Premsukh Somani vs State of Rajasthan

Dr. Vineet Kothari, J.—The petitioner Mr. Premsukh Somani has filed this writ petition in the year 2001 in the second round of litigation after the earlier writ petition namely, S.B. Civil Writ Petition No. 4675/2000 Prem Sukh Somani Vs. State of Rajasthan & Ors. was withdrawn by him with a liberty to file afresh and the present writ petition has been filed with the following prayers:-

"It is, therefore, respectfully prayed that this writ petition may kindly be accepted and

I. by an appropriate writ, order or direction:-

I/a. The impugned order Annexure/6 dated 30.6.93 may be declared illegal and quashed.

I/b. The impugned order Annexure-12 dated 16th December, 1995, may kindly be quashed and be declared illegal.

II. Any other appropriate writ, order or direction as may be considered proper in the facts and circumstances of the case may kindly be made.

III. Cost of the writ petition be allowed to the Petitioner."

The petitioner was removed from the services as Development Officer while serving the respondent Panchayati Raj Department by the impugned order Annexure-6 dated 30.06.1993 after holding an inquiry against him which was a joint inquiry against one Dr. Murlidhar Upadhayaya, the then Veterinary Doctor, Mr. Gautam Mal Bohra, Inspector (Office) and the present petitioner serving as Development Officer in the Panchayat Samiti Sagwada, Udaipur on the alleged ground that in collusion with the other officials of the Panchayat Samiti, he had disbursed loans to the various persons for the purpose of sale and purchase of the animals in a camp held in the said Panchayat Samiti.

Mr. Manoj Bhandari, the learned counsel appearing for the petitioner urged that the explanation given by the petitioner that at the time of said camp for the purpose of sale and purchase of the animals, the petitioner had, in fact, gone to attend the meeting of the Zila Parishad and was not even present at the site in question. It is submitted that the present petitioner had signed the proceedings, for holding the camp and for disbursement of the loan, on the basis that the other delinquent officials had already prepared and signed the proceedings in which the Doctor who is said to have verified the papers relating to the loans and examined the animals had also put his signatures and on the basis of such signatures by the petitioner, the inquiry in question was initiated against him and in this process, a notice Annexure-10 dated 31.05.1994 was sent to the petitioner to which the petitioner has given a detailed explanation in the form of reply but by the impugned order, the inquiry was concluded against the petitioner and the respondent Disciplinary Authority formed an opinion that looking to the nature of negligence and the delinquency proved against the petitioner, the punishment of withholding of the two grade annual increments was sufficient but later-on on the basis of the advice/opinion given by the respondent Rajasthan Public Service Commission (''RPSC'') vide communication dated 23.04.1991, the Disciplinary Authority agreeing with the advice/opinion given by the respondent RPSC, enhanced the said punishment from withholding of two grade annual increments to that of removal from the service and passed the impugned order dated 30.06.1993. The review application filed by the petitioner against the order dated 30.06.1993 also came to be rejected with the approval of His Excellency the Governor under the signatures of Deputy Secretary to the Government vide Annexure-12 dated 16.12.1995. Hence, the present writ petition has been filed by the petitioner with the prayers above quoted.

Mr. Manoj Bhandari appearing for the petitioner has made the following contentions before this Court:-

(i) That under Rule 15(2) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (''the Rules of 1958''), the Disciplinary Authority was not even required to consult the RPSC since it had already formed an opinion of imposing the punishment only to the extent of withholding of two grade annual increments and, therefore, there was no necessity of consulting the respondent RPSC;

(ii) That on the purported advice/opinion given by the respondent RPSC, the punishment of withholding of two grade annual increments was enhanced to that of removal from service and the copy of the alleged opinion/advice of RPSC has even not been produced on record by the respondents nor supplied to the petitioner and, therefore, the Disciplinary Authority was not bound by the same but by the impugned order dated 30.06.1993, without assigning any reasons or showing any independent application of mind by the Disciplinary Authority, the said Disciplinary Authority has enhanced the punishment from withholding of two grade annual increments to that of removal from service.

He relied upon the judgment of this Court in the case of Dr. Jagdish Prasad Sharma Vs. State of Rajasthan & Anr. 2002(2) RLW 1173 and the Supreme Court decision in the case of State of Rajasthan Vs. M.C. Saxena,

On the other hand, Ms. Kusum Rao, appearing for the respondent Department of Personnel urged that the quantum of punishment cannot be interfered with by this Court and she relied upon the decision of the Hon''ble Supreme Court in the case of State of U.P. and others Vs. Nand Kishore Shukla and another, She also reiterated the contentions made in the reply filed on behalf of the respondent Department that the entire material and the findings of the Inquiry Officer were considered by the Disciplinary Authority and in accordance with the advice/opinion given by the respondent RPSC, punishment of removal from service was imposed upon the petitioner, which was justified and no interference is called for.

Mr. Siddharth Joshi, the learned counsel appearing for the respondent RPSC also reiterated the contentions made in the reply filed on behalf of the respondent RPSC.

I have heard the learned counsels and perused the record of the case.

A bare perusal of the impugned order passed by the Disciplinary Authority Annexure-6 dated 30.06.1993 would show that there was no independent application of mind by the Disciplinary Authority, who merely dittoed the advice of the respondent RPSC vide letter dated 23.09.1991 and again reiterated on 19.01.1992. The Court does not have the benefit to look into the communication by which the respondent RPSC has given the so-called advice/opinion for removing the petitioner from service as both the learned counsels appearing for the respondents have not produced the copy of the same on the record nor produced the same for perusal before the Court for the reasons best known to them.

Surprisingly, in the reply filed on behalf of the respondent State in para 1(i)(d), the respondent State has stated that the respondent RPSC is ''Not required'' to state reasons while advising the State Government on the quantum of punishment. This Court does not have the benefit of looking into the communication by which the respondent RPSC has given its opinion/advice to the State Government. If the communication is made available, this Court could examine the merits of that advice whether it contains any reasons or not and on what material or basis, the respondent RPSC has given the so-called advice/opinion for removing the petitioner from service. On being queried, the learned counsel Ms. Kusum Rao appearing for the respondent Department was at loss of words and material to satisfy the Court in this regard.

It is the basic tenet of the principles of natural justice that all administrative authorities and the quasi judicial authorities ought to pass the orders assigning proper reasons justifying its order. In the present case, the Disciplinary Authority was dealing with a matter in which the Government servant was removed from the services of the Department and if the contention of the learned counsel for the respondent Department is taken on its face value and is accepted, it would make a mockery of the very basic principles of natural justice and, therefore, the submission of the learned counsel for the respondent Department is liable to be rejected at the outset and the same is hereby rejected.

Coming to the impugned order Annexure-6 dated 30.06.1993, as stated above, the Disciplinary Authority has merely dittoed the advice/opinion given by the respondent RPSC and has passed the impugned order without application of its mind independently. Looking to the nature of charges and the findings given by the Inquiry Officer itself indicates that the petitioner himself was not present at the auction camp site where the animals were purchased and sold and merely because he had signed the proceedings later-on on the basis of signatures of other delinquent officials, who were punished with much lesser penalty but for the same charges, why the petitioner was punished with a heavy penalty of removal from service, is not understood.

There is considerable force in the contention raised by the learned counsel for the petitioner that Rule 15(2) of the Rules of 1958 does not require any such consultation with the respondent RPSC, after the Disciplinary Authority had already formed an opinion for imposing the penalty of withholding of two grade annual increments against the petitioner. No rebuttal of this contention of the petitioner is forthcoming from the respondents'' side. This Court is, therefore, of the considered opinion that the impugned orders for removal of the petitioner from the services of the Department have been passed without proper application of mind by the respondents and without assigning any cogent and convincing reasons for imposing the harsh punishment of removal from service upon the petitioner.

The judgment relied by the learned counsel appearing for the respondent Department does not come in the way of this Court if the penalty order shocks the conscience of the Court in the present case, as it does.

On the other hand, the ground given by the respondents for enhancement of the punishment is not palatable. Not only the advice sought by the Department in the matter was not required under the CCA Rules of 1958, as noticed hereinabove, in the first instance but also the respondents have failed to produce a copy of the so-called advice/opinion of RPSC before this Court, on the basis of which, the Disciplinary Authority had enhanced the penalty and passed the orders for removal of the petitioner from the services.

Therefore, this Court is of the opinion that in the absence of the document, nothing can be pronounced on the merits or demerits of the opinion/advice given by the respondent RPSC. The conduct of the respondents of not producing the copy of this very important document before the Court and in not supplying the copy of the same to the learned counsel for the petitioner is rather reprehensible and is deprecated.

The assertion of the respondents in the reply that the respondent RPSC was not even required to state the reasons while giving its advice/opinion in the matters of disciplinary inquiries about quantum of punishment, which contention has already been rejected, as stated above and it is reiterated that in such matters, when the respondent RPSC is not even required to consult with under Rule 15(10) of the CCA Rules of 1958, therefore, such proposition, of not interfering with the quantum of punishment, as canvassed before the Court by the learned counsel for the respondent State cannot be countenanced.

The writ petition is, therefore, in the considered opinion of this Court deserves to be allowed. The petitioner Government Servant Mr. Prem Sukh Somani who has since expired and his legal representatives have already been taken on record.

The writ petition is, accordingly, allowed and the impugned orders Annexure-6 dated 30.06.1993 and the Reviewing Authority Order Annexure-12 dated 16.12.1995 are quashed. The petitioner will be deemed to be reinstated back in service from the date when he was removed from the services under the impugned orders. He will be allowed all consequential benefits like continuity in service, seniority, promotions, pay fixation etc. what benefits accrue to the legal representatives on account of the revision of pension will also be paid to them. This exercise may be completed within a period of three months from today and the arrears of pay and pension with interest @6% per annum may be paid to the legal representatives of the petitioner from the date when they became due till the actual date of payment. The respondents are also directed to pay costs of this writ petition to the legal representatives of the petitioner which is quantified to Rs. 5,000/-.