G.S. Bhardwaj vs Secretary, Department of Personnel, Govt. of Raj. and Another

Munishwar Nath Bhandari, J.—The petitioner is in second round of litigation. First writ petition was filed at the stage when he was served with the charge-sheet. The writ petition was disposed of with the direction to the respondents to consider the issue in reference of the action taken in respect of other officers having allegation of similar nature. Respondents considered the matter in the light of the direction of this Court and rejected the representation vide impugned order dated 15th April, 2011. The present petition was filed at that stage.

Learned counsel for the petitioner submitted that the representation has been rejected precisely on the ground of monetary loss, whereas, the charge-sheet does not contain allegation of monetary loss. The respondents even failed to consider that counter parts of petitioner had passed similar orders but no disciplinary action was taken against them or if it was taken then, dropped. The petitioner was discriminated by the respondents. It was apart from the fact that the orders passed by the petitioner was while exercising quasi-judicial duties. The petitioner is having protection against any order passed while exercising quasi-judicial duties. The respondents ignored the aforesaid. The impugned order dated 15th April, 2011, thus, deserves to be set aside. It further states that after issuance of notice of this petition, the inquiry report was submitted on 8th November, 2011 without giving proper opportunity of hearing to the petitioner. In view of above, even inquiry report deserves to be set aside.

Learned counsel for the respondent, on the other hand, submitted that pursuant to the direction in the first writ petition, the representation of the petitioner was considered and decided by a speaking order. The default of the petitioner pointed out for each of the incidence is forming part of charge-sheet. In view of above, interference may not be caused in the impugned order. It is more so when an inquiry report has been submitted to the disciplinary authority on 8th November, 2011, when the petitioner did not participated in the inquiry proceedings, despite notice. The said inquiry report is not under challenge. The writ petition, thus, be referred infructuous, in view of subsequent developments. The petitioner would be having an opportunity to represent his case before the disciplinary authority, if he is so aggrieved by the inquiry report.

I have considered the rival submissions of the parties and perused the record.

First writ petition of the petitioner was disposed of with the direction to the respondents to consider allegations against other officers vis-�-vis allegations made against the petitioner after taking note of the fact that no action was taken against his counter parts or if there was any action, it was dropped. The representation of the petitioner has been decided adverse to him after considering each of the charge. The prima facie reason to dismiss the representation is the revenue loss, which is not said to be part of charges as urged by the learned counsel for the petitioner.

This court could have looked into the aforesaid order along with the issues raised for consideration, however, after filing of the petition and before issuance of notice in the month of October, 2011, the petitioner seems to have been called upon to appear before the inquiry officer. However, having filed the writ petition or for any justified reason, he did not appear before the inquiry officer, thus, ex-parte inquiry was held from the month of August, 2011, followed by inquiry report dated 8th November, 2011. The inquiry having been completed, it would not be proper to take up the issues which can be raised and decided by the disciplinary authority and otherwise it may require determination of question of facts.

In view of above, I am of the opinion that the petitioner should make a representation against the inquiry report raising all possible objections for its challenge. It may include that for similar quasi-judicial orders, no action was taken against his counter parts and an officer cannot be punished for an act for which he was not even charge-sheeted. It is apart from the issue of delay in disciplinary action. In case, the petitioner makes a representation, disciplinary authority would consider it without being influenced by the impugned order dated 15th April, 2011. The authorities should independently apply its mind as to whether quasi-judicial orders passed by the petitioner and are subject matter of the charge-sheet, suffers from mala fides or caused prejudice to any of the private party. The disciplinary authority will further consider the issue as to whether inquiry report has been submitted within the framework of the charge levelled against the petitioner. It is apart from the other issues raised by the petitioner. The petitioner is given liberty to make a detail representation against the inquiry report within a period of four weeks from the date of receipt of copy of this order. On the receipt of the representation, if any, the disciplinary authority will decide the same within three months from the date of receipt of the representation, looking to the fact that petitioner retired in the year 2003 and eleven years have already passed thereafter. The writ petition stands disposed of, accordingly, so as the stay application.