinary proceedings. In paras 12 and 13, the following has been laid down:

12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(17 of 18) [SAW-628/2011]

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

13. Under Articles 226/227 of the Constitution of India, the High Court shall not:

(i) reappreciate the evidence;

(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience."

Considered on touchstone of the guiding principles

reiterated by Hon'ble Supreme Court in S. Sreesanth's case

(supra), the facts of the present case do not call for the exercise

of power of judicial review of this court under Article 226 of the

Constitution of India, so as to interfere with the punishment order

passed by the Disciplinary Authority as well as the order passed

by the Appellate Authority dated 31.08.1994 and 25.02.2995

respectively.

In view of the above discussion, we are of the

considered opinion that the learned Single Judge has erred in

allowing the writ petition. The writ petition is liable to be

dismissed. Consequently, the appeal is allowed. The order of

learned Single Judge dated 22.04.2010 is set aside.

(18 of 18) [SAW-628/2011]

Consequently, writ petition filed by the petitioner-respondent is

dismissed.

All pending applications, if any, stand disposed of.

                                    (MANOJ KUMAR VYAS), J.                                         (SABINA), J.




                                   .db-Ashu/..









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