1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR.
O R D E R
Dr.R.P.Gaur v. State of Rajasthan & Anr.
S.B.CIVIL WRIT PETITION NO.2102/2002
under Article 226 of the Constitution
of India.
Date of Order :: 3rd March, 2009
P R E S E N T
HON'BLE MR.JUSTICE GOVIND MATHUR
Mr. M.S.Singhvi ]
Mr. Vineet Dave ] for the petitioner.
Mr. B.S.Bhati ]
Mr. Y.P.Khileree] for the respondent.
....
REPORTABLE
BY THE COURT :
The petitioner, a Junior Specialist (Surgery)
with the Department of Medical & Health Services,
Government of Rajasthan, by this petition for writ is
giving challenge to the order dated 24.4.2002 passed
by the disciplinary authority, dismissing him from
service as a consequent to an inquiry conducted as per
2
Rule 16 of the Rajasthan Civil Services
(Classification, Control & Appeal) Rules, 1958
(hereinafter referred to as “the Rules of 1958”).
The facts of the case are that the petitioner
while working at Upgraded Primary Public Health
Centre, Abu Road, as Junior Specialist (Surgery),
submitted a letter dated 11.6.1996 to the Chief
Medical & Health Officer, Sirohi to get his service
record and service book completed as he was intending
to seek voluntary retirement from service. The Deputy
Secretary to the Government of Rajasthan, Jaipur by a
letter dated 17.7.1996 informed the petitioner that
grant of voluntary retirement from service shall not
be possible as a disciplinary proceeding was under
contemplation against him. Relevant to note here that
as a matter of fact no request upto 17.7.1996 was made
by the petitioner seeking voluntary retirement from
service, however, it appears that the respondents
considered the letter dated 11.6.1996 as a request
made by the petitioner to go on retirement
voluntarily. As per the petitioner the then Minister
of State for Medical & Health visited Upgraded Primary
Public Health Centre, Abu Road on 20.6.1996 and made
an open announcement for transfer of the petitioner.
The petitioner accordingly submitted a representation
to the Minister concerned pointing out that on
20.6.1996 he was on leave and as such whatever reason
there was to provoke the Minister to make an open
3
announcement regarding transfer was unwarranted. On
the same day the petitioner also moved an application
seeking voluntary retirement from service w.e.f.
31.10.1996 which was forwarded to the Director, Family
Welfare on 3.7.1996. Though the application of the
petitioner relating to voluntary retirement from
service was pending consideration, he was transferred
from Abu Road to Makrana under an order dated
26.6.1996. A challenge was given to the order of
transfer by way of filing SBCivil Writ Petition
No.2155/1996, wherein by an order dated 23.7.1996 this
Court stayed the transfer. The Deputy Secretary to the
Government of Rajasthan, Department of Medical &
Health Services then passed an order dated
31.8.1996/6.9.1996 keeping the petitioner awaiting
posting orders, however, this Court in SBCivil Writ
Petition No.3066/1996 stayed effect and operation of
the order aforesaid too. Despite interim orders
referred above an another order dated 20.9.1996 was
passed by the Government of Rajasthan transferring the
petitioner to Sadulpur, District Churu. By way of
filing SBCivil Writ Petition No.3500/1996, the
petitioner also assailed validity of the order dated
20.9.1996 and therein the order aforesaid too was
stayed.
With the facts surrounding as above, the
petitioner on 31.10.1996, by considering himself
incharge of the Upgraded Primary Public Health Centre,
4
Abu Road, passed an order dated 31.10.1996 relieving
himself from service voluntarily, however, the Chief
Medical & Health Officer, Sirohi cancelled the order
dated 31.10.1996. Accordingly the petitioner joined
back the duties with protest on 9.11.1996. An another
order dated 29.11.1996 was passed by the Deputy
Secretary to the Government of Rajasthan, Department
of Medical & Health Services (Group-II), placing the
petitioner under suspension. By the same order the
headquarter of the petitioner was changed from Abu
Road to Jodhpur and that was again challenged by the
petitioner by way of filing SBCivil Writ Petition
No.328/1997, wherein too an interim order was passed
staying operation and effect of order placing the
petitioner under suspension. Despite the interim order
aforesaid, the petitioner was not taken on duty for a
period of about five months. As per the petitioner
even while making compliance of the interim directions
given by this Court, he was not permitted to join
duties at Abu Road but was instructed to report in the
office of the Director, Medical & Health Services,
Government of Rajasthan, Jaipur. The Tehsildar, Abu
Road then issued a notice dated 1.6.1998 directing the
petitioner to vacate the government accommodation as a
consequent of transfer from Abu Road. The petitioner
by way of filing another Writ Petition
(SBCWPNo.1968/1998) challenged the notice dated
1.6.1998 and operation and effect of that notice too
was stayed by this Court. A Writ Petition
5
(SBCWPNo.3066/1996) was also filed by the petitioner
seeking direction for the respondents to treat him
retired voluntarily w.e.f. 31.10.1996.
The petitioner, then was served with a
memorandum as per provisions of Rule 16 of the Rules
of 1958 dated 6.5.1997 with following allegations:-
“पथम आर प :-
यह क उक ड 0 आर प ग ड, न ष व शषज (शलय)
तत ल! स एच स आबर& ड (न ल'बबत) न ज रस+ग ह म म,
पक./स रत ह0, ज अ 2श स ह! त ह3 । ज3स क आर प व रण
पत म, रण8त ह3 ।
द:त य आर प :-
यह क उक ड 0 आर प ग ड, न ष व शषज (शलय)
(न ल'बबत) पभ र! ह त ह2ए भ स य' पभ र! ब र अप
स क>? स न न@ त ए ' य8मक2 क आदश ज र! र
उतरद य ह0 ए ' उ>च अधE ररयG आदशG H अ हल H ह3
ज3स क आर प व रण पत म, रण8त ह3 ।
तत
@ य आर प :-
यह क ड 0 आर प ग ड, .व . (शलय) : र अन यरमत ए '
अ धE @ त रप स झठ
& दसत ज E ख Eड र हत2 ब य ह0 ए '
उ>च अधE ररयG आदशG H अ हल H ह3 । ज3स क
आर प व रण पत म, रण8त ह3 ।
चत2थ8 आर प :-
यह क उक ड 0 ग ड व रभन दद सG पर बब अ श स @त
र य ए ' स >? स अ 2पकसथत रह ह0। ज3स क आर प
व रण पत म, रण8त ह3 ।"
6
The petitioner denied the charges, however,
the Government considered it appropriate to hold
regular inquiry in the matter, thus, by an order dated
4.9.1997 the Additional Commissioner (Departmental
Inquiries), Jaipur was appointed as inquiry officer.
From perusal of original record of the inquiry, it
reveals that on 3.12.1997 the Inquiry Officer ordered
to proceed with the inquiry exparte against the
petitioner and on 24.2.1998, after recording
statements of Dr.K.L.Bafna, the inquiry officer
reserved the matter to draw his report. On 4.5.1998
the report of inquiry was submitted to the
disciplinary authority and a copy of that was served
upon the petitioner under a latter dated 19.5.1998
with instructions to submit his comments regarding
findings given by the inquiry officer. The petitioner
through a representation dated 29.5.1998 agitated his
cause regarding completion of inquiry in violation of
principles of natural justice. The disciplinary
authority after considering all relevant aspects of
the matter on 21.12.1998, noted as follows:-
“Discussed. There is no proof to show the
service of the notice, as such if approved,
re-enquiry be made in this case. In case of
approval Additional Commissioner-I be
appointed also.”
7
On receiving necessary approval as per the
note aforesaid, entire record of the inquiry was
remitted to the inquiry officer for holding the
inquiry afresh.
On 16.4.1999 the inquiry officer recorded
preliminary statements of the petitioner and fixed the
matter on 19.5.1999 for recording evidence. On
19.5.1999 certain documents were placed on record by
the presenting officer and those were marked as Ex.1
to Ex.8. An instruction was also given by the inquiry
officer to the prosecution to get the documents denied
by the petitioner proved. On 27.5.1999 certain
documents were presented by the petitioner in defence,
copies whereof were also supplied to the presenting
officer. On 4.11.1999 the inquiry officer recorded
statements of Shri Bhanwar Singh Deora, the then Chief
Medical & Health Officer, Sirohi who also verified
certain documents (Ex.9 to Ex.16) filed to
substantiate the charges. The documents filed by the
petitioner in defence were also exhibited as Ex.D/1 to
Ex.D/6. The matter then was fixed for submitting
written arguments and after receiving the same the
inquiry officer on 17.12.1999 heard the parties and
reserved the matter for dictation of the report of
inquiry. The inquiry officer remitted his report to
the disciplinary authority on 22.3.2000. The Deputy
Secretary to the Government of Rajasthan, Department
8
of Personnel (Group-III) under a communication dated
4.4.2000 supplied a copy of inquiry report to the
petitioner with instructions to submit his comments
thereon. The petitioner accordingly submitted a
representation to the competent authority on
18.4.2000. The petitioner in specific terms stated in
his representation that the inquiry officer while
giving findings against the petitioner for all the
charges relied upon certain documents without getting
contents of those proved. The petitioner also stated
that the allegation of insubordination itself was ill-
founded as his request seeking voluntary retirement
was never denied. It was made clear by the petitioner
that the letter dated 11.6.1996 was not an application
seeking voluntary retirement but was only a request to
complete his service record and as such the response
to the letter aforesaid under communication dated
17.7.1996 was absolutely unwarranted. As per the
petitioner his notice for voluntary retirement was
dated 26.6.1996 which was forwarded to the Director,
Medical & Health Services on 3.7.1996 and the same was
received by the Government of Rajasthan on 29.8.1996
and the request under the notice was never declined.
The petitioner, therefore, considering himself
incharge of Upgraded Primary Public Health Centre, Abu
Road, got relieved from service on 31.10.1996. As per
the petitioner on 31.10.1996 he was incharge of the
Upgraded Primary Public Health Centre, Abu Road, being
senior most officer. With regard to allegation No.4
9
relating to unauthorised absence, the petitioner
submitted that necessary applications were sent by him
to seek leave and this fact was accepted by the
inquiry officer too. It was asserted by the petitioner
that leaves for the period in question were also
accepted by the competent officer i.e. the Chief
Medical & Health Officer, Sirohi.
From record it also appears that the disciplinary authority also sought certain comments
from the Joint Director, Medical & Health Services,
Jodhpur Zone, Jodhpur regarding petitioner’s presence
at headquarters during the period he was facing
suspension. The Joint Director, by letter dated
14.9.2001 informed to the Deputy Secretary to the
Government of Rajasthan, Department of Personnel
(Group-III) that during the period of suspension the
petitioner never reported at the place his headquarter
was fixed and as such no subsistence allowance was
also paid to him.
The disciplinary authority tentatively
decided to impose a penalty of dismissal upon the
petitioner, therefore, concurrence was sought from the
Rajasthan Public Service Commission vide a letter
dated 8.1.2002, which was granted by letter dated
1.3.2002. Accordingly, vide order impugned dated
24.4.2002 a penalty of dismissal from service was
inflicted upon the petitioner. The entire discussion
10
made by the disciplinary authority in the order dated
24.4.2002 relating to petitioner’s delinquency and
guilt that ultimately resulted into his dismissal from
service, reads as follows:-
"ड 0 आर.प .ग ड : र पसतत
2 अभय द ज 'च पनत द
तथ प रण अरभलख स थ पर!कण क य गय कजस
व च न म स
2 र ह3 :-
पसत2त प रण ड 0 आर.प .ग ड व रद व भ ग य ज 'च
स'ब'E म, ह3 । उनह, दद ' 29.11.1996 न लकमबत र
उ मख
2 य लय स'य2क न दश , ज Eप2र य 8लय म, क य
गय थ । उ पर स क>? अ प
2 कसथनत आर प थ कजस ज 'च
अधE र! पम रणत म ह3 । ज 'च पनत द स'ब'धEत
अरभलख स थ पर!कण क य । पर!कण र पश त स'य2क
न दश , ज Eप2र स द/पपण च ह! गई। स'य2क न दश
द/पपण रभज ई क ड 0 ग ड न लमब अ धE म, न E 8ररत
मख
2 य लय पर उपकसथत ह!' ए ' प& 8 त न ज रस+ग ह म म, य8
रत रह। ज 'च दर तत ल! मख
2 य धचक तस ए ' स .
अधE र!, रसर ह! अ धE @ त रप स ड 0 ग ड आर वपत
अ धE अ श स @त र ददय कजस रलय सकम ह!'
थ।
उपर क व च स ड 0 आर.प .ग ड पर लग य गय आर प उ
व रद पण
& 8 रप स रसद ह त ह0।
अत: रसद आर प H ग'भ रत दखत ह2ए ड 0 आर.प .ग ड,
न ष व शषज र जय स स पद>यत
2 र दणड द
अ कनतम न ण8य रलय गय । ततपश त म मल मय अरभलख
र जसथ ल स आय ग उ पर मश8 हत2 दद '
8.1.2002 रभज य गय । र जसथ ल स आय ग
उ पत स'खय प.1(106)व ज /2001-02/1235 दद '
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1.3.2002 : र आय ग H र य रभज ई कजसम, र जय सर र
: र पसत व त दणड स अप सहमनत वयक H गई।
अत: र जयप ल मह दय ड 0 आर.स .ग ड, न ष व शषज
(शलय) उ.प .स . नY आब&र ड कजल - रसर ह! र जय स
स पद>यत
2 र दणड द एतद : र आदश पद रत
ह0।"
As per counsel for the petitioner, the order
dated 24.4.2002 is illegal being an out come of the
proceedings conducted in contravention of doctrine of
reasonable opportunity and principles of natural
justice on various counts including that:-
(1) the statements of Dr.K.L.Bafna were recorded on
24.2.1998 and thereafter on 4.5.1998 the inquiry
officer submitted his report to the disciplinary
authority, but the proceedings so conducted were not
found valid, as such on 21.12.1998 a decision was
taken to hold the inquiry afresh. During the course of
inquiry conducted afresh, statements of Dr.K.L.Bafna
were never put down, however, the inquiry officer
considered and relied upon the statements of
Dr.K.L.Bafna recorded on 24.2.1998. Neither copy of
the statements deposed by Dr.K.L.Bafna was given to
the petitioner nor he was allowed to cross examine
aforesaid Dr.Bafna, hence denial of reasonable
opportunity for defence is apparent.
12
(2) the inquiry officer while holding the petitioner
guilty for the charges levelled against him relied
upon the preliminary inquiry report given by the Sub
Divisional Officer, Abu Road, however, contents of the
aforesaid inquiry report were not at all proved. The
Sub Divisional Officer, Abu Road was not even called
for to prove the preliminary inquiry report and also
the contents made therein;
(3) without getting the documents submitted by the
prosecution proved, the inquiry officer relied upon
those documents and that caused denial of reasonable
opportunity for defence;
(4) the disciplinary authority sought comments from
the Joint Director, Medical & Health Services, Jodhpur
while considering record of inquiry. The comments so
submitted were relied upon, though the same were not
part of the record of inquiry. If the disciplinary
authority, for any good reason considered it
appropriate to call comments from the Joint Director,
then the petitioner should have been apprised with
such comments with an opportunity to explain his
version and also to cross examine the Joint Director,
if required; and
(5) the order impugned dated 24.4.2002 is in gross
violation of Rule 16(9) of the Rules of 1958 being not
prescribing finding against the charges levelled
13
against the petitioner. The order passed by the
disciplinary authority is further bad being lacking
reasons for reaching at the conclusion which
ultimately resulted in dismissal of the petitioner.
Per contra, as per the respondents, the
entire inquiry was conducted in accordance with the
procedure prescribed under Rule 16 of the Rules of
1958. According to the respondents, adequate
opportunity was given to the petitioner to defend
himself and he availed the same. As per the
respondents, the petitioner himself in most
unambiguous terms accepted that he was going to a
private hospital for examining patients and,
therefore, guilt of the petitioner is established even
by admission. It is asserted by counsel for the
respondent State that the petitioner knowing it well
that on 31.10.1996 he was not incharge of Upgraded
Primary Public Health Centre, Abu Road, dared to issue
an order to relieve himself from duties by treating
himself retired voluntarily from service, as such his
conduct is self-speaking and no sympathy deserves to
be extended for such an employee. According to counsel
for the respondents the petitioner neither demanded
for a copy of the statements given by Dr.K.L.Bafna nor
he requested to cross examine Dr.K.L.Bafna. By placing
reliance upon the judgment of Hon’ble Supreme Court in
Ram Kumar v. State of Haryana, 1987 (Suppl.) SCC 582,
it is asserted by counsel for the respondents that the
14
need for giving specific reasons for holding the
petitioner guilty was not there as the disciplinary
authority accepted the reasons and findings given by
the inquiry officer.
Heard counsel for the parties and examined
the record.
While pointing out various infirmities in
inquiry proceedings and the order passed by the
disciplinary authority, the contention of counsel for
the petitioner is relating to gross violation of
principles of natural justice and reasonable
opportunity.
The proceedings against the petitioner were
conducted as per provisions of Rule 16 of the Rules of
1958 and sub-rule(9) of Rule aforesaid prescribes that
“the disciplinary authority shall, if it is not the
inquiring authority, consider the record of inquiry
and record its finding on each charge. The
disciplinary authority may while considering the
report of the inquiring authority for just and
sufficient reasons to be recorded in writing remand
the case for further/denovo inquiry, in case it has
reason to believe that the inquiry already conducted
has been laconic in some respect or the other”. The
disciplinary authority on being satisfied that the
inquiring authority proceeded against the petitioner
without effecting service of the notices, held the
15
inquiry proceedings laconic, accordingly, on
21.12.1998 decided to hold re-inquiry. In pursuant to
the decision aforesaid process of fresh inquiry
started on 16.4.1999 and the inquiry officer examined
Dr. Bhanwar Singh Deora as a prosecution witness on
4.11.1999. Shri Bhanwar Singh Deora verified documents
Ex.9 to Ex.16, however, the disciplinary authority
while giving finding of guilt against the petitioner
considered and relied upon the statements of
Dr.K.L.Bafna, those were recorded on 24.2.1998. The
statements of Dr.K.L.Bafna were recorded in absence of
the petitioner and that too without effecting service
of the notices, as held by the disciplinary authority
on 21.12.1998. On minute examination of the details
relating to statements given by Dr.K.L.Bafna, it is
apparent that the inquiry officer based his findings
on the documents those were verified by Dr.K.L.Bafna.
The documents Ex.1 to Ex.8 were verified by
Dr.K.L.Bafna whose statements recorded on 24.2.1998
were admittedly not treated as part of the inquiry
record. The findings given by the inquiry officer
relating to charge No.2 is solely based on the
documents verified by Dr.K.L.Bafna and as such it can
be definitely said that the inquiry officer while
holding the petitioner guilty has taken into
consideration documents which were not part of the
record of inquiry. As a matter of fact, whatever
statements given by Dr.K.L.Bafna and the documents
verified by him could not have been taken into
16
consideration by the inquiry officer as those were not
part of the inquiry record in view of the disciplinary
authority’s decision dated 21.12.1998.
While meeting with the contention aforesaid,
it is stated by counsel for the respondents that
though the statements of Dr.K.L.Bafna were recorded
prior to 16.4.1999 i.e. the date of initiating re-
inquiry against the petitioner but the consideration
of the documents verified by Dr.K.L.Bafna does not
make the inquiry proceedings bad as no prejudice was
caused to the petitioner’s right to defend himself. I
am not at all convinced with the submission aforesaid.
As already said, the inquiry officer based his
findings on the statements of Dr.K.L.Bafna, and the
petitioner was having no opportunity to cross examine
him or to say anything in rebuttal regarding documents
verified by Dr.K.L.Bafna. The right of defence by
providing reasonable opportunity is a valuable right
and whenever such a right is denied or even injured
while considering a case of a civil servant regarding
imposition of a major penalty, then the primary
assumption is that the same must have caused a
prejudice to the rights to defence of a civil servant.
Merely by saying that no prejudice is caused, is not
sufficient. The employer is required to satisfy the
Court that as to how consideration of an evidence
which is not part of the inquiry has not effected a
right of civil servant for having a reasonable
17
opportunity for defence or even by violation of that
the charge levelled stands established.
While relying upon sub-rule(9) of Rule 16 of
the Rules of 1958, it is also contended by counsel for
the petitioner that no finding against each and every
charge is recorded by the disciplinary authority after
considering record of inquiry. The order impugned was
passed by the disciplinary authority in most
mechanical manner without assigning any reason to hold
the petitioner guilty for the allegations of
misconduct. As per the respondents, there was no need
to pass a speaking and reasoned order by the
disciplinary authority holding the petitioner guilty
for a misconduct as the order passed by him is nothing
but affirmance of the findings given by the inquiry
officer. On examination of order passed by the
disciplinary authority dated 24.4.2002, it is clear
that as a matter of fact the disciplinary authority
did not consider even the inquiry report and the
record of inquiry as per requirement of sub-rule(9) of
Rule 16 of the Rules of 1958 and also as per general
principles of consideration of record of inquiry by a
quasi judicial authority. The disciplinary authority
while imposing penalty of dismissal mentioned that the
allegation of unauthorised absence was found proved by
the inquiry officer and the Joint Director also made a
comment regarding absence of the petitioner during the
period of suspension.
18
Sub-rule(9) of Rule 16 of the Rules of 1958
casts a statutory obligation upon disciplinary
authority to consider entire record of inquiry and
also the inquiry report and then to record his finding
against each charge. From perusal of the order
impugned it is apparent that the disciplinary
authority acted in most casual manner and in flagrant
contravention of Rule 16(9) of the Rules of 1958. It
does not reveal from reading of the order impugned
that any objective consideration of the record of
inquiry was made. The petitioner was subjected to an
inquiry for four allegations but the disciplinary
authority in most vague terms stated that the
delinquent employee was found guilty for remaining
absent voluntarily and also that an adverse comment
was made by the Joint Director. As per sub-rule(9) of
Rule 16 of the Rules of 1958 the disciplinary
authority is under a statutory obligation to give his
definite finding against each charge. The statutory
requirement aforesaid is not a mere formality but a
mandatory need to establish objectivity while
considering case of a civil servant whose conduct is
under screening. The findings of the disciplinary
authority are required to be substantiated with
reasons and reasons can be gathered by objective
assessment of the inquiry record that includes
evidence. If the disciplinary authority has not given
findings against each charge, then it reflects that he
19
has not taken into consideration record of the
inquiry. In the present case, as a matter of fact no
finding is recorded by the disciplinary authority
against any of the charge levelled against the
petitioner. As such the assumption is that record of
inquiry was not considered and assessed by the
disciplinary authority while imposing a severest
penalty i.e. of dismissal.
I also found from examination of original
record of inquiry that the disciplinary authority on
2.5.2000 sought certain comments from the Chief
Medical & Health Officer who sanctioned leave of the
petitioner for the period he remained absent for
duties. A tentative decision then was taken on
9.10.2001 by disciplinary authority to dismiss the
petitioner from service, but at this stage no reason
was recorded. The matter was then referred to the
Chief Minister as per existing standing orders and the
Chief Minister approved tentative punishment, however,
resultant is that no finding was recorded by the
disciplinary authority at any stage against any of the
charge, as required under sub-rule(9) of Rule 16 of
the Rules of 1958. On pondering of complete record, I
no where found sensitive consideration of inquiry
record and inquiry report by the disciplinary
authority to give definite findings against each and
every charge for which the petitioner was subjected to
disciplinary action.
20
The argument advanced by counsel for the
respondents that the order passed by the disciplinary
authority is an order of affirmance and, therefore, no
definite finding or reasoning was necessary, is
absolutely worthless as a statutory authority cannot
be permitted to act contrary to statutory procedure.
For the sake of argument, even if it is assumed that
there would have been no provision as of sub-rule(9)
of Rule 16 of the Rules of 1958 demanding findings of
disciplinary authority against each and every charge,
then too the principles of natural justice calls for
an speaking and reasoned order by the disciplinary
authority in every case where comments are sought from
a delinquent employee relating to findings given by
the inquiry officer. This Court in S.L.Gupta v. LIC &
Anr., reported in 2005(4) RDD 861 (Raj), while
considering the same issue, held as follows:-
“In a quasi judicial inquiry if the
delinquent is being deprived of knowledge of
the material against him though the same is
being available to the disciplinary authority
in the matter of reaching his conclusion
rules of natural justice would be affected.
In view of this position of law the inquiry
report wherein an employee is found guilty,
is adverse material to the delinquent
employee. In the present case also the
inquiry report alongwith the notice to show-
cause was given to the petitioner as an
adverse material and the petitioner was
21required to meet the same by submitting a
reply. The petitioner submitted a reply to
the disciplinary authority and raised various
objections with regard to denial of
opportunity of defence and also with regard
to the findings of the Inquiry Officer. As I
stated above that in the light of the law
laid-down by Hon’ble Supreme Court in the
case of Mohd. Ramzan Khan’s case (supra) the
inquiry report is an adverse material.
Therefore, the agreements to the findings by
the disciplinary authority was tentative. The
disciplinary authority after receiving the
order of comments by the delinquent employee
is always required to reach at its own
findings and conclusions. The disciplinary
authority is under an obligation to deal with
the objections raised by the employee and he
is required to prescribe findings and
conclusions supported by the reasons. In a
case where a copy of the inquiry report is
supplied to a delinquent employee with a
notice to show-cause with regard to proposed
punishment, the principle laid-down in the
case of Ram Kumar’s case (Supra) cannot be
applied. These are not the case of agreement
with the findings of Inquiry Officer but in
these cases the inquiry report itself has
been treated as an adverse material, as such
it is all the more necessary for the
disciplinary authority to record reasons in
support of his findings and conclusions.”
In view of the discussion made above, the
violation of sub-rule(9) of Rule 16 of the Rules of
1958 as well as violation of principles of natural
justice in the present case is apparent.
22
An important aspect of the matter is that the
disciplinary authority has taken into consideration a
report of the preliminary inquiry (Ex.9) conducted by
the Sub Divisional Officer, Mount Abut. The report
dated 16.6.1996 of the preliminary inquiry was placed
on record by the prosecution and existence of that was
established by Dr. Bhanwar Singh Deora (PW-2). The
allegation No.1 was found established against the
petitioner solely on basis of contents of the
preliminary inquiry report aforesaid. The Sub
Divisional Officer, who conducted the preliminary
inquiry and submitted the report dated 16.6.1996,
though was desired to be produced as witness in the
list of witnesses given by the presenting officer, but
during the course of inquiry he never came up for his
examination. Shri Bhanwar Singh Deora (PW-2) could
have certainly introduced and verified existence of
the document i.e. preliminary inquiry report but in no
way contents thereof could have been found established
merely by proving its existence. The introduction of
the document make it a part of record but in no way it
establish the truth of what the document contains.
Mere placement of a document on record by a valid
custodian does not imply truth of the contents made in
such document and no such document can be relied upon
until a witness having knowledge of the contents is
examined with an opportunity to the delinquent person
to exercise his right of cross examination to impugn
23
the contents of the document. It is always desirable
to see that a competent witness proves a document and
also that how that document proves the allegation
against delinquent. In the case in hand, Dr. Bhanwar
Singh Deora (PW-2) proved existence of the documents
but its contents remained unestablished and as such
that document in no case could have been used to prove
the allegations against the petitioner. The contents
made in the report of preliminary inquiry could have
been proved only by the inquiry officer who conducted
that inquiry. The report of the preliminary inquiry is
available on record of inquiry as Ex.9 and from
reading thereof it is apparent that the preliminary
inquiry officer considered few complaints made against
the petitioner and also recorded statements of few
people. The entire exercise, being a preliminary
inquiry was conducted behind back of the petitioner
and as such it was not open for the inquiry officer to
rely upon report of preliminary inquiry without
getting contents of that proved by examining the
preliminary inquiry officer who submitted report dated
16.6.1996 and by affording a chance to the petitioner
to cross examine the aforesaid inquiry officer.
The disciplinary authority while imposing
severest penalty i.e. dismissal upon the petitioner
has also taken into consideration comments made by the
Joint Director, Medical & Health Services, Jodhpur
after conclusion of process of inquiry as per Rule 16
24
(8) of the Rules of 1958. The comments so given were
not at all apprised to the petitioner and, therefore,
reliance upon the same by imposing penalty upon the
petitioner is also bad.
It is also pertinent to note that as per sub-
rule(10) of Rule 16 of the Rules of 1958 the entire
record of inquiry proceedings and inquiry report
alongwith tentative decision of the disciplinary
authority to impose penalty of dismissal was remitted
to the Rajasthan Public Service Commission for seeking
advise. The Rajasthan Public Service Commission also
under its letter dated 1.3.2002 simply consented for
proposed penalty but the requirement of consideration
and consultation is conspicuously absent. True it is,
consultation with Commission is not a mandatory
provision but when a matter is referred to it,
adequate and thorough consultation is desirable. The
Commission while giving advise in disciplinary matters
exercises its constitutional powers as per Article 320
(3)(c) of the Constitution of India and such power
must be exercised with all sincerity and caution. In
the instant matter, exercise of the power aforesaid
appears to be quite casual and formal.
In view of whatever said above, the entire
inquiry suffers from fundamental infirmities in
observing mandatory provisions of the Rules of 1958
that ultimately results in gross violation of doctrine
25
of reasonable opportunity. Such infirmities vitiate
entire process that resulted into imposition of a
severe penalty of dismissal upon the petitioner.
The petition for writ, therefore, deserves
acceptance and as such is allowed. The order impugned
dated 24.4.2002 passed by the disciplinary authority
dismissing the petitioner from service as a consequent
to disciplinary action taken under memorandum dated
6.5.1997 is quashed. The petitioner is declared
entitled for receiving all consequential reliefs and
benefits flowing as a result of quashing the order
dated 6.5.1997.
( GOVIND MATHUR ),J.
kkm/ps.