Rajasthan High Court

Shiv Kumar Khandelwal vs State And Ors on 28 February, 2024

Author: Sameer Jain

Bench: Sameer Jain

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HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR

S.B. Civil Writ Petition No. 3830/2000

Shiv Kumar Khandelwal son of Shri Madan Mohan Gupta, Aged
about 37 years, resident of C/o Shri Neta Khandelwal, House No.
10, Chhawni, Kota, presently working as Junior Engineer,
Watershed Development and Soil Conservation, Unit-II,
Jhalawar.
----Petitioner
Versus
1. The State of Rajasthan through the Secretary to the
Government, Department of Agriculture, Govt. of Rajasthan,
Jaipur.
2. Shri Bharat Meena, Area Development Commissioner,
Command Area Development, Chambal, Kota.
3. Shri N. C. Chhatar, Executive Engineer and T. A. to Supdt.
Engineer, L.D.P. Circle, Command Area Development, Kota.
----Respondents

For Petitioner(s) : Mr. H. V. Nandwana
For Respondent(s) : Mr. K. S. Chandel, AGC
Mr. Abhishek Bhandari

HON'BLE MR. JUSTICE SAMEER JAIN

Order

Reserved on 07/02/2024
Pronounced on 28/02/2024
1. By way of present petition, the petitioner has

challenged the impugned charge-sheet dated 24.05.2009

(Annexure-3) issued to the petitioner as also the penalty order

dated 07.07.2020 (Annexure-15), whereby, in departmental

enquiry conducted under Rule 16 of the Rajasthan Civil Services

(Classification, Control and Appeal) Rules, 1958 (for short "CCA

Rules"), the Command Area Development Commissioner,

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Chambal, Kota (for short "CAD Commissioner") has imposed a

penalty of forfeiture of services prior to 18.07.1999.

2. The facts of the case, as per learned counsel for the

petitioner, are as follows. The petitioner was initially appointed as

Junior Engineer (Degree Holder) by the Director, Agriculture

Department of the State of Rajasthan. In August of 1989, the

petitioner was sent on deputation by the Director, Agriculture

Department, State of Rajasthan (i.e. parent department) to

Command Area Development, Kota (for short "CAD"). In 1998, the

petitioner applied for Post Graduate Course, i.e. Masters of

Engineering (Agriculture) as a sponsored candidate of Government

of Rajasthan in Irrigation Water Management (for short "IWM") at

College of Technology and Agricultural Engineering, Udaipur (for

short "CTAE"). The application of the petitioner, along with two

other people, was also forwarded by the Agricultural Department

of the State of Rajasthan vide letter dated 18.07.1998 to Dean,

CTAE, Udaipur. The said application was also accepted by the

Rajasthan Agricultural University vide letter dated 01.09.1998.

However, the CAD Commissioner cancelled the nomination of the

petitioner to pursue the degree by a vague and non-speaking

order dated 02.09.1998 and subsequently vide order dated

04.09.1998, the petitioner was repatriated to his parent

department. Thereafter, the State Government issued order dated

11.09.1998 according permission to the petitioner for admission in

PG course at CTAE, Udaipur and accordingly a letter was issued on

18/19.09.1998 by CTAE, Udaipur admitting the petitioner as a

special case as sponsored candidate of the Government. Vide

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order dated 07.10.1998, the petitioner was again sent on

deputation by the Agriculture Department to CAD, Kota and in

compliance thereof, the petitioner gave his joining at CAD, Kota on

13.10.1998 and requested for relieving him on account of his

academic requirement. When no action was taken, the petitioner

filed another representation on 20.10.1998 and thereafter vide

order dated 02.11.1998, the petitioner was allowed to join.

However, to the utter shock of the petitioner, the petitioner was

served with a charge-sheet under Rule 16 of the CCS Rules on

24.05.1999, which resulted in passing of the impugned order of

punishment dated 07.07.2000.

3. Assailing the impugned orders, learned counsel for the

petitioner made the following submissions.

3.1. The first contention of learned counsel for the petitioner is

that the CAD Commissioner is neither the disciplinary authority

nor appointing authority of the petitioner to initiate proceedings

under the CCA Rules and therefore the entire proceedings, i.e.,

issuance of charge-sheet, conduct of enquiry and penalty order

dated 07.07.2000 are without jurisdiction and nullity in the eye of

the law. It is contended that departmental enquiry against the

petitioner could only have been initiated by the Head of

Department of the parent department of the petitioner or any

authority specifically empowered by the Head of Department with

the approval of the State Government as per Rule 15 of CCA

Rules. It is contended that the State Government Order dated

25.07.1974 on which reliance is placed by the respondent is a

general order only for operational convenience, but the same

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nowhere states that the power under Rule 15 of CCA Rules have

been conferred to CAD Commissioner and no specific order has

been passed in this regard. Learned counsel for the petitioner has

also highlighted that in other instances, the State Government has

passed specific order dated 29.11.1990, whereby the power of

Head of Department has been conferred to CAD Indira Gandhi

Canal Project, Bikaner. However, since no such order was passed

in this case conferring specific authority upon CAD Commissioner,

the entire proceedings, being without jurisdiction, are required to

be set aside.

3.2. The second submission of learned counsel for the petitioner

is that there was non-compliance of mandatory provision of Rule

16(6) of the CCA Rules as the petitioner did not have the

opportunity to cross-examine the witnesses. Reliance is placed on

Hon'ble Supreme Court judgment of Sur Enamel and Stamping

Works (P) Ltd. vs. Their Workmen: AIR 1963 SC 1914.

3.3. The third submission of learned counsel for the petitioner is

that the penalty imposed upon the petitioner of forfeiture of

service has not been prescribed in Rule 14 of the CCA Rules and

therefore the same could not have been imposed. Reliance is

placed on Vijay Singh vs. State of U.P. and Ors.: (2012) 5

SCC 242, and State Bank of India and Ors. vs. T.J. Paul:

(1999) 4 SCC 759.

3.4. The fourth submission of learned counsel for the petitioner is

that the petitioner attended PG course as a sponsored candidate

of Government of Rajasthan after getting due permission and

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therefore the petitioner has not committed any kind of misconduct

warranting penalty.

3.5. The fifth submission of learned counsel for the petitioner,

without prejudice to his other arguments, is that the penalty

imposed is too harsh and is grossly disproportionate to the offence

alleged.

4. Per contra, learned counsel for the respondent submits

that the charge of willful absence is conclusively established

against the petitioner. It is submitted that application form of the

petitioner along with two other people was simply forwarded, but

never sanctioned. The proposal was also cancelled vide order

dated 02.09.1998 on account of administrative exigencies as the

petitioner was working on a technical post in a public sector utility

department. Learned counsel for the respondents contends that

the petitioner is estopped from raising the plea of lack of

jurisdiction at this belated stage, after having participated in the

entire disciplinary proceedings, especially when the said objection

was never raised in the departmental proceedings. Even

otherwise, the State Government order dated 25.07.1974 clearly

delegated all powers to the CAD Commissioner and the reliance

placed on the Circular dated 29.11.1990 is also misplaced as the

same pertained to the Indira Gandhi Canal Project and the power

of Additional Regional Development Commissioner therein under

Rule 17 of CCA Rules and the present case pertains to Rule 16 of

CCA Rules. On the quantum and nature of punishment also,

learned counsel for the respondent submits that since the

petitioner was found guilty of the charges as levelled, the

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proposed punishment of removal from service was downgraded to

forfeiture of previous service after taking a sympathetic approach.

Since the punishment imposed was less severe than the proposed

punishment, it cannot be said that the same was arbitrary or

dehors the rules. Learned counsel for the respondent has also

highlighted Rule 86 of the Rajasthan Service Rules, 1951 which

prescribes the punishment of removal from service for prolonged

period of unauthorized absence. It is further submitted that the

petitioner was never given the authorization to absent himself to

pursue PG course. The petitioner has also failed to produce a valid

relieving order issued by the competent authority. Even the order

dated 11.09.1998 relied upon by the petitioner, which supposedly

superseded the order dated 02.09.1998 whereby the nomination

of the petitioner was cancelled, was obtained fraudulently by the

Deputy Secretary, Agriculture, who had nothing to do with the

affairs of CAD or the petitioner's parent department. Learned

counsel for the respondent further contends that the entire

departmental proceedings were conducted strictly in accordance

with law and the petitioner was given all opportunity to present his

defence and to cross examine the witnesses.

5. Heard the arguments advanced by both the sides,

scanned the record of the petition and considered the judgments

cited at Bar.

6. The petitioner was punished with forfeiture of service,

primarily, for the offence of willful absence. Though the petitioner

does not dispute that the petitioner was absent from duty, but

contends that the same was because the petitioner was enrolled in

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the PG course as a government sponsored candidate after

obtaining due permission from the competent authorities. The

departmental enquiry concluded that the petitioner voluntarily

abandoned services as the petitioner was not granted

authorization by the competent authority to relieve himself of his

official post and therefore, without handing over the charge, the

petitioner attended PG course.

7. The primary contention of the petitioner is that the

entire disciplinary proceedings were without jurisdiction. This

contention, in the considered opinion of this Court, is entirely

untenable. The petitioner was deputed to CAD in the year 1989.

As per State Government order dated 25.07.1974, CAD

Commissioner was competent to control the staff and procurement

in all manners. Power equivalent to the parent department were

assigned to CAD Commissioner and therefore, the respondents

were well within their authority to not only issue the charge-sheet,

but also conduct the departmental enquiry and pass appropriate

punishment orders. The respondents are also quite correct in

contending that the petitioner is estopped from raising the plea of

lack of jurisdiction at this belated stage when the same was never

raised while participating in the departmental proceedings.

8. Having established the competence of the respondents

to pass the impugned orders, this Court will now examine the

correctness of the impugned orders.

9. The record reflects that the charge-sheet was issued

under Rule 16 of the CCA Rules. It is noted that subsequent to

issuance of charge-sheet, the petitioner was granted opportunity

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of hearing, enquiry officer was appointed, departmental

representative was appointed, reply was filed on behalf of the

petitioner, and witnesses were examined, which is reflected from

the record. In these circumstances, it is difficult to hold that there

were procedural infractions leading to manifest injustice or leading

to some perverse outcome.

10. It is trite that the power of judicial review in the

matters of disciplinary inquiries, exercised by the

departmental/appellate authorities, discharged by constitutional

courts Under Article 226 of the Constitution of India is well

circumscribed by limits of correcting errors of law or procedural

errors leading to manifest injustice or violation of principles of

natural justice and it is not akin to adjudication of the case on

merits as an appellate authority. The power of judicial review is an

evaluation of the decision-making process and not of the merits of

the decision itself. In disciplinary proceedings, High Court is not

and cannot act as second court of first appeal. No inquiry in facts

is to be done in exercise of powers under Section 226 of the

Constitution of India. Reliance in this regard can be placed on

plethora of Apex Court judgments, including Union of India vs.

P. Gunasekaran: (2015) 2 SCC 610, Regional Manager, UCO

Bank & Ors. vs. Krishna Kumar Bhardwaj: (2022) 5 SCC

695, Anil Kumar Gupta vs. Union of India & Ors.: AIR 2022

SC 5626, V Ramana vs. APSRTC & Ors.: (2005) 7 SCC 327,

and CISF vs. Santosh Kumar Pandey: 2023 (2) SLR 835

(SC). The relevant portion of P. Gunasekaran (supra), is

reproduced as under:

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"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 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:

(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

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case the same has been conducted in accordance with law;