Rajasthan High Court

Shanti Lal Jain vs Raj State Bhatat Scout And Guide ... on 2 November, 2022

Bench: Sudesh Bansal

         HIGH COURT OF JUDICATURE FOR RAJASTHAN
                     BENCH AT JAIPUR

                 S.B. Civil First Appeal No. 490/2011

   Shanti Lal Jain s/o late Shri Sobhagh Mal Vaid aged 55 years,
   R/o 111-A, Surya Nagar, Gopal Pura Bye Pass, Jaipur
                                                                ----Appellant-Plaintiff
                                         Versus
   1. Rajasthan State Bharat Scout & Guide, through its Pradhan,
   Rajasthan Head Quarters, Jawahar Lal Nehru Marg, Bajaj Nagar,
   Jaipur.
   2. State Chief Commissioner, Rajasthan State Bharat Scout &
   Guide, Rajasthan Head Quarters, Jawahar Lal Nehru Marg, Bajaj
   Nagar, Jaipur.
                                                     ----Respondents-Defendants


  For Appellant(s)             :     Mr. Rajendra Vaish
  For Respondent(s)            :     Mr. Arun Sharma for
                                     Mr. Subodh Shah



              HON'BLE MR. JUSTICE SUDESH BANSAL

                                      Judgment

  JUDGMENT RESERVED ON:                              : 30/09/2022
  JUDGMENT PRONOUNCED ON:                            :November 2nd ,2022
  BY THE COURT:

REPORTABLE

1. In the instant first appeal, filed under Section 96 of the Code

of Civil Procedure, appellant-plaintiff had been a delinquent

employee of the Rajasthan State Bharat Scout & Guide

(R.S.B.S.G), who was served with a charge-sheet dated

01.12.2008 and after conducting inquiry under the Rule 16 of the

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

1958 (hereinafter "CCA Rules"), he was removed from service

vide Order dated 14.07.2009, which was challenged by the

employee before the Appellate Authority but his departmental

(2 of 33) [CFA-490/2011]

appeal too was dismissed vide Order dated 12.11.2009,

thereafter, he instituted the present civil suit challenging both

orders and for seeking his reinstatement in service with all

consequential benefits of back wages, seniority and continuity in

service. His Civil suit No.06/2010 has been dismissed by the

Additional District Judge (Fast Track) No.5, Jaipur City, Jaipur, vide

judgment and decree dated 11.05.2011 and thereagainst he has

preferred the instant first appeal.

2. Facts of the present case as culled out from record and which

are necessary for decision of the instant first appeal, are as

under:-

2.1 The civil suit was instituted on 18.12.2009, alleging inter alia

that plaintiff was appointed as Assistant Organization

Commissioner (AOC) on 03.12.1980 and had served for more than

two decades, and his entire service career remained clean and

unblemished without any adverse Annual Confidential Report

(ACR) or any charge-sheet, except the one under consideration.

He was served with a charge-sheet dated 01.12.2008 levelling

eight charges against him. He submitted detailed reply to each

charge. Before filing reply, he demanded documents time and

again, but no documents were supplied to him and in absence of

such documents, appellant was without any defence and his right

to defence was marred. It was pleaded that before the Inquiry

Officer, the plaintiff requested to call for documents for his defence

but no documents were called. The admission denial of documents

were not made and without any evidence or witness, documents

submitted by the department were held proved against plaintiff.

                                           (3 of 33)                   [CFA-490/2011]


2.2    It was alleged that inquiry was conducted in complete

violation to Rule 16 of CCA Rules and the punishment order for

removal from service has been passed arbitrarily, illegally and

maliciously. It was averred that thereafter, the plaintiff was

provided documents under the Right to Information Act and he

challenged the dismissal order dated 14.07.2009, by way of filing

an appeal before the Appellate Authority along with entire

documents in support of his defence, but the Appellate Authority

dismissed the appeal vide order dated 12.11.2009, without

considering documents and without giving complete and proper

hearing, therefore, the rejection order of appeal passed by the

Appellate Authority too is violative to Rule 30(2) of the CCA Rules.

2.3 Plaintiff averred that the dismissal order dated 14.7.2009

and the appeal rejection order dated 12.11.2009, are against the

principles of natural justice and the same are malicious and

violative to the mandatory procedure of Rules 16 & 30 of the CCA

Rules, as such liable to be set aside. Plaintiff also pleaded that

charges, levelled against him, are old, stale and belated. The GF &

AR Rules were not applicable prior to December 1998, still charges

were held proved, for not following the GF & AR Rules and without

evidence. It was averred that plaintiff has arbitrarily and illegally

been removed from service, therefore, he be reinstated

immediately and granted all consequential benefits including back

wages, seniority and all benefits treating him to be continued in

service.

2.4 On issuing notice, defendants filed written statement raising

preliminary objection that the suit was not maintainable before the

Civil Court as the plaintiff has not claimed any of his civil rights,

(4 of 33) [CFA-490/2011]

and orders passed after conducting departmental inquiry can be

challenged only before the Rajasthan Civil Services Appellate

Tribunal. It was stated that plaintiff was not working on the post of

Assistant Organization Commissioner till 14-7-2009, as during

pendency of departmental inquiry, he was under suspension vide

order dated 3-10-2007 and his posting was at Head Quarter

Jaipur. Passing of impugned orders dated 14-7-2009 and 12-11-

2009 was admitted. It was stated that plaintiff was provided

sufficient opportunity of hearing during pendency of inquiry. When

the plaintiff expressed inability to attend before the Appellate

Authority, then his appeal was decided. Prayer was made for

dismissal of the suit.

2.5 As per rival pleadings of both parties, learned trial court

framed following issues:

(I) Whether plaintiff according to contents of paras No.1&2

of the plaint was on the post of Assistant Organization

Commissioner till 14-7-2009, when vide order No.4243

dated 14-7-2009 he was removed from service vide

impugned order?

(II) Whether according to contents of para No.3 of the plaint

the impugned appellate order No.9780 dated 12-11-2009

affirming the dismissal order is illegal, cursory and against

the principles of natural justice?

(III) Whether according to contents of paras No.1&2 of

written statement the suit is not maintainable being beyond

jurisdiction?

(IV) Relief?

(5 of 33) [CFA-490/2011]

2.6 In evidence, plaintiff- Shanti Lal Jain produced himself as

PW-1 and exhibited documents (Ex-1 to Ex-54). From the side of

defendants, witness-Vinod Kumar Sharma appeared as DW-1 and

exhibited documents (Ex-A1 to Ex-A6).

2.7 Learned trial court decided issue No.3 relating to jurisdiction

of the Civil Court as preliminary issue and held that in respect of

challenge to the dismissal order and appeal rejection order being

violative to the CCA Rules, jurisdiction lies before the Rajasthan

Civil Services Appellate Tribunal, nevertheless, in respect of

challenge to the impugned orders on the ground of maliciousness

and violative to the principle of natural justice, Civil Court may

exercise its jurisdiction. Issues No.1 & 2 were not considered on

merits but were considered and decided within the limited scope

of examining maliciousness and the violation of the principle of

natural justice. Finally, both issues have been decided against

plaintiff and the suit has been dismissed vide judgment and

decree dated 11.05.2011.

3. Heard learned counsel for both parties, perused the

impugned judgment and record.

4. At the outset, it may be observed that the first appeal is

always treated as continuation of civil suit and virtually first appeal

is a re-hearing of the civil suit and the whole case is opened for

re-consideration.

In case of Santosh Hazari Vs. Purushotam Tiwari

[(2001) 3 SCC 179] in Para 15, Hon'ble the Supreme Court

expounded the scope of first appeal and jurisdiction of first

appellate court in following words:

(6 of 33) [CFA-490/2011]

"15....The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law. the whole case is therein open for rehearing both on questions of fact and law. The judgment of the Appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court.............while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the Court hearing a further appeal that the first appellate court had discharged the duty expected of it.

In another case of H.K.N. Swami Vs. Irshad Basith

[(2005) 10 SCC 243], Hon'ble the Supreme Court again

reiterated principles in respect of jurisdiction of the first appellate

court in Para 3 as under:

"3. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard both on questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. Unfortunately, the High Court, in the present case has not recorded any finding either on facts or on law. Sitting as the first appellate court it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording the finding regarding title."

Hon'ble the Supreme Court, in case of B.V. Nagesh Vs. H.

V. Sreenivasa Murthy [(2010)13 SCC 530] and further in case

of A.M. Sangappa Vs. Sangondeppa [(2013) 14 SCALE 384],

has reiterated the aforesaid principles.

5. This Court keeping in mind the scope of jurisdiction of first

appeal as mentioned hereinabove, now dealing with the present

appeal issue-wise as under:

Issue No.3 :-

(7 of 33) [CFA-490/2011]

6. This issue pertains to jurisdiction of the Civil Court to hear,

trial and decide the present civil suit challenging the dismissal

order and appeal rejection order. Learned trial court, though has

decided this issue in favour plaintiff, yet has confined the

jurisdiction of Civil Court to examine impugned orders only if the

same are malicious or suffer from violation of the principle of

natural justice. In respect of challenge to impugned orders being

passed without adhering to the mandatory provisions of the CCA

Rules, the trial court has concluded that in respect to the

impugned orders, in violation of the CCA Rules, the Rajasthan Civil

Services Appellate Tribunal has the jurisdiction and Civil Court

does not.

7. Learned trial court has erred in reaching to the conclusion

that for the purpose of challenging the impugned orders being in

violation of the CCA Rules, plaintiff could have/should have

approached the Rajasthan Civil Services Appellate Tribunal. As a

matter of fact plaintiff was an employee of the R.S.B.S.G and

defendant (R.S.B.S.G) is neither a State nor its instrumental

authority and does not fall within category of State under Article

12 of the Constitution of India. In fact, R.S.B.S.G is not

government body, but a society registered under the Societies Act

and so also the plaintiff is not a government servant. Learned

counsel appearing for respondents, during course of arguments,

has not disputed the status of Rajasthan State Bharat Scout &

Guide and admits that it is not a state.

In case of Shrawan Kumar Sharma Vs. State of

Rajsthan [(2005) 1 WLC (Raj.) 349], the Single Bench of the

Rajasthan High Court has already held that the Rajasthan State

(8 of 33) [CFA-490/2011]

Bharat Scout & Guide is neither a State nor an authority under

Article 12 of the Constitution of India, and writ petition against

such body is not maintainable.

8. Rajasthan Civil Services Appellate Tribunal has been

established under the Rajasthan Civil Services (Service Matters

Appellate Tribunal) Act, 1976 and only government servants can

approach the Appellate Tribunal. The Appellate Tribunal hears the

case of civil servants only. In case at hand, neither plaintiff is a

government servant nor defendant is State or its authority,

therefore, plaintiff has only the remedy before the Civil Court and

findings of learned trial court, in respect of not exercising its

jurisdiction to challenge the impugned orders being violative to

the CCA Rules, are erroneous and unsustainable.

9. Hon'ble the Supreme Court in case of Ramendra Kishore

Biswas Vs. The State of Tripura [(1999) 1 SCT 295] has held

that the Civil Court has jurisdiction to decide cases under the CCA

Rules.

10. Therefore, this Court decides the issue No.3 absolutely in

favour of plaintiff and against defendants holding that the present

civil suit challenging impugned orders of dismissal of service and

appellate order, is maintainable before the Civil Court and the Civil

Court can also examine as to whether the impugned orders have

been passed in violation to the CCA Rules, simultaneously, while

considering the maliciousness and in violation to the principles of

natural justice. Findings of issue no.3 stand modified accordingly.

Issues No.1 & 2:-

11. Both these issues fundamentally involve two points for

determination:

(9 of 33) [CFA-490/2011]

(i) The impugned order of dismissal of plaintiff from service dated 14.07.2009 and appellate order dated 12.11.2009 are sustainable in law or not?

(ii) Whether at the time of passing the order of removal from service dated 14.7.2009, plaintiff be treated on the post of Assistant Organization Commissioner in the Rajasthan State Bharat Scout & Guide or not?

12. As far as point No.1 is concerned, before dealing with each

and every charge levelled against plaintiff, this Court is taking into

consideration grounds, on the basis of which plaintiff has alleged

that impugned orders have been passed in complete violation of

the CCA Rules.

13. It is not in dispute that the charge-sheet, inquiry and

punishment to plaintiff had been conducted under the Rajasthan

Civil Services (Classification, Control and Appeal) Rules, 1958

(hereinafter called as CCA Rules). Vide order dated 14.7.2009,

plaintiff has been removed from service, which is a major penalty.

The procedure for imposing major penalty is envisaged under Rule

16 of the CCA Rules.

Sub-Rule (1) envisages no order that imposing penalties as

specified in clauses (iv) to (vii) of rule 14 shall be passed except

after an inquiry held in the manner as provided under Rule 16.

Sub-Rule (2) envisages that the disciplinary authority shall frame

definite charges on the basis of allegations, on which the inquiry is

proposed to be held. Such charges together with statement of

allegations shall be communicated in writing to the employee, and

the employee shall be required to submit a written statement,

indicating whether he admits charges, or if not then what is his

explanation or defence and whether employee desires to be heard

(10 of 33) [CFA-490/2011]

in person. Sub-Rule (3) states that the employee, for the purpose

of preparing his defence, shall be permitted to inspect and take

extracts from such official record which is relevant. Sub-Rule (4)

talks about the appointment of Inquiring Authority, if employee

does not admit the charges and submits his written statement of

defence. Sub-Rule (4A) talks about the situation where the

employee does not admit the article of charge or has not

submitted any written statement of defence. Sub-Rule (5)

envisages nomination of any person by disciplinary authority to

present the case in support of charges before the Inquiring

Authority. Sub-Rule (6)(a) states that where the employee has

pleaded not guilty to the charges, the Inquiring Authority shall ask

the Presenting Officer to submit the list of witnesses and

documents within ten days, who shall also simultaneously send a

copy to the employee. The delinquent employee, within ten days

of receipt of the list of prosecution witnesses and documents, shall

submit list of documents required by him for his defence. The

Inquiring Authority shall then summon documents of both sides

and asks parties to admit and deny the documents. Thereafter, the

Inquiring Officer shall summon such evidence as is necessary,

giving opportunity to both parties. The Inquiring Authority shall

give opportunity of examination in chief and cross-examination/re-

examination to the parties. In case of refusal to summon any

witnesses and documents, the Inquiring Authority shall record

reasons in writing. The opportunity for hearing the arguments

shall be given to both parties. A specific "Note" is appended to

this Rule which envisaged that if the government servant applied

orally or in writing for supply of copies of the statements of

(11 of 33) [CFA-490/2011]

witnesses and mentioned in the list referred to in Sub Rule (6)(a),

the Inquiring Authority shall furnish him with such copies as early

as possible and in any case not later than three days before

commencement of the examination of the witnesses on behalf of

the Disciplinary Authority. This Sub-Rule also provided that the

Inquiring Authority shall, on receipt of notice by the delinquent

employee for the discovery or production documents, forward the

same or copies thereof to the Authority in whose custody or

possession the documents are kept, with a requisition for the

production of the document. The Inquiring Authority, for reasons

to be recorded in writing, may refuse to requisite the irrelevant

documents. It is also provided that on receipt of requisition,

everty authority having the custody of documents shall produce

the same before the Inquiry Authority. Sub-Rule (6)(A) explains

the jurisdiction of Inquiring Authority to allow the Presenting

Officer to produce evidence not included in the list or to call for

the new evidence but simultaneously opportunity shall also be

given to the delinquent employee, though new evidence shall not

be permitted or called for to fill up any gap in evidence. Sub-Rule

(6)(B) speaks about powers of authorities to impose penalties as

specified in Rule 14. Sub-Rule (7) speaks that the Inquiring

Authority shall prepare the report of inquiry after recording its

findings on each of the charges together with reasons therefore.

Sub-Rule (8) is about the record of Inquiry. Sub-Rule (10) states

that the disciplinary authority shall forward copy of the report of

inquiry to the delinquent employee, who shall be required to

submit if he so desires. Sub-Rule (10A) states that the disciplinary

authority, if disagrees with findings of Inquiring Authority of any

(12 of 33) [CFA-490/2011]

article of charge, shall record its own reasons for such

disagreement and same shall be forwarded to the employee for his

representation. Sub-Rule (10B) states that the disciplinary

authority shall consider the representation, if nay submitted by

the delinquent employee before proceeding further under Sub-

Rules (11) and (11A), thereafter, Sub-Rules (11) and (11A) are

about the imposition of penalty by the disciplinary authority and

Sub-Rule (12) is with regard to the communication of orders

passed by the disciplinary authority to the delinquent

employee/government servant.

14. In case at hand, charge-sheet, levelling eight charges, was

served upon plaintiff. The Inquiry Officer had found six charges

proved and seventh & eighth charges not proved. Even in respect

of six charges, only two witnesses, in relation to charge No.6 only

were produced by the employer and no witness or evidence in

respect of charges No.1 to 5 were produced before the Inquiry

Officer. Learned counsel for appellant vehemently argued that

inquiry proceedings, inquiry report and also dismissal order are

against the law and also in violation of the CCA Rules. It has been

submitted that, on receipt of charge-sheet, plaintiff was not

provided the required documents despite demand. Plaintiff filed

application dated 08.12.2008 with list of required documents,

again reminders were submitted on 15.12.2008, 16.12.2008,

24.12.2008 and 02.01.2009. Detailed reminder dated 07.01.2009

and 16.01.2009, were also submitted before the Inquiry Officer,

but no documents were supplied to appellant and in absence of

documents, appellant could not submit his defence effectively.

Applications demanding documents have been placed on record

(13 of 33) [CFA-490/2011]

from Exhibit-2 to Exhibit-11. In cross-examination from plaintiff

(PW-1), no question was asked on submissions of such

applications. Defendants' witness (DW-1) in his evidence admits

that applications (Ex-2 to Ex-11), were submitted by plaintiff

which were received in the department. He could not counter this

evidence to show that documents required by plaintiff were

provided to him for his defence. Non-supply of documents to the

delinquent employee, despite demand, is a clear violation of the

Rule 16(3) of the CCA Rules.

In case of S K Dutt Sharma Vs. State of Rajasthan

[(1990) 1 RLR 1], the Division Bench of the Rajasthan High

Court, has held that compliance of the Rule 16 is mandatory and

non-supply of documents is fatal and vitiates the whole inquiry.

In case of State of Uttar Pradesh Vs. Saroj Kumar Sinha

[(2010) 1 SCC (L&S) 675, the Hon'ble Supreme Court held that

denial of copies of documents which formed the foundation of

charge-sheet against the delinquent employee, is a denial of

natural justice and in such a situation, the inquiry stands vitiated.

It was held that by virtue of Article 311(2) of the Constitution of

India, a departmental inquiry had to be conducted in accordance

with rules of natural justice. It is the basic requirement of the

rules of natural justice that an employee be given reasonable

opportunity of being heard in any proceedings which may

culminate in punishment, if imposed on the employee. It has also

been held in this case that non-examination of witnesses in

respect of charges, vitiates the whole inquiry.

In case of Babulal Vs. State of Rajasthan [(2002) 1

WLN 475], the Divisional Bench of the Rajasthan High Court,

(14 of 33) [CFA-490/2011]

held that the delinquent officer apart from being entitled to

receive copies of the statements and documents relied on by the

prosecution authority, is also entitled to demand copies of such

documents which he considers relevant for preparing his defence

and which are in possession of the prosecution authority and it

has been further held that the disciplinary authority is duty-bound

to supply documents, when demanded by the delinquent officer

for his defence. Non-supply of documents would be denying the

delinquent officer a fair opportunity to prepare and raise his

defence against allegations levelled against him. The Division

Bench placed reliance on the judgment of Hon'ble the Supreme

Court delivered in case of Khem Chand Vs. Union of India

[AIR (1958) SC 300].

15. This Court is of considered opinion that the inquiry

proceedings, which culminate into the dismissal order of the

plaintiff, are violative to the relevant provisions of the CCA Rules

which are mandatory in nature for compliance.

16. Learned counsel for appellant has also emphasized that the

Inquiry Officer was duty-bound to get on the documents

admission and denial, by both parties but this mandatory

requirement of the CCA Rules has not been followed. This Court

has noticed from perusal of the Inquiry Report (Exhibit-14) that it

nowhere reflects that the requirement of rule of law for admission

and denial on the documents produced by the prosecution, was

complied with and therefore, on this count also, the inquiry

proceedings and the dismissal order against the plaintiff, stand

vitiated and are against the CCA Rules.

(15 of 33) [CFA-490/2011]

17. Learned counsel for appellant has also argued that mere

submission of documents before the Inquiry Officer, is not

sufficient but documents are required to be proved by the

evidence of witnesses, and are also required to be marked exhibit

and then only, the Inquiry Officer can consider these documents.

It has also been submitted that GF & AR Rules were not applicable

but still charges for not following GF & Ar Rules had been held

proved.

18. Learned counsel for appellant has vehemently urged that

where the dismissal order of plaintiff dated 14.07.2009 (Exhibit-

14) is violative to Rule 16 of the CCA Rules, the Appellate

Authority has also not followed Rule 30 of the CCA Rules, while

deciding his appeal and appeal rejection order dated 12.11.2009,

too is in violation to the Rule 30(2) of the CCA Rules, as such

unsustainable in law. The memo of appeal (Ex-15 & Ex-16) along

with 54 documents have been placed on record. It has been

alleged that after conclusion of inquiry, documents were provided

to the plaintiff under the R.T.I. Act, which were produced before

the Appellate Authority but not a single point, document or legal

submission made by the appellant was considered by the

Appellate Authority and appeal was dismissed in slipshod manner,

by non-speaking and cryptic order.

19. This Court deems it just and proper to reproduce Rule 30 of

the CCA Rules, 1958, as under:

30. Consideration of appeals: (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provision of rule 13 and having regard to the circumstances of the case the order of suspension is

(16 of 33) [CFA-490/2011]

justified or not and confirm or revoke the order accordingly.

(2) In the case of an appeal against an order imposing any of the penalties specified in rule 14, the appellate authority shall consider:

(a) whether the procedure prescribed in these rules has been compiled with and if not, whether such non- compliance has resulted in violation of any provisions of Constitution or in failure of Justice;..........

20. This Court has gone through the appeal rejection order dated

12.11.2009 (Exhibit-54). The Appellate Authority, more or less

reiterated the same findings on each charge as passed by the

Inquiry Authority, and there is no discussion of any point or

document, raised/produced by the appellant. In the appeal

rejection order, only a reference has been made that appellant

raised several issues in his appeal that he was not shown relevant

documents and that the charges were proved without producing

evidence but while dealing with such grounds of challenge, the

Appellate Authority has simply said that the Inquiry Report

indicates that appellant was given copy of every document and

charges were found proved by documentary evidence, therefore,

no oral evidence from the side of prosecuting officer was required

to prove charges. The Appellate Authority has not adverted any of

documents, submitted by appellant to his defence in respect of

charges No.1 to 6. Plaintiff (PW-1), in his evidence, has clearly

produced all these documents in evidence and defendants' witness

(DW-1) also has admitted all these documents. This Court will too,

consider the relevancy of documents to the charges, in later part

of judgment, but it is suffice to observe here that the Appellate

Authority has decided the appeal in slipshod manner, without

(17 of 33) [CFA-490/2011]

discussing the grounds and documents, produced by the

appellant. The appeal rejection order dated 12.11.2009,

apparently appears to be passed in violation to Rule 30 of the CCA

Rules.

In case of Siya Ram Vs. State of Rajasthan [(1992) 1

WLC (Raj.) 352], it was held that the order of Appellate

Authority is illegal because it has not been passed in accordance

with Rule 30(2) of the CCA Rules. The Single Bench of Rajasthan

High Court while laying down this ratio has placed reliance on

previous judgment of the High court delivered in cases of Phool

Chand Vs. State of Rajasthan [(1980) WLN (UC) 311] and

Ramchandra Vs. Union of India [AIR (1986) SC 1173]. This

Court also has its concurrence with such proposition of law.

In case of Vasudeo K. Hardasani Vs. State of Rajasthan

[(1989) 1 RLR 99], the Division Bench of the Rajasthan High

Court, held that where the Appellate Authority has not followed

the mandate of Rule 30(2) of the CCA Rules, the order of

Appellate Authority stands vitiated and was quashed. The Division

Bench also observed that Rule 30(2) of the CCA Rules provided

that Appellate Authority shall consider whether the procedure

prescribed in the CCA Rules has been complied with and if not

whether such non-compliance has resulted in violation of any

provision of the Constitution of India or in failure of justice. The

Division Bench followed the dictum of Hon'ble the Supreme Court

in case of Ramchandra (Supra), where it was specifically stated

that the Appellate Authority should pass a reasoned order dealing

with contentions raised before it in the appeal. The mechanical re-

production of phraseology of the rule, will not be sufficient. The

(18 of 33) [CFA-490/2011]

Appellate Authority should marshal the evidence on record with

view to decide about the sustainability of the findings recorded by

the disciplinary authority and the order passed should show that

the appellate authority has applied its mind and considered the

objection raised in the appeal.

21. In case at hand, this Court finds that inquiry proceedings

itself vitiated as the procedure envisaged under Rule 16 of the

CCA Rules, was not followed and further the Appellate Authority

too dismissed the appeal by a cryptic and non-speaking order,

which itself is in violation to the Rule 30(2) of the CCA Rules.

22. In order to appreciate the challenge to impugned order of

dismissal from service dated 14.07.2009 and the appeal rejection

order dated 12.11.2009, as to whether the charges No.1 to 6 have

been held proved against appellant maliciously and without any

evidence and whether the reply, explanation and representation of

appellant was considered or not, opportunity for defence was

awarded to the appellant or not, whether principles of natural

justice has been followed or not? This Court is examining the

nature of charges, its reply and evidence as well as the conclusion

of the Inquiry Officer and then by the findings of Appellate

Authority. It has already been observed that the trial court did not

enter into this arena under a wrong misconception of law that Civil

Court has no jurisdiction to see the violation of the CCA Rules in

considering the enquiry and passing the impugned orders. Since

entire evidence was adduced before the trial court and is available

on record, therefore, this Court deems it just and proper to

consider the evidence on record, instead of remanding the suit to

the trial court, as the same would prolong the litigation, which has

(19 of 33) [CFA-490/2011]

already suffered for more than twelve years and in the meanwhile,

delinquent employee might have attained the age of

superannuation. Therefore, remanding the suit, would not

subserve the interest of justice.

23. The memorandum of charges dated 01.12.2008 is exhibited

as Exhibit-A1.

23.1 First Charge, levelled against the plaintiff was that he did

not forward the Annual Confidential Report (ACR) of subordinate

employees from year 1996 to 1999, despite several reminders.

No witness was examined before the Inquiry Officer to

prove this charge and only documents (Ex-P1 to Ex-P13) were

submitted. Plaintiff, in his reply/explanation dated 17.04.2009

(Ex.A2), submitted that such charges are baseless and he had

forwarded ACRs vide different letters. Plaintiff has produced such

letters as Exhibit 17 to Exhibit 20 dated 17.06.1997 & 11.07.1997,

and also submitted details of each session i.e. 1996-1997, 1997-

1998 and 1998-1999 wherein such letters were sent. Plaintiff in

his evidence clearly stated to forward ACRs, but he was not cross-

examined on such oral and documentary evidence by the

defendants. Defendants' witness DW-1, in his cross-examination

admits that through letters (Ex-17 to Ex-19), plaintiff had

forwarded ACRs of his subordinating officers in the Office. In

respect of Exhibit-20, DW-1 denied but the same has been issued

under R.T.I., Act by the department itself. He also admitted that

details of such letters are also mentioned in the reply/explanation

(Ex-A2) as also representation (Ex-13). Perusal of Inquiry Report

(Ex-12) clearly shows that though documents Ex-P1 to Ex-P13,

were neither produced nor exhibited by any witness, but these

(20 of 33) [CFA-490/2011]

documents were taken into consideration and recorded against

appellant and merely on the basis of these documents, the charge

No.1 has been held proved. The objection of plaintiff that

documents were neither supplied nor documents sought to be

summoned, were called for, has not been dealt with. The Appellate

Authority, in the rejection order dated 12.11.2009, has also not

pondered over documents (Ex-17 to Ex-20).

23.2 Second charge, levelled against plaintiff was that he

committed irregularities in the year 1998, in purchase of material

on the occasion of 786 th URS Fair, Ajmer, of Rs.1,20,000/- without

following GF & AR Rules.

In respect of this charge, it was replied that this is a ten

years old matter which cannot be opened after such a long delay

and that charge was denied. Plaintiff in his evidence has produced

documents, Exhibit-21 to Exhibit-31, to show that purchases of

the material were as per approved list by the Committee and

subsequently approved by the Head of the Department and finally

no objection was found in the audit as well. Perusal of inquiry

report shows that no witness appeared to prove this charge and

documents, Exhibit-15 to Exhibit-54, were marked by its own. The

Inquiry Officer on the basis of Exhibit-51 observed that the

delinquent employee has partially confessed some irregularities in

purchase of various items. The Appellate Authority, too affirmed

such charges without discussing documents, Exhibit-21 to Exhibit-

31. PW-1 has clearly deposed that through documents (Ex-21 to

Ex-31), it stands clear that purchases were approved by the

Committee. DW-1 clearly admits that Ex-21 to Ex-31, are part of

the government record. DW-1 admitted that expenditure of 786 th

(21 of 33) [CFA-490/2011]

URS Fair has already been audited and no objection in the audit

was found. He admitted that Exhibits 22 and 23, are the approval

list of the department on the basis of which material was

purchased. DW-1 also admitted that Exhibits 25 to 31, are lists of

purchased material in the 786 th URS Fair, which is signed by three

persons and rates mentioned therein are approved by the

department. Thus, it stands clear that plaintiff has given his full

defence/explanation to such charge. Otherwise such charge is

highly belated and once it has come on record that expenditure

was audited, where no fault found, the department-prosecution is

estopped to level and open such charge. There is no discussion

about explanation and documents referred by plaintiff in the

Inquiry Report and it is clear that the plaintiff was neither provided

copies of documents nor documents prayed to be called for, were

summoned, though same are part of record of the department.

Plaintiff also submitted that GF & Ar Rules were not applicable in

the year 1998 and as per document, Ex-24, order dated

08.12.1998, GF & AR were made applicable, therefore, prior to

08.12.1998, no GF & AR Rules were applicable. No heed was paid

on such defence and charge No.2 has been wrongly held proved.

23.3 Third charge, levelled against plaintiff, was that plaintiff

unauthorizedly deputed Mr. Arun Kumar Gupta for Reorientation

Course on 03.12.2001, and managed his railway concession.

In respect of this charge, plaintiff has produced

documents, Exhibits-32 to 34, which are orders from Head-quarter

nominating Mr. Arun Kumar Gupta for Reorientation Course.

Plaintiff had submitted reply that he had no power to deput any

person for Reorientation Course and this was done by the senior

(22 of 33) [CFA-490/2011]

authority at Head Office. DW-1 has clearly admitted in his cross-

examination that Exhibit-32 is the letter of department through

which Mr. Arun Kumar Gupta was sent for Reorientation Course.

DW-1 also admits that vide Exhibit-34, Mr. Arun Kumar Gupta was

sent to shivir in the year 2002. He admits that it is the department

which complies the procedure for railway concession and in case

of Mr. Arun Kumar Gupta, this process was done by the

department. Thus, there is clear evidence on record that charges

levelled against plaintiff are baseless, yet in the Inquiry Report,

this charge has been held proved on the basis of documents (Ex-

P55 to Ex-P58). Perusal of Inquiry Report shows that no witness

appeared to prove such documents and charge. There is no

discussion of the reply/explanation of plaintiff and about

documents (Ex-32 to Ex-34), which are admitted by DW-1 himself.

Therefore, it stands clear that documents sought to be summoned

by plaintiff, were not called for and plaintiff was not given proper

opportunity to defend himself.

23.4 Fourth charge, levelled against plaintiff, was that in the

year 2001, plaintiff had sent Sh. Bhanwar Lal to National

Jamboree instead of Sh. Hajari Lal, against the Head-Office

orders, which is deliberate defiance of instructions of the higher

authorities.

In defence to such charge, plaintiff has produced documents

Exhibits-35 to 40, to show that orders from headquarter were

issued for sending Mr. Hajari Lal in orientation and therefore,

charge levelled against plaintiff is baseless. PW-1 clearly deposed

his evidence that Sh. Bhanwar Lal was sent as per orders of the

Head Office. There is no cross-examination from PW-1 on his

(23 of 33) [CFA-490/2011]

evidence and documents (Ex-35 to Ex-40), rather DW-1 in his

cross-examination admits that it is correct that in January, 2002,

Commissioner, Bikaner, recommended the name of Sh. Bhanwar

Lal for Jamboree and Exhibits 35-40, are parts of the government

record. Thus, despite clear defence of plaintiff, the Inquiry Officer

has found proved this charge against plaintiff on the basis of

documents (Ex-P59 to P62). Perusal of Inquiry Report clearly

shows that none of witnesses appeared to prove such documents

and to exhibit the same. The Appellate Authority has not adverted

to the explanation of plaintiff and documents produced by him. It

stands proved that plaintiff was neither supplied documents (Ex-

59 to Ex-62), nor documents of defence were called for, despite

demand. The breach of Rule 16(3) of the CCA Rules is apparent

and principle of natural justice has not been followed.

23.5 Fifth charge, levelled against plaintiff, was that in 2002

plaintiff applied for three days casual leave but has signed

attendance register without cancellation of leave.

In defence/explanation to such charge, plaintiff has

produced evidence that on 12,13 and 14 August, 2002, though he

applied for casual leave but leave cancellation application was sent

to the Head Office in advance and for these three days he

discharged his duties and worked in the office. Documents,

Exhibits 41 to 47, have been produced to prove that he had

worked in the office during period of these three days and it is

wrong that he marked his attendance only. PW-1 has not been

cross examined on his evidence and documents (Ex-41 to Ex-47).

DW-1 in his cross-examination has admitted that documents (Ex-

41 to Ex-47) are part of the record of department and these

(24 of 33) [CFA-490/2011]

documents are duly signed by plaintiff-Shanti Lal Jain. DW-1 has

admitted that as per documents (Ex-41 to Ex-47) which are part

of the government record, Shanti Lal Jain had worked in the office.

Thus, there is clear evidence available on record to show that such

charge was wrongly levelled and the explanation furnished by

plaintiff was not allowed to be proved. Plaintiff submitted these

documents before the Appellate Authority but in the appeal

rejection order dated 12.11.2009, there is no discussion about

these documents in respect of charge No.5. Therefore, it is

apparent that plaintiff was denied opportunity to defend such

charge and documents (Ex-41 to Ex-47), which are part of the

government record were not called for, despite demand. The

Inquiry Officer has arbitrarily proved such charge against plaintiff

without considering record of department and without giving

opportunity of defence to plaintiff. It is apparent that Inquiry

Officer did not advert to the record of department and just relied

upon the evidence of department, overlooking the defence of

plaintiff. In reply (Exhibits 1 and A2), plaintiff has clearly denied

charge No.5 and submitted his defence that on 12, 13 and 14,

August, 2002, after submitting application for leave cancellation,

he worked in the office and for which the record may be sent.

There is no consideration a bit of his defence in the Inquiry Report

shows that inquiry proceedings were conducted in violation to Rule

16 of the CCA Rules.

23.6 Sixth charge, levelled against plaintiff, was that he was

given Rs.3000/- and Rs. 4000/- from his colleague but did not

enter this amount in the Cash Book and thus he embezzled.

                                             (25 of 33)                [CFA-490/2011]


          In   defence   to    such      charge,        plaintiff   has    produced

documents (Ex-48 to Ex-51). In Ex-51, there is entry of

Rs.20,000/- as contribution by four persons. Exhibit-48 is the

receipt issued by the Cashier and Exhibit-49 is the copy of ledger

where the entry of account finds place. Plaintiff has not been

cross-examined on his evidence and on such documents. On the

contrary, DW-1 has admitted that documents (Ex-48 to Ex-51) are

part of the government record and in the receipt Exhibit-48, name

of Mandu Ram is mentioned. As per Exhibit-49, amount paid by

Mandu Ram, is deposited in the office. He admitted that it is

correct that Exhibits-50 & 51, are documents related to

expenditure of the Mandal Rally. This evidence is sufficient to

dispose such charge levelled against plaintiff. The Inquiry Report

shows that the Presenting Officer produced two witnesses namely

Sh. M R Verma and Sh. Sunil Solanki in support of charge No.6

and produced documents (Ex-67 to Ex-80). Though one more

witness Sh. Ramchandra Sharma was also produced but he did not

turn up personally and sent his affidavit only, which was taken on

record as Exhibit-P85. On the basis of such evidence, it was held

that plaintiff Shanti Lal Jain cannot be held responsible for

embezzlement of Rs.3000/- but was held guilty for embezzlement

of Rs.4000/-, received from Sh. M R Verma. The Inquiry Report

nowhere whispers about entries of the amount paid by Mr. M R

Verma as available in the office record. No heed was paid to the

defence of plaintiff that the amount was paid by individuals

directly to the cashier. Plaintiff has claimed that the receipt of

cashier was issued, which was available in the record but same

was neither summoned nor sent. The appeal rejection order dated

(26 of 33) [CFA-490/2011]

12.11.2009 also nowhere whispers about these receipts and

entries in the government record in respect of alleged amount.

From perusal of Inquiry Report, statements of Sh. M R Verma are

not reliable and Sh. Ramchandra Sharma, whose affidavit was

taken on record as Exhibit-P85, did not appear personally yet the

Inquiry Officer relied upon their evidence and held guilty the

plaintiff for embezzlement of Rs.4000/-. Perusal of document

Exhibit-48 which is receipt of Cash amount of Rs.20,000/- dated

29.03.2005 clearly shows that name of Mr. M R Verma is

mentioned therein. It appears that plaintiff was not given any

opportunity to produce his defence and documents (Ex-48 to Ex-

51) which are part of the government record were not summoned.

The Inquiry Officer arbitrarily held proved the charge of

embezzlement of Rs.4000/- against plaintiff, which seems to be

malicious also.

23.7 As far as charges No.7 & 8, are concerned, both charges

have been dropped by the Inquiry Officer himself, hence no need

to discuss about these charges.

24. On perusal of evidence produced by the plaintiff before the

trial court, it appears that plaintiff has given sufficient

explanation/defence to each of the charges, levelled against him.

In the reply/representation dated 17.04.2009 (Exhibit-1), there is

complete details and reference of documents and all such

documents have been produced in evidence before the trial court.

But in the Inquiry Report, there is no consideration/discussion

about the defence of plaintiff. There is reasonable reasons and

evidence on record to believe that plaintiff was not supplied

documents in support of his defence despite making the demand

(27 of 33) [CFA-490/2011]

and non-supply of documents as also non-consideration of defence

furnished by plaintiff is clear violation of the Rules 16(3), 16(10) &

16(10b) of the CCA Rules. It appears that no witness appeared to

prove charges No.1 to 5, and only two witnesses appeared to

prove charge No.6. Documents produced by department before

the Inquiry Officer were also not proved by any evidence. Mere

submission of documents before the Inquiry Officer may not be

held sufficient unless documents are marked exhibited and proved

by any witness.

In case of Amritlal Vs. State of Rajasthan [(1981) WLN

UC 457], the Division Bench of the Rajasthan High Court, has

held that mere filing of any document during course of

departmental inquiry does not amount to prove such documents,

unless these are either admitted by the other side or proved, they

do not become evidence in the case. It was clearly held that mere

production of the letter, during the inquiry was not sufficient. In

the present case, none of documents, produced by the Presenting

Officer, have been proved and exhibited by any witness.

In case of Roop Singh Negi Vs. Punjab National Bank

[(2009) 1 SCC (L&S) 398], the Supreme Court held that

departmental proceeding is a quasi-judicial proceedings. The

Inquiry Officer performs a quasi-judicial function. The charges

levelled against the delinquent officer may not be found to have

been proved. The Inquiry Officer has a duty to arrive at a finding

upon taking into consideration the materials brought on record by

the parties. In that case, since no witnesses were examined and

charges were held proved on the basis of surmises and

conjectures by the Inquiry Officer and further an inference drawn

(28 of 33) [CFA-490/2011]

by the Inquiry Officer, apparently were not found supported by

any evidence, therefore, the Supreme Court allowed the appeal

and set aside the High Court order and the appellant was directed

to be reinstated with full back wages.

In case of Union of India Vs. B K Dutta [(1973) RLW

714], the order of dismissal was quashed where the Single Bench

of the Rajasthan High Court found that the disciplinary authority

failed to consider the explanation of the delinquent employee and

where there is evidence to substantiate the charges.

In case of Dr. B K Choudhary Vs. State of Rajasthan

[(1993) 1 WLC (Raj.) 47], the Single Bench of the Rajasthan

High Court, observed that the inquiry report without considering

detailed reply submitted by the delinquent employee shows non-

application of the mind and requirement of Rule 16(4) of the CCA

Rules has been treated as an empty formality by the Inquiry

Officer. Finally, proceedings of inquiry were quashed and the

delinquent employee was allowed all consequential benefits.

25. It may be also noticed that as per Order dated 08.12.1998

(Ex.24), the GF & AR Rules were made applicable, which clearly

shows that prior to 08.12.1998 no GF & AR Rules were applicable

still charge No.2 for not following GF & AR Rules, prior to

08.12.1998, has been held proved. This Clearly shows the non-

application of mind by the Inquiry Officer and charges have been

proved arbitrarily.

26. This Court also finds that this is a case where appellant-

plaintiff was not provided documents, demanded to prepare his

defence and further the Inquiry Officer did not summon the

relevant record from the department despite of application and

(29 of 33) [CFA-490/2011]

reminders by the plaintiff (Ex-2 to Ex-11). The admission and

denial of documents were not made by the Inquiry Officer for

which he was duty-bound. The Inquiry Report suffers from non-

consideration of the reply/representation submitted by plaintiff. On

overall consideration of facts and circumstances of the present

case, it appears that no opportunity to defend and hearing, was

provided to plaintiff and there is a complete violation of the

principles of natural justice.

27. In Civil Cases, the principle of preponderance of probability is

a well known principle and this Court is of the opinion that when

by the document/evidence, produced by plaintiff before this Court,

it stands established that plaintiff had sufficient evidence to

defend/explain charges, levelled against him, but such documents

were not provided to him despite demand, therefore, there is

reasonable reason to draw an inference that charges have been

held proved arbitrarily. It appears that, plaintiff was not provided

the documents, for his defence deliberately and for such reasons

the dismissal order of plaintiff can be held malicious also. Further,

documents could be obtained by the appellant, after conclusion of

inquiry, under R.T.I. Appellant produced the documents before the

Appellate Authority but, his appeal has been dismissed without

considering these documents. There is no justification as to why

the Appellate Authority did not ponder over the documents of

defence which were produced along with appeal. A flagrant

violation of mandatory provisions of Rule 16 of the CCA Rules as

well as Rule 30 of the CCA Rules, is well evident and therefore the

entire inquiry proceedings are illegal and stand vitiated, as such

impugned orders dated 14.07.2009 and 12.11.2009, are also bad

(30 of 33) [CFA-490/2011]

in law and liable to be held unsustainable in law. Accordingly, point

No.1 is decided in favour of appellant.

28. As far as point No. 2 is concerned, it is an admitted fact that

the appellant was suspended vide order dated 03.10.2007 from

the post of AOC i.e. Assistant Organization Commissioner and

thereafter his headquarter remained in Jaipur. Appellant was

served with charge-sheet on 01.12.2008 and during pendency of

the inquiry, appellant remained suspended and finally removed

from service vide Order dated 14.07.2009. Mere suspension may

not be treated as termination of service or end of post and

therefore, it is held that appellant was holding the post of AOC till

14.07.2009 when he was removed from service. Accordingly, this

point No.2 is decided in favour of appellant.

29. Learned trial court decided issues No.1 & 2 against appellant

for reasons that the trial court has not examined the impugned

orders whether same are violative to the CCA Rules or not and

confined its jurisdiction only to see as to whether impugned orders

are malicious or not. In fact, perusal of findings of Issues No.1 and

2, recorded by the trial court, shows that trial court has not

discussed the evidence and has just recorded cursory findings.

Mere reference of evidence in the judgment is not suffice. Even

the case law, as referred by the trial court in the impugned

judgment, has not been looked into. The factum of maliciousness

is interlinked with the violation of the principle of natural justice.

This Court finds that respondents have deliberately flouted

mandatory provisions of Rules 16 and 30 of the CCA Rules and

knowingly has not followed the principles of natural justice, just to

prejudice the defence of plaintiff and therefore, impugned orders

(31 of 33) [CFA-490/2011]

of dismissal may be held as malicious too. This Court has reached

to such conclusion after discussion of the entire material on record

and finds that the trial court has erred in deciding issues No.1 and

2 against plaintiff. Therefore, findings of the trial court in respect

of issues No.1 and 2, are hereby reversed and both issues are

decided in favour of plaintiff.

30. This Court finds that Inquiry proceedings, Inquiry report,

dismissal order dated 14.07.2009, as also the appeal rejection

order dated 12.11.2009, are against the law and also in violation

to the CCA Rules as well as in violation to the principles of natural

justice, therefore, both impugned orders dated 14.07.2009 and

12.11.2009 are liable to be quashed.

31. Now considering the issue of relief in respect of back wages

and other consequential benefits, as a result of quashing

impugned orders, this Court has noticed that it is not in dispute

that appellant had served respondents for more than two decades.

During period of his service, his entire career remained

unblemished and clear without any complaint or charge-sheet

except the charge-sheet in question. The removal order of the

appellant dated 14.07.2009 has been found to be violative to the

CCA Rules, principles of natural justice as also arbitrary and

malicious.

In case of Deepali Gundu Surwase Vs. Kranti Junior

Adhyapak Mahavidyalaya (D. Ed.) [(2013) 10 SCC 324],

Hon'ble the Supreme Court laid down the principles of full

payment of back wages, in case of wrongful termination from

service of an employee. The relevant portion of principles as

enunciated in Para No.38.5, reads as under:

(32 of 33) [CFA-490/2011]

"38.5 The cases in which the competent Court or Tribunal finds that the employer has acted in gross violation of the statutory provisions and/or the principles of natural justice or is guilty of victimizing the employee or workman, then the Court or Tribunal concerned will be fully justified in directing payment of full back wages. In such cases, the superior Courts should not exercise power under Article 226 or 136 of the Constitution and interfere with the award passed by the Labour Court, etc., merely because there is a possibility of forming a different opinion on the entitlement of the employee/workman to get full back wages or the employer's obligation to pay the same. The Courts must always keep in view that in the cases of wrongful / illegal termination of service, the wrongdoer is the employer and sufferer is the employee/workman and there is no justification to give premium to the employer of his wrongdoings by relieving him of the burden to pay to the employee/workman his dues in the form of full back wages."

In case of Jayantibhai Raojibhai Patel Vs. Municipal

Council, Narkhed [(2019) 17 SCC 184], the Hon'ble Supreme

Court reiterated and followed the principles expounded in case of

Deepali Gundu Surwase (Supra).

Thus, having considered the entire facts and circumstances,

this Court finds that appellant-plaintiff is entitled for his

reinstatement along with all consequential benefits including full

back wages, treated him in continuity in service.

32. As a result, the instant first appeal is allowed. The impugned

judgment and decree dated 11.05.2011 is quashed and set aside.

The Civil Suit filed by appellant-plaintiff is decreed and his

dismissal order from service dated 14.07.2009 and Order of