Ram Ratan Sharma vs State And Ors
2021 Latest Caselaw 2331 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

               S.B. Civil Writ Petition No.5602/1999

Ram Ratan Sharma S/o Devi Lal Sharma, aged about 48 years,
R/o 67/61, Mansarovar, Jaipur.

                                                                   ----Petitioner
                                   Versus
1. State of Rajasthan through the Secretary to the Government
of Rajasthan, Mines & Geology Department, Secretariat, Jaipur.
2. Secretary to the Government, Department of Personnel,
Government of Rajasthan, Secretariat, Jaipur.
3. Secretary to His Excellency the Governor of Rajasthan, Raj
Bhawan, Civil Lines, Jaipur.

                                                                ----Respondents

For Petitioner(s) : Mr. A.K. Sharma, Senior Counsel with Mr. Rachit Sharma For Respondent(s) : Mr. K.S. Chandel, Addl. Govt. Counsel Mr. Abdul Mujeeb Khan for Mr. Zakir Hussain, Addl. Govt. Counsel

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

Order

RESERVED ON : 23.03.2021 PRONOUNCED ON : 28.05.2021

1. The petitioner by way of this writ petition seeks to challenge

the note of dissent dated 10.09.1997 and the consequential

punishment order dated 07.11.1997 whereby he has been

punished with the stoppage of four annual grade increments with

cumulative effect and prays for consequential benefits.

2. Brief facts which require to be noticed are that the petitioner

was posted as Mining Engineer, Alwar. A Notification dated

29.01.1991 was issued by the State Government in the Rajasthan

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Gazatte on 07.02.1991 whereby applications were invited for

grant of mining leases for marble in Alwar District. In the said

notification, it was notified to the general public that the mining

leases for mineral Marble would be sanctioned in accordance with

Chapter-11 of the Rajasthan Mines Mineral Concession Rules,

1986 (hereinafter referred to as "the Rules of 1986"). In

pursuance of the said notification, many applications were filed in

the office of the Mining Engineer, Alwar when the petitioner was

working at that time. While the said applications were under

scrutiny, a letter dated 31.08.1991 was issued by the Director

Mines & Geology Department, Udaipur which was received by the

petitioner wherein it was directed that the applications should be

disposed of expeditiously. Thereafter, another letter dated

11.9.1991 was issued by the Superintending Mining Engineer,

Bharatpur who was controlling officer of the petitioner at the

relevant time, stating that in view of campaign to decide the

pending applications and taking into consideration the scarcity of

time, the petitioner (Mining Engineer, Alwar) was not required to

do site inspection and site report in each and every case. The

petitioner was required to issue sanction of the mining leases with

an additional condition in the sanction order that the exact

position of the area sanctioned would be subject to actual

demarcation of the site. It was further stated in the said letter that

all the applications should be disposed of by the end of

September, 1991.

3. The petitioner submits that he was fully exonerated by the

Inquiry Officers by two inquiry reports with regard to the same

charges. The Inquiry Officers had submitted inquiry reports on

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11.4.1994 and 16.12.1995 wherein on the basis of evidence

produced before them, a finding was recorded of exoneration

relating to all the seven charges as levelled against the petitioner.

It is submitted that the Government with a pre-determined mind,

without specifying the reasons for dis-satisfying with the reports of

the inquiry officers, sent a dissenting note and without examining

the petitioner's objections objectively, proceeded to punish the

petitioner withholding of four annual grade increments with

cumulative effect.

4. It is further stated that the action was violative of principle of

natural justice as well as in violation of Clause 9 of Rule 16 of the

Rajasthan Civil Services (Classification, Control & Appeal) Rules,

1958 (hereinafter referred to as "the Rules of 1958"). It is

submitted that the State Government has passed order of

punishment without being able to prove the charges thus the

findings are wholly perverse.

The charges including the charge of violation of Rule 4 and 6

of the Rules of 1986 and Conservation of Forest Act, 1980 while

granting 31 mining marble leases in forest area, issuance of 117

sanctions of mining leases without seeking report from the Forest

Department, execution of 54 lease deeds in forest area in violation

of Government circular dated 29.10.1991, without waiting for the

expiry of 30 days time granted by the Collector for submission of

the objection, grant of mining leases in pasture land, not verifying

the employment of 12 applicants and rejection of 210 applications

on technical grounds.

5. Learned Senior Counsel appearing for the petitioner submits

that the order is perverse as it fails to take note of the fact that

(4 of 14) [CW-5602/1999]

the enquiry officers while exonerating the petitioner, had

considered 124 documents filed by the department and 29

documents filed by the petitioner as well as statements of

witnesses which were recorded after the first remand. The enquiry

officers had conclusively proved on the basis of the documents

that the prosecution has failed to prove that the mining leases

granted and executed in forest area resulting in violation of Rule

4 and 6 of the Rules of 1986 nor there is any violation of the

procedure. On the contrary, there was a specific finding that

serious efforts were made to verify the area in question whether

the same falls in the forest area or not and thereafter the leases

have been sanctioned and granted as per the rules and circulars,

therefore, the impugned order is liable to be quashed and set

aside.

6. Learned Senior Counsel further submitted that the petitioner

was exercising quasi judicial powers in the matter of sanction and

execution of the mining leases and even the disciplinary authority

has not been able to find the charges proved on the basis of the

evidence led before him that the petitioner had acted with ulterior

motive and had taken undue advantage of grant of the said leases

which has resulted in gross abuse of the process of law, therefore,

the punishment awarded to the petitioner is highly

disproportionate to the gravity of the charges and the same is

liable to be quashed and set aside.

7. It is further submitted by learned Senior Counsel for the

petitioner that the mining leases were sanctioned to the applicants

who were eligible and entitled for the same and the sanction was

only after ascertaining the facts from the record and also after

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ascertaining the facts from the concerned officers of the Forest

and Revenue Departments who submitted their reports. The

reports of the inspections were also considered. On receipt of

complaints, the department asked the report from the

Superintending Mining Engineer ("SME"), Bharatpur and the SME,

Bharatpur submitted his report on 31.01.1992 pointing out that

the mining leases were not sanctioned in forest area. The

Department of Personnel ("DOP") also gave its finding that the

preliminary enquiry conducted did not indict the petitioner.

However, the department suspended the petitioner and the

petitioner preferred a writ petition bearing No.2123/1995

challenging his suspension order dated 18.04.1992. The said writ

petition was disposed of on 07.07.1997 with the following

observations:

"Most of the reliefs which have been claimed by the petitioner have become redundant now. The writ petition is, therefore, disposed with the direction that the disciplinary authority shall take necessary decision on the enquiry report in accordance with law within three months from today. He shall also pass necessary orders in regard to consequential benefits in case the petitioner is exonerated of all the charges. In case, the petitioner is awarded punishment, he shall be free to challenge the order of punishment in accordance with law before the concerned authority or before this Court."

8. The enquiry report as mentioned hereinabove in the order,

was in favour of the petitioner but after observations were made

by the High Court, the disciplinary authority issued a dissenting

note on 10.09.1997 seeking representation from the petitioner.

The petitioner submitted his representation which was received on

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18.10.1997 and thereafter, the disciplinary authority passed an

order on 07.11.1997 holding the petitioner guilty of all the

charges and passed a punishment order as noticed above. A

review petition was filed but the same is still pending. The

petitioner preferred writ petition as he was not considered for

promotion on the post of Superintending Mining Engineer.

9. Learned Senior Counsel has, apart from taking the aforesaid

grounds, submitted that on seeking query under the Right to

Information Act relating to the receipt of his representation, he

was informed that the record had been destroyed. Learned

counsel submits that the pending case of the petitioner, the record

could not have been destroyed. It is submitted that under the

garb of dissenting note, a finding of fact arrived at by the enquiry

officer cannot be ignored by the disciplinary authority. On the

same facts, a different factual finding to that of enquiry officer can

only be given when the enquiry is perverse. It is submitted that

the petitioner was exercising his quasi judicial power and the State

Government while exercising revisional power under Rule 47 of

the Rules of 1986, set aside some of the sanctions on the ground

that area is falling in the forest. A further revision against the

order of the State Government was preferred by the concerned

parties by filing revision under Section 30 of the MRD Act, 1957

and the order of the State Government was set aside, therefore,

the charge sheet based on the orders of the State Government

was liable to be quashed. It is further submitted that an error of

judgment with no imputation of malafide would not amount to

misconduct.

(7 of 14) [CW-5602/1999]

10. Learned Senior Counsel further submitted that the petitioner

has been wrongly denied his promotion against the vacancies of

the year 1999-2000 and 2000-2001. Learned Senior Counsel has

further submitted that the petitioner was not paid any subsistence

allowance and the enquiry could not have been conducted.

11. Learned Senior Counsel submits that the note of dissent

suffers from prejudice as it mentions that charges are proved

against the petitioner. The reply which was filed and already

received has been ignored and the very purpose to issue note of

dissent is eyewash. The petitioner was entitled for fair opportunity

of hearing as the conclusion of the enquiry officer was in his

favour.

12. A reply to the writ petition has been filed by the

respondents. The respondents admitted that the enquiry report

was in favour of the petitioner. It is stated that the findings of the

enquiry officer were not based on record and the facts, hence, a

disagreement note was given. It is stated that following the

principle of natural justice, a show cause notice was given on

10.09.1997 along with dissenting note and the dissenting note

was disagreed with the findings of the enquiry officer. The review

petition filed by the petitioner was dismissed on 01.03.2000. The

petitioner's promotion has been kept in sealed envelope.

I have considered the submissions as above.

13. In the case of Anwarun Nisha Khatoon Vs. State of Bihar

& Ors., reported in (2002) 6 SCC 703, the Supreme Court has

held as under:

"9. In our view, this authority, far from assisting the Respondents, is against them. This authority shows that

(8 of 14) [CW-5602/1999]

there is no requirement to mark attendance. To us also no rule could be shown which required a suspended employee to mark attendance. The Respondents can at the most ask for a certificate that the Appellant's husband was not engaged in any other employment, business, profession or vocation. The Appellant's husband having died, he could not have furnished such a certificate. At no stage have the Respondents asked the Appellant to give such a certificate. Thus the grant of subsistence allowance cannot be denied on the ground that such a certificate is not given.

10. This view of ours is supported by an authority of this Court in the case of Jagdamba Prasad Shukla V. State of U.P. reported in (2000) 7 SCC 90. In this case, on identical facts, it has been held that if the State requires a certificate they should ask for it. It has been held that without asking for such a certificate the State cannot reject a claim for subsistence allowance.

11. In the case of Capt. M. Paul Anthony V. Bharat Gold Mines Ltd. reported in (1999) 3 SCC 679, this Court has held that a suspended employee is entitled to subsistence allowance as a relationship of employer-employee subsists.

12. For the above reasons, we hold that the Appellant is entitled to receive subsistence allowance, which should have been paid to her husband. As the only ground for not paying the subsistence allowance is that a certificate required by Rule 96(2) has not been furnished, we direct the Appellant to file an affidavit stating therein that her husband was not engaged in any other employment, business, profession or vocation. The subsistence allowance as per Rule 96 shall be released to the Appellant within 4 weeks of receipt of such an affidavit."

14. In S.B.I. & Ors. Vs. Arvind K. Shukla, reported in JT

2001 (4) SC 415, the Supreme Court was considering whether in

a case where disciplinary authority disagrees with the inquiring

officer on certain articles of charges, then before it record its

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findings on such charge, is it duty bound to record its tentative

reasons for such disagreement and give the same to the

delinquent officer an opportunity to represent, before it ultimately

records its findings and passed the following order:

"The next question therefore is, as has been formulated earlier, whether the disciplinary authority was required to record its tentative reasons for disagreement and give to the delinquent officer an opportunity to represent before it recorded its ultimate findings. This question is concluded by a 3-Judge Bench decision of this Court in the case of Punjab National Bank v. Kunj Behari Misra [JT 1998 (5) SC 548]. The Bench in the aforesaid case relied upon the earlier decision in the Institute of Chartered Accountant's case [JT 1997 (6) SC 607] as well as the Ram Kishan case [JT 1995 (7) SC 43] and came to hold that the view expressed in S. S. Kaushal (1995 (5) SLR 18) and M. C. Saxena cases (JT 1998 (2) SC

103) do not lay down the correct law.

Mr.Sundravardan, however, brought to our notice yet another 3-Judge Bench decision in the case of Union Bank of India v. Vishwa Mohan (JT 1998 (3) SC 118), and contended that a different view has been taken in the aforesaid cases. But on examining the aforesaid decision in Union Bank of India case, we find that the question which arose for consideration in the Punjab National Bank case was not really there before the Court and the Court was examining the question as to what would be the effect, if copy of the enquiry report is not furnished to the delinquent employee. The Court obviously relied upon the Constitution Bench decision of this Court in Managing Director, ECIL v. B. Karunakar (JT 1993 (6) SC 1). In the absence of any contrary decision of a 3-Judge Bench decision on the

(10 of 14) [CW-5602/1999]

question in issue, we are bound by the earlier Judgment of this Court in Punjab National Bank case, necessarily, therefore we do not find any merit in this appeal, which stands dismissed."

15. Admittedly, the record relating to this case had been

destroyed by the respondents while this writ petition was pending

thus this Court has been unable to examine the record nor the

reviewing authority was able to examine the record. A look at the

order impugned passed by the disciplinary authority shows that

the enquiry officer had exonerated the petitioner from all the

charges in the year 1994 while submitting his enquiry report on

11.04.1994. The disciplinary authority exercising his power

disagreed with the enquiry report and remanded the case for fresh

enquiry vide order dated 22.03.1995 and the enquiry officer again

submitted his report on 16.12.1995 and found that the charges

were not proved against the petitioner.

16. A question arises whether the disciplinary authority can

ignore two enquiry reports and still proceed with the dissenting

note and hold a person guilty of the charges without giving any

individual points of disagreement with the enquiry.

In the opinion of this court, such a course is not available

with the disciplinary authority under the scheme of Rule 16 of the

Rules of 1958. Such powers, if exercised, would a colourable

exercise which would be vitiated as it frustrates earlier power

exercised of remand by the disciplinary authority to the enquiry

officer.

17. The Supreme Court in the case of Union Of India & Ors Vs.

P. Gunasekaran, reported in (2015) 2 SCC 610 has laid down

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criteria in Paras 12 and 13 that the departmental enquiry and

findings arrived therein can be interfered with. The test laid down

in Paras 12 and 13 is as under:

"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, re-appreciating even the evidence before the inquiry 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 re-appreciation of the evidence. The High Court can only see whether:

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

(b) the inquiry 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) re-appreciate the evidence;

(ii) interfere with the conclusions in the inquiry, 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;

(12 of 14) [CW-5602/1999]

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

18. The aforesaid was approved by a Three-Judge Bench of the

Supreme Court in the case of Central Industrial Security Force

& Ors. Vs. Abrar Ali, reported in (2017) 4 SCC 507 and applied

the aforesaid principle.

19. The Supreme Court in the case of Associate Builders Vs.

Delhi Development Authority, reported in (2015) 3 SCC 49

observed as under:

"31. The third juristic principle is that a decision which is perverse or so irrational that no reasonable person would have arrived at the same is important and requires some degree of explanation. It is settled law that where:

(i) finding is based on no evidence, or

(ii) an arbitral tribunal takes into account something irrelevant to the decision which it arrives at; or

(iii) ignores vital evidence in arriving at its decision, such decision would necessarily be perverse.

32. A good working test of perversity is contained in two judgments. In Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons, it was held: (SCC p.317, para 7) "7. .........It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law." In Kuldeep Singh v. Commr. of Police, it was held (SCC p.14, para 10):

"10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable

(13 of 14) [CW-5602/1999]

and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."

20. Keeping in view above, this Court finds that the charges were

examined based on evidence by two enquiry officers

independently and the evidence was thoroughly looked into and

both the enquiry officers reached to the conclusion that the

charges were not proved against the petitioner. After the first

inquiry report was submitted, the disciplinary authority exercised

its powers under Rule 16(9) and dissatisfied with the enquiry

report, appointed second enquiry report and remanded the case

back. However, after the second enquiry officer has submitted his

enquiry report, still the disciplinary authority has not agreed with

the report without there being cogent reasons.

In view thereof, the case falls within the four corners of the

clauses as laid down under Para 12 of Union Of India & Ors Vs. P.

Gunasekaran (supra). This Court finds that the disciplinary

authority has erroneously failed to admit admissible and material

evidence which was already examined by both the enquiry officers

and the findings arrived at by the enquiry officer are based on no

evidence as cogent reasons have not been supplied. This Court

finds that the view taken by the Supreme court in SBI & Ors.

versus Arvind K. Shukla (supra) has not been adhere to. The

disciplinary authority has carried out an empty formality and it is a

case of eye-wash which cannot be allowed to be sustained.

If a decision is arrived at on no evidence and no reasonable

person can act upon it, the order or findings would be treated as

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perverse as held in Associate Builders Vs. Delhi Development

Authority (supra).

21. Accordingly, this Court finds that since both the enquiry

officers did not find truth in the charges levelled against the

petitioner and the disciplinary authority has not given any cogent

reasons for disagreeing with the enquiry report, the order passed

by the disciplinary authority is found to be perverse and a

colourable exercise of power. The order dated 07.11.1997

therefore, is required to be quashed and set aside and is

accordingly quashed with all consequential benefits.

22. The petitioner has been denied his due promotion, however,

as has been informed that the case of the petitioner was kept in

sealed cover, the respondents shall now open the sealed cover.

Since the petitioner has retired during pendency of this writ

petition. He will get actual benefits of arrears of promotion on

retirement. The petitioner would also be entitled to all

consequential benefits and salary for the period during which he

remained under suspension. The entire exercise regarding

calculation of arrears, etc. shall be done within a period of three

months henceforth. The interest on the arrears @9% per annum

shall also be paid.

23. The writ petition is accordingly allowed. No costs.

24. All pending applications, if any, shall also stand disposed of.

(SANJEEV PRAKASH SHARMA),J

FATEH RAJ BOHRA /6

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