1
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
O R D E R
S.B. CIVIL WRIT PETITION NO.3356/2003
(Rajendra Kumar Bhola Vs. State of Raj. & Ors.)
Date of order : April 16th 2009
P R E S E N T
HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS
Mr. Manoj Bhandari, for the petitioner.
Mr. N.K. Mehta, Dy. Govt. Counsel.
The petitioner has preferred this writ
petition challenging the order impugned dated
27.9.2001 (Annexure-16) passed by His Excellency the
Governor rejecting the petitioner’s review petition
filed against the order dated 10.8.1998 as time
barred, so also the order passed by Chief Engineer,
Ground Water Department, Jodhpur dated 10.8.1998
(Annexure-9) whereby the petitioner was removed from
service.
Brief facts of the case are that the petitioner was initially appointed as Technical Assistant in the Ground Water Department after due
selection through R.P.S.C. And he joined the duties on
22.8.1985. Initially the petitioner was posted at
2
Jodhpur and worked till April, 1986 then he was
transferred to Kota Division at Kota. He worked
independently as Geo-Physist for Electrical
Resistivity Survey in four districts i.e. Kota,
Jhalawar, Sawai Madhopur and Tonk to explore point of
tube well for water supply scheme. In the year 1987,
the petitioner became eligible for promotion as Jr.
Geophysicist but he was transferred in the year 1989
from Kota to Nagaur. Thereafter, in the year 1991
when a post of Technical Assistant became available
then so many requests were made to the Chief Engineern
but, he was not given posting at Kota. The Chief
Engineer kept the post vacat for three years ignoring
the prayer of the petitioner to post him at Kota. In
the year 1992, the petitioner was transferred again to
Pali but at Pali no work was allotted any work and
petitioner continued there without any work because he
was expert in geophysicist. In the year 1992, due to
harassment of the respondents, he suffered so many
diseases and due to medical reasons he remained on
medical leave for three years. Thereafter when he
went to Pali to join the duties and produced all the
medical certificates, which were earlier sent through
post from time to time to the Chief Engineer but
Senior Hydrogeologist Mr. Rajendra Sharma kept those
medical certificates with him and accepted the joining
but did not give any receipt and refused the
petitioner to sign in the attendance register after
24.4.1996.
3
The petitioner was informed at Pali that some
enquiries are lying pending therefore after completion
of enquires he will be allowed to join duties, so
also, no salary was paid to him and was threatened
that his services will be terminated.
The case of the petitioner is that in all two
charge-sheets were issued to the petitioner under Rule
16 of CCA Rules, 1958 by the respondent Department.
The first charge-sheet was issued to the petitioner
under Rule 16 of the CCA Rules for the alleged
misconduct on 14.6.1995 vide Annexure-1 and second
charge-sheet was issued to the petitioner by the
respondent No.2 in the year 1997 under Rule 16 of the
CCA Rules on 12.2.1997. It is specifically stated by
the petitioner that the respondents have proceeded to
hold an enquiry in pursuance of the first charge-sheet
dated 14.6.1995 in which four charges were levelled
against the petitioner that he remained willful absent
from duties without proper intimation in the year
1991, 1992, 1993, 1994 and 1995 respectively.
Further, it was alleged that he has violated the
provisions of GF and AF Rules and disobeyed the orders
of the superiors.
The petitioner filed his reply to the said
charge-sheet on 22.2.1997 and refuted all the charges
levelled against him, so also submitted a list of
4
witnesses for his defence in the enquiry. In reply,
it is stated that he remained continuously ill due to
heart disease for more then three to four years and he
was taking heart treatment, so also to prove the
contention of the medical treatment he has submitted
medical certificates and fitness certificates along
with his joining but the same were not considered by
the authorities and deliberately in order to restrain
the petitioner from joining they issued charge-sheet
and initiated the departmental enquiry.
It is stated in the writ petition that copies
of medical certificates will be kept ready for perusal
of Court at the time of arguments. With regard to
charge No.3 and 4, it is submitted that outstanding
amount which has been said to be due against the
petitioner is absolutely incorrect as he has
undertaken advance TA/DA which has to be adjusted as
against the actual amount spent by the petitioner.
In the enquiry so conducted after appointment
of enquiry officer on 15.7.1997, a Presenting Officer
to prove the department’s case was also appointed vide
order dated 20.8.1997 and the petitioner continuously
attended the enquiry, which is clear from the
certificate dated 6.10.1997, which is produced on
record as Annexure-6. It is specifically pointed out
by the petitioner that vide Annexure-4, Mr. D.P.
Agarwal, Superintending Engineer, Ground Water
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Scientist, Ground Water Department, Jaipur was
appointed as enquiry officer. Later on from time to
time, the place of enquiry was changed therefore, the
petitioner could not appear in the enquiry on
17.10.1997 and 28.10.1997. Thereafter, the petitioner
sent a communication dated 15.12.1997 that he shall
not be able to appear at the place of enquiry at
Jaipur because there has been a curfew imposed in the
Jaipur city but enquiry officer did not consider the
prayer of the petitioner and held exparte enquiry
against the petitioner. After submitting the enquiry
report by the enquiry officer, a notice to show cause
was given to the petitioner on 9.6.1998 along with
copy of the enquiry report, which has been placed on
record as Annexure-7.
After receiving charge-sheet reply to the
show cause notice vide communication dated 1.7.1998
Annexure-8 was submitted by the petitioner but without
considering the petitioner’s reply, the enquiry
officer proceeded to hold exparte enquiry against the
petitioner. Thereafter upon said enquiry, the
disciplinary authority passed an order whereby the
petitioner was penalized with the penalty of removal
from service along with order of recovery of
Rs.5,484/- along with interest @ 12%. The petitioner
has placed on record the said order of penalty dated
10.7.1998 as Annexure-9.
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As per petitioner, an appeal was preferred by
him against the said order on 22.08.1998 vide
Annexure-10 but no decision was communicated by the
respondents on the appeal filed by the petitioner
against the removal order. The petitioner’s
contention is that after filing appeal he received a
communication dated 30.11.1998 by which he was
informed that he shall appear before the enquiry
officer on 17.12.1998. When petitioner received the
said communication, then, he appeared before enquiry
officer with the bonafide impression that his appeal
has been considered by the department and there had
been an order of de novo enquiry but later on a
communication was received by the petitioner dated
30.9.1999 which is internal communication in between
the enquiry officer and Chief Engineer, Ground Water
department, Jodhpur in which it was observed by the
enquiry officer that Shri R.K. Bhola (petitioner) had
already been removed from the service vide order dated
10.8.1998, keeping in view this important order, the
undersigned has sought guidance from higher authority
whether the said departmental enquiry should be
continued or completed or not, kindly arrange to
convey.
When this order was received by the
petitioner, then it has come to the knowledge of the
petitioner that the communication Annexure-11 dated
30.11.1998 was in connection with the second charge-
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sheet issued to the petitioner on 12.2.1997. Meaning
thereby, the appeal of the petitioner was not decided,
therefore, he preferred a review petition to His
Excellency, Governor of Rajasthan under the provisions
of Rules of 1958 on 1.8.2001 but in connection with
the review petition filed by the petitioner he
received a communication from the Secretary to Hon’ble
Governor on 12.9.2001 communicating the petitioner
that his review petition is time barred. Therefore,
it is hereby rejected. The case of the petitioner is
that against the removal order of the petitioner,
first of all appeal filed by the petitioner was not
decided by the respondents so also the review petition
filed by the petitioner was rejected as time barred.
In this writ petition, it is specifically
stated by the petitioner that in second charge-sheet
which is issued to the petitioner enquiry was
initiated under Rule 16 of the CCA Rules but vide
Annexure-14 dated 18.3.2000, the Chief Engineer,
G.W.D. has dropped the enquiry on the ground that in
another charge-sheet issued to the petitioner he has
already been removed from service vide order dated
10.8.1998. Meaning thereby, vide Annexure-14 the
second charge-sheet issued to the petitioner was
ordered to be closed as petitioner was already removed
from service, therefore, now in this writ petition,
the petitioner is challenging the validity of the
removal order dated 10.8.1998, so also the order of
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rejection of the review petition by His Excellency the
Governor of Rajasthan dated 27.9.2001 (Annexure-16).
For the same, the petitioner has raised following
grounds.
Learned counsel for the petitioner has
vehemently argued that first of all the order of
removal dated 10.8.1998 deserves to be quashed on the
ground that it is totally unreasoned order and without
considering the reply given by the petitioner although
it is observed in the order dated 10.8.1998 that no
reply has been submitted by the petitioner but in fact
this assertion is totally false, therefore, the order
deserves to be quashed.
Learned counsel for the petitioner vehemently
contended that a bare perusal of order impugned dated
10.8.1998 (Annexure-9) will reveal that there is no
consideration, discussion and reasons given by the
disciplinary authority for removing the petitioner
from service. It is only observed that the enquiry
officer has found that all the charges levelled
against the petitioner are proved. Meaning thereby,
without application of mind, the disciplinary
authority has passed impugned order while observing
that the enquiry officer has found that all the four
charges have been proved by the Department. It is
argued that the order impugned order passed by the
Chief Engineer is totally without application of mind
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which is evident from the fact that in the order only
one line has been written that all the charges
levelled against the delinquent have been found to be
proved, therefore, it is proved that order impugned is
illegal and unconstitutional.
Learned counsel for the petitioner while
inviting attention of this Court towards the judgment
rendered by Hon’ble Apex Court reported in AIR 1990 SC
1984 (S.N. Mukherjee Vs. Union of India) submitted
that as per Constitution Bench judgment, the decision
given by the administrative authorities must contain
reason and it is the duty of the judicial or quashi
judicial authorities to record reasons except in cases
where requirement is dispensed with expressly or by
necessary implication. Further, it is held by Hon’ble
Apex Court in the aforesaid judgment that as per
natural justice, the administrative action must be
supported by reasons, if not then such type of action
is required to be declared illegal and in
contravention of principles of natural justice.
Learned counsel for the petitioner vehemently
argued that the petitioner was charge-sheeted under
Rule 16 of the CCA Rules vide Annexure-1 dated
14.6.1995 and Annexure-2 dated 12.2.1997 but
departmental enquiry in pursuance of Annexure-2 was
ordered to be closed in view of the fact that removal
order was passed by the disciplinary authority on
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10.8.1998. In the order dated 10.8.1998 passed in
pursuance of charge-sheet dated 14.6.1995, it is
observed that no written submission has been filed by
the delinquent. Therefore, while accepting the
enquiry report, delinquent is hereby removed from
service. Such type of unreasoned order which is
passed without application of mind by the disciplinary
authority is illegal and against the principles of
natural justice because Constitution Bench of Hon’ble
Apex Court has held in the judgment of S.N.
Mukherjee’s case (supra) that order must be reasoned
order and in absence of any reason in the order, it
must be held that the said order is in contravention
of principles of natural justice.
Learned counsel for the petitioner submitted
that he remained absent from duty but submitted all
the medical certificates for perusal and consideration
at the time of filing application for joining at Pali,
so also due to change of place of enquiry he was not
in position to attend the enquiry because he was not
allowed to join duties as such no salary was paid to
the petitioner, therefore, in absence of financial
assistance or salary, it was not possible for him to
appear before the enquiry officer. Therefore, the
enquiry officer was under obligation to consider all
the medical certificates at the time of filing
application for joining but all those medical
certificates were ignored and the petitioner has been
11
removed from service, which is totally illegal.
Learned counsel for the petitioner submitted
that appeal filed by the petitioner was also not
decided by the respondents. Likewise the review
petition was dismissed as time barred. Meaning
thereby the petitioner remained remedy-less,
therefore, after loosing battle before the
respondents, the present writ petition has been
preferred on the ground that all the proceedings
undertaken against the petitioner is not based upon
the cogent reasons, so also, the order of removal is
totally illegal and in contravention of basic
principles of law. Therefore, the impugned order
dated 10.8.1998 may kindly be quashed and respondents
may be directed to reinstate the petitioner in
service.
In reply to the writ petition, it is contended by the respondents that petitioner has
failed to appear before the enquiry officer and charge
of willful absence from duty was proved by the
department before the enquiry officer by leading
proper evidence. It is also one of the important fact
that petitioner did not appear before the enquiry
officer, and before the enquiry officer, therefore, he
has proceeded to held exparte enquiry and arrived at
the conclusion that all the charges levelled against
the petitioner are proved by the department and while
12
concluding enquiry, the enquiry officer sent the
enquiry report to the disciplinary authority in which
it is observed by the enquiry officer that all the
charges levelled against the delinquent have been
proved by the Department and after receiving the said
enquiry report submitted by the enquiry officer the
petitioner was given an opportunity to file his
written submissions while sending the copy of the
enquiry report to him but he has failed to file any
submissions, therefore, now the petitioner cannot
raise voice that he was not given any opportunity of
hearing to defend his case. The disciplinary
authority while accepting the enquiry report in toto
penalized the petitioner with penalty of removal from
service which does not require any interference by
this Court because order is perfectly in accordance
with the law .
Learned counsel for the respondents
vehemently argued that in this case, the petitioner
was removed from service on the ground that he
remained absent from duty and he did not submit
medical certificates either before the respondent
Department and enquiry officer now he is raising voice
that he has produced medical certificates which were
not considered by the Department but in fact this
assertion is totally false. The petitioner did not
produce any medical certificates to prove that he
remained absent from duty due to illness. The
13
respondent Department has rightly passed an order for
removal of the petitioner in which there is no error.
Therefore, no interference under Article 226 of the
Constitution of India is required as the respondents
have conducted the enquiry in proper manner and after
following the procedure of enquiry provided under the
Rules of 1958.
As per learned counsel for the respondents,
the petitioner was given full opportunity of hearing
but he defied the same, which is clear from the
proceedings itself. The petitioner did not submit any
certificates either before the department or before
the enquiry officer till final order was passed by the
disciplinary authority. It is also submitted that the
contention of the petitioner that he has filed appeal
against the order, which he has placed on record as
Annexure-10 is also not acceptable because a bare
perusal of Annexure-10 will reveal that it is not an
appeal but it is a representation. Therefore, the
contention of the petitioner for filing appeal and not
deciding the same by the respondents is totally
denied. In fact, no appeal was filed by the
petitioner against the order of removal though he has
filed review petition before His Excellency the
Governor of Rajasthan but the same was rejected for
the reasons that it was time barred. In this view of
the matter, no case is made out in favor of the
petitioner, which requires any interference under
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Article 226 of the Constitution of India. More over,
the petitioner was rightly removed from service for
the alleged misconduct of willful absence from duty so
also for violation of GF & AF Rules and such an order
which is passed after following the rules does not
require any interference by this Court. Hence, this
writ petition may be dismissed.
I have heard learned counsel for the parties
so also perused the entire pleading of the case and
perused the judgment cited by learned counsel for the
petitioner.
In this case, admittedly, the petitioner was
removed from service and in this writ petition, the
validity of order impugned Annexure-9 dated 10.8.1998
is under challenge, therefore, for adjudicating the
controversy first of all the order of removal is
required to be perused. Anexure-9 dated 10.8.1998 is
as follows :
“श आर.क. भ ल , तकन क सह यक (भ भ नतक-
व द) क य लय ररष भ जल ज न क, भ जल व भ ग प ल क न म आर प! पर म म! स#खय 772 दद #क 12.2.97 त ममल कर य गय । श आर. क. भ ल तकन क सह यक पर लग य गय आर प! पर ज #च हत) ज #च अध,क र क न य)क. क गई । ज #च अध,क र ज #च पनत द पत कम #क19 दद #क 5.5.98 स पसत)त ककय गय । ज #च अध,क र
स प प पनत द क अधयय कर क पश त उ. पनत द
15स सहमत ह त ह)य ज #च ररप र पर मलख;त अमभकथ द
हत) पत कम #क 1509 दद #क 9.6.98 ददय गय । श
आर. क. भ ल , तक क सह यक (भ भ नतक व द) पत
दद #क 28.6.98 स ज #च ररप र पर अमभकथ द हत) 10
दद स क समय च ह । श आर. क. भ ल क पनतउतर द
हत) समय द क पश त आज दद तक मलख;त अमभकथ
पसत)त ह # ककय ह ।श आर.क. भ ल पर न म आर प ह - आर प स#खय -1 दद #क 20.8.91 स 31.12.91 तक, 13.1.92 स 31.1.92 तक, 8.2.92 स 25.7.92 तक, 27.7.92 स 23.4.96 27.4.96 स न रनतर स च@ स अ )पससथत चल रह ह । श आर.क. भ ल तक क सह यक ज #च अध,क र क य ह मB उपससथत ह # हय । ज #च अध,क र अमभल;! स प य कक श भ ल उपर . खCत अ ध, मB सचच@ स अ प ) ससथत रह तथ दद #क 27.4.96 स र जय क य स अ )पससथत चल रह ह । आर प स#खय -2 ररष भजल ज न क, भजल व भ ग प ल क न दE श कक ह मसर ह सजल क सजय कGसजकल स H कर लकय पC करB , परनत) उ क द र सजय कGसजकल स H क कय ह# ककय । श आर. क. भ ल , तक क सह यक ज #च क य ह मB उपससथत ह # ह)य । श भल क व रद एक तरG क य ह अमल मB ल ई गई और इस आर प क भ मसद प य । आर प स#खय -3 आकOर अ ध, 9/92 स 4/93 क अ )स र श आर. क. भ ल भग ) त स त अ क श क तरह ल अध,क 16 भग ) त क अ ध,, अधPम त यत भत ए # अ ज अधPम क कमश रपय 2624/- रपय 1160/- रपय800/- रपय 900/- क)ल र0 5484/- प प ककय । यह
र मश श भ ल जम ह # कर ई ह ।श भ ल पर अमभल;! क आ, र पर आर प मसद प य
गय ।आर प स#खय -4 श आर. क. भ ल स स च@ स अ )पससथत रह क समQन, मB ररष भजल ज न क, प ल सपष करC उ कक य PहC नतधथ दद #क 24.4.96 प@ तथ र ग पम C पत
भ म #ग गय । श भ ल स च@ स अ )पससथत रह क
समQन, मB त सपष करC ददय और ह क ई र ग पम C
पत ह पसत)त ककय और बQ अ )मनत क य लय मB दद #क
27.4.96 स अ प
) ससथत चल रह ह
श आर. क. भ ल पर लग य उपर . च र! आर प
मसद प य ।न म हसत करकत सस एणO ए न यम! क पदत शक.य! क पय ग करत ह)य श आर. क. भ ल , तक 0 सह यक (भ) भ नतक व द) क न म द# O स द# कOत कर क आदश दत ह - 1- स च@ स र जय क य स अ )पससथनत रह क आर प मसद ह क क रC श आर. क. भ ल क र जय स स स म. ) ककय ज त ह । 2- स च@ स अ )पससथनत अ ध,य! क अ तन क अ क श स कVत ककय ज त ह । 3- र जककय र मश रपय 5484/- पलस 12 पनतशत बय ज क दर स सल श आर. क. भ ल क Qक य कलमस मB स क ज कर र जय क ष मB जम कर ई ज ।"Upon scanning the above impugned order, it is
abundantly clear that there is no discussion with
17regard to the enquiry so conducted by the enquiry
officer. The only assertion has been made with regard
to the charges levelled against the petitioner. The
only observation has been made in each of the charge
that enquiry officer has found charge to be proved.
Further, it is observed in the order that Shri R.K.
Bhola inspite of granting time to file reply has not
filed his written submission to the enquiry report
which is supplied to him. In my opinion, this
assertion is not correct in view of the fact that in
para No.10 of the writ petition, the following
assertion has been made by the petitioner :
“10. That in the enquiry, 4
charges were proved against him. The
petitioner submitted reply to the show
cause notice vide communication dated
1.7.1998, a copy whereof is being produced
herewith and marked as ANNEXURE-8.”In reply to para No.10 of the writ petition,
the following reply has been given by the respondents :
“10. That in reply to the
contents of this paragraph the answering
respondents most humbly and respectfully
submit that the averments made in it by the
petitioner are admitted to the extent that
the petitioner has submitted a reply to the
Annexure.7 vide Annexure.8 dated 1-7-98 to
the writ petition.”
18
Upon perusal of the assertion made in para
No.10 of the writ petition and in para No.10 of the
reply of the said para, it is crystal clear that the
respondents have admitted the fact that the petitioner
has filed reply to enquiry report (Annexure-7) vide
reply (Annexure-8). In this view of the matter,
obviously observation made in the removal order that
no reply was filed after receiving enquiry report
seems to be false. If disciplinary authority has made
a false assertion in the order and did not apply its
mind then obviously it is very serious matter because
the disciplinary authority at the time of deciding
fate of employee must have to take into consideration
material produced by the delinquent before him. In
this case being the disciplinary authority the Chief
Engineer was adjudicator of the enquiry and he was
required to apply its mind and he was under obligation
to make correct assertion in the order impugned but
according to facts, a false assertion has been made by
the disciplinary authority while passing order of
removal from service against the petitioner.
In this view of the matter, on one hand in
the order impugned dated 10.8.1998, it is observed by
the disciplinary authority that inspite of granting
time to file reply to show cause notice sent along
with the enquiry report, no reply has been filed
whereas upon assertion made by the petitioner in para
No.10 of the writ petition, it is replied in the Court
19
on affidavit that reply was given by the petitioner to
the show cause notice sent by the disciplinary
authority before passing final order. In my opinion,
this fact itself proves that somehow department was
firm to remove the petitioner from service.
Therefore, even without considering the reply of the
petitioner while making false assertion in the
impugned order, the petitioner was removed from
service, therefore, such type of order does not stand
before eye of law at the time of judicial scrutiny.
I have perused the enquiry report also. I am
unable to understand how the enquiry officer has given
finding without recording evidence of prosecution. In
the enquiry report, it is observed by the enquiry
officer that in all a list of three witnesses was
produced by the Department to prove charge against the
petitioner but out of three witnesses namely Shri P.C.
Rai, Shri K.S. Srivastava and Shri Rajendra Sharma
only one witness Shri P.C. Rai appeared before the
enquiry officer and after recording his statement, the
enquiry officer gave its finding that all the charges
levelled against the petitioner are proved by the
Department. In my opinion, such type of enquiry which
is not conducted in accordance with law and without
calling all record from the department. It is very
strange that in the departmental enquiry, the enquiry
officer has exhibited the documents at his own because
no witness was produced before the enquiry officer to
20
prove documents. In this view of the matter, the
department has failed to prove any documents in the
enquiry. Therefore, it can be said that the enquiry
in question conducted against the petitioner was
totally in contravention of the procedure laid down
for departmental enquiry.
In this view of the matter, though the
enquiry officer has not conducted the enquiry as per
the procedure laid down under the rules but at the
time of consideration, it was the duty of the
disciplinary authority to examine the enquiry report
so furnished by the enquiry officer but here in this
case the order impugned itself speaks that the
Disciplinary Authority has not applied its mind and
while accepting enquiry report in toto without even
perusing the enquiry report has passed the order of
removal which is in contravention of the judgment
rendered by Constitution Bench of Hon’ble Apex Court
in S.N. Mukherjee’s case (supra). The Apex Court in
the said judgment has held that reasons must be
recorded at the time of exercising judicial or quashi
judicial powers. Here, in this case, upon perusal of
the impugned removal order, it will reveal that first
of all false assertion has been made in the order
impugned that the petitioner has not filed reply to
the show cause notice sent after due enquiry whereas
before the Court it is accepted in the reply filed by
the respondents that the reply was received and
21
further no reasons are recorded by the disciplinary
authority and straightaway without application of mind
passed an order for removal of the petitioner’s
services which is not in consonance with the
provisions of law. Therefore, while following the
judgment rendered by Hon’ble Apex Court in case of
S.N. Mukherjee (supra), the non-speaking order of
removal passed against the petitioner dated 10.8.1998
deserves to be quashed because it is against the
principles of natural justice, so also it is passed by
the disciplinary authority while making false
assertion, so also without application of mind.
Accordingly, this writ petition is allowed.
Consequently, the order of removal dated 10.8.1998 is
hereby quashed and set aside. The petitioner shall be
treated in service and shall be taken on duty
forthwith. He shall be entitled for back wages from
the date of filing writ petition only, i.e.
20.05.2003. The petitioner shall further be entitled
for continuity in service for all purposes.
No order as to cost.
(GOPAL KRISHAN VYAS), J.
arun