IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR JUDGMENT DB Civil Special Appeal (Writ) No. 745/2002 in SB Civil Writ Petition No. 590/1998 The State of Rajasthan Vs NK Dalal & ors 30.03.2010 Hon'ble the Chief Justice Mr Jagdish Bhalla Hon'ble Mr Justice MN Bhandari Mr NA Naqvi, Additional Advocate General for appellant Mr JK Yadav - for the respondent No.1 BY THE COURT:
By this appeal a challenge has been made to order dated 19/7/2002 whereby writ petition filed by the non-appellant was allowed.
Learned Additional Advocate General submits that two arguments were raised by the non-appellant petitioner before the learned Single Judge to challenge the order of punishment. It was in reference to rule 170 of Rajasthan Service Rules (for short ‘the RSR’). It was firstly urged that the charge sheet was served without sanction of His Excellency the Governor, whereas, there is mandate under rule 170 of the RSR to the effect that if an employee retires and a charge sheet is served it shall not be issued save with the sanction of the Governor. The second ground taken was regarding initiation of inquiry beyond a period of four years from the date of incidence.
Learned Additional Advocate General submits that so far as issue regarding sanction of HE the Governor is concerned, it was not pleaded in the writ petition however learned Single Judge came to the conclusion that there was no sanction from the HE the Governor before issuance of charge sheet. When the contention was not even urged, finding so recorded by the learned Single Judge goes contrary to the pleadings. At the time of filing appeal, copy of order of approval by HE the Governor for issuance of charge sheet was annexed to show that if any pleading would have been there in the writ petition, it could have been clarified then and there.
The second argument is in respect of issuance of charge sheet for an incidence which took place within the period of four years. Learned Single Judge took up the incidence to be of 2.12.1986, whereas, the date of incidence is 13.1.1987. The charge against non-appellant was acceptance of bid on higher price after cancellation of earlier bid. The bid was accepted on 13.1.1987 and accordingly service of charge sheet on 7.1.1991 remains within a period of four years from the date of incidence. In view of aforesaid, the prayer of learned counsel for appellant is to set aside order of the learned Single Judge.
Learned counsel for the non-appellant on the initial stage supported the judgment impugned but when he was asked to show the pleadings to the effect that prior to issuance of charge sheet sanction of the Governor was not taken, he fairly conceded that aforesaid was not pleaded in the writ petition.
So far as second ground taken by learned Single Judge is concerned, perusal of charge sheet shows that the date of incidence is 13.1.1987 as bid was accepted by non-appellant on aforesaid date.
Looking to aforesaid, we cannot endorse the view taken by the learned Single Judge.
At this stage, learned counsel for non-appellant submits that the matter may be remanded to learned Single Judge for hearing the matter afresh as non-appellant had not raised many other grounds as were taken in the writ petition.
We are unable to accept this prayer as perusal of judgment of the learned Single Judge shows that non-appellant therein raised only two issues, which were then dealt with by learned Single Judge. It is always remains open for the petitioner to urge one or the other grounds during course of arguments out of many grounds taken in the writ petition. If he has not taken one or other grounds during course of arguments, then on that ground the matter cannot be remanded for a fresh decision. In view of aforesaid, we cannot accept the prayer that the matter may be remanded to the learned Single Judge.
In our view, the findings recorded by the learned Single Judge are contrary to record as well as pleadings in the writ petition. Original record placed before us by learned Additional Advocate General shows that HE the Governor had accorded approval for issuance of charge sheet against the non-appellant on 28.12.1990 and, otherwise the incidence took place on 13.1.1987, hence the charge sheet was issued within a period of four years from the date of incidence.
In view of aforesaid, judgment passed by learned Single Judge deserves to be set aside. Accordingly, the appeal is allowed and the judgment dated 19.7.2002 passed by the learned Single Judge is set aside. No order as to costs.
(MN Bhandari) J (Jagdish Bhalla) CJ bnsharma