JUDGMENT
Surendra Nath Bhargava, J.
1. This is plaintiff’s second appeal.
2. The plaintiff was working as Male Nurse Grade-III at M.B.S. Hospital Kota. He was served with a memorandum dated 28-7-1970 along with a charge sheet, and enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (her in after referred to as the ‘CCA Rules’) was proposed to be held against him. The allegation against the appellant was that on 29-5-1970 he pointed out Shri Murli Manohar Moondra to three person who lateron gave beating to Shri Moondra Enquiry was held under Rule 16 of the CCA Rules, and after the enquiry was over under Rule 16 of the CCA Rules, without any notice to appellant regarding the change of procedure from Rule 16 to Rule 17 of the CCA Rules, a minor penalty of stoppage of two grade increments without future effect was straight away imposed against the appellant, without calling any explanation from him and without furnishing him even copy of the enquiry report Plaintiff in his plaint further alleged that the enquiry was held in breach of natural justice and the charge does not refer to his conduct as an employee and had nothing to do with the discharge of his duties. Therefore, there is no question of any misconduct. He further submitted that the charge was not proved and the whole proceedings were malafide. Appellant challenged the said order by filing the present suit, seeking to set aside the order dated 11-5-1971.
3. The suit was contested by the defendants. The trial court, after framing issue and recording evidence, dismissed the suit of the plaintiff vide his judgment and decree dated 7-4-1975,
4. On appeal by plaintiff appellant, the learned Additional District Judge, Kota by his judgment and decree dated 5-4-1977 also dismissed the appeal. Hence, this second appeal.
5. Learned Single Judge while admitting this appeal, framed the following substantial question of law:
Whether a prior notice to the appellant was necessary before changing the procedure from Rule 16 to Rule 17 of the CCA Rules?
6. Learned Counsel for the appellant has placed reliance on Dr. Kishan Singh v. State of Rajasthan 1966 R.L.W. 153 in which the Division Bench held as under:
It is permissible for the disciplinary authority to proceed under Rule 17 for imposing minor penalties, although it has proceeded initially under Rule 16, but it is certainly necessary that if it proposes to change the procedure from Rule 16 to Rule 17, a clear notice to that affect must be given to the person concerned before proceeding under Rule 17.
7. Learned Counsel for the appellant further submitted that the appellant was not served with a copy of the enquiry report which was essential and therefore, he could not make an effective appeal which clearly amounts to violation of principles of natural justice. On this ground alone, the impugned order should be quashed and in this connection, has placed reliance on Ram Singh Rathore v. R.S.R.T.C 1986 Judicial Review 129.
8. On the other hand, learned Counsel for the respondents has submitted that it is not necessary to give a prior notice to the appellant before changing the procedure from Rule 16 to Rule 17 CCA Rules. If after conclusion of the enquiry, the Disciplinary Authority thinks that major penalty is not warranted, on the basis of findings of the enquiry officer, he is well within his jurisdiction to inflict a minor penalty. In the present case, there is no question of changing the procedure because the enquiry had already been completed and enquiry report had been submitted. Therefore, case of Dr. Kishan Singh (supra) is not applicable to the facts of the present case.
9. He has also placed reliance on a later decision of this court in Heera Lal Pathak v. State of Rajasthan 1977 WLN (UC) 432 where in the learned Single Judge, after considering Dr. Kishan Singh’s case (supra) has observed as under:
Inquiry against the petitioner was completed in accordance with the provisions of Rule 16 and after receiving the Inquiry Officer’s report, the Disciplinary Authority held the petitioner guilty of the charge, but then under Sub-rule (11) of Rule 16, the Disciplinary Authority proceeded to impose a minor penalty upon the petitioner. The procedure thus adopted in the present case was completely in accordance with the provisions of Rule 16 and the penalty was imposed upon the petitioner under Sub-rule (11) of Rule 16 of the Rules. The procedure of Rule 17 was not at all resorted to in the present case.
10 Reliance was also placed on another authority of this court in Desrimal v. State of Rajasthan 1979 (3) SLR 1 where in also it has been observed that if the entire proceedings conducted under Rule 16 for imposing major penalty, and the disciplinary authority after completion of the departmental enquiry imposes minor penalty, there is no illegality in such procedure. In this connection, he has also placed reliance on M.N. Dutta v. Union of India ; I.D. Gupta v. Delhi Administration 1973 (2) SLR 1; Shadi Lal v. State of Punjab ; and K.K. Mittal v. Union of India 1974 (2) SLR 602.
11. As regards the other point, he has submitted that the plaintiff has nowhere pleaded in his plaint that he was not served with a copy of the enquiry report or that he has been prejudiced by not supplying copy of the enquiry report and that there has been violation of the principles of natural justice. Since it was not pleaded, there was no occasion for the defendants to have denied or asserted that a copy of the enquiry report was served or supplied to the plaintiff. No issue was framed on this point and therefore, the parties did not lead any evidence. In absence of pleading and proof, appellant cannot be allowed to raise this objection in second appeal.
12. I have given my thoughtful consideration to the whole matter and have also perused the record of the case and the authorities cited at the bar.
13. In the present case, enquiry was initiated under Rule 16 of the CCA Rules and after the enquiry was completed and the enquiry report had been submitted, the Disciplinary Authority did not think it proper to impose major penalty on the plaintiff but thought that ends of justice will be met by imposing minor penalty of stoppage of two grade increments without cumulative effect and therefore. There is no question of change of any procedure from Rule 16 to Rule 17 of the CCA Rules, I do not find any illegality imposing a minor penalty by the Disciplinary Authority even though procedure of Rule 16 of the CCA Rules was followed Learned Counsel for the appellant has not been able to show as to how the appellant was prejudiced by following the procedure under Rule 16 and not Rule 17 of the Rules.
14. I have myself carefully gone through the plaint and no where, it has been mentioned there in that the plaintiff was not served or supplied with the copy of the enquiry report and as such, there was no occasion for the defendants to have asserted in the written statement that copy of the enquiry report was served or supplied to the appellant. There was no issue to this effect and no evidence was lead on this point. Therefore, the appellant cannot be allowed to raise this issue in second appeal. In this connection, I find full support from the latest judgment of this court in Manna Lal v. Mool Chand 1986 ( 1) WLN 480.
15 In the result, I find no force in this appeal. This appeal is therefore, dismissed without any order as to costs.
