IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. O R D E R S.B. CIVIL WRIT PETITION No.730/1996. : : Jai Kishan Jat Vs. Secretary to the Government & Anr. : : Date of Order 9.7.2009 HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Mr. M. K. Sharma for the petitioner. Mr. M. S. Kachhawa, Addl.Govt.Counsel for the State. Heard learned counsel for the parties. 2. This writ petition seeks to challenge the order dated 9.8.1995 by which he was awarded penalty of stoppage of two grade increments without cumulative effect on charge of supervisory negligence for his failure to timely inspect the area within his jurisdiction and the subsequent order dated 13/22 December, 1995 by which his appeal was rejected by Additional Secretary, Forest Department, Rajasthan Jaipur. 3. Learned counsel for the petitioner for the present confined his arguments against the order rejecting the appeal, his statement is that as per amendment in Rule 30 of Rajasthan Civil Services (CCA) Rules, 1958 (for short CCA Rules) as amended vide notification dated 27.1.1979, the Appellate Authority was required to provide proper opportunity to petitioner to explain his case if he desired so. On the request of petitioner, although the Additional Secretary, Forest Department was considerate enough to provide opportunity of hearing to petitioner, but he ultimately directed petitioner to explain his matter to Deputy Secretary who made a detailed note and then accepted the version of petitioner that wherein he has been exonerated from Charges No.1 & 2 and Charge No.3 also could not be proved against him. The Appellate Authority however did not agree with that view and called for the opinion of Principal Conservator of Forest and thereafter rejected his appeal. It is contended that power exercised by Secretary, Forest Department are quasi judicial power, which cannot be abdicated in favour of any Deputy Secretary or Principal Conservator of Forest. The impugned order thus suffer from non-application of mind and has been erroneously passed, which is liable to be set aside. More importantly, further submission made by learned counsel is that appeal of petitioner was rejected by Appellate Authority in just four lines order whereas petitioner has raised number of arguments in his appeal many of which were considered by Deputy Secretary, who submitted a detailed note, but none of them have been taken note or otherwise dealt with in one way or other. The order rejecting the appeal not being a speaking order thus reflects total non-application of mind. It is, therefore, prayed that impugned order be set aside and the matter be remanded back to Appellate Authority for reconsidering the appeal after providing opportunity of hearing to petitioner. 4. Learned counsel for the respondents although opposed the writ petition, but was not in position to justify as to why, when petitioner submitted an appeal running into nine pages the Appellate Authority did not consider those arguments while deciding the appeal.
5. Having considered the arguments and perused the material on record, I find that Rule 30 of CCA Rules not only provide the remedy of appeal, but also the guidelines to be followed by Appellate Authority while considering such appeal. Sub-rule (2) of Rule 30 of CCA Rules provides that :
(2) In the case of an appeal against an order imposing any of the penalties specified in rule 14, the appellate authority shall consider —
(a) whether the procedure prescribed in these rules has been complied with and if not, whether such non-compliance has resulted in violation of any provisions of Constitution or in failure of justice;
(b) whether the facts on which the order was passed has been established;
(c) whether the facts established afford sufficient justification for making an order; and
(d) whether the penalty imposed is excessive,
adequate inadequate
The said Rule also provides that :
after giving a personal hearing to Government servant to explain his case, if he desires so.
Nothing is reflected from the impugned order rejecting appeal whether the petitioner was given an opportunity of hearing by the Appellate Authority ? The opportunity of hearing as envisaged in the CCA Rules has to be afforded by Appellate Authority himself and this function he cannot be delegated by him to his subordinate like what has been done in the present case that part of duties were delegated to the Deputy Secretary which was wholly illegal. The Appellate Authority was expected to deal with the arguments raised in memorandum of appeal submitted by petitioner, which is on record as Annexure-7. Perusal of aforesaid memorandum of appeal of the petitioner indicates that he submitted an appeal raising all those contentions which he again reiterated before this Court. Although, it may not be necessary for Appellate Authority to write a detailed order in deciding the appeal, but whatever he decide should be discernible from the order deciding appeal indicating as to why, what has been argued by the delinquent and has been accepted ? The impugned order, therefore, has been passed contrary to Rule 30 (2) of the CCA Rules and does not reflect due application of mind.
In the result, this writ petition is partly allowed. The impugned order dated 13.12.1995 (Annexure-8) is quashed and set aside. The matter is remanded back to Appellate Authority, who after providing opportunity of hearing to the petitioner, shall decide the appeal afresh in accordance with Rule 30 (2) of CCA Rules.
(MOHAMMAD RAFIQ)J.
A.Arora/-Item No.H/8.