{"id":186753,"date":"2009-03-03T00:00:00","date_gmt":"2009-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/dr-r-p-gaur-vs-state-ors-on-3-march-2009"},"modified":"2016-06-08T13:12:29","modified_gmt":"2016-06-08T07:42:29","slug":"dr-r-p-gaur-vs-state-ors-on-3-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/dr-r-p-gaur-vs-state-ors-on-3-march-2009","title":{"rendered":"Dr.R.P.Gaur vs State & Ors on 3 March, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Dr.R.P.Gaur vs State & Ors on 3 March, 2009<\/div>\n
                                         1\n\n           IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT\n\n                                     JODHPUR.\n\n\n                                     O R D E R\n\n\n\n     Dr.R.P.Gaur                v.           State of Rajasthan & Anr.\n\n\n\n\n                   S.B.CIVIL WRIT PETITION NO.2102\/2002\n                   under Article 226 of the Constitution\n                   of India.\n\n\n\n\n     Date of Order                      ::              3rd March, 2009\n\n\n\n\n                                P R E S E N T\n\n\n                    HON'BLE MR.JUSTICE GOVIND MATHUR\n\n\n     Mr.   M.S.Singhvi ]\n     Mr.   Vineet Dave ] for the petitioner.\n     Mr.   B.S.Bhati   ]\n     Mr.   Y.P.Khileree] for the respondent.\n\n                                       ....\nREPORTABLE\n\n\n     BY THE COURT :<\/pre>\n
                   The petitioner, a Junior Specialist (Surgery)<\/p>\n
     with    the   Department    of     Medical    &   Health   Services,<\/p>\n
     Government of Rajasthan, by this petition for writ is<\/p>\n
     giving challenge to the order dated 24.4.2002 passed<\/p>\n
     by    the   disciplinary    authority,       dismissing    him   from<\/p>\n
     service as a consequent to an inquiry conducted as per
\n                                            2<\/span><\/p>\n
Rule         16        of        the      Rajasthan            Civil        Services<\/p>\n
(Classification,                 Control       &    Appeal)          Rules,        1958<\/p>\n
(hereinafter referred to as “the Rules of 1958”).<\/p>\n
                  The facts of the case are that the petitioner<\/p>\n
while        working        at     Upgraded        Primary       Public       Health<\/p>\n
Centre,       Abu      Road,       as    Junior         Specialist      (Surgery),<\/p>\n
submitted          a   letter          dated    11.6.1996        to     the    Chief<\/p>\n
Medical & Health Officer, Sirohi to get his service<\/p>\n
record and service book completed as he was intending<\/p>\n
to seek voluntary retirement from service. The Deputy<\/p>\n
Secretary to the Government of Rajasthan, Jaipur by a<\/p>\n
letter dated 17.7.1996 informed the petitioner that<\/p>\n
grant of voluntary retirement from service shall not<\/p>\n
be   possible          as   a     disciplinary          proceeding      was    under<\/p>\n
contemplation against him. Relevant to note here that<\/p>\n
as a matter of fact no request upto 17.7.1996 was made<\/p>\n
by the petitioner seeking voluntary retirement from<\/p>\n
service,          however,        it    appears         that   the     respondents<\/p>\n
considered         the      letter      dated      11.6.1996      as    a     request<\/p>\n
made     by        the       petitioner            to     go    on      retirement<\/p>\n
voluntarily. As per the petitioner the then Minister<\/p>\n
of State for Medical & Health visited Upgraded Primary<\/p>\n
Public Health Centre, Abu Road on 20.6.1996 and made<\/p>\n
an open announcement for transfer of the petitioner.<\/p>\n
The petitioner accordingly submitted a representation<\/p>\n
to     the     Minister           concerned        pointing       out       that    on<\/p>\n
20.6.1996 he was on leave and as such whatever reason<\/p>\n
there was to provoke the Minister to make an open
\n                                              3<\/span><\/p>\n
announcement         regarding             transfer      was     unwarranted.            On<\/p>\n
the same day the petitioner also moved an application<\/p>\n
seeking        voluntary            retirement          from        service       w.e.f.<\/p>\n
31.10.1996 which was forwarded to the Director, Family<\/p>\n
Welfare    on       3.7.1996.         Though       the     application            of    the<\/p>\n
petitioner          relating          to     voluntary          retirement             from<\/p>\n
service was pending consideration, he was transferred<\/p>\n
from     Abu     Road          to    Makrana       under        an        order    dated<\/p>\n
26.6.1996.       A       challenge          was    given       to    the     order      of<\/p>\n
transfer       by        way    of     filing       SBCivil          Writ       Petition<\/p>\n
No.2155\/1996, wherein by an order dated 23.7.1996 this<\/p>\n
Court stayed the transfer. The Deputy Secretary to the<\/p>\n
Government          of     Rajasthan,            Department          of     Medical      &<\/p>\n
Health      Services                then      passed        an        order         dated<\/p>\n
31.8.1996\/6.9.1996                  keeping       the     petitioner            awaiting<\/p>\n
posting orders, however, this Court in SBCivil Writ<\/p>\n
Petition No.3066\/1996 stayed effect and operation of<\/p>\n
the    order        aforesaid          too.       Despite           interim       orders<\/p>\n
referred above an another order dated 20.9.1996 was<\/p>\n
passed by the Government of Rajasthan transferring the<\/p>\n
petitioner       to       Sadulpur,         District       Churu.          By     way    of<\/p>\n
filing     SBCivil             Writ        Petition        No.3500\/1996,                the<\/p>\n
petitioner also assailed validity of the order dated<\/p>\n
20.9.1996       and       therein          the    order    aforesaid            too     was<\/p>\n
stayed.\n<\/p>\n<\/p>\n
               With       the       facts     surrounding           as     above,       the<\/p>\n
petitioner          on     31.10.1996,            by      considering             himself<\/p>\n
incharge of the Upgraded Primary Public Health Centre,
\n                                        4<\/span><\/p>\n
Abu Road, passed an order dated 31.10.1996 relieving<\/p>\n
himself from service voluntarily, however, the Chief<\/p>\n
Medical & Health Officer, Sirohi cancelled the order<\/p>\n
dated    31.10.1996.          Accordingly      the       petitioner       joined<\/p>\n
back the duties with protest on 9.11.1996. An another<\/p>\n
order     dated      29.11.1996       was     passed       by     the     Deputy<\/p>\n
Secretary to the Government of Rajasthan, Department<\/p>\n
of Medical & Health Services (Group-II), placing the<\/p>\n
petitioner      under       suspension.       By    the    same    order     the<\/p>\n
headquarter       of    the    petitioner      was       changed    from     Abu<\/p>\n
Road to Jodhpur and that was again challenged by the<\/p>\n
petitioner      by     way    of     filing    SBCivil      Writ        Petition<\/p>\n
No.328\/1997, wherein too an interim order was passed<\/p>\n
staying       operation       and    effect    of    order       placing     the<\/p>\n
petitioner under suspension. Despite the interim order<\/p>\n
aforesaid, the petitioner was not taken on duty for a<\/p>\n
period of about five months. As per the petitioner<\/p>\n
even while making compliance of the interim directions<\/p>\n
given by this Court, he was not permitted to join<\/p>\n
duties at Abu Road but was instructed to report in the<\/p>\n
office    of    the     Director,      Medical       &    Health    Services,<\/p>\n
Government of Rajasthan, Jaipur. The Tehsildar, Abu<\/p>\n
Road then issued a notice dated 1.6.1998 directing the<\/p>\n
petitioner to vacate the government accommodation as a<\/p>\n
consequent of transfer from Abu Road. The petitioner<\/p>\n
by      way       of        filing         another        Writ          Petition<\/p>\n
(SBCWPNo.1968\/1998)             challenged          the     notice         dated<\/p>\n
1.6.1998 and operation and effect of that notice too<\/p>\n
was     stayed         by     this     Court.        A     Writ         Petition
\n                                             5<\/span><\/p>\n
(SBCWPNo.3066\/1996) was also filed by the petitioner<\/p>\n
seeking   direction          for       the        respondents              to       treat       him<\/p>\n
retired voluntarily w.e.f. 31.10.1996.<\/p>\n
           The     petitioner,                  then      was      served             with           a<\/p>\n
memorandum as per provisions of Rule 16 of the Rules<\/p>\n
of 1958 dated 6.5.1997 with following allegations:-<\/p>\n
           “\u092a\u0925\u092e \u0906\u0930 \u092a :-\n<\/p><\/blockquote>\n
           \u092f\u0939 \u0915          \u0909\u0915 \u0921 0          \u0906\u0930 \u092a         \u0917 \u0921,         \u0928 \u0937 \u0935 \u0936\u0937\u091c (\u0936\u0932\u092f)\n           \u0924\u0924     \u0932!     \u0938 \u090f\u091a \u0938 \u0906\u092c\u0930& \u0921 (\u0928 \u0932'\u092c\u092c\u0924) \u0928 \u091c                                \u0930\u0938+\u0917 \u0939 \u092e \u092e,\n           \u092a\u0915.\/\u0938        \u0930\u0924 \u09390, \u091c \u0905 2\u0936 \u0938 \u0939! \u0924 \u09393 \u0964                   \u091c3\u0938 \u0915           \u0906\u0930 \u092a \u0935      \u0930\u0923\n           \u092a\u0924 \u092e,       \u0930\u09238\u0924 \u09393 \u0964\n\n\n           \u0926:\u0924 \u092f \u0906\u0930 \u092a :-\n           \u092f\u0939 \u0915          \u0909\u0915 \u0921 0          \u0906\u0930 \u092a         \u0917 \u0921,         \u0928 \u0937 \u0935 \u0936\u0937\u091c (\u0936\u0932\u092f)\n           (\u0928 \u0932'\u092c\u092c\u0924) \u092a\u092d \u0930!                 \u0939 \u0924 \u09392\u090f \u092d            \u0938 \u092f' \u092a\u092d \u0930! \u092c              \u0930 \u0905\u092a\n           \u0938 \u0915>?         \u0938     \u0928       \u0928@ \u0924 \u090f '       \u092f8\u092e\u09152 \u0915      \u0906\u0926\u0936 \u091c \u0930!                 \u0930\n           \u0909\u0924\u0930\u0926 \u092f \u09390 \u090f ' \u0909>\u091a \u0905\u0927E                   \u0930\u0930\u092fG         \u0906\u0926\u0936G        H \u0905 \u0939\u0932              H \u09393\n           \u091c3\u0938 \u0915       \u0906\u0930 \u092a \u0935         \u0930\u0923 \u092a\u0924 \u092e,         \u0930\u09238\u0924 \u09393 \u0964\n\n\n           \u0924\u0924\n            @ \u092f \u0906\u0930 \u092a :-\n           \u092f\u0939 \u0915        \u0921 0 \u0906\u0930 \u092a \u0917 \u0921,               .\u0935 . (\u0936\u0932\u092f) : \u0930 \u0905\u0928 \u092f\u0930\u092e\u0924 \u090f '\n           \u0905 \u0927E @ \u0924 \u0930\u092a \u0938 \u091d\u0920\n                          & \u0926\u0938\u0924 \u091c E \u0916 E\u0921                               \u0930     \u0939\u09242 \u092c \u092f \u09390 \u090f '\n           \u0909>\u091a \u0905\u0927E           \u0930\u0930\u092fG         \u0906\u0926\u0936G         H \u0905 \u0939\u0932               H \u09393 \u0964        \u091c3\u0938    \u0915\n           \u0906\u0930 \u092a \u0935        \u0930\u0923 \u092a\u0924 \u092e,         \u0930\u09238\u0924 \u09393 \u0964\n\n\n           \u091a\u09242\u09258 \u0906\u0930 \u092a :-\n           \u092f\u0939 \u0915        \u0909\u0915 \u0921 0 \u0917 \u0921 \u0935 \u0930\u092d\u0928               \u0926\u0926 \u0938G \u092a\u0930 \u092c\u092c               \u0905     \u0936 \u0938        @\u0924\n               \u0930 \u092f \u090f ' \u0938 >?              \u0938 \u0905 2\u092a\u0915\u0938\u0925\u0924 \u0930\u0939 \u09390\u0964                   \u091c3\u0938      \u0915      \u0906\u0930 \u092a\n           \u0935    \u0930\u0923 \u092a\u0924 \u092e,           \u0930\u09238\u0924 \u09393 \u0964\"\n                                        6<\/span>\n\n\n\n<\/pre>\n
              The petitioner denied the charges, however,<\/p>\n
the     Government         considered      it     appropriate       to     hold<\/p>\n
regular inquiry in the matter, thus, by an order dated<\/p>\n
4.9.1997      the     Additional          Commissioner        (Departmental<\/p>\n
Inquiries), Jaipur was appointed as inquiry officer.<\/p>\n
From perusal of original record of the inquiry, it<\/p>\n
reveals that on 3.12.1997 the Inquiry Officer ordered<\/p>\n
to     proceed      with     the     inquiry      exparte        against   the<\/p>\n
petitioner       and         on      24.2.1998,          after      recording<\/p>\n
statements       of        Dr.K.L.Bafna,         the     inquiry      officer<\/p>\n
reserved the matter to draw his report. On 4.5.1998<\/p>\n
the     report        of     inquiry       was       submitted       to     the<\/p>\n
disciplinary authority and a copy of that was served<\/p>\n
upon    the   petitioner          under    a    latter    dated     19.5.1998<\/p>\n
with    instructions         to    submit      his     comments     regarding<\/p>\n
findings given by the inquiry officer. The petitioner<\/p>\n
through a representation dated 29.5.1998 agitated his<\/p>\n
cause regarding completion of inquiry in violation of<\/p>\n
principles       of        natural     justice.         The      disciplinary<\/p>\n
authority after considering all relevant aspects of<\/p>\n
the matter on 21.12.1998, noted as follows:-<\/p>\n
              “Discussed. There is no proof to show the
\n              service of the notice, as such if approved,
\n              re-enquiry be made in this case. In case of
\n              approval    Additional  Commissioner-I   be
\n              appointed also.”<\/p><\/blockquote>\n
\n                                         7<\/span><\/p>\n
                 On receiving necessary approval as per the<\/p>\n
note    aforesaid,           entire    record       of    the    inquiry      was<\/p>\n
remitted         to    the    inquiry       officer       for    holding      the<\/p>\n
inquiry afresh.\n<\/p>\n<\/p>\n
                 On   16.4.1999       the     inquiry       officer     recorded<\/p>\n
preliminary statements of the petitioner and fixed the<\/p>\n
matter       on       19.5.1999       for     recording         evidence.      On<\/p>\n
19.5.1999 certain documents were placed on record by<\/p>\n
the presenting officer and those were marked as Ex.1<\/p>\n
to Ex.8. An instruction was also given by the inquiry<\/p>\n
officer to the prosecution to get the documents denied<\/p>\n
by     the       petitioner         proved.       On     27.5.1999       certain<\/p>\n
documents were presented by the petitioner in defence,<\/p>\n
copies whereof were also supplied to the presenting<\/p>\n
officer.         On   4.11.1999       the     inquiry       officer     recorded<\/p>\n
statements of Shri Bhanwar Singh Deora, the then Chief<\/p>\n
Medical      &    Health      Officer,      Sirohi       who    also    verified<\/p>\n
certain          documents        (Ex.9        to      Ex.16)         filed   to<\/p>\n
substantiate the charges. The documents filed by the<\/p>\n
petitioner in defence were also exhibited as Ex.D\/1 to<\/p>\n
Ex.D\/6.      The      matter     then       was     fixed      for    submitting<\/p>\n
written      arguments        and     after    receiving        the    same   the<\/p>\n
inquiry officer on 17.12.1999 heard the parties and<\/p>\n
reserved the matter for dictation of the report of<\/p>\n
inquiry. The inquiry officer remitted his report to<\/p>\n
the disciplinary authority on 22.3.2000. The Deputy<\/p>\n
Secretary to the Government of Rajasthan, Department
\n                                         8<\/span><\/p>\n
of Personnel (Group-III) under a communication dated<\/p>\n
4.4.2000      supplied      a    copy       of   inquiry    report      to   the<\/p>\n
petitioner with instructions to submit his comments<\/p>\n
thereon.      The      petitioner           accordingly        submitted       a<\/p>\n
representation         to        the        competent       authority        on<\/p>\n
18.4.2000. The petitioner in specific terms stated in<\/p>\n
his   representation            that    the       inquiry     officer      while<\/p>\n
giving      findings    against        the       petitioner    for   all     the<\/p>\n
charges relied upon certain documents without getting<\/p>\n
contents of those proved. The petitioner also stated<\/p>\n
that the allegation of insubordination itself was ill-<\/p>\n
founded as his request seeking voluntary retirement<\/p>\n
was never denied. It was made clear by the petitioner<\/p>\n
that the letter dated 11.6.1996 was not an application<\/p>\n
seeking voluntary retirement but was only a request to<\/p>\n
complete his service record and as such the response<\/p>\n
to    the    letter    aforesaid            under    communication         dated<\/p>\n
17.7.1996      was     absolutely           unwarranted.       As    per     the<\/p>\n
petitioner      his    notice      for       voluntary      retirement       was<\/p>\n
dated 26.6.1996 which was forwarded to the Director,<\/p>\n
Medical & Health Services on 3.7.1996 and the same was<\/p>\n
received by the Government of Rajasthan on 29.8.1996<\/p>\n
and the request under the notice was never declined.<\/p>\n
The      petitioner,        therefore,              considering       himself<\/p>\n
incharge of Upgraded Primary Public Health Centre, Abu<\/p>\n
Road, got relieved from service on 31.10.1996. As per<\/p>\n
the petitioner on 31.10.1996 he was incharge of the<\/p>\n
Upgraded Primary Public Health Centre, Abu Road, being<\/p>\n
senior most officer. With regard to allegation No.4
\n                                                 9<\/span><\/p>\n
relating     to           unauthorised               absence,        the     petitioner<\/p>\n
submitted that necessary applications were sent by him<\/p>\n
to   seek    leave         and       this       fact     was     accepted          by    the<\/p>\n
inquiry officer too. It was asserted by the petitioner<\/p>\n
that    leaves        for     the     period           in   question         were       also<\/p>\n
accepted     by       the     competent              officer     i.e.        the     Chief<\/p>\n
Medical & Health Officer, Sirohi.\n<\/p>\n<\/p>\n
             From          record          it        also     appears        that       the\n\ndisciplinary          authority            also       sought     certain          comments\n\n<\/pre>\n
from the Joint Director, Medical & Health Services,<\/p>\n
Jodhpur Zone, Jodhpur regarding petitioner’s presence<\/p>\n
at     headquarters          during         the        period        he     was     facing<\/p>\n
suspension.          The      Joint         Director,           by     letter        dated<\/p>\n
14.9.2001        informed        to     the          Deputy     Secretary          to    the<\/p>\n
Government           of     Rajasthan,               Department        of     Personnel<\/p>\n
(Group-III) that during the period of suspension the<\/p>\n
petitioner never reported at the place his headquarter<\/p>\n
was fixed and as such no subsistence allowance was<\/p>\n
also paid to him.\n<\/p>\n<\/p>\n
             The           disciplinary                authority            tentatively<\/p>\n
decided     to       impose      a    penalty          of     dismissal       upon       the<\/p>\n
petitioner, therefore, concurrence was sought from the<\/p>\n
Rajasthan        Public       Service               Commission       vide     a     letter<\/p>\n
dated    8.1.2002,          which       was          granted     by       letter     dated<\/p>\n
1.3.2002.        Accordingly,               vide        order        impugned        dated<\/p>\n
24.4.2002        a    penalty         of    dismissal           from       service       was<\/p>\n
inflicted upon the petitioner. The entire discussion
\n                                              10<\/span><\/p>\n
made by the disciplinary authority in the order dated<\/p>\n
24.4.2002       relating          to        petitioner’s                delinquency              and<\/p>\n
guilt that ultimately resulted into his dismissal from<\/p>\n
service, reads as follows:-\n<\/p>\n<\/p>\n
            \"\u0921 0 \u0906\u0930.\u092a .\u0917 \u0921 : \u0930                    \u092a\u0938\u0924\u0924\n                                                     2 \u0905\u092d\u092f \u0926                         \u091c '\u091a \u092a\u0928\u0924 \u0926\n            \u0924\u0925       \u092a \u0930\u0923             \u0905\u0930\u092d\u0932\u0916            \u0938 \u0925 \u092a\u0930!\u0915\u0923 \u0915 \u092f                     \u0917\u092f    \u0915\u091c\u0938\n            \u0935    \u091a    \u0928 \u092e         \u0938\n                                  2 \u0930 \u09393 :-\n\n\n            \u092a\u0938\u09242\u0924 \u092a \u0930\u0923 \u0921 0 \u0906\u0930.\u092a .\u0917 \u0921                                   \u0935 \u0930\u0926 \u0935 \u092d \u0917 \u092f \u091c '\u091a\n            \u0938'\u092c'E \u092e, \u09393 \u0964         \u0909\u0928\u0939, \u0926\u0926 '            29.11.1996                    \u0928 \u0932\u0915\u092e\u092c\u0924           \u0930\n            \u0909        \u092e\u0916\n                      2 \u092f \u0932\u092f \u0938'\u092f2\u0915 \u0928 \u0926\u0936 , \u091c E\u092a2\u0930                                 \u092f 8\u0932\u092f \u092e, \u0915 \u092f\n            \u0917\u092f \u0925 \u0964         \u0909     \u092a\u0930 \u0938 \u0915>?             \u0905 \u092a\n                                                        2 \u0915\u0938\u0925\u0928\u0924            \u0906\u0930 \u092a \u0925 \u0915\u091c\u0938 \u091c '\u091a\n            \u0905\u0927E      \u0930!         \u092a\u092e \u0930\u0923\u0924 \u092e               \u09393 \u0964        \u091c '\u091a \u092a\u0928\u0924 \u0926                 \u0938'\u092c'\u0927E\u0924\n            \u0905\u0930\u092d\u0932\u0916              \u0938 \u0925 \u092a\u0930!\u0915\u0923 \u0915 \u092f \u0964                 \u092a\u0930!\u0915\u0923       \u0930             \u092a\u0936 \u0924 \u0938'\u092f2\u0915\n            \u0928 \u0926\u0936 , \u091c E\u092a2\u0930 \u0938 \u0926\/\u092a\u092a\u0923                          \u091a \u0939! \u0917\u0908\u0964            \u0938'\u092f2\u0915 \u0928 \u0926\u0936\n            \u0926\/\u092a\u092a\u0923 \u0930\u092d\u091c \u0908 \u0915                   \u0921 0 \u0917 \u0921 \u0928 \u0932\u092e\u092c                \u0905 \u0927E \u092e,              \u0928 E 8\u0930\u0930\u0924\n            \u092e\u0916\n             2 \u092f \u0932\u092f \u092a\u0930 \u0909\u092a\u0915\u0938\u0925\u0924                    \u0939!' \u090f ' \u092a& 8 \u0924 \u0928 \u091c            \u0930\u0938+\u0917 \u0939 \u092e \u092e,            \u092f8\n                \u0930\u0924 \u0930\u0939\u0964         \u091c '\u091a         \u0926\u0930        \u0924\u0924      \u0932!       \u092e\u0916\n                                                                        2 \u092f \u0927\u091a\u0915 \u0924\u0938 \u090f ' \u0938 .\n            \u0905\u0927E      \u0930!, \u0930\u0938\u0930 \u0939!             \u0905 \u0927E @ \u0924 \u0930\u092a \u0938 \u0921 0 \u0917 \u0921                             \u0906\u0930 \u0935\u092a\u0924\n            \u0905 \u0927E           \u0905          \u0936 \u0938        @\u0924    \u0930 \u0926\u0926\u092f \u0915\u091c\u0938               \u0930\u0932\u092f        \u0938\u0915\u092e         \u0939!'\n            \u0925\u0964\n\n\n            \u0909\u092a\u0930 \u0915 \u0935        \u091a      \u0938 \u0921 0 \u0906\u0930.\u092a .\u0917 \u0921 \u092a\u0930 \u0932\u0917 \u092f \u0917\u092f \u0906\u0930 \u092a \u0909\n            \u0935 \u0930\u0926 \u092a\u0923\n                  & 8 \u0930\u092a \u0938 \u0930\u0938\u0926 \u0939 \u0924 \u09390\u0964\n\n\n            \u0905\u0924: \u0930\u0938\u0926 \u0906\u0930 \u092a                   H \u0917'\u092d \u0930\u0924            \u0926\u0916\u0924 \u09392\u090f \u0921 0 \u0906\u0930.\u092a .\u0917 \u0921,\n                \u0928 \u0937 \u0935 \u0936\u0937\u091c                 \u0930 \u091c\u092f \u0938       \u0938 \u092a\u0926>\u092f\u0924\n                                                             2             \u0930             \u0926\u0923\u0921 \u0926\n            \u0905 \u0915\u0928\u0924\u092e \u0928 \u09238\u092f \u0930\u0932\u092f \u0917\u092f \u0964                          \u0924\u0924\u092a\u0936 \u0924 \u092e \u092e\u0932 \u092e\u092f \u0905\u0930\u092d\u0932\u0916\n            \u0930 \u091c\u0938\u0925          \u0932          \u0938      \u0906\u092f \u0917                  \u0909       \u092a\u0930 \u092e\u09368 \u0939\u09242 \u0926\u0926 '\n            8.1.2002                  \u0930\u092d\u091c \u092f \u0917\u092f \u0964              \u0930 \u091c\u0938\u0925        \u0932         \u0938     \u0906\u092f \u0917\n            \u0909         \u092a\u0924       \u0938'\u0916\u092f        \u092a.1(106)\u0935 \u091c \/2001-02\/1235                           \u0926\u0926 '\n                                         11<\/span>\n\n            1.3.2002 : \u0930 \u0906\u092f \u0917                H \u0930 \u092f \u0930\u092d\u091c \u0908 \u0915\u091c\u0938\u092e, \u0930 \u091c\u092f \u0938\u0930              \u0930\n            : \u0930 \u092a\u0938\u0924 \u0935 \u0924 \u0926\u0923\u0921 \u0938 \u0905\u092a                  \u0938\u0939\u092e\u0928\u0924 \u0935\u092f\u0915      H \u0917\u0908\u0964\n\n\n            \u0905\u0924:       \u0930 \u091c\u092f\u092a \u0932 \u092e\u0939 \u0926\u092f \u0921 0             \u0906\u0930.\u0938 .\u0917 \u0921,           \u0928 \u0937 \u0935 \u0936\u0937\u091c\n            (\u0936\u0932\u092f) \u0909.\u092a .\u0938 .              \u0928Y \u0906\u092c&\u0930 \u0921 \u0915\u091c\u0932 - \u0930\u0938\u0930 \u0939!             \u0930 \u091c\u092f \u0938\n            \u0938 \u092a\u0926>\u092f\u0924\n                  2         \u0930        \u0926\u0923\u0921 \u0926           \u090f\u0924\u0926 : \u0930 \u0906\u0926\u0936 \u092a\u0926             \u0930\u0924\n            \u09390\u0964\"\n\n\n\n\n<\/pre>\n
            As per counsel for the petitioner, the order<\/p>\n
dated 24.4.2002 is illegal being an out come of the<\/p>\n
proceedings conducted in contravention of doctrine of<\/p>\n
reasonable       opportunity         and          principles        of     natural<\/p>\n
justice on various counts including that:-<\/p>\n
(1)    the statements of Dr.K.L.Bafna were recorded on<\/p>\n
24.2.1998       and      thereafter          on     4.5.1998       the     inquiry<\/p>\n
officer     submitted        his     report          to    the     disciplinary<\/p>\n
authority, but the proceedings so conducted were not<\/p>\n
found   valid,        as   such    on    21.12.1998         a      decision    was<\/p>\n
taken to hold the inquiry afresh. During the course of<\/p>\n
inquiry conducted afresh, statements of Dr.K.L.Bafna<\/p>\n
were    never      put     down,   however,          the    inquiry        officer<\/p>\n
considered         and      relied       upon        the      statements        of<\/p>\n
Dr.K.L.Bafna recorded on 24.2.1998. Neither copy of<\/p>\n
the statements deposed by Dr.K.L.Bafna was given to<\/p>\n
the petitioner nor he was allowed to cross examine<\/p>\n
aforesaid       Dr.Bafna,          hence          denial      of     reasonable<\/p>\n
opportunity for defence is apparent.\n<\/p>\n
                                       12<\/span><\/p>\n
(2)    the inquiry officer while holding the petitioner<\/p>\n
guilty   for     the    charges      levelled      against    him   relied<\/p>\n
upon the preliminary inquiry report given by the Sub<\/p>\n
Divisional Officer, Abu Road, however, contents of the<\/p>\n
aforesaid inquiry report were not at all proved. The<\/p>\n
Sub Divisional Officer, Abu Road was not even called<\/p>\n
for to prove the preliminary inquiry report and also<\/p>\n
the contents made therein;\n<\/p>\n
(3)    without    getting the         documents      submitted by      the<\/p>\n
prosecution proved, the inquiry officer relied upon<\/p>\n
those documents and that caused denial of reasonable<\/p>\n
opportunity for defence;\n<\/p>\n
(4)    the disciplinary authority sought comments from<\/p>\n
the Joint Director, Medical & Health Services, Jodhpur<\/p>\n
while considering record of inquiry. The comments so<\/p>\n
submitted were relied upon, though the same were not<\/p>\n
part of the record of inquiry. If the disciplinary<\/p>\n
authority,       for     any        good    reason        considered    it<\/p>\n
appropriate to call comments from the Joint Director,<\/p>\n
then   the   petitioner        should      have    been    apprised    with<\/p>\n
such    comments       with    an    opportunity      to     explain   his<\/p>\n
version and also to cross examine the Joint Director,<\/p>\n
if required; and<\/p>\n
(5)    the order impugned dated 24.4.2002 is in gross<\/p>\n
violation of Rule 16(9) of the Rules of 1958 being not<\/p>\n
prescribing      finding       against       the     charges     levelled
\n                                         13<\/span><\/p>\n
against   the     petitioner.           The        order     passed         by     the<\/p>\n
disciplinary authority is further bad being lacking<\/p>\n
reasons    for     reaching           at       the         conclusion            which<\/p>\n
ultimately resulted in dismissal of the petitioner.<\/p>\n
           Per     contra,       as      per        the    respondents,            the<\/p>\n
entire inquiry was conducted in accordance with the<\/p>\n
procedure prescribed under Rule 16 of the Rules of<\/p>\n
1958.     According         to      the            respondents,         adequate<\/p>\n
opportunity      was    given      to        the    petitioner         to    defend<\/p>\n
himself    and     he       availed          the     same.        As    per       the<\/p>\n
respondents,       the        petitioner              himself          in         most<\/p>\n
unambiguous      terms      accepted         that     he    was    going         to   a<\/p>\n
private    hospital          for         examining           patients             and,<\/p>\n
therefore, guilt of the petitioner is established even<\/p>\n
by   admission.        It   is   asserted            by    counsel      for       the<\/p>\n
respondent State that the petitioner knowing it well<\/p>\n
that on 31.10.1996 he was not incharge of Upgraded<\/p>\n
Primary Public Health Centre, Abu Road, dared to issue<\/p>\n
an order to relieve himself from duties by treating<\/p>\n
himself retired voluntarily from service, as such his<\/p>\n
conduct is self-speaking and no sympathy deserves to<\/p>\n
be extended for such an employee. According to counsel<\/p>\n
for the respondents the petitioner neither demanded<\/p>\n
for a copy of the statements given by Dr.K.L.Bafna nor<\/p>\n
he requested to cross examine Dr.K.L.Bafna. By placing<\/p>\n
reliance upon the judgment of Hon’ble Supreme Court in<\/p>\n
Ram Kumar v. State of Haryana, 1987 (Suppl.) SCC 582,<\/p>\n
it is asserted by counsel for the respondents that the
\n                                      14<\/span><\/p>\n
need   for     giving    specific         reasons       for   holding     the<\/p>\n
petitioner guilty was not there as the disciplinary<\/p>\n
authority accepted the reasons and findings given by<\/p>\n
the inquiry officer.\n<\/p>\n<\/p>\n
             Heard counsel for the parties and examined<\/p>\n
the record.\n<\/p>\n
             While    pointing       out    various        infirmities    in<\/p>\n
inquiry      proceedings     and     the        order     passed    by    the<\/p>\n
disciplinary authority, the contention of counsel for<\/p>\n
the    petitioner     is    relating        to     gross      violation    of<\/p>\n
principles       of     natural           justice       and      reasonable<\/p>\n
opportunity.\n<\/p>\n<\/p>\n
             The proceedings against the petitioner were<\/p>\n
conducted as per provisions of Rule 16 of the Rules of<\/p>\n
1958 and sub-rule(9) of Rule aforesaid prescribes that<\/p>\n
“the disciplinary authority shall, if it is not the<\/p>\n
inquiring authority, consider the record of inquiry<\/p>\n
and    record     its       finding        on      each       charge.     The<\/p>\n
disciplinary      authority        may      while       considering       the<\/p>\n
report    of    the     inquiring         authority        for   just     and<\/p>\n
sufficient reasons to be recorded in writing remand<\/p>\n
the case for further\/denovo inquiry, in case it has<\/p>\n
reason to believe that the inquiry already conducted<\/p>\n
has been laconic in some respect or the other”. The<\/p>\n
disciplinary     authority      on        being    satisfied       that   the<\/p>\n
inquiring authority proceeded against the petitioner<\/p>\n
without   effecting        service    of     the    notices,       held   the
\n                                               15<\/span><\/p>\n
inquiry          proceedings              laconic,             accordingly,             on<\/p>\n
21.12.1998 decided to hold re-inquiry. In pursuant to<\/p>\n
the    decision         aforesaid             process          of      fresh     inquiry<\/p>\n
started on 16.4.1999 and the inquiry officer examined<\/p>\n
Dr. Bhanwar Singh Deora as a prosecution witness on<\/p>\n
4.11.1999. Shri Bhanwar Singh Deora verified documents<\/p>\n
Ex.9   to    Ex.16,          however,         the       disciplinary           authority<\/p>\n
while giving finding of guilt against the petitioner<\/p>\n
considered            and     relied           upon        the       statements         of<\/p>\n
Dr.K.L.Bafna, those were recorded on 24.2.1998. The<\/p>\n
statements of Dr.K.L.Bafna were recorded in absence of<\/p>\n
the petitioner and that too without effecting service<\/p>\n
of the notices, as held by the disciplinary authority<\/p>\n
on 21.12.1998. On minute examination of the details<\/p>\n
relating to statements given by Dr.K.L.Bafna, it is<\/p>\n
apparent that the inquiry officer based his findings<\/p>\n
on the documents those were verified by Dr.K.L.Bafna.<\/p>\n
The    documents             Ex.1        to        Ex.8     were        verified        by<\/p>\n
Dr.K.L.Bafna          whose     statements              recorded        on     24.2.1998<\/p>\n
were admittedly not treated as part of the inquiry<\/p>\n
record.     The       findings       given           by    the      inquiry      officer<\/p>\n
relating         to    charge       No.2           is     solely       based    on     the<\/p>\n
documents verified by Dr.K.L.Bafna and as such it can<\/p>\n
be    definitely        said        that      the       inquiry        officer       while<\/p>\n
holding      the        petitioner                 guilty        has     taken        into<\/p>\n
consideration          documents          which         were     not    part     of    the<\/p>\n
record      of    inquiry.          As    a        matter      of    fact,      whatever<\/p>\n
statements        given       by    Dr.K.L.Bafna               and     the     documents<\/p>\n
verified         by    him    could           not       have     been     taken       into
\n                                          16<\/span><\/p>\n
consideration by the inquiry officer as those were not<\/p>\n
part of the inquiry record in view of the disciplinary<\/p>\n
authority’s decision dated 21.12.1998.<\/p>\n
                While meeting with the contention aforesaid,<\/p>\n
it   is    stated         by   counsel        for   the     respondents            that<\/p>\n
though the statements of Dr.K.L.Bafna were recorded<\/p>\n
prior to 16.4.1999 i.e. the date of initiating re-<\/p>\n
inquiry against the petitioner but the consideration<\/p>\n
of   the    documents          verified       by    Dr.K.L.Bafna            does    not<\/p>\n
make the inquiry proceedings bad as no prejudice was<\/p>\n
caused to the petitioner’s right to defend himself. I<\/p>\n
am not at all convinced with the submission aforesaid.<\/p>\n
As   already          said,      the     inquiry      officer          based        his<\/p>\n
findings on the statements of Dr.K.L.Bafna, and the<\/p>\n
petitioner was having no opportunity to cross examine<\/p>\n
him or to say anything in rebuttal regarding documents<\/p>\n
verified        by    Dr.K.L.Bafna.           The   right     of       defence       by<\/p>\n
providing reasonable opportunity is a valuable right<\/p>\n
and whenever such a right is denied or even injured<\/p>\n
while considering a case of a civil servant regarding<\/p>\n
imposition           of   a    major     penalty,         then        the    primary<\/p>\n
assumption           is   that    the     same       must    have          caused    a<\/p>\n
prejudice to the rights to defence of a civil servant.<\/p>\n
Merely by saying that no prejudice is caused, is not<\/p>\n
sufficient. The employer is required to satisfy the<\/p>\n
Court      that      as   to    how    consideration         of       an    evidence<\/p>\n
which is not part of the inquiry has not effected a<\/p>\n
right      of     civil        servant    for       having        a     reasonable
\n                                    17<\/span><\/p>\n
opportunity for defence or even by violation of that<\/p>\n
the charge levelled stands established.<\/p>\n
             While relying upon sub-rule(9) of Rule 16 of<\/p>\n
the Rules of 1958, it is also contended by counsel for<\/p>\n
the petitioner that no finding against each and every<\/p>\n
charge is recorded by the disciplinary authority after<\/p>\n
considering record of inquiry. The order impugned was<\/p>\n
passed       by    the   disciplinary         authority       in    most<\/p>\n
mechanical manner without assigning any reason to hold<\/p>\n
the    petitioner        guilty       for    the     allegations      of<\/p>\n
misconduct. As per the respondents, there was no need<\/p>\n
to    pass    a    speaking     and     reasoned      order    by   the<\/p>\n
disciplinary authority holding the petitioner guilty<\/p>\n
for a misconduct as the order passed by him is nothing<\/p>\n
but affirmance of the findings given by the inquiry<\/p>\n
officer.      On   examination        of    order    passed    by    the<\/p>\n
disciplinary authority dated 24.4.2002, it is clear<\/p>\n
that as a matter of fact the disciplinary authority<\/p>\n
did   not    consider    even     the      inquiry   report   and    the<\/p>\n
record of inquiry as per requirement of sub-rule(9) of<\/p>\n
Rule 16 of the Rules of 1958 and also as per general<\/p>\n
principles of consideration of record of inquiry by a<\/p>\n
quasi judicial authority. The disciplinary authority<\/p>\n
while imposing penalty of dismissal mentioned that the<\/p>\n
allegation of unauthorised absence was found proved by<\/p>\n
the inquiry officer and the Joint Director also made a<\/p>\n
comment regarding absence of the petitioner during the<\/p>\n
period of suspension.\n<\/p>\n
                                            18<\/span><\/p>\n
              Sub-rule(9) of Rule 16 of the Rules of 1958<\/p>\n
casts     a     statutory             obligation            upon        disciplinary<\/p>\n
authority      to     consider        entire       record        of      inquiry    and<\/p>\n
also the inquiry report and then to record his finding<\/p>\n
against       each       charge.          From    perusal          of      the    order<\/p>\n
impugned       it        is      apparent         that       the        disciplinary<\/p>\n
authority acted in most casual manner and in flagrant<\/p>\n
contravention of Rule 16(9) of the Rules of 1958. It<\/p>\n
does not reveal from reading of the order impugned<\/p>\n
that    any    objective            consideration           of     the     record    of<\/p>\n
inquiry was made. The petitioner was subjected to an<\/p>\n
inquiry       for    four        allegations        but      the        disciplinary<\/p>\n
authority       in        most       vague       terms      stated         that     the<\/p>\n
delinquent      employee            was    found    guilty         for      remaining<\/p>\n
absent voluntarily and also that an adverse comment<\/p>\n
was made by the Joint Director. As per sub-rule(9) of<\/p>\n
Rule    16     of        the     Rules      of    1958       the        disciplinary<\/p>\n
authority is under a statutory obligation to give his<\/p>\n
definite finding against each charge. The statutory<\/p>\n
requirement aforesaid is not a mere formality but a<\/p>\n
mandatory       need           to     establish          objectivity              while<\/p>\n
considering case of a civil servant whose conduct is<\/p>\n
under    screening.            The    findings         of    the        disciplinary<\/p>\n
authority       are       required          to    be     substantiated             with<\/p>\n
reasons       and    reasons         can     be    gathered           by    objective<\/p>\n
assessment          of     the       inquiry       record          that      includes<\/p>\n
evidence. If the disciplinary authority has not given<\/p>\n
findings against each charge, then it reflects that he
\n                                              19<\/span><\/p>\n
has    not        taken       into       consideration           record              of    the<\/p>\n
inquiry. In the present case, as a matter of fact no<\/p>\n
finding       is       recorded         by    the    disciplinary               authority<\/p>\n
against       any       of     the       charge         levelled       against             the<\/p>\n
petitioner. As such the assumption is that record of<\/p>\n
inquiry       was       not     considered              and    assessed              by    the<\/p>\n
disciplinary            authority            while       imposing          a     severest<\/p>\n
penalty i.e. of dismissal.\n<\/p>\n<\/p>\n
              I     also      found      from       examination        of        original<\/p>\n
record of inquiry that the disciplinary authority on<\/p>\n
2.5.2000          sought       certain         comments         from           the        Chief<\/p>\n
Medical & Health Officer who sanctioned leave of the<\/p>\n
petitioner         for       the     period        he    remained          absent          for<\/p>\n
duties.       A     tentative           decision         then        was        taken       on<\/p>\n
9.10.2001         by    disciplinary              authority      to    dismiss             the<\/p>\n
petitioner from service, but at this stage no reason<\/p>\n
was   recorded.          The       matter      was      then    referred             to    the<\/p>\n
Chief Minister as per existing standing orders and the<\/p>\n
Chief Minister approved tentative punishment, however,<\/p>\n
resultant         is    that       no    finding         was    recorded             by    the<\/p>\n
disciplinary authority at any stage against any of the<\/p>\n
charge, as required under sub-rule(9) of Rule 16 of<\/p>\n
the Rules of 1958. On pondering of complete record, I<\/p>\n
no    where       found       sensitive           consideration            of        inquiry<\/p>\n
record       and        inquiry          report         by     the     disciplinary<\/p>\n
authority to give definite findings against each and<\/p>\n
every charge for which the petitioner was subjected to<\/p>\n
disciplinary action.\n<\/p>\n
                                      20<\/span><\/p>\n
           The    argument         advanced      by    counsel    for    the<\/p>\n
respondents that the order passed by the disciplinary<\/p>\n
authority is an order of affirmance and, therefore, no<\/p>\n
definite   finding          or     reasoning     was        necessary,   is<\/p>\n
absolutely worthless as a statutory authority cannot<\/p>\n
be permitted to act contrary to statutory procedure.<\/p>\n
For the sake of argument, even if it is assumed that<\/p>\n
there would have been no provision as of sub-rule(9)<\/p>\n
of Rule 16 of the Rules of 1958 demanding findings of<\/p>\n
disciplinary authority against each and every charge,<\/p>\n
then too the principles of natural justice calls for<\/p>\n
an   speaking    and   reasoned        order     by    the    disciplinary<\/p>\n
authority in every case where comments are sought from<\/p>\n
a delinquent employee relating to findings given by<\/p>\n
the inquiry officer. This Court in S.L.Gupta v. LIC &<\/p>\n
Anr.,   reported       in        2005(4)   RDD        861    (Raj),   while<\/p>\n
considering the same issue, held as follows:-<\/p>\n
           “In   a   quasi   judicial   inquiry   if   the
\n           delinquent is being deprived of knowledge of
\n           the material against him though the same is
\n           being available to the disciplinary authority
\n           in the matter of reaching his conclusion
\n           rules of natural justice would be affected.
\n           In view of this position of law the inquiry
\n           report wherein an employee is found guilty,
\n           is   adverse   material   to   the   delinquent
\n           employee. In the present case also the
\n           inquiry report alongwith the notice to show-
\n           cause was given to the petitioner as an
\n           adverse material and the petitioner was
\n                           21<\/span><\/p>\n
         required to meet the same by submitting a
\n         reply. The petitioner submitted a reply to
\n         the disciplinary authority and raised various
\n         objections    with  regard    to    denial  of
\n         opportunity of defence and also with regard
\n         to the findings of the Inquiry Officer. As I
\n         stated above that in the light of the law
\n         laid-down by Hon’ble Supreme Court in the
\n         case of Mohd. Ramzan Khan’s case (supra) the
\n         inquiry report is an adverse material.
\n         Therefore, the agreements to the findings by
\n         the disciplinary authority was tentative. The
\n         disciplinary authority after receiving the
\n         order of comments by the delinquent employee
\n         is always required to reach at its own
\n         findings and conclusions. The disciplinary
\n         authority is under an obligation to deal with
\n         the objections raised by the employee and he
\n         is   required   to  prescribe    findings  and
\n         conclusions supported by the reasons. In a
\n         case where a copy of the inquiry report is
\n         supplied to a delinquent employee with a
\n         notice to show-cause with regard to proposed
\n         punishment, the principle laid-down in the
\n         case of Ram Kumar’s case (Supra) cannot be
\n         applied. These are not the case of agreement
\n         with the findings of Inquiry Officer but in
\n         these cases the inquiry report itself has
\n         been treated as an adverse material, as such
\n         it is all the more necessary for the
\n         disciplinary authority to record reasons in
\n         support of his findings and conclusions.”<\/p><\/blockquote>\n
         In view of the discussion made above, the<\/p>\n
violation of sub-rule(9) of Rule 16 of the Rules of<\/p>\n
1958 as well as violation of principles of natural<\/p>\n
justice in the present case is apparent.
\n                                        22<\/span><\/p>\n
            An important aspect of the matter is that the<\/p>\n
disciplinary authority has taken into consideration a<\/p>\n
report of the preliminary inquiry (Ex.9) conducted by<\/p>\n
the   Sub   Divisional          Officer,      Mount     Abut.    The    report<\/p>\n
dated 16.6.1996 of the preliminary inquiry was placed<\/p>\n
on record by the prosecution and existence of that was<\/p>\n
established       by   Dr.      Bhanwar       Singh    Deora    (PW-2).       The<\/p>\n
allegation    No.1        was       found     established       against       the<\/p>\n
petitioner        solely       on     basis     of     contents        of    the<\/p>\n
preliminary        inquiry          report       aforesaid.       The        Sub<\/p>\n
Divisional        Officer,       who    conducted        the    preliminary<\/p>\n
inquiry     and    submitted         the      report    dated     16.6.1996,<\/p>\n
though was desired to be produced as witness in the<\/p>\n
list of witnesses given by the presenting officer, but<\/p>\n
during the course of inquiry he never came up for his<\/p>\n
examination.       Shri      Bhanwar        Singh     Deora    (PW-2)       could<\/p>\n
have certainly introduced and verified existence of<\/p>\n
the document i.e. preliminary inquiry report but in no<\/p>\n
way contents thereof could have been found established<\/p>\n
merely by proving its existence. The introduction of<\/p>\n
the document make it a part of record but in no way it<\/p>\n
establish    the       truth    of     what    the     document    contains.<\/p>\n
Mere placement of a document on record by a valid<\/p>\n
custodian does not imply truth of the contents made in<\/p>\n
such document and no such document can be relied upon<\/p>\n
until a witness having knowledge of the contents is<\/p>\n
examined with an opportunity to the delinquent person<\/p>\n
to exercise his right of cross examination to impugn
\n                                         23<\/span><\/p>\n
the contents of the document. It is always desirable<\/p>\n
to see that a competent witness proves a document and<\/p>\n
also    that   how    that       document       proves      the     allegation<\/p>\n
against delinquent. In the case in hand, Dr. Bhanwar<\/p>\n
Singh Deora (PW-2) proved existence of the documents<\/p>\n
but its contents remained unestablished and as such<\/p>\n
that document in no case could have been used to prove<\/p>\n
the allegations against the petitioner. The contents<\/p>\n
made in the report of preliminary inquiry could have<\/p>\n
been proved only by the inquiry officer who conducted<\/p>\n
that inquiry. The report of the preliminary inquiry is<\/p>\n
available      on    record      of     inquiry       as    Ex.9     and    from<\/p>\n
reading thereof it is apparent that the preliminary<\/p>\n
inquiry officer considered few complaints made against<\/p>\n
the    petitioner     and       also    recorded      statements       of    few<\/p>\n
people.     The     entire       exercise,       being       a     preliminary<\/p>\n
inquiry was conducted behind back of the petitioner<\/p>\n
and as such it was not open for the inquiry officer to<\/p>\n
rely    upon      report     of        preliminary         inquiry     without<\/p>\n
getting    contents        of     that       proved    by    examining       the<\/p>\n
preliminary inquiry officer who submitted report dated<\/p>\n
16.6.1996 and by affording a chance to the petitioner<\/p>\n
to cross examine the aforesaid inquiry officer.<\/p>\n
            The      disciplinary            authority      while    imposing<\/p>\n
severest penalty i.e. dismissal upon the petitioner<\/p>\n
has also taken into consideration comments made by the<\/p>\n
Joint    Director,     Medical          &    Health    Services,       Jodhpur<\/p>\n
after conclusion of process of inquiry as per Rule 16
\n                                     24<\/span><\/p>\n
(8) of the Rules of 1958. The comments so given were<\/p>\n
not at all apprised to the petitioner and, therefore,<\/p>\n
reliance upon the same by imposing penalty upon the<\/p>\n
petitioner is also bad.\n<\/p>\n<\/p>\n
            It is also pertinent to note that as per sub-<\/p>\n
rule(10) of Rule 16 of the Rules of 1958 the entire<\/p>\n
record    of    inquiry       proceedings    and     inquiry     report<\/p>\n
alongwith      tentative       decision     of   the    disciplinary<\/p>\n
authority to impose penalty of dismissal was remitted<\/p>\n
to the Rajasthan Public Service Commission for seeking<\/p>\n
advise. The Rajasthan Public Service Commission also<\/p>\n
under its letter dated 1.3.2002 simply consented for<\/p>\n
proposed penalty but the requirement of consideration<\/p>\n
and consultation is conspicuously absent. True it is,<\/p>\n
consultation         with    Commission     is   not   a      mandatory<\/p>\n
provision      but    when     a   matter   is     referred    to   it,<\/p>\n
adequate and thorough consultation is desirable. The<\/p>\n
Commission while giving advise in disciplinary matters<\/p>\n
exercises its constitutional powers as per Article 320<\/p>\n
(3)(c) of the Constitution of India and such power<\/p>\n
must be exercised with all sincerity and caution. In<\/p>\n
the instant matter, exercise of the power aforesaid<\/p>\n
appears to be quite casual and formal.\n<\/p>\n<\/p>\n
            In view of whatever said above, the entire<\/p>\n
inquiry     suffers         from   fundamental      infirmities     in<\/p>\n
observing mandatory provisions of the Rules of 1958<\/p>\n
that ultimately results in gross violation of doctrine
\n                                 25<\/span><\/p>\n
of   reasonable     opportunity.     Such   infirmities    vitiate<\/p>\n
entire    process    that   resulted    into   imposition    of   a<\/p>\n
severe penalty of dismissal upon the petitioner.<\/p>\n
           The petition for writ, therefore, deserves<\/p>\n
acceptance and as such is allowed. The order impugned<\/p>\n
dated 24.4.2002 passed by the disciplinary authority<\/p>\n
dismissing the petitioner from service as a consequent<\/p>\n
to disciplinary action taken under memorandum dated<\/p>\n
6.5.1997    is    quashed.    The    petitioner     is    declared<\/p>\n
entitled for receiving all consequential reliefs and<\/p>\n
benefits flowing as a result of quashing the order<\/p>\n
dated 6.5.1997.\n<\/p>\n<\/p>\n
                                            ( GOVIND MATHUR ),J.\n<\/p>\n
kkm\/ps.<\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Dr.R.P.Gaur vs State & Ors on 3 March, 2009 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,19],"tags":[],"class_list":["post-186753","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nDr.R.P.Gaur vs State & Ors on 3 March, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/dr-r-p-gaur-vs-state-ors-on-3-march-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Dr.R.P.Gaur vs State & Ors on 3 March, 2009 - 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