JUDGMENT
Kumar, C.J.
1. Two writ petitions were filed; one by Prahlad Singh and another by Gopa Ram challenging the legality and validity of order dated 8.7.1997 which were decided by common judgment and order dated 21.4.1998 by the learned Single Judge. These appeals involve common question of law and, therefore, both the appeals are heard together.
2. Heard learned counsel for the appellants and the learned counsel for the respondents.
3. Prahlad Singh, petitioner in S.B. Civil Writ Petition No. 2892/98 was the Junior Engineer whereas Gopa Ram, petitioner in S.B. Civil Writ Petition No. 2893/98 was the Assistant Engineer in the Irrigation Department of the State. Certain famine works were sanctioned for different villages for which order was issued by the Collector (Relief), Jodhpur on 27,12.1985. This famine work was to be executed through the Irrigation Department. The petitioner Gopa Ram was Assistant Engineer of Sub-Division (II) and the work in dispute was in the area assigned to the petitioner Gopa Ram tinder whom petitioner Prahlad Singh was working as Junior Engineer. It was submitted that during the progress of the work, the work was to be checked by the Revenue Authorities, Zila Pramukh, Pradhan and the authorities of the Irrigation Department. It was also submitted that the measurement work used to be done every fortnightly by the Junior Engineer incharge of the area. The measurement of the work used to be tallied with the entries in the muster rolls and the same, are used to enter in the measurement book. The measurement books are checked by the Assistant Engineer for passing the payment and after verification from the Assistant Engineer the measurements books were sent to the Executive Engineer for being forwarded to the revenue department for disbursement of the payment to the labours as per the muster rolls. The cheque or the demand draft was to be prepared in the office of the Executive Officer for sending to the office of the Tehsildar concerned for payment to the labours named in the muster rolls.
4. It appears that the District Collector, Jodhpur received some complaints with respect to the work of the village Khejadli Kalan, upon which the District Collector, Jodhpur by order dated 7.7.1987 deputed Sub-Divisional Officer, Jodhpur Shri Leela Ram Mehra to hold a preliminary enquiry in the matter. Shri Leela Ram Mehra submitted the report on 6.4.1988 to the Collector, Jodhpur recording finding that Gopa Ram, Assistant Engineer and Pokarram, Sarpanch of Khejadli Kalan connived and have committed misconduct of preparing forged muster rolls. On the basis of above report, joint enquiry was initiated under Section 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 against Prahlad Singh and Goparam and a charge-sheet was issued on 18.8.1990 which is placed on record in both the writ petitions as Annexure 12.
5. Two charges were framed against both the petitioners. The charge No. 1 against Prahlad Singh, Junior Engineer was to the effect that the petitioner Prahlad Singh prepared the false and forged muster rolls, verified them and made false entries in the measurement books and thereby misused the powers of his office. Charge No. 2 was to the effect that petitioner Prahlad Singh, while working as Junior Engineer in the Department of Irrigation. Sub-Division, Jodhpur, entered false names of Chowkidar Supervisor, Darkner, Mason in the muster roll No. 319860 and muster roll No. 319077
and verified the above muster rolls and entered false entries in the measurement books and thereby committed misuse of his post and power.
6. Charge against above Prahlad Singh was explained repeating the above charge and it was further explained that on 16.5.1986 to 31.5.1986 and from 1.6.1986 to 15.6.1986, for the above periods, 18 false and forged muster rolls were prepared, verified and they were wrongly entered into measurement books whereas none of the above labour worked for the above famine work. Their names were falsely entered. Muster roll Nos. 23956 to 23962, muster roll Nos. 330338 to 330348, muster roll No. 158617 and muster roll No. 158634 were prepared by forgery and verified and wrongly entered into the measurement books. Charge No. 2 was explained by saying that muster roll No. 319860 and muster roll No. 319877 were prepared falsely by entering entries of Chowkidar, Supervisor, Darkner and Mason and it was wrongly verified and entered into the measurement books. It was also mentioned in the above details of the charge that the muster roll was issued for the period from 1.7.1986 to 15.7.1986 and that muster roll was entered in the measurement book No. 1017 at page Nos. 59 and 60. In muster roll No. 319860, names of 20 persons were entered but those names were struck off and, in place of names of labours, work ‘Mason’ was entered. There are some interpolations in the muster roll. All above was forgery committed by the petitioner Prahlad Singh.
7. For petitioner Gopa Ram, charge No. 1 was to the effect that when he was working as Assistant Engineer in the above famine work, the petitioner verified the false and forged muster rolls for payment and thereby committed misuse of his office. Charge No. 2 was further for the work to the same effect as given in charges No. 1. These charges were further explained by giving number of muster rolls in the explanation to the charges.
8. In enquiry, the department examined 12 witnesses whereas the delinquent examined Magan Ram Purohit, Executive Engineer from the Irrigation Department and Purkha Ram who was the Sarpanch on the date of the enquiry and one Rana Ram. The enquiry officer submitted report dated 12.12.1995 that the charges levelled against the petitioners delinquent officers have not been proved. The State Government did not agree with the report of the enquiry officer and issued a notice dated 6.8.1996 which is placed on record as Annexure-37. The copy of the enquiry officer was also provided to the petitioners, is an admitted case. The petitioners submitted replies to the notice issued by the State Government which is placed on record as Annexure 39 in both the writ petitions. The State Government by order dated 8.7.1997 imposed the penalty of compulsory retirement for both the petitioners with a direction to recover a sum of Rs. 49,087.50, the copy of the above order was placed on record as Annexure 40.
9. Being aggrieved against the above order dated 8.7.3997 (Annexure 40), the petitioners preferred writ petitions before this Court seeking relief of quashing of the order dated 8.7,1997 and for consequential reliefs. Show cause notice was issued to the respondents. Reply was filed by the respondents. After hearing arguments, the learned Single Judge by a common impugned order dated 21.4.1998 dismissed the writ petitions of the petitioners. The learned Single Judge held that the disciplinary authority, after analytical discussion and the material available on record, recorded the finding against the petitioners. To the contention of the learned counsel for the petitioners that no reason has been given by the State Government for disagreement with the report submitted by the enquiry officer, the learned Single Judge held that show cause notice dated 6.8.1986 (Annexure 37) reveals that the disciplinary authority has given cogent and convincing reasons for his disagreement from the report of the enquiry officer. The learned Single Judge further negatived the arguments of the petitioners by which the petitioners submitted that the finding is perverse or based on no evidence. The learned Single Judge also held that the quantum of punishment is also not liable to be interfered with. At the same time, the learned Single Judge
disallowed the preliminary objection of the respondents for dismissal of the writ petitions on the grounds of availability of alternative remedy.
10. The learned counsel for the petitioner-appellants has challenged the order of the learned Single Judge dt.21.4.1998 as well as order dated 8.7.1997 (Annexure 40).
11. According to the learned counsel for the petitioner- appellants, the order of the Government dismissing a government servant may be described as an administrative order but the proceedings are in the nature of quasi judicial proceedings and it can be challenged in the writ petition and the petitioner can satisfy the High Court that the order of the Government is based on no evidence and is liable to be set aside, for which the learned counsel for the appellants relied upon the judgment of the Hon’ble Apex Court delivered in Union of India v. H.C. Goel (1), wherein the Hon’ble Apex Court held :
“In dealing with petition filed by public servants who have been dismissed, on otherwise dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. Although the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order, nevertheless the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence.”
12. According to above decision of the Hon’ble Apex Court, it is clear that the order of dismissal which may be passed against a government servant found guilty of misconduct, can be described as an administrative order, but the Hon’ble Apex Court held that the proceedings held against such public servant under the statutory rules to determine whether he is guilty of charge framed against him are in the nature of quasi-judicial proceeding and, thereafter, the Hon’ble Apex Court held that the writ of certiorari is maintainable and the delinquent officers can show that the conclusion of the government on which the impugned orders of dismissal rest is not supported by any evidence at all.
13. In addition to above, the learned counsel for the appellants submitted that the finding was recorded in favour of the petitioners by the enquiry officer by giving cogent reasons and after discussing the entire evidence produced before him. The disciplinary authority is required to give reasons for disagreement so that the delinquent officers can submit representations and meet with the reasons for disagreement. The learned counsel for the appellants relied upon the judgment of the Hon’ble Apex Court delivered in : Punjab National Bank and Ors. v. Sh. Kunj Behari Mishra (2), wherein the Hon’ble Apex Court held as under :
“As a result thereof whenever the disciplinary authority disagree with the inquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer and opportunity to represent before it records its finding.”
14. From the above judgment, it is clear that the disciplinary authority is required to record its tentative reasons for such disagreement and the delinquent officer can show that order of punishment is not supported by any evidence. The learned counsel for the respondent submitted that the scope of interference by the
High Court is very narrow and if there is some evidence or material to support the order of disciplinary authority is available, its sufficiency or insufficiency cannot be examined even by the High Court as court of appeal and in this case the decision is based upon evidence hence cannot be interfered, the order of disagreement is a reasoned order and the judgment relied upon by the petitioner supports the respondent. The requirement is for recording of tentative reason which has been complied with.
15. In the light of above decisions and challenge to the order dated 6.8.1996 (Annexure 37), if looked into, then it is clear from the order dated 6.8.1996 that the State Government, in this order of disagreement, recorded tentative reasons by taking note of the fact that the prosecution side examined as many as 12 witnesses and produced 31 documents which were not property considered by the enquiry officer. It was also recorded that the prosecution witnesses PW-4, PW-5, PW-6 and PW-10 clearly stated that the thumb impressions in the muster rolls are not of theirs. The witness PW-5 stated that he did not put his thumb impression because he knows signing of the documents. The disciplinary authority further held that, in view of the evidence of PW-11 who was Mate on the site, the allegations against the delinquent offices are proved. It is clear from the judgment of the Hon’ble Apex Court that the disciplinary authority is required to record tentative reasons for disagreement, What is tentative reasons is to be seen from the order of disagreement itself and we found that reasons for disagreement from the enquiry report are very much available in the order of disagreement dated 6.8.1996. If there are reasons given for disagreement then, those reasons are sufficient reasons or not, cannot be decided while exercising jurisdiction under Article 226 of the Constitution of India provided the reasons given are not absolutely irrelevant, having no bearing on the facts of the case or are so perverse that no reasonable man can consider the reasons given by [he disciplinary authority as reasons to support the conclusion of disagreement with the enquiry report. We are satisfied that full compliance has been made in passing order dated 6.8.1996 of giving reasons for disagreement.
16. The learned counsel for the petitioner-appellants vehemently submitted that this is a case of no evidence against the petitioner-appellants and not only this but even if the order of the State Government dated 8.7.1997 holding charges against the petitioners proved (Annexure 40) is seen, this orders deserves to be set aside for the reasons that the representation submitted by the petitioner delinquent officers were not even considered. None of the submission of the petitioners was rejected and the order dated 8.7.1997 is not a reasoned order so far as dealing with the representation of the petitioners against so called notice/order for disagreement with the enquiry report dated 6.8.1996 (Annexure 37). According to the learned counsel for the petitioner appellants, the petitioners appellants submitted representation (Annexure 39) in respondent to notice Annexure 37 by putting [heir submissions in about 19 pages dealing various aspects of the matter but the above representation was dealt in the order dated 8.7.1997 (Annexure 40) in three lines only by saving that the delinquents have not made any new contention directly or indirectly and, therefore, the representation of the petitioner is rejected, According to the learned counsel for the appellants, when the finding was recorded by the enquiry officer in their favour and the disciplinary authority passed the order of disagreement without giving detailed reasons then the appellant-delinquent officers could have submitted the representation by raising all grounds which were available to them in the enquiry and they submitted those grounds before the disciplinary authority by the representation Annexure 37. According to the learned counsel for the appellants, the appellants proved that it was the duty of the Mate to engage the labours with the help of Sarpanch and it is for the Mate to enter the names of the labours on site then how the petitioner can be held guilty of the charge of making forged muster rolls or for entering the names of the persons who did not work, Not only this but there is not a single witness or even circumstance brought on record to show that the petitioners are responsible for preparation of the muster rolls or they had prepared the same.
17. We considered the above submissions and the perusal of the record shows that the complete procedure was proved by DW-1 Magan Raj Purohit when he stated categorically that in famine relief work, the labours are engaged by the district authorities. They are identified by the Sarpanch and the identity cards are issued upon which only the labours are engaged in the work. DW-1 Magan Raj Purohit further stated that with the help of Sarpanch, names in the muster rolls are entered by the Male. The Junior Engineer only measures the works of the site and the Assistant Engineer verifies the above entries, then above muster rolls are sent to the office of the Executive Engineer for payment and the check or draft are prepared by the office of the Executive Engineer, thereafter, these measurement books are sent to the concerned Tehsildar for payment to the labours.
18. It is clear from the charge itself that the charge against Assistant Engineer Gopa Ram was with respect to the preparing false and forged muster rolls. The evidence relied upon in the order dated 8.7.1997, if looked, clearly shows that none of the witness has stated that the entries in the muster rolls were made by the delinquent officers Prahlad Singh or Gopa Ram. The disciplinary authority has not recorded any finding that it was the duty of any of the delinquent officers to make entries of names of labours in the muster rolls. The existence of the names of the persons and entries of the Chowkidar, Supervisor, Darkner, Mason in the measurement books and availability of the thumb impressions in the muster rolls itself is not sufficient to hold that these entries were made by the delinquent officers particularly when these delinquent officers were not required to enter the above entries. Even in the order of disagreement itself it is clearly mentioned that PW-11 Sahi Ram prosecution witness himself was working as Mate and he stated that he prepared the six muster rolls and muster rolls were prepared as per the directions of the Sarpanch. This evidence is also supported by the evidence of DW-1 Magan Raj Purohit, who was also Executive Engineer in the department itself. It is pertinent to note that the evidence of these witnesses was not discarded by any of the authorities, enquiry officer, or in order of disagreement or even in order of punishment.
19. In view of the above facts, it must be held that the finding holding the delinquent officers guilty, is not only without there being any evidence but also squarely contrary to the evidence available on record with respect to the preparation of the forged master rolls and entering wrong entries in the measurement books. It is relevant to mention here that there is no allegation that the measurements were wrongly entered in any measurement book. It is further clear from the record that the work, in fact, was executed.
20. There is substance in the submission of the learned counsel for the appellants that the certificate which was issued over the muster rolls by the delinquent officers is also not to the effect that the Junior Engineer or the Assistant Engineer verified the names mentioned in the above measurement book. They were only responsible for recording the measurement of the work which in fact was completed, is an admitted case of the prosecution.
21. So far as the charge of false verification by the Assistant Engineer and passing of order of payment of the amount levelled against him is concerned, it is clear that this is an admitted case that the work was completed. It is also an admitted case that the payment was not to be made by any of the two delinquent officers. It is also clear from the facts of the case that the names of the labours were required to be entered by the Mate with the help of Sarpanch and, in fact, it was done by the Mate with the help of Sarpanch. It is also an admitted case that cheque/draft was got prepared from the office of the Executive Engineer, and was sent to the office of the Tehsildar. It is also an admitted case that no payment has been made to any of the labours for the above work. It is also clear from the evidence mentioned in the order dated 8.7.1997 (Annexure 40), the order of punishment, that in fact, the witnesses Safi Mohd. Gobar Ram, Bhik Singh, Sukh Ram merely stated that they never put their thumb
impressions over the muster rolls but none of the above witness has stated that he had not worked on the site put they in fact merely stated that they have not received their wages. This shows that these labours were employed for the work and because of this dispute they were not paid the wages. One witness Naina Ram stated that he did not work from 15.5.1986 to 31.5.1966 and he does not know how his name was written and who put thumb impression for his name. It is also clear that there were large number of works going on at various places and the Assistant Engineer as well as the Junior Engineer were not required to remain present at spot all the time nor they were supposed to know each and every labour working on the site then how they can be held responsible for wrong entry of name of labour? So far entry of thumb impression evidencing receipt of payment is concerned, the best evidence Tehsildar was not produced by the prosecution for the reason best known to them. The Tehsildar, Jodhpur received the muster rolls from the office of the Irrigation Department and whether these thumb impressions were there when he received, could have been proved by the Tehsildar only. If there were already thumb impressions and signatures evidencing the receipt of payment by the labours then the Tehsildar could not have received the measurement book along with the cheque/draft. All these were to be explained by the Tehsildar only but has not been produced. This is also a clear reason to hold that there was no evidence to hold that the thumb impressions and signatures evidencing payment were even made when the measurement books were in the office of the Irrigation Department much less to say that their thumb impressions and signatures were made when the measurements books were in the office of the Junior Engineer or the Assistant Engineer, the delinquent officers.
22. In the light of above evidence which was relied upon by the disciplinary authority, if finding of the disciplinary authority is looked into, then also it is clear that the finding recorded by the disciplinary authority is that the interpolation in the muster rolls stands proved. It is also proved that the signature and thumb impression of labours shown in the muster rolls are affixed without there being payment to labours, the persons whose names were there, they denied putting their thumb impression or signatures and, thereafter, straight way, it was held that the allegations against the delinquent officers have been proved ignoring the fact that what was required to be proved was that the above forgery was done by the delinquent officer or they were having connection with above forgery. The disciplinary authority satisfied that since there is evidence, of interpolation and wrong entries, therefore, it is done by the delinquent officers. Such finding cannot be allowed to stand as it is totally based on assumption and it is without any reason and evidence.
23. It is also clear from the order of punishment that the representation of the petitioners against the order of disagreement was not considered, its rejection is by non-speaking order and the order was passed without application of mind inasmuch as even order to recover amount of Rs. 49,087.50 was passed against the petitioners which amount was admittedly not even paid to the labours and no financial loss was caused to the State as presumed by the disciplinary authority.
24. In view of the reasoning given above, the appeals of the appellants are allowed and the impugned judgment of the learned Single Judge dated 21.4.1998 is set aside. The writ petitions are, therefore, allowed and the order dated 8.7.1997 (Annexure 40) passed by the State Government is set aside with all consequential benefits to the petitioners. No order as to costs.