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Judgment
This intra court appeal is directed against order dated 30.10.15 passed by the learned Single Judge of this Court, whereby the writ petition preferred by the respondent-writ petitioner assailing the legality of order dated 26.12.06 passed by the Disciplinary Authority, order dated 25.8.08 passed by the Appellate Authority and the order dated 31.7.12, withdrawing the ACP granted to the writ petitioner, has been allowed.
The facts relevant are that the respondent employed as Patwari in the Department of Revenue, Government of Rajasthan, was served with a notice under Rule 17 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958(for short "CCA Rules"), setting out the allegation on which disciplinary action was proposed against him. Precisely, the allegation against the respondent was pertaining to non compliance of transfer order dated 14.7.05 issued by the District Collector (Land Record), Barmer.
The respondent filed a representation refuting the allegation levelled. The categorical stand of the respondent was that after issuance of the transfer order, the orders were passed by the higher authorities on 17.9.05 and 26.9.05 directing him to continue to hold the charge of the post of Patwari at Sajiyali from where he was transferred to Mandali and not to take over the charge of the post at Mandali and thus, there was no violation of the transfer order as alleged.
The Disciplinary Authority vide order dated 26.12.06 arrived at the conclusion that the respondent flouted the transfer order and accordingly, holding him guilty imposed the punishment of censure. Aggrieved thereby, the appeal preferred by the respondent was dismissed by the Appellate Authority vide order dated 25.8.08.
The respondent was granted ACP on completion of 9 years of service vide order dated 18.7.12, however, taking into consideration the penalty of censure, the ACP granted was withdrawn vide order dated 31.7.12.
At this stage, the respondent assailed the legality of the order dated 26.12.06 passed by the Disciplinary Authority, order dated 25.8.08 passed by the Appellate Authority and the order dated 31.7.12 issued by the District Collector (Land Record), Barmer, withdrawing the ACP granted to him by way of writ petition before this Court.
After due consideration of the rival submissions, the writ petition has been allowed by the learned Single Judge with the following observations:
" A perusal of the orders dated 26.12.2006 passed by the disciplinary authority and order dated 25.08.2008 passed by the appellate authority clearly indicates that the crucial documents i.e. order dated 17.09.2005 passed by the SDO and Tehsildar were not taken into consideration at all by both the authorities. The order dated 17.09.2005 clearly indicates that the higher authorities were well aware of the fact that petitioner had not taken charge at Mandali and gave a specific direction to continue to hold charge of Sajiyali and not to take charge of Mandali.
As both the orders have been passed by the authorities in ignorance of the order dated 17.09.2006 and 26.09.2006, the same clearly vitiates the conclusion drawn by them regarding petitioner's violating the directions of the superior authorities and, therefore, the same cannot be sustained and deserves to be set aside.
So far as the submissions of the learned counsel for the respondent regarding delay in filing of the writ petition is concerned, there is substance in the submission made by learned counsel for the petitioner that as the penalty of censure in view of law laid down by this Court was not coming in the way of the petitioner, the petitioner stood advised not to challenge the same at the relevant time.
The State Government also issued Circular dated 05.06.2012 directing for recall of ACPs granted to employees who had been punished with the penalty of censure and when the respondents withdrew the ACP granted to the petitioner the same gave him a cause to question the orders passed by the disciplinary authority and the appellate authority.
In view of above fact situation, it cannot be said that the petition deserves to be thrown out on account of the alleged delay in approaching this Court."
Learned AAG appearing for the appellants contended that apparently, the respondent was guilty of not abiding the transfer order. Drawing the attention of the Court to the order passed by the Appellate Authority, learned AAG submitted that the Appellate Authority has specifically noticed the contention of the respondent regarding issuance of order dated 17.9.05 passed by the Sub Divisional Officer, Balotra and thus, the conclusion arrived at by the learned Single Judge that the orders are passed in ignorance of orders dated 17.9.05 and 26.9.05, is ex facie erroneous. That apart, learned AAG submitted that vide order dated 1.10.05 issued by the District Collector (Land Record), the respondent was directed to join duties at Patwar Mandal, Mandali forthwith, however, he joined duties at Mandali as late as on 7.11.05 and thus, the conclusion arrived at by the Disciplinary Authority regarding violation of the transfer order, affirmed by the Appellate Authority cannot be faulted with. Learned AAG submitted that the respondent had assailed the legality of the order passed by the Disciplinary Authority dated 26.12.06 and order dated 25.8.08 passed by the Appellate Authority after a lapse of about 5 years and thus, the writ petition was liable to be dismissed on the ground of delay and laches. The explanation furnished by the respondent for delay in filing the petition was not plausible and acceptable and thus, the learned Single Judge has seriously erred in entertaining the writ petition.
On the other hand, counsel appearing for the respondent submitted that from bare perusal of the orders impugned passed by the Disciplinary Authority and Appellate Authority, it is apparent that the stand taken by the respondent in the representation made against the allegations levelled, has not been taken into consideration and the authorities have proceeded to held the respondent guilty without assigning any reason in support of the conclusion arrived at and thus, the findings arrived at by the Disciplinary Authority and affirmed by the Appellate Authority being ex facie perverse, the orders impugned have rightly been set aside by the learned Single Judge. Learned counsel urged that the respondent was given to understand the penalty of censure imposed upon him shall not come in his way in grant of promotion/ACP and therefore, he did not challenge the legality of the said orders immediately, however, when the ACP granted to the respondent was withdrawn only on this ground, it became absolutely necessary for the respondent to assail the legality of the orders passed by the Disciplinary Authority and Appellate Authority, which were ex facie illegal and arbitrary and thus, the learned Single Judge has rightly declined to dismiss the writ petition on the ground of delay.
We have considered the rival submissions and perused the material on record.
Admittedly, the disciplinary action against the respondent was proposed under Rule 17 CCA Rules for imposing minor penalty. As per Rule 17 (1)(a) of CCA Rules, no penalties as specified under Rule 14 (i) to (iii) is permissible to be imposed unless the government servant is informed in writing of proposal to take action against him and of the allegation on which it is proposed to be taken and given an opportunity to make any representation he may wish to make.
Undoubtedly, the respondent was informed about the allegations and he was extended an opportunity to make the representation. It goes without saying that the opportunity of hearing contemplated under Rule 17 of the CCA Rules, inherently includes therein that before passing the order holding the delinquent employee guilty of the allegations levelled, the stand taken by him in response to the notice issued shall be duly considered by the Disciplinary Authority.
Admittedly, the sole allegation against the respondent as set out in the statement of allegations was that he did not join duties on the post of Patwari at Mandali in compliance of the transfer order dated 14.5.05. It is matter of record that by way of representation, the respondent had taken specific stand that the order of transfer could not be complied with for the reason that vide orders dated 17.9.05 and 26.9.05 issued by the Sub Divisional Officer, Balotra and Tehsildar, Pachpadara respectively, he was directed to continue with the charge of the post of Patwari at Sajiyali and not to join duties at Mandali. A bare perusal of the order impugned reveals that the Disciplinary Authority has held the respondent guilty of the allegation levelled by merely recording its ipse dixit, ignoring the specific stand taken by him in the representation submitted in response to the notice. The Appellate Authority though noticed the factum of passing of the order dated 17.9.05, but the same has altogether been ignored while affirming the finding of Disciplinary Authority holding the respondent guilty.
We are firmly of the opinion that the categorical stand of the respondent that on account of intervening event in higher authorities issuing the orders dated 17.9.05 and 26.9.05, he continued at Sajiyali and did not join at Mandali, was a vital fact required to be taken into consideration by the Disciplinary Authority and the Appellate Authority. The conclusions arrived at by the Disciplinary Authority and the Appellate Authority without considering the defence of the respondent set out in the representation, are ex facie capricious and perverse, which vitiate the entire proceedings.
It is pertinent to note that the allegation against the respondent was with regard to non compliance of the transfer order dated 14.7.05 and not the subsequent order dated 1.10.05 in pursuance whereof, the relieving order was issued by Tehsildar, Pachpadara on 13.10.05. It is a matter of record that pursuant to the subsequent order passed as aforesaid, the respondent had joined duties at Mandali and thus, nothing turns on the question that the respondent had joined duties pursuant to the order dated 1.10.05, on 7.11.05.
There is yet another aspect of the matter, which needs to be taken note of. The case set out by the Disciplinary Authority in the statement of allegations was that the respondent failed to comply with the transfer order dated 14.7.05 whereas, he could not join the duties on account of subsequent orders dated 17.9.05 and 26.9.05 passed by the Sub Divisional Officer and Tehsildar respectively. If according to the appellants, the respondent was under an obligation to join duties straight away in compliance of the transfer order dated 14.7.05 then apparently, the Sub Divisional Officer, Balotra and Tehsildar, Pachpadara were the authorities to be proceeded against for issuing the aforesaid orders in defiance of transfer order dated 14.7.05 passed by the District Collector (Land Record), but, as we are informed by the learned AAG, no action whatsoever has been taken against them.
Be that as it may, on the basis of the material on record in no manner, it could have been concluded by the Disciplinary Authority that the respondent has defied the transfer order dated 14.7.05.
Coming to the question of delay in filing the writ petition assailing the order passed by the Disciplinary Authority and Appellate Authority, we are in fully agreement with the reasoning adopted and the view taken by the learned Single Judge in this regard.
It is not disputed before us that the order dated 31.7.12 withdrawing the ACP was issued on account of penalty of censure imposed by the Disciplinary Authority vide order dated 26.12.06, affirmed by the Appellate Authority vide order dated 25.8.08 and since the said orders are vitiated, the order passed by the District Collector (Land Record), withdrawing the ACP has also been rightly set aside by the learned Single Judge.
In view of the discussion above, no case for interference by us in intra court appeal jurisdiction is made out.
The appeal is therefore, dismissed. No order as to costs.