{"id":189236,"date":"2009-04-16T00:00:00","date_gmt":"2009-04-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/rajendra-kumar-bhola-vs-state-ors-on-16-april-2009"},"modified":"2016-11-01T04:44:58","modified_gmt":"2016-10-31T23:14:58","slug":"rajendra-kumar-bhola-vs-state-ors-on-16-april-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/rajendra-kumar-bhola-vs-state-ors-on-16-april-2009","title":{"rendered":"Rajendra Kumar Bhola vs State & Ors on 16 April, 2009"},"content":{"rendered":"
Rajasthan High Court – Jodhpur<\/div>\n
Rajendra Kumar Bhola vs State & Ors on 16 April, 2009<\/div>\n
                                      1\n\n   IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN\n                     AT JODHPUR\n\n                            O R D E R\n<\/pre>\n
        S.B. CIVIL WRIT PETITION NO.3356\/2003
\n   (Rajendra Kumar Bhola Vs. State of Raj. & Ors.)<\/p>\n
             Date of order            :    April 16th 2009<\/p>\n
                           P R E S E N T<\/p>\n
         HON’BLE MR. JUSTICE GOPAL KRISHAN VYAS<\/p>\n
Mr. Manoj Bhandari, for the petitioner.
\nMr. N.K. Mehta, Dy. Govt. Counsel.\n<\/p>\n<\/p>\n
            The     petitioner         has      preferred        this     writ<\/p>\n
petition     challenging         the         order       impugned        dated<\/p>\n
27.9.2001 (Annexure-16) passed by His Excellency the
\nGovernor    rejecting      the    petitioner’s           review    petition<\/p>\n
filed    against     the    order         dated     10.8.1998      as     time<\/p>\n
barred, so also the order passed by Chief Engineer,<\/p>\n
Ground     Water     Department,          Jodhpur        dated    10.8.1998<\/p>\n
(Annexure-9) whereby the petitioner was removed from<\/p>\n
service.\n<\/p>\n<\/p>\n
            Brief     facts      of       the     case    are     that     the\n\npetitioner     was       initially         appointed       as     Technical\n\nAssistant    in    the   Ground       Water       Department      after    due\n\n<\/pre>\n
selection through R.P.S.C. And he joined the duties on<\/p>\n
22.8.1985.         Initially     the      petitioner       was    posted    at
\n                                         2<\/span><\/p>\n
Jodhpur      and    worked      till        April,       1986    then    he    was<\/p>\n
transferred        to    Kota    Division       at       Kota.      He    worked<\/p>\n
independently            as      Geo-Physist              for      Electrical<\/p>\n
Resistivity        Survey       in     four     districts         i.e.        Kota,<\/p>\n
Jhalawar, Sawai Madhopur and Tonk to explore point of<\/p>\n
tube well for water supply scheme.                        In the year 1987,<\/p>\n
the petitioner became eligible for promotion as Jr.<\/p>\n
Geophysicist but he was transferred in the year 1989<\/p>\n
from Kota to Nagaur.                 Thereafter, in the year 1991<\/p>\n
when a post of Technical Assistant became available<\/p>\n
then so many requests were made to the Chief Engineern<\/p>\n
but, he was not given posting at Kota.                              The Chief<\/p>\n
Engineer kept the post vacat for three years ignoring<\/p>\n
the prayer of the petitioner to post him at Kota.                                In<\/p>\n
the year 1992, the petitioner was transferred again to<\/p>\n
Pali but at Pali no work was allotted any work and<\/p>\n
petitioner continued there without any work because he<\/p>\n
was expert in geophysicist.                  In the year 1992, due to<\/p>\n
harassment     of       the    respondents,         he    suffered       so    many<\/p>\n
diseases and due to medical reasons he remained on<\/p>\n
medical leave for three years.                       Thereafter when he<\/p>\n
went to Pali to join the duties and produced all the<\/p>\n
medical certificates, which were earlier sent through<\/p>\n
post   from    time      to     time   to     the    Chief       Engineer       but<\/p>\n
Senior Hydrogeologist Mr. Rajendra Sharma kept those<\/p>\n
medical certificates with him and accepted the joining<\/p>\n
but    did    not       give     any    receipt           and    refused       the<\/p>\n
petitioner to sign in the attendance register after<\/p>\n
24.4.1996.\n<\/p>\n
                                          3<\/span><\/p>\n
           The petitioner was informed at Pali that some<\/p>\n
enquiries are lying pending therefore after completion<\/p>\n
of enquires he will be allowed to join duties, so<\/p>\n
also, no salary was paid to him and was threatened<\/p>\n
that his services will be terminated.\n<\/p>\n<\/p>\n
           The case of the petitioner is that in all two<\/p>\n
charge-sheets were issued to the petitioner under Rule<\/p>\n
16 of CCA Rules, 1958 by the respondent Department.<\/p>\n
The first charge-sheet was issued to the petitioner<\/p>\n
under    Rule    16    of     the    CCA        Rules      for   the       alleged<\/p>\n
misconduct      on    14.6.1995          vide       Annexure-1     and      second<\/p>\n
charge-sheet         was   issued        to     the       petitioner       by     the<\/p>\n
respondent No.2 in the year 1997 under Rule 16 of the<\/p>\n
CCA Rules on 12.2.1997.              It is specifically stated by<\/p>\n
the petitioner that the respondents have proceeded to<\/p>\n
hold an enquiry in pursuance of the first charge-sheet<\/p>\n
dated 14.6.1995 in which four charges were levelled<\/p>\n
against the petitioner that he remained willful absent<\/p>\n
from    duties   without          proper       intimation        in       the   year<\/p>\n
1991,    1992,        1993,       1994        and      1995      respectively.<\/p>\n
Further,    it   was       alleged        that       he    has   violated         the<\/p>\n
provisions of GF and AF Rules and disobeyed the orders<\/p>\n
of the superiors.\n<\/p>\n<\/p>\n
           The petitioner filed his reply to the said<\/p>\n
charge-sheet on 22.2.1997 and refuted all the charges<\/p>\n
levelled   against         him,     so       also    submitted        a    list   of
\n                                       4<\/span><\/p>\n
witnesses for his defence in the enquiry.                            In reply,<\/p>\n
it is stated that he remained continuously ill due to<\/p>\n
heart disease for more then three to four years and he<\/p>\n
was   taking    heart       treatment,        so    also       to    prove    the<\/p>\n
contention of the medical treatment he has submitted<\/p>\n
medical      certificates      and     fitness          certificates        along<\/p>\n
with his joining but the same were not considered by<\/p>\n
the authorities and deliberately in order to restrain<\/p>\n
the petitioner from joining they issued charge-sheet<\/p>\n
and initiated the departmental enquiry.<\/p>\n
              It is stated in the writ petition that copies<\/p>\n
of medical certificates will be kept ready for perusal<\/p>\n
of Court at the time of arguments.                         With regard to<\/p>\n
charge No.3 and 4, it is submitted that outstanding<\/p>\n
amount      which    has    been     said   to     be     due    against      the<\/p>\n
petitioner          is     absolutely       incorrect           as     he     has<\/p>\n
undertaken advance TA\/DA which has to be adjusted as<\/p>\n
against the actual amount spent by the petitioner.<\/p>\n
              In the enquiry so conducted after appointment<\/p>\n
of enquiry officer on 15.7.1997, a Presenting Officer<\/p>\n
to prove the department’s case was also appointed vide<\/p>\n
order dated 20.8.1997 and the petitioner continuously<\/p>\n
attended      the        enquiry,     which        is    clear       from     the<\/p>\n
certificate         dated    6.10.1997,       which       is    produced       on<\/p>\n
record as Annexure-6.               It is specifically pointed out<\/p>\n
by    the    petitioner       that    vide       Annexure-4,         Mr.     D.P.<\/p>\n
Agarwal,       Superintending             Engineer,         Ground          Water
\n                                          5<\/span><\/p>\n
Scientist,         Ground        Water       Department,             Jaipur     was<\/p>\n
appointed as enquiry officer.                       Later on from time to<\/p>\n
time, the place of enquiry was changed therefore, the<\/p>\n
petitioner         could     not    appear          in     the       enquiry     on<\/p>\n
17.10.1997 and 28.10.1997.                   Thereafter, the petitioner<\/p>\n
sent a communication dated 15.12.1997 that he shall<\/p>\n
not    be   able    to     appear   at       the     place      of    enquiry    at<\/p>\n
Jaipur because there has been a curfew imposed in the<\/p>\n
Jaipur city but enquiry officer did not consider the<\/p>\n
prayer      of   the     petitioner          and    held       exparte   enquiry<\/p>\n
against the petitioner.               After submitting the enquiry<\/p>\n
report by the enquiry officer, a notice to show cause<\/p>\n
was given to the petitioner on 9.6.1998 along with<\/p>\n
copy of the enquiry report, which has been placed on<\/p>\n
record as Annexure-7.\n<\/p>\n<\/p>\n
             After        receiving      charge-sheet            reply   to     the<\/p>\n
show cause notice vide communication dated 1.7.1998<\/p>\n
Annexure-8 was submitted by the petitioner but without<\/p>\n
considering         the     petitioner’s             reply,       the    enquiry<\/p>\n
officer proceeded to hold exparte enquiry against the<\/p>\n
petitioner.            Thereafter            upon       said     enquiry,       the<\/p>\n
disciplinary        authority       passed         an    order       whereby    the<\/p>\n
petitioner was penalized with the penalty of removal<\/p>\n
from     service         along     with       order        of     recovery       of<\/p>\n
Rs.5,484\/- along with interest @ 12%.                           The petitioner<\/p>\n
has placed on record the said order of penalty dated<\/p>\n
10.7.1998 as Annexure-9.\n<\/p>\n
                                        6<\/span><\/p>\n
            As per petitioner, an appeal was preferred by<\/p>\n
him    against      the       said     order      on        22.08.1998       vide<\/p>\n
Annexure-10 but no decision was communicated by the<\/p>\n
respondents       on    the    appeal      filed       by    the     petitioner<\/p>\n
against     the        removal        order.           The        petitioner’s<\/p>\n
contention is that after filing appeal he received a<\/p>\n
communication          dated       30.11.1998      by        which      he    was<\/p>\n
informed    that       he     shall    appear      before         the   enquiry<\/p>\n
officer on 17.12.1998.                When petitioner received the<\/p>\n
said communication, then, he appeared before enquiry<\/p>\n
officer with the bonafide impression that his appeal<\/p>\n
has been considered by the department and there had<\/p>\n
been   an   order       of    de    novo   enquiry          but    later     on    a<\/p>\n
communication       was      received      by   the     petitioner           dated<\/p>\n
30.9.1999 which is internal communication in between<\/p>\n
the enquiry officer and Chief Engineer, Ground Water<\/p>\n
department, Jodhpur in which it was observed by the<\/p>\n
enquiry officer that Shri R.K. Bhola (petitioner) had<\/p>\n
already been removed from the service vide order dated<\/p>\n
10.8.1998, keeping in view this important order, the<\/p>\n
undersigned has sought guidance from higher authority<\/p>\n
whether     the     said       departmental        enquiry          should        be<\/p>\n
continued    or        completed      or   not,     kindly         arrange        to<\/p>\n
convey.\n<\/p>\n<\/p>\n
            When        this       order    was        received         by     the<\/p>\n
petitioner, then it has come to the knowledge of the<\/p>\n
petitioner    that       the       communication       Annexure-11           dated<\/p>\n
30.11.1998 was in connection with the second charge-
\n                                           7<\/span><\/p>\n
sheet issued to the petitioner on 12.2.1997.                             Meaning<\/p>\n
thereby, the appeal of the petitioner was not decided,<\/p>\n
therefore,          he    preferred       a     review       petition    to    His<\/p>\n
Excellency, Governor of Rajasthan under the provisions<\/p>\n
of Rules of 1958 on 1.8.2001 but in connection with<\/p>\n
the     review       petition          filed     by     the     petitioner      he<\/p>\n
received a communication from the Secretary to Hon’ble<\/p>\n
Governor       on     12.9.2001         communicating          the    petitioner<\/p>\n
that his review petition is time barred.                              Therefore,<\/p>\n
it is hereby rejected.                  The case of the petitioner is<\/p>\n
that    against          the    removal        order    of    the     petitioner,<\/p>\n
first of all appeal filed by the petitioner was not<\/p>\n
decided by the respondents so also the review petition<\/p>\n
filed by the petitioner was rejected as time barred.<\/p>\n
               In    this       writ    petition,       it    is     specifically<\/p>\n
stated by the petitioner that in second charge-sheet<\/p>\n
which     is        issued       to     the     petitioner          enquiry    was<\/p>\n
initiated under Rule 16 of the CCA Rules but vide<\/p>\n
Annexure-14          dated       18.3.2000,           the     Chief     Engineer,<\/p>\n
G.W.D. has dropped the enquiry on the ground that in<\/p>\n
another charge-sheet issued to the petitioner he has<\/p>\n
already    been          removed      from     service       vide    order    dated<\/p>\n
10.8.1998.            Meaning         thereby,        vide    Annexure-14      the<\/p>\n
second     charge-sheet               issued     to    the     petitioner      was<\/p>\n
ordered to be closed as petitioner was already removed<\/p>\n
from service, therefore, now in this writ petition,<\/p>\n
the    petitioner          is    challenging          the    validity     of   the<\/p>\n
removal order dated 10.8.1998, so also the order of
\n                                       8<\/span><\/p>\n
rejection of the review petition by His Excellency the<\/p>\n
Governor of Rajasthan dated 27.9.2001 (Annexure-16).<\/p>\n
For   the   same,   the    petitioner           has     raised      following<\/p>\n
grounds.\n<\/p>\n<\/p>\n
            Learned    counsel            for     the       petitioner      has<\/p>\n
vehemently    argued      that    first         of    all    the    order    of<\/p>\n
removal dated 10.8.1998 deserves to be quashed on the<\/p>\n
ground that it is totally unreasoned order and without<\/p>\n
considering the reply given by the petitioner although<\/p>\n
it is observed in the order dated 10.8.1998 that no<\/p>\n
reply has been submitted by the petitioner but in fact<\/p>\n
this assertion is totally false, therefore, the order<\/p>\n
deserves to be quashed.\n<\/p>\n<\/p>\n
            Learned counsel for the petitioner vehemently<\/p>\n
contended that a bare perusal of order impugned dated<\/p>\n
10.8.1998 (Annexure-9) will reveal that there is no<\/p>\n
consideration,      discussion        and       reasons      given    by    the<\/p>\n
disciplinary      authority      for       removing         the    petitioner<\/p>\n
from service.       It is only observed that the enquiry<\/p>\n
officer     has   found    that       all       the     charges      levelled<\/p>\n
against the petitioner are proved.                      Meaning thereby,<\/p>\n
without     application          of       mind,       the      disciplinary<\/p>\n
authority has passed impugned order while observing<\/p>\n
that the enquiry officer has found that all the four<\/p>\n
charges have been proved by the Department.                            It is<\/p>\n
argued that the order impugned order passed by the<\/p>\n
Chief Engineer is totally without application of mind
\n                                            9<\/span><\/p>\n
which is evident from the fact that in the order only<\/p>\n
one     line    has      been       written          that    all   the    charges<\/p>\n
levelled against the delinquent have been found to be<\/p>\n
proved, therefore, it is proved that order impugned is<\/p>\n
illegal and unconstitutional.\n<\/p>\n<\/p>\n
               Learned        counsel          for    the    petitioner     while<\/p>\n
inviting attention of this Court towards the judgment<\/p>\n
rendered by Hon’ble Apex Court reported in AIR 1990 SC<\/p>\n
1984    (S.N.       Mukherjee        Vs.   Union       of     India)     submitted<\/p>\n
that as per Constitution Bench judgment, the decision<\/p>\n
given by the administrative authorities must contain<\/p>\n
reason and it is the duty of the judicial or quashi<\/p>\n
judicial authorities to record reasons except in cases<\/p>\n
where requirement is dispensed with expressly or by<\/p>\n
necessary implication.                Further, it is held by Hon’ble<\/p>\n
Apex    Court       in   the     aforesaid           judgment      that    as    per<\/p>\n
natural      justice,         the    administrative            action     must    be<\/p>\n
supported by reasons, if not then such type of action<\/p>\n
is     required          to     be      declared             illegal      and    in<\/p>\n
contravention of principles of natural justice.<\/p>\n
               Learned counsel for the petitioner vehemently<\/p>\n
argued that the petitioner was charge-sheeted under<\/p>\n
Rule    16     of     the      CCA    Rules          vide    Annexure-1     dated<\/p>\n
14.6.1995        and          Annexure-2             dated     12.2.1997         but<\/p>\n
departmental enquiry in pursuance of Annexure-2 was<\/p>\n
ordered to be closed in view of the fact that removal<\/p>\n
order    was    passed         by    the       disciplinary        authority      on
\n                                       10<\/span><\/p>\n
10.8.1998.         In the order dated 10.8.1998 passed in<\/p>\n
pursuance     of    charge-sheet           dated       14.6.1995,         it     is<\/p>\n
observed that no written submission has been filed by<\/p>\n
the    delinquent.          Therefore,           while       accepting          the<\/p>\n
enquiry    report,       delinquent         is    hereby      removed          from<\/p>\n
service.         Such    type   of    unreasoned         order       which       is<\/p>\n
passed without application of mind by the disciplinary<\/p>\n
authority    is     illegal     and    against         the   principles          of<\/p>\n
natural justice because Constitution Bench of Hon’ble<\/p>\n
Apex     Court     has    held       in     the     judgment         of        S.N.<\/p>\n
Mukherjee’s case (supra) that order must be reasoned<\/p>\n
order and in absence of any reason in the order, it<\/p>\n
must be held that the said order is in contravention<\/p>\n
of principles of natural justice.\n<\/p>\n<\/p>\n
            Learned counsel for the petitioner submitted<\/p>\n
that he remained absent from duty but submitted all<\/p>\n
the medical certificates for perusal and consideration<\/p>\n
at the time of filing application for joining at Pali,<\/p>\n
so also due to change of place of enquiry he was not<\/p>\n
in position to attend the enquiry because he was not<\/p>\n
allowed to join duties as such no salary was paid to<\/p>\n
the    petitioner,       therefore,        in    absence      of     financial<\/p>\n
assistance or salary, it was not possible for him to<\/p>\n
appear    before    the    enquiry         officer.          Therefore,         the<\/p>\n
enquiry officer was under obligation to consider all<\/p>\n
the    medical      certificates           at    the     time      of     filing<\/p>\n
application        for    joining          but     all       those      medical<\/p>\n
certificates were ignored and the petitioner has been
\n                                             11<\/span><\/p>\n
removed from service, which is totally illegal.<\/p>\n
             Learned counsel for the petitioner submitted<\/p>\n
that    appeal         filed     by      the     petitioner        was       also    not<\/p>\n
decided      by    the        respondents.               Likewise       the     review<\/p>\n
petition      was        dismissed          as     time     barred.           Meaning<\/p>\n
thereby       the             petitioner           remained            remedy-less,<\/p>\n
therefore,             after         loosing            battle         before        the<\/p>\n
respondents,            the     present          writ     petition        has        been<\/p>\n
preferred     on        the     ground         that      all     the    proceedings<\/p>\n
undertaken against the petitioner is not based upon<\/p>\n
the cogent reasons, so also, the order of removal is<\/p>\n
totally      illegal           and       in       contravention          of        basic<\/p>\n
principles        of     law.          Therefore,         the     impugned         order<\/p>\n
dated 10.8.1998 may kindly be quashed and respondents<\/p>\n
may     be   directed           to       reinstate        the     petitioner          in<\/p>\n
service.\n<\/p>\n<\/p>\n
             In        reply        to     the     writ        petition,        it     is\n\ncontended         by     the     respondents            that     petitioner          has\n\n<\/pre>\n
failed to appear before the enquiry officer and charge<\/p>\n
of     willful         absence       from        duty     was    proved       by     the<\/p>\n
department        before         the      enquiry         officer       by    leading<\/p>\n
proper evidence.              It is also one of the important fact<\/p>\n
that    petitioner            did    not      appear      before       the    enquiry<\/p>\n
officer, and before the enquiry officer, therefore, he<\/p>\n
has proceeded to held exparte enquiry and arrived at<\/p>\n
the conclusion that all the charges levelled against<\/p>\n
the petitioner are proved by the department and while
\n                                           12<\/span><\/p>\n
concluding       enquiry,       the        enquiry          officer        sent        the<\/p>\n
enquiry report to the disciplinary authority in which<\/p>\n
it is observed by the enquiry officer that all the<\/p>\n
charges    levelled          against       the       delinquent            have      been<\/p>\n
proved by the Department and after receiving the said<\/p>\n
enquiry report submitted by the enquiry officer the<\/p>\n
petitioner       was    given        an        opportunity           to    file        his<\/p>\n
written    submissions         while           sending         the    copy      of     the<\/p>\n
enquiry report to him but he has failed to file any<\/p>\n
submissions,       therefore,          now          the     petitioner           cannot<\/p>\n
raise voice that he was not given any opportunity of<\/p>\n
hearing    to      defend       his        case.               The      disciplinary<\/p>\n
authority while accepting the enquiry report in toto<\/p>\n
penalized the petitioner with penalty of removal from<\/p>\n
service    which       does    not    require          any      interference            by<\/p>\n
this Court because order is perfectly in accordance<\/p>\n
with the law .\n<\/p>\n<\/p>\n
            Learned           counsel            for           the        respondents<\/p>\n
vehemently argued that in this case, the petitioner<\/p>\n
was   removed      from       service          on     the       ground       that      he<\/p>\n
remained    absent       from       duty        and       he    did       not     submit<\/p>\n
medical    certificates             either          before        the      respondent<\/p>\n
Department and enquiry officer now he is raising voice<\/p>\n
that he has produced medical certificates which were<\/p>\n
not   considered        by    the    Department             but      in    fact      this<\/p>\n
assertion is totally false.                      The petitioner did not<\/p>\n
produce    any    medical       certificates               to     prove         that    he<\/p>\n
remained     absent      from        duty       due       to      illness.             The
\n                                          13<\/span><\/p>\n
respondent Department has rightly passed an order for<\/p>\n
removal of the petitioner in which there is no error.<\/p>\n
Therefore, no interference under Article 226 of the<\/p>\n
Constitution of India is required as the respondents<\/p>\n
have conducted the enquiry in proper manner and after<\/p>\n
following the procedure of enquiry provided under the<\/p>\n
Rules of 1958.\n<\/p>\n<\/p>\n
             As per learned counsel for the respondents,<\/p>\n
the petitioner was given full opportunity of hearing<\/p>\n
but   he    defied       the     same,        which   is     clear        from    the<\/p>\n
proceedings itself.              The petitioner did not submit any<\/p>\n
certificates either before the department or before<\/p>\n
the enquiry officer till final order was passed by the<\/p>\n
disciplinary authority.                It is also submitted that the<\/p>\n
contention of the petitioner that he has filed appeal<\/p>\n
against the order, which he has placed on record as<\/p>\n
Annexure-10     is        also    not    acceptable          because        a    bare<\/p>\n
perusal of Annexure-10 will reveal that it is not an<\/p>\n
appeal but it is a representation.                               Therefore, the<\/p>\n
contention of the petitioner for filing appeal and not<\/p>\n
deciding     the     same        by    the      respondents          is    totally<\/p>\n
denied.        In        fact,    no     appeal       was        filed     by     the<\/p>\n
petitioner against the order of removal though he has<\/p>\n
filed      review        petition       before        His        Excellency      the<\/p>\n
Governor of Rajasthan but the same was rejected for<\/p>\n
the reasons that it was time barred.                         In this view of<\/p>\n
the   matter,       no    case    is     made     out       in    favor     of   the<\/p>\n
petitioner,        which       requires         any     interference            under
\n                                   14<\/span><\/p>\n
Article 226 of the Constitution of India.                  More over,<\/p>\n
the petitioner was rightly removed from service for<\/p>\n
the alleged misconduct of willful absence from duty so<\/p>\n
also for violation of GF & AF Rules and such an order<\/p>\n
which is passed after following the rules does not<\/p>\n
require any interference by this Court.                   Hence, this<\/p>\n
writ petition may be dismissed.\n<\/p>\n<\/p>\n
         I have heard learned counsel for the parties<\/p>\n
so also perused the entire pleading of the case and<\/p>\n
perused the judgment cited by learned counsel for the<\/p>\n
petitioner.\n<\/p>\n<\/p>\n
         In this case, admittedly, the petitioner was<\/p>\n
removed from service and in this writ petition, the<\/p>\n
validity of order impugned Annexure-9 dated 10.8.1998<\/p>\n
is under challenge, therefore, for adjudicating the<\/p>\n
controversy    first   of   all        the   order   of   removal    is<\/p>\n
required to be perused.       Anexure-9 dated 10.8.1998 is<\/p>\n
as follows :\n<\/p>\n<\/p>\n
               “\u0936 \u0906\u0930.\u0915. \u092d \u0932 , \u0924\u0915\u0928 \u0915 \u0938\u0939 \u092f\u0915 (\u092d \u092d \u0928\u0924\u0915-<\/p>\n
       \u0935 \u0926) \u0915 \u092f \u0932\u092f     \u0930\u0930\u0937 \u092d \u091c\u0932         \u091c \u0928 \u0915, \u092d \u091c\u0932 \u0935 \u092d \u0917 \u092a \u0932\n       \u0915 \u0928 \u092e     \u0906\u0930 \u092a! \u092a\u0930 \u092e \u092e! \u0938#\u0916\u092f 772 \u0926\u0926 #\u0915 12.2.97\n       \u0924 \u092e\u092e\u0932 \u0915\u0930 \u092f \u0917\u092f \u0964 \u0936 \u0906\u0930. \u0915. \u092d \u0932 \u0924\u0915\u0928 \u0915 \u0938\u0939 \u092f\u0915\n       \u092a\u0930 \u0932\u0917 \u092f \u0917\u092f \u0906\u0930 \u092a! \u092a\u0930 \u091c #\u091a \u0939\u0924) \u091c #\u091a \u0905\u0927,\u0915 \u0930                 \u0915\n       \u0928 \u092f)\u0915. \u0915 \u0917\u0908 \u0964 \u091c #\u091a \u0905\u0927,\u0915 \u0930             \u091c #\u091a \u092a\u0928\u0924 \u0926   \u092a\u0924 \u0915\u092e #\u0915\n<\/pre>\n
       19 \u0926\u0926 #\u0915 5.5.98 \u0938 \u092a\u0938\u0924)\u0924 \u0915\u0915\u092f \u0917\u092f \u0964 \u091c #\u091a \u0905\u0927,\u0915 \u0930
\n       \u0938 \u092a \u092a \u092a\u0928\u0924 \u0926     \u0915 \u0905\u0927\u092f\u092f           \u0915\u0930    \u0915 \u092a\u0936 \u0924 \u0909. \u092a\u0928\u0924 \u0926
\n                              15<\/span><\/p>\n
\u0938 \u0938\u0939\u092e\u0924 \u0939 \u0924 \u0939)\u092f \u091c #\u091a \u0930\u0930\u092a \u0930 \u092a\u0930 \u092e\u0932\u0916;\u0924 \u0905\u092e\u092d\u0915\u0925                    \u0926
\n\u0939\u0924) \u092a\u0924 \u0915\u092e #\u0915 1509 \u0926\u0926 #\u0915 9.6.98 \u0926\u0926\u092f                \u0917\u092f       \u0964 \u0936
\n\u0906\u0930. \u0915. \u092d \u0932 , \u0924\u0915 \u0915 \u0938\u0939 \u092f\u0915 (\u092d \u092d \u0928\u0924\u0915 \u0935 \u0926)                       \u092a\u0924
\n\u0926\u0926 #\u0915 28.6.98 \u0938 \u091c #\u091a \u0930\u0930\u092a \u0930 \u092a\u0930 \u0905\u092e\u092d\u0915\u0925               \u0926    \u0939\u0924) 10
\n\u0926\u0926 \u0938 \u0915 \u0938\u092e\u092f \u091a \u0939 \u0964 \u0936 \u0906\u0930. \u0915. \u092d \u0932 \u0915 \u092a\u0928\u0924\u0909\u0924\u0930 \u0926
\n\u0939\u0924) \u0938\u092e\u092f \u0926      \u0915 \u092a\u0936 \u0924 \u0906\u091c \u0926\u0926              \u0924\u0915 \u092e\u0932\u0916;\u0924 \u0905\u092e\u092d\u0915\u0925
\n\u092a\u0938\u0924)\u0924    \u0939 # \u0915\u0915\u092f \u0939 \u0964\n<\/p><\/blockquote>\n
<\/blockquote>\n
\u0936 \u0906\u0930.\u0915. \u092d \u0932 \u092a\u0930 \u0928 \u092e                \u0906\u0930 \u092a \u0939 -\n\n\n\u0906\u0930 \u092a \u0938#\u0916\u092f -1\n        \u0926\u0926 #\u0915 20.8.91 \u0938 31.12.91 \u0924\u0915, 13.1.92\n\u0938    31.1.92    \u0924\u0915,       8.2.92         \u0938   25.7.92       \u0924\u0915,\n27.7.92 \u0938 23.4.96                 27.4.96 \u0938 \u0928 \u0930\u0928\u0924\u0930 \u0938 \u091a@\n\u0938 \u0905 )\u092a\u0938\u0938\u0925\u0924 \u091a\u0932 \u0930\u0939 \u0939 \u0964\n        \u0936 \u0906\u0930.\u0915. \u092d \u0932 \u0924\u0915 \u0915 \u0938\u0939 \u092f\u0915 \u091c #\u091a \u0905\u0927,\u0915 \u0930\n\u0915 \u092f \u0939 \u092eB \u0909\u092a\u0938\u0938\u0925\u0924         \u0939 # \u0939\u092f \u0964 \u091c #\u091a \u0905\u0927,\u0915 \u0930          \u0905\u092e\u092d\u0932;!\n\u0938 \u092a \u092f \u0915\u0915 \u0936 \u092d \u0932 \u0909\u092a\u0930 .                 \u0916C\u0924 \u0905 \u0927, \u092eB \u0938\u091a\u091a@ \u0938\n\u0905 \u092a\n  ) \u0938\u0938\u0925\u0924 \u0930\u0939 \u0924\u0925         \u0926\u0926 #\u0915 27.4.96 \u0938 \u0930 \u091c\u092f \u0915 \u092f \u0938\n\u0905 )\u092a\u0938\u0938\u0925\u0924 \u091a\u0932 \u0930\u0939 \u0939 \u0964\n\n\n\u0906\u0930 \u092a \u0938#\u0916\u092f -2\n        \u0930\u0930\u0937 \u092d\u091c\u0932        \u091c \u0928 \u0915, \u092d\u091c\u0932 \u0935 \u092d \u0917 \u092a \u0932 \u0915 \u0928 \u0926E \u0936\n\u0915\u0915   \u0939 \u092e\u0938\u0930 \u0939 \u0938\u091c\u0932 \u0915 \u0938\u091c\u092f \u0915G\u0938\u091c\u0915\u0932 \u0938 H \u0915\u0930 \u0932\u0915\u092f \u092aC\n\u0915\u0930B , \u092a\u0930\u0928\u0924) \u0909 \u0915 \u0926 \u0930       \u0938\u091c\u092f \u0915G\u0938\u091c\u0915\u0932 \u0938 H \u0915            \u0915\u092f     \u0939#\n\u0915\u0915\u092f \u0964\n        \u0936 \u0906\u0930. \u0915. \u092d \u0932 , \u0924\u0915 \u0915 \u0938\u0939 \u092f\u0915 \u091c #\u091a \u0915 \u092f \u0939\n\u092eB \u0909\u092a\u0938\u0938\u0925\u0924      \u0939 # \u0939)\u092f \u0964 \u0936          \u092d\u0932   \u0915 \u0935 \u0930\u0926 \u090f\u0915 \u0924\u0930G\n\u0915 \u092f \u0939 \u0905\u092e\u0932 \u092eB \u0932 \u0908 \u0917\u0908 \u0914\u0930 \u0907\u0938 \u0906\u0930 \u092a \u0915 \u092d \u092e\u0938\u0926 \u092a \u092f\n\u0964\n\u0906\u0930 \u092a \u0938#\u0916\u092f -3\n        \u0906\u0915O\u0930 \u0905 \u0927, 9\/92 \u0938 4\/93 \u0915 \u0905 )\u0938 \u0930 \u0936 \u0906\u0930.\n\u0915. \u092d \u0932       \u092d\u0917\n              ) \u0924      \u0938 \u0924        \u0905 \u0915 \u0936 \u0915 \u0924\u0930\u0939 \u0932        \u0905\u0927,\u0915\n                                   16<\/span>\n\n       \u092d\u0917\n        ) \u0924     \u0915     \u0905 \u0927,, \u0905\u0927P\u092e         \u0924     \u092f\u0924    \u092d\u0924   \u090f # \u0905 \u091c\n       \u0905\u0927P\u092e \u0915        \u0915\u092e\u0936 \u0930\u092a\u092f 2624\/-            \u0930\u092a\u092f 1160\/-         \u0930\u092a\u092f\n<\/pre>\n
       800\/- \u0930\u092a\u092f 900\/- \u0915)\u0932 \u09300 5484\/- \u092a \u092a \u0915\u0915\u092f \u0964 \u092f\u0939
\n       \u0930 \u092e\u0936 \u0936 \u092d \u0932       \u091c\u092e       \u0939 # \u0915\u0930 \u0908 \u0939 \u0964\n<\/p><\/blockquote>\n
               \u0936 \u092d \u0932 \u092a\u0930 \u0905\u092e\u092d\u0932;! \u0915 \u0906, \u0930 \u092a\u0930 \u0906\u0930 \u092a \u092e\u0938\u0926 \u092a \u092f
\n       \u0917\u092f \u0964<\/p><\/blockquote>\n
\n       \u0906\u0930 \u092a \u0938#\u0916\u092f -4\n               \u0936 \u0906\u0930. \u0915. \u092d \u0932 \u0938 \u0938 \u091a@ \u0938 \u0905 )\u092a\u0938\u0938\u0925\u0924 \u0930\u0939                       \u0915\n       \u0938\u092eQ\u0928, \u092eB       \u0930\u0930\u0937 \u092d\u091c\u0932     \u091c \u0928 \u0915, \u092a \u0932         \u0938\u092a\u0937 \u0915\u0930C \u0909 \u0915\n<\/pre>\n
       \u0915 \u092f P\u0939C \u0928\u0924\u0927\u0925 \u0926\u0926 #\u0915 24.4.96 \u092a@ \u0924\u0925 \u0930 \u0917 \u092a\u092e C \u092a\u0924
\n       \u092d \u092e #\u0917 \u0917\u092f \u0964 \u0936 \u092d \u0932                \u0938 \u091a@ \u0938 \u0905 )\u092a\u0938\u0938\u0925\u0924 \u0930\u0939             \u0915
\n       \u0938\u092eQ\u0928, \u092eB       \u0924 \u0938\u092a\u0937 \u0915\u0930C \u0926\u0926\u092f \u0914\u0930              \u0939 \u0915 \u0908 \u0930 \u0917 \u092a\u092e C
\n       \u092a\u0924 \u0939 \u092a\u0938\u0924)\u0924 \u0915\u0915\u092f \u0914\u0930           \u092cQ     \u0905 )\u092e\u0928\u0924 \u0915 \u092f \u0932\u092f \u092eB \u0926\u0926 #\u0915
\n       27.4.96 \u0938 \u0905 \u092a
\n                   ) \u0938\u0938\u0925\u0924 \u091a\u0932 \u0930\u0939 \u0939
\n               \u0936 \u0906\u0930. \u0915. \u092d \u0932 \u092a\u0930 \u0932\u0917 \u092f \u0909\u092a\u0930 . \u091a \u0930! \u0906\u0930 \u092a
\n       \u092e\u0938\u0926 \u092a \u092f \u0964\n<\/p><\/blockquote>\n
               \u0928 \u092e    \u0939\u0938\u0924 \u0915\u0930\u0915\u0924      \u0938\u0938       \u090f\u0923O \u090f \u0928 \u092f\u092e! \u0915 \u092a\u0926\u0924\n       \u0936\u0915.\u092f! \u0915 \u092a\u092f \u0917 \u0915\u0930\u0924 \u0939)\u092f \u0936                \u0906\u0930. \u0915. \u092d \u0932 , \u0924\u0915 0\n       \u0938\u0939 \u092f\u0915 (\u092d) \u092d \u0928\u0924\u0915 \u0935 \u0926) \u0915 \u0928 \u092e              \u0926# O \u0938 \u0926# \u0915O\u0924 \u0915\u0930        \u0915\n       \u0906\u0926\u0936 \u0926\u0924 \u0939 -\n\n\n       1-      \u0938 \u091a@ \u0938 \u0930 \u091c\u092f \u0915 \u092f \u0938 \u0905 )\u092a\u0938\u0938\u0925\u0928\u0924 \u0930\u0939              \u0915 \u0906\u0930 \u092a\n       \u092e\u0938\u0926 \u0939      \u0915 \u0915 \u0930C \u0936 \u0906\u0930. \u0915. \u092d \u0932 \u0915 \u0930 \u091c\u092f \u0938                         \u0938\n       \u0938 \u092e.\n          ) \u0915\u0915\u092f \u091c \u0924 \u0939 \u0964\n       2-      \u0938 \u091a@ \u0938 \u0905 )\u092a\u0938\u0938\u0925\u0928\u0924 \u0905 \u0927,\u092f! \u0915 \u0905 \u0924\u0928 \u0915 \u0905 \u0915 \u0936\n       \u0938 \u0915V\u0924 \u0915\u0915\u092f \u091c \u0924 \u0939 \u0964\n       3-      \u0930 \u091c\u0915\u0915\u092f \u0930 \u092e\u0936 \u0930\u092a\u092f 5484\/-            \u092a\u0932\u0938 12     \u092a\u0928\u0924\u0936\u0924\n       \u092c\u092f \u091c \u0915        \u0926\u0930 \u0938   \u0938\u0932     \u0936    \u0906\u0930. \u0915. \u092d \u0932        \u0915 Q\u0915 \u092f\n       \u0915\u0932\u092e\u0938 \u092eB \u0938 \u0915 \u091c \u0915\u0930 \u0930 \u091c\u092f \u0915 \u0937 \u092eB \u091c\u092e \u0915\u0930 \u0908 \u091c                     \u0964\"\n\n\n\n<\/pre>\n
            Upon scanning the above impugned order, it is<\/p>\n
abundantly    clear    that     there     is    no    discussion           with
\n                                        17<\/span><\/p>\n
regard    to     the    enquiry      so     conducted      by   the   enquiry<\/p>\n
officer.       The only assertion has been made with regard<\/p>\n
to the charges levelled against the petitioner.                           The<\/p>\n
only observation has been made in each of the charge<\/p>\n
that enquiry officer has found charge to be proved.<\/p>\n<\/blockquote>\n
Further, it is observed in the order that Shri R.K.<\/p>\n
Bhola inspite of granting time to file reply has not<\/p>\n
filed    his     written   submission          to    the   enquiry     report<\/p>\n
which    is     supplied       to    him.       In    my    opinion,     this<\/p>\n
assertion is not correct in view of the fact that in<\/p>\n
para     No.10     of    the        writ    petition,       the   following<\/p>\n
assertion has been made by the petitioner :<\/p>\n
                   “10. That  in   the   enquiry,   4
\n         charges were proved against him.         The
\n         petitioner submitted reply to the show
\n         cause   notice  vide   communication   dated
\n         1.7.1998, a copy whereof is being produced
\n         herewith and marked as ANNEXURE-8.”<\/p>\n<\/blockquote>\n
               In reply to para No.10 of the writ petition,<\/p>\n
the following reply has been given by the respondents :<\/p>\n<\/blockquote>\n
                   “10. That   in   reply   to   the
\n         contents of this paragraph the answering
\n         respondents most humbly and respectfully
\n         submit that the averments made in it by the
\n         petitioner are admitted to the extent that
\n         the petitioner has submitted a reply to the
\n         Annexure.7 vide Annexure.8 dated 1-7-98 to
\n         the writ petition.”<\/p><\/blockquote>\n<\/blockquote>\n
\n                                    18<\/span><\/p>\n<\/blockquote>\n
              Upon perusal of the assertion made in para<\/p>\n
No.10 of the writ petition and in para No.10 of the<\/p>\n
reply of the said para, it is crystal clear that the<\/p>\n
respondents have admitted the fact that the petitioner<\/p>\n
has filed reply to enquiry report (Annexure-7) vide<\/p>\n
reply    (Annexure-8).       In     this     view     of    the   matter,<\/p>\n
obviously observation made in the removal order that<\/p>\n
no    reply   was   filed   after       receiving      enquiry      report<\/p>\n
seems to be false.        If disciplinary authority has made<\/p>\n
a false assertion in the order and did not apply its<\/p>\n
mind then obviously it is very serious matter because<\/p>\n
the    disciplinary     authority       at   the     time   of    deciding<\/p>\n
fate of employee must have to take into consideration<\/p>\n
material produced by the delinquent before him.                          In<\/p>\n
this case being the disciplinary authority the Chief<\/p>\n
Engineer was adjudicator of the enquiry and he was<\/p>\n
required to apply its mind and he was under obligation<\/p>\n
to make correct assertion in the order impugned but<\/p>\n
according to facts, a false assertion has been made by<\/p>\n
the    disciplinary     authority        while     passing       order   of<\/p>\n
removal from service against the petitioner.<\/p><\/blockquote>\n
              In this view of the matter, on one hand in<\/p>\n
the order impugned dated 10.8.1998, it is observed by<\/p>\n
the disciplinary authority that inspite of granting<\/p>\n
time to file reply to show cause notice sent along<\/p>\n
with    the   enquiry    report,        no   reply    has    been   filed<\/p>\n
whereas upon assertion made by the petitioner in para<\/p>\n
No.10 of the writ petition, it is replied in the Court
\n                                      19<\/span><\/p>\n
on affidavit that reply was given by the petitioner to<\/p>\n
the    show    cause      notice      sent      by       the     disciplinary<\/p>\n
authority before passing final order.                       In my opinion,<\/p>\n
this fact itself proves that somehow department was<\/p>\n
firm     to      remove     the      petitioner            from        service.<\/p>\n
Therefore, even without considering the reply of the<\/p>\n
petitioner       while     making         false      assertion         in     the<\/p>\n
impugned      order,      the     petitioner         was        removed      from<\/p>\n
service, therefore, such type of order does not stand<\/p>\n
before eye of law at the time of judicial scrutiny.<\/p>\n
              I have perused the enquiry report also.                        I am<\/p>\n
unable to understand how the enquiry officer has given<\/p>\n
finding without recording evidence of prosecution.                             In<\/p>\n
the    enquiry    report,       it   is    observed        by    the    enquiry<\/p>\n
officer that in all a list of three witnesses was<\/p>\n
produced by the Department to prove charge against the<\/p>\n
petitioner but out of three witnesses namely Shri P.C.<\/p>\n
Rai,   Shri    K.S.     Srivastava        and     Shri     Rajendra       Sharma<\/p>\n
only one witness Shri P.C. Rai appeared before the<\/p>\n
enquiry officer and after recording his statement, the<\/p>\n
enquiry officer gave its finding that all the charges<\/p>\n
levelled      against     the    petitioner          are    proved      by    the<\/p>\n
Department.       In my opinion, such type of enquiry which<\/p>\n
is not conducted in accordance with law and without<\/p>\n
calling all record from the department.                           It is very<\/p>\n
strange that in the departmental enquiry, the enquiry<\/p>\n
officer has exhibited the documents at his own because<\/p>\n
no witness was produced before the enquiry officer to
\n                                       20<\/span><\/p>\n
prove documents.             In this view of the matter, the<\/p>\n
department has failed to prove any documents in the<\/p>\n
enquiry.       Therefore, it can be said that the enquiry<\/p>\n
in     question       conducted      against       the     petitioner        was<\/p>\n
totally in contravention of the procedure laid down<\/p>\n
for departmental enquiry.\n<\/p>\n<\/p>\n
               In   this     view    of    the     matter,      though       the<\/p>\n
enquiry officer has not conducted the enquiry as per<\/p>\n
the procedure laid down under the rules but at the<\/p>\n
time     of    consideration,         it    was     the       duty     of    the<\/p>\n
disciplinary authority to examine the enquiry report<\/p>\n
so furnished by the enquiry officer but here in this<\/p>\n
case     the    order       impugned       itself    speaks          that    the<\/p>\n
Disciplinary Authority has not applied its mind and<\/p>\n
while accepting enquiry report in toto without even<\/p>\n
perusing the enquiry report has passed the order of<\/p>\n
removal       which    is    in    contravention         of   the     judgment<\/p>\n
rendered by Constitution Bench of Hon’ble Apex Court<\/p>\n
in S.N. Mukherjee’s case (supra).                    The Apex Court in<\/p>\n
the    said     judgment      has    held    that        reasons      must    be<\/p>\n
recorded at the time of exercising judicial or quashi<\/p>\n
judicial powers.            Here, in this case, upon perusal of<\/p>\n
the impugned removal order, it will reveal that first<\/p>\n
of all false assertion has been made in the order<\/p>\n
impugned that the petitioner has not filed reply to<\/p>\n
the show cause notice sent after due enquiry whereas<\/p>\n
before the Court it is accepted in the reply filed by<\/p>\n
the    respondents          that    the    reply     was      received       and
\n                                                 21<\/span><\/p>\n
       further no reasons are recorded by the disciplinary<\/p>\n
       authority and straightaway without application of mind<\/p>\n
       passed     an      order     for    removal        of    the    petitioner’s<\/p>\n
       services        which       is     not     in    consonance        with     the<\/p>\n
       provisions       of     law.       Therefore,      while       following    the<\/p>\n
       judgment rendered by Hon’ble Apex Court in case of<\/p>\n
       S.N.   Mukherjee           (supra),       the   non-speaking       order     of<\/p>\n
       removal passed against the petitioner dated 10.8.1998<\/p>\n
       deserves      to      be   quashed       because    it    is     against    the<\/p>\n
       principles of natural justice, so also it is passed by<\/p>\n
       the    disciplinary              authority       while         making     false<\/p>\n
       assertion, so also without application of mind.<\/p>\n
                     Accordingly, this writ petition is allowed.<\/p>\n
       Consequently, the order of removal dated 10.8.1998 is<\/p>\n
       hereby quashed and set aside.                   The petitioner shall be<\/p>\n
       treated     in      service        and     shall    be    taken     on     duty<\/p>\n
       forthwith.          He shall be entitled for back wages from<\/p>\n
       the    date        of      filing        writ    petition        only,     i.e.<\/p>\n
       20.05.2003.           The petitioner shall further be entitled<\/p>\n
       for continuity in service for all purposes.<\/p>\n
                     No order as to cost.\n<\/p>\n<\/p>\n
                                                     (GOPAL KRISHAN VYAS), J.\n<\/p>\n
arun\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Rajasthan High Court – Jodhpur Rajendra Kumar Bhola vs State & Ors on 16 April, 2009 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 […]<\/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-189236","post","type-post","status-publish","format-standard","hentry","category-high-court","category-rajasthan-high-court-jodhpur"],"yoast_head":"\nRajendra Kumar Bhola vs State & Ors on 16 April, 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\/rajendra-kumar-bhola-vs-state-ors-on-16-april-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Rajendra Kumar Bhola vs State & Ors on 16 April, 2009 - 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