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Judgment
By way of instant appeal, the appellant has challenged the order dated 07.03.2014 passed by learned Single Bench whereby the writ petition filed by the appellant/petitioner against the penalty order dated 19.08.2010 has been dismissed.
Briefly to summarize the facts in the present petition are that petitioner while working in the Department of Agriculture, Government of Rajasthan was sent on deputation to the District Rural Development Agency (DRDA), Rajsamand, where he remained posted from 21.12.1996 to 31.7.1997 on the post of Executive Engineer to supervise various famine relief works in various Panchayat Samities in District Rajsamand. A special audit was ordered by the Government to ascertain the truthfulness of certain complaints/irregularities observed in the various developmental projects. On finding prima facie case against the erring officials a decision to hold departmental proceedings against the officials including the petitioner was taken. A preliminary enquiry in the matter was conducted by the department.
Thereafter, a joint enquiry under Rule 18 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 was also ordered. Although 49 employees in the preliminary enquiry were found involved in the lapses but only a few persons were proceeded under the disciplinary enquiry including the petitioner.
After concluding the enquiry by the Commissioner of Enquiries (respondent no.4), the charges were found proved against the petitioner and an enquiry report was submitted. The Disciplinary Authority on the basis of enquiry report imposed the penalty of forfeiture of 50% pension for four years against the petitioner vide order dated 19.08.2010.
The petitioner challenged the order dated 19.08.2010 passed by the respondent no.2, by way of filing the writ petition before this Court.
A detailed reply was filed by the respondents defending the enquiry report as well as order passed by the Disciplinary Authority.
The learned Single Bench after hearing the parties dismissed the writ petition vide order dated 07.03.2014 upholding the order dated 19.08.2010 passed by Disciplinary Authority.
Heard learned counsel for the parties in detail.
Learned counsel for the petitioner submitted that the learned Single Judge has not taken into consideration that a number of persons as many as 49 were found involved/their name in the enquiry report but only a few including petitioner have been chosen to be proceeded by way of holding the Departmental Enquiry. Therefore, it is a clear case of discrimination.
Learned counsel further submitted that the enquiry report is totally unreasoned and non-speaking as the enquiry officer has not dealt with the entire evidence and in a very cursory manner relied upon the statements recorded in preliminary enquiry. The petitioner was also not provided with the relevant documents which has been relied upon by the enquiry officer.
Learned counsel for the petitioner further submits that the Disciplinary Authority has just reproduced the enquiry officer's findings while imposing the punishment and has failed to apply its own independent mind to arrive at a conclusion. He further submits that the action of Disciplinary Authority is in gross violation of Rule 16 (9) of the Rules of 1958.
On the other hand, the learned Additional Advocate General
Mr. SS Ladrecha has supported the order passed by the learned Single Bench and has submitted that the petitioner was involved in the embezzlement of public money and, therefore, a person who is charged with misappropriation/embezzlement of public money should be dealt with iron hands. Therefore, the learned Single Judge has rightly dismissed the writ petition of the petitioner.
He further submits that the Enquiry Officer has also taken into consideration the statements recorded during the Preliminary Enquiry which clearly and categorically establishes that petitioner was guilty of clearing the bills which were not due as the work on the site was never executed and thereby the Government has been put to monetary loss without the works having been performed actually on the site.
The learned Additional Advocate General supports the enquiry report as well as the order passed by the Disciplinary Authority and further submits that minor infraction in the above two orders should not annul the entire proceedings as the charges against the petitioner are of serious nature and, therefore, appeal should be dismissed with costs.
To have factual matrix more precisely, the findings of the Enquiry Officer reads as under :-
"VERNACULAR MATTER OMITTED"
That a perusal of the findings clearly show that the enquiry officer has relied upon the preliminary enquiry report in toto.
The evidence which has come on record during the preliminary enquiry has not been discussed as it only mentions about the same and the conclusion which has been reached by the officer conducting the preliminary enquiry has been relied upon without discussing the same.
The enquiry officer has more or less adopted the preliminary enquiry report without independently applying his mind and recording his own reasons for arriving at the conclusion. That in these circumstances, we find that when there are serious charges of embezzlement and the Government Servant is under a serious cloud then we are of the considered opinion that while arriving at a finding of guilt the enquiry officer should have discussed the evidence adduced and must have recorded the reasons as to why he find the evidence adduced by Department to be more creditworthy for arriving at a conclusion that charges framed against the petitioners are proved.
The Hon'ble Supreme Court in Anil Kumar Vs. Presiding Officer & Ors. in (1985) 3 SCC 378 held that it is well-settled that a disciplinary enquiry has to be a quashi-judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. The enquiry officer did not apply his mind to the evidence. Save setting out the names of the
witnesses, he did not discuss the evidence. He merely recorded his ipse dixit that the charges are proved. He did not assign a single reason why the evidence produced by the appellant did not appeal to him or was considered not creditworthy. He did not permit a peep into his mind as to why the evidence produced by the management appealed to him in preference to the evidence produced by the appellant. An enquiry report in a quasi-judicial enquiry must show the reasons for the conclusion. It cannot be an ipse dixit of the enquiry officer. It has to be speaking order in the sense that the conclusion is supported by reasons.
The Hon'ble Supreme Court in Nirmala J. Jhala Vs. State of Gujarat & Anr. In AIR 2013 Supreme Court 1513, it was held as under:-
"23. In view of above, it is evident that the evidence recorded in preliminary inquiry cannot be used in regular inquiry as the delinquent is not associated with it, and opportunity to cross- examine the persons examined in such inquiry is not given. Using such evidence would be violative of the principles of natural justice. 24. In Ayaaubkhan Noorkhan Pathan v/s State of Maharashtra & Ors., AIR 2013 SC 58, this Court while placing reliance upon a large number of earlier judgments held that cross- examination is an integral part of the principles of natural justice, and a statement recorded behind back of a person wherein the delinquent had no opportunity to cross-examine such persons, the same cannot be relied upon.
The preliminary enquiry may be useful only to take a prima facie view, as to whether there can be some substance in the allegation made against an employee which may warrant a regular enquiry. 26. "A prima facie case, does not mean a case proved to the hilt, but a case which can be said to be established, if the evidence which is led in support of the case were to be believed. While determining whether a prima facie case had been made out or not, the relevant consideration is whether on the evidence led, it was possible to arrive at the conclusion in question and not whether that was the only conclusion which could be arrived at on that evidence".
The enquiry report has to be a well reasoned and speaking in the sense that the conclusion must be supported by cogent reasons, it is all the more necessary where quasi-judicial enquiry attaches a stigma to the character of the delinquent. Therefore, in the present case a bare perusal of the enquiry report shows that it is bereft of the cogent reasons and there is no consideration of independent witnesses during the course of the enquiry. It shows that the evidence which was recorded during the preliminary enquiry was taken note of without discussing the contents of the statements recorded therein. Therefore, it appears that the enquiry officer has only relied upon the statements recorded during the preliminary enquiry and having satisfied with the same concluded that the charges against the petitioner are proved.
Hence, the enquiry report in our view is laconic, unreasoned and nonspeaking.
That as far as the order of Disciplinary Authority is concerned, it has simply reproduced the findings of the Enquiry Officer while passing the order dated 19.08.2010. It is worthwhile to produce the findings of the Disciplinary Authority for better appreciation of the matter:-
"VERNACULAR MATTER OMITTED"
A close scrutiny of above findings clearly and categorically show that there is absolutely no application of mind by the Disciplinary Authority and the Disciplinary Authority has simply relying upon the enquiry report has just made a statement of fact from the enquiry report itself without giving its findings on each charge.
As per Rule 16 (9) of the Rules of 1958 it is a must that the Disciplinary Authority is required to record its findings on each charge, after considering the report of enquiry officer along with the record of the enquiry.
Rule 16(9) reads as under:-
(9) The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its findings on each charge. The Disciplinary Authority may while considering the report of the Enquiring Authority for just and sufficient reasons to be recorded in writing remand the case for further/de-novo enquiry, in case it has reason to believe that the enquiry already conducted has been laconic in some respect or the other.
Therefore, on close examination of the findings recorded by the Disciplinary Authority in the order dated 19.8.2010 shows that the Disciplinary Authority failed to give its own reasons while considering the enquiry report as well as the relevant material, hence findings of the Disciplinary Authority recorded therein are not just and proper. The sub rule 9 of Rule 16 mandates the Disciplinary Authority to record its own findings on each charge after considering the enquiry report and the material therein.
If our view the order of the Disciplinary Authority fails to pass the test and a mandate of Rule 16(9) of the Rules of 1958.
In SL Gupta Vs. LIC & Anr. In 2005 (4) RDD 861 (Raj.), a Single Bench of Rajasthan High Court held as under:-
In normal course a speaking and reasoned order is required to be passed by every quasi judicial authority as it is a cardinal principle of rule of law. The action of the disciplinary authority is quasi judicial by nature, therefore, in order to enable the delinquent employee to know the reasons which weighed in the mind of the disciplinary authority in determining the guilt the order with reasons in support to the findings and conclusions is must. However, in the present case the stand taken by the respondents is that the order passed by the disciplinary authority is in concurrence to the findings given by the Inquiry Officer in the inquiry report which is having sufficient reasons, therefore, the order passed by the disciplinary authority need not to be a reasoned one. Hon'ble Supreme Court in Ram Kumar Vs. State of Haryana, 1987 (Supp) SCC 582, held that when the punishing authority agrees with the such findings of the inquiring authority and accepts the reasons given by him in support of such findings it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the Inquiry Officer and give the same reasons for the findings. 16. In the instant case I am to see as to whether the above principles can be applied in the present set of facts. Hon'ble Supreme Court in Union of India vs. Mohd. Ramzan Khan, AIR 1991 SC 471, held that the inquiry report is an adverse material if the Inquiry Officer records a findings of guilty and with proposed punishment so far as the delinquent is concerned. In a quasi judicial inquiry if the delinquent is being deprived of knowledge of the material against him though the same is being available to the disciplinary authority in the matter of reaching his conclusion rules of natural justice would be affected. In view of this position of law the inquiry report wherein an employee is found guilty, is adverse material to the delinquent employee. In the present case also the inquiry report alongwith the notice to show-cause was given to the petitioner as an adverse material and the petitioner was required to meet the same by submitting a reply. The petitioner submitted a reply to the disciplinary authority and raised various objections with regard to denial of opportunity of defence and also with regard to the findings of the Inquiry Officer. As I stated above that in the light of the law laid-down by Hon'ble Supreme Court in the case of Mohd. Ramzan Khan's case (Supra) the inquiry report is an adverse material. Therefore, the agreements to the findings by the disciplinary authority was tentative. The disciplinary authority after receiving the order and comments by the delinquent employee is always required to reach at its own findings and conclusions. The disciplinary authority is under an obligation to deal with the objections raised by the employee and he is required to prescribe findings and conclusions supported by the reasons. In a case where a copy of the inquiry report is supplied to a delinquent employee with a notice to show-cause with regard to proposed punishment, the principle laid-down in the case of Ram Kumar's case (Supra) cannot be applied. These are not the case of agreement with the findings of Inquiry Officer but in these cases the inquiry report itself has been treated as an adverse material, as such it is all the more necessary for the disciplinary authority to record reasons in support of his findings and conclusions. 17. In the light of the decision above, the validity of the order dated 16.11.1993 is required to be examined. The order dated 16.11.1993 does not contain any reason, the same is cryptic as it from no angle satisfies the cardinal rule of law that the orders passed by the quasi judicial authorities must be reasoned and speaking orders. Therefore, the order is in violation of the principles of natural justice being non-speaking and unreasoned order. It nowhere disclose the application of mind by disciplinary authority."
We are in agreement with whatever has been stated above, hence, in view that the orders passed by the Disciplinary Authority cannot be allowed to sustain as the requirements of Rule 16(9) are lacking and the enquiry report is also bereft of the reasons and proper application of mind. Both the authorities i.e. Enquiry Officer as well as Disciplinary Authority are required to apply their independent mind for reaching the conclusions in the matter.
In view of the detailed discussion, the appeal deserves acceptance and the same is hereby allowed, the orders dated 07.03.2014 passed by learned Single Bench as well as order dated 19.08.2010 passed by Disciplinary Authority are quashed and set
aside. No order as to costs.