Yadav Chandra Trivedi vs State of Rajasthan and Others

Gopal Krishan Vyas, J—The instant writ petition has been filed by the petitioner Yadav Chand Trivedi, Lower Divisional Clerk of State Insurance and Provident Fund Department to challenge the order dated 10.5.1997 (Annex.19) whereby he was dismissed from service in an inquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the Act of 1958 for short) and the order of dismissal of appeal dated 21.5.1996 and order of review petition dated 15.7.1997 whereby the appeal and the review petition filed by the petitioner were dismissed.

As per the facts of the case, the petitioner was appointed as LDC in the State Insurance and Provident Fund Department, Dungarpur in the year 1989 and posted in the office of Assistant Director at Dungarpur. A complaint as made by one Mohan Lal Yadav, LDC of the Dy. Education Officer, Simalwada, District Dungarpur against the petitioner in which it was alleged that petitioner and one Ashok Joshi are taking bribe for sanction of loan against State Insurance Police holders. Alongwith the complaint, a letter of Heera Lal and Photostat copy of the demand draft in the sum of Rs. 850/- was sent to take action. Upon receiving such complaint, the petitioner was placed under suspension vided order dated 21.4.1993. Thereafter, he was charge-sheeted under Rule 16 of the Rules of 1958 vide charge memo dated 22.05.1993 Annex.1 In the charge-sheet in all 3 charges were levelled against the petitioner for taking bribe through bank draft of Rs. 850/- for sanctioning the loan of State Insurance Policy from the employees. The petitioner filed an application for supplying certain documents upon which charge-sheet was issued. After obtaining document, the petitioner filed its detailed reply to the charge sheet which is placed on record as Annex.6. In the said reply, all the allegations levelled against him were denied and it was specifically pleaded that he is having good relation with Heera Lal and due to need of money, the said Heera Lal took loan of Rs. 1,500/- on 1.8.1992 and out of Rs. 1,500/- he sent bank draft of Rs. 850/- dated 18.10.1992 to return the loan. To substantiate the aforesaid fact, the petitioner submitted the copy of the letter of Heera Lal dated 19.10.1992 and affidavit of Heera Lal alongwith his reply. Upon receiving reply, the Addl. Director, State Insurance Department, Udaipur conducted the inquiry and same was submitted to the Director, State Insurance and Provident Fund Department, Jaipur. The Director being disciplinary authority send show cause notice dated 25.2.1995 alongwith copy of inquiry report and ask the petitioner to file his representation against the finding given in the inquiry report. The petitioner filed its reply to the show cause notice on 21.3.1995 and raised all his objections with regard to inquiry. After receiving reply the disciplinary authority granted opportunity of personal hearing to the petitioner at the time of personal hearing, the petitioner filed his written argument, which is placed on record as Annex.18.

The disciplinary authority finally passed an order on 10.5.1995 whereby the petitioner was dismissed from service.

Against the order of dismissal an appeal under Rule 23 of the Rules of 1958 was filed by the petitioner to the Secretary, Finance Department, Government of Rajasthan on 27.11.1995 but vide communication dated 4.6.1996, the petitioner was informed by the Addl. Director, State Insurance and Provident Fund Department, Jaipur that your appeal has been dismissed by the appellate authority vide order dated 21.5.1996 but the order dated 21.5.1996 passed on the appeal was never communicated to the petitioner.

The petitioner preferred review petition under Rule 34 of the Rules of 1958 against the communication dated 4.6.1996 whereby he was informed that his appeal was dismissed. In the review all the grounds were raised by the petitioner but by unreasoned order the reviewing authority dismissed the review petition of the petitioner vide order dated 15.7.1997.

This writ petition was listed in the court for hearing on 14.1.1999. On that day a direction was given by coordinate bench whereby the appellate authority was directed to file reply alongwith order or the reasons for rejecting the appeal filed by the petitioner before this Court.

In spite of the aforesaid order passed by the coordinate bench, the order of appellate authority did not file the order alongwith the reply in this petition.

The matter was come up for final hearing on 18.8.2015. On that date, during arguments, it was informed by the learned counsel for the petitioner that in spite of the directions issued by this Court on 14.1.1999 to place on record the order of appellate authority, the said order has not been produced before the Court.

After perusing the order dated 14.1.1999 a direction was issued on 18.8.2015 whereby respondents were again directed to order of appellate authority dated 21.5.1996 for perusal of the court.

In pursuance of the said order, an additional affidavit of Assistant Director, State Insurance Department, Jodhpur has been filed alongwith the order dated 21.5.1996 which is Annex.R/13.

The learned counsel for the petitioner submits that neither in the order of dismissal nor in the order of appellate authority and reviewing authority reasons are recorded to held petitioner guilty, therefore, all the orders are totally unconstitutional in view of the Full Bench judgment of Hon''ble Supreme Court in the case of S.N. Mukherjee Vs. Union of India, AIR 1990 SC 1984 : (1990) CriLJ 2148(1) : (1990) 3 JT 630 : (1990) 4 SCC 594 : (1990) 1 SCR 44 Supp : (1991) 1 SLJ 1 , therefore all the orders may be quashed.

The learned counsel for the petitioner argued that in the charge-sheet an allegation was levelled against the petitioner that he has accepted the bribe of Rs. 850/- through demand draft from one Heera Lal, Class IV employee of Dy. District Education Officer, Simalwada. In charge No. 2 the names of 17 persons are mentioned from whom Heera Lal collected the money and prepared draft of Rs. 850/- to send to the petitioner but in the inquiry out of 17 persons, statement of none of the employees were recorded by the inquiry officer and only on the basis of statement of Heera Lal concluded the inquiry. Learned counsel for the petitioner further submits that the inquiry officer did not consider the reply and documents submitted by the plaint to arrive with the finding upon the charges, therefore, the whole inquiry conducted by the inquiry officer is baseless and contrary to law. While inviting attention towards the inquiry report, it is submitted that there is no finding of inquiry officer that charges are proved but disciplinary authority sent the show cause notice on 25.2.1995 and asked the petitioner to submit his representation against the inquiry report.

Learned counsel for the petitioner submitted that although detailed reply to the show cause notice was filed by the petitioner on 21.3.1995, alongwith the written submissions at the time of hearing but the disciplinary authority without considering the important aspect of the matter that there is no finding in the inquiry report and without considering the grounds raised by the petitioner in his reply/representation held petitioner guilty without recording reasons, therefore, the order of dismissal dated 10.07.1997 (Annex.19) is totally illegal because there is no evidence to establish the charge that petitioner took bribe through demand draft of Rs. 850/- from Heera Lal Class IV employee of education department. While inviting attention towards the order of dismissal it is submitted that the order of dismissal is not sustainable in law because no reasons are recorded nor the disciplinary officer considered the inquiry report in right perspective, therefore, the order of dismissal may be quashed. Further, it is submitted that vide communication dated 4.6.1996 petitioner was informed that your appeal filed against the order of disciplinary has been dismissed but in spite of specific order by this Court on 14.1.1999, the order of appellate authority was not placed on record and now it has been filed on 19.8.2015 in which none of the grounds taken by the petitioner in appeal were considered and in very casual manner the appeal filed by the petitioner has been dismissed which is evident from the order Annex.R/13 dated 21.05.1996 placed on record alongwith the additional affidavit of Sh. Ghanshyam Sharma, Assistant Director, State Insurance Department, Jodhpur. Further, it is submitted that in review petition filed by the petitioner against the communication dated 4.6.1996, the reviewing authority dismissed the review in very casual manner, therefore, all the orders impugned in this writ petition deserves to be quashed because there is not evidence to prove the charges levelled against the petitioner.

Per contra, the learned Government Advocate appearing on behalf of the respondent department vehemently argued that in an inquiry was conducted against the petitioner under rule 15 of the rules in which he was held guilty for taking bribe of Rs. 850/- through bank draft from Heera Lal, Class IV employee of the Education Department and the said witness stated in his statement in the inquiry that upon demand of the petitioner he has collected the amount and sent to the petitioner for sanctioning the loan against the State Insurance Policy to the employees of the Education Department, therefore, the inquiry officer while relying upon the statement of Heera Lal gave its finding that petitioner is guilty of taking bribe. Further, it is submitted that Sh. Heera Lal witness clearly stated that letter dated 14.10.1992 and 27.10.1992 were written by him in connection with the GPF/Insurance Loan claim and sent the money collected by him to the petitioner through demand draft which is deposited by the petitioner in his bank account.

While inviting attention to the statement of Heera Lal which is Annex.R/7 it is submitted by the learned Government Advocate that the said witness has categorically stated in his statement that he has sent Rs. 850/- to the petitioner upon demand of petitioner, therefore, it cannot be said that inquiry officer has committed any breach of law so as to come with the conclusion that petitioner received bribe money of Rs. 850/- from Heera Lal and committed the misconduct. Learned counsel appearing on behalf of the Government submits that it is a case in which the petitioner directed Heera Lal, Class IV employee of Education Department to collect money from employees for the purpose of sanctioning loan against State Insurance Policy and this charge is well established in the inquiry, therefore, it is a case in which the punishment of dismissal has rightly been awarded to the petitioner, therefore, this writ petition may be dismissed.

After hearing the learned counsel for the parties, first of all, it is required to be observed that inquiry officer has relied upon the statement of Heera Lal (Annex.R/7) but in the rejoinder filed by the petitioner it is specifically pleaded that said witness Heera Lal gave an affidavit, which is submitted by the petitioner alongwith the reply to the charge-sheet in which the said witness categorically said that amount was not collected to fulfill the demand made by the petitioner. Further, the statement of Heera Lal were not recorded in the presence of the petitioner nor any opportunity of cross-examination was given to him by the inquiry officer, therefore, obviously the statement of Heera Lal were recorded at the back of the petitioner, therefore, the documents and the statement of Heera Lal on which reliance is being made by the respondents have no legal value.

In counter to the rejoinder to the averments made in para No. 6 of the rejoinder it is submitted by the department that inquiry officer allow the petitioner for appointing his defence nominee but petitioner did not choose to do so. Therefore, no cross-examination was not made but statements were recorded in the presence of petitioner. After taking into consideration the above facts and the fact that inquiry officer has failed to consider the reply filed by the petitioner and documents, gave its opinion that the charges are established. In my opinion, it was the duty of the inquiry officer to give specific finding to the charges levelled against the delinquent in the charge-sheet. In the charge-sheet, the following charges were levelled against the petitioner, which reads as under:

Upon perusal of the above charges it is evident that allegation against the petitioner is to accept Rs. 850/- from 17 persons through Heera Lal, Class IV employee of Dy. Education Officer, Simalwada but in the inquiry none of the persons mentioned in charge No. 2 come-forward to give their statement that they paid the said amount for sanction of loan to Heera Lal and in the statement of Heera Lal there is no specific assertion that he has collected amount from 17 persons. Meaning thereby, the inquiry officer did not consider the statement of Heera Lal in right perspective nor take into account the affidavit of said Heera Lal submitted by the petitioner alongwith his reply.

Upon perusal of the inquiry report it is abundantly clear that there is no specific finding of inquiry officer whether charges are proved or not. The inquiry officer gave narration of evidence which is recorded in the inquiry.

The said inquiry report was sent to the petitioner through show cause notice and petitioner gave its reply to the show cause notice but it is very strange that disciplinary authority passed order of dismissal while relying upon the inquiry report but none of the grounds taken by the petitioner in the reply to the show cause notice were considered, which is evident from the order of dismissal dated 10.5.1995. The following finding has been given by the disciplinary authority to punish the petitioner, which reads as under:--

Upon perusal of above it is clear that the order is totally unreasoned order because there is no discussion upon the grounds taken by the petitioner. Similarly, when detailed appeal was filed by the petitioner then obviously the appellate authority was under obligation to consider the grounds taken in the appeal against the order of dismissal, but first of all vide communication dated 4.6.1996 it was informed by the Assistant Director, State Insurance, Dungarpur to the petitioner that vide order dated 21.5.1996 your appeal has been dismissed, but even after passing order by this Court on 14.1.1999, the order of appellate authority was not annexed with the reply and, thereafter, when specific direction was made on 18.8.2015 by this Court then the order passed upon appeal dated 21.5.1996 is placed on record as Annex.R/13 in which appeal of the petitioner was decided in the following manner:

Upon perusal of above order dated 21.5.1996 it is obvious that none of the grounds taken by the petitioner in the appeal were considered by the appellate authority. More so, in very casual manner, the appeal filed by the petitioner was dismissed.

Similarly, in review petition filed by the petitioner under Rule 34 of the Rules of 1958, the reviewing authority without recording reason dismissed the review petition vide order dated 15.7.1997. The said order reads as under:--

Upon perusal of the order of review it is revealed that none of the grounds was considered by the reviewing authority. The only assertion is made that matter has been examined by the inquiry officer upon which the punishment order was passed and appeal filed under Rule 23 has also been dismissed vide order dated 21.5.1996. Meaning thereby none of the authority and inquiry officer applied its mind towards the reply given by the petitioner and only on the basis of statement of Heera Lal, Class IV employee of the Education Department gave its report to the disciplinary authority upon which the totally unreasoned order was passed by the disciplinary authority on 10.5.1995. Likewise, the appellate authority hide the order passed upon appeal for years together and for the first time placed on record on 19.8.2015 in which it is found that the order of appellate authority dated 21.5.1996 is also unreasoned order that too, passed in very casual manner by the appellate authority. The order of reviewing authority dated 15.7.1997 also suffers from vice of reasoned order, therefore, it is a case in which none of the authority applied its mind towards the reply given by the petitioner and accepted the statement made by Heera Lal in the inquiry in which no opportunity of cross examination was given to the petitioner.

In case of SN Mukharjee, following adjudication is made by the Hon''ble Supreme Court that quasi judicial authorities while exercising powers of disciplinary authority are under legal obligation to record its reason after providing an opportunity of hearing to the incumbent, which reads as under:

"38. The object underlying the rules of natural justice "is to prevent miscarriage of justice" and secure "fair play in action." As pointed out earlier the requirement about re- cording of reasons for its decision by an administrative authority exercising quasi-judicial functions achieves this object by excluding chances of arbitrariness and ensuring a degree of fairness in the process of decision-making. Keeping in view the expanding horizon of the principles of natural justice, we are of the opinion, that the requirement to record reason can be regarded as one of the principles of natural justice which govern exercise of power by administrative authorities. The rules of natural justice are not embodied rules. The extent of their application depends upon the particular statutory framework whereunder jurisdiction has been conferred on the administrative authority. With regard to the exercise of a particular power by an administrative authority including exercise of judicial or quasi-judicial functions the legislature, while conferring the said power, may feel that it would not be in the larger public interest that the reasons for the order passed by the administrative authority be recorded in the order and be communicated to the aggrieved party and it may dispense with such a requirement. It may do so by making an express provision to that affect as those contained in the Administrative Procedure Act, 1946 of U.S.A. and the Administrative Decisions (Judicial Review) Act, 1977 of Australia whereby the orders passed by certain specified authorities are excluded from the ambit of the enactment. Such an exclusion can also arise by necessary implication from the nature of the subject matter, the scheme and the provisions of the enactment. The public interest underlying such a provision would out weight the salutary purpose served by the requirement to record the reasons. The said requirement cannot, therefore, be insisted upon in such a case.

For the reasons aforesaid, it must be concluded that except in cases where the requirement has been dispensed with expressly or by necessary implication, an administrative authority exercising judicial or quasi-judicial functions is required to record the reasons for its decision."

After perusing the aforesaid decision and considering the entire facts of the case, I am of the opinion that the orders impugned in this petition are not sustainable in law because:

"(a) before the inquiry officer none of the employees mentioned in charge No. 2 from whom the alleged amount was collected by Heera Lal appeared before the inquiry officer and proved the fact that they paid amount to Heera Lal;

(b) the inquiry officer relied upon the statement of Heera Lal only, but no opportunity of cross-examination from witness Heera Lal was given to the petitioner, therefore, the so called inquiry is not in accordance with law;

(c) the inquiry officer did not give specific finding for individual charge whether he found that those charges to be proved or disproved. Therefore, in absence of specific finding the disciplinary authority has wrongly relied upon the so called inquiry, which is conducted by the inquiry officer upon the charges levelled against the petitioner;

(d) the order of disciplinary authority and appellate authority and reviewing authority impugned in this writ petition are totally non-speaking order and without considering the reply given by the petitioner against so called charges levelled against him in the charge-sheet;

(e) the disciplinary authority failed to consider the very important aspect of the matter that there is no direct evidence of taking bribe of Rs. 850/- from 17 persons by the petitioner. More so, an explanation was given by the petitioner that the amount of Rs. 850/- was received by him through bank draft sent by Heera Lal, Class IV employee working in the office of Dy. Education Officer, Simalwada, who took loan of Rs. 1,500/- from him. In support of above reply, an affidavit of Heera Lal was also filed alongwith the reply to the charge-sheet by the petitioner, but the inquiry officer refused to rely or to consider the said document nor any question was put to the said witness by the prosecution even if the fact that in reply affidavit of Heera Lal was filed, which is not in dispute. It is beyond imagination that bribe will be taken by demand draft. Therefore, the inquiry officer and disciplinary authority were under obligation to consider the plea of the petitioner that Rs. 850/- were returned by Heera Lal against loan of Rs. 1,500/-."

In view of the above facts and law laid down by the Hon''ble Supreme Court in case of S.N. Mukharjee (supra), I am of the opinion that the order of disciplinary authority dated 10.5.1995, order of appellate authority dated 21.5.1996 and order of reviewing authority dated 15.7.1997 are not sustainable in law because these non-speaking orders are against the principles of natural justice, so also passed by the respondent authorities without considering the grounds and documents relied upon by the petitioner in the inquiry.

On the basis of above discussion, the instant writ petition is allowed and the order of disciplinary authority dated 10.5.1995, order of appellate authority dated 21.5.1996 and order of reviewing authority dated 15.7.1997 are hereby quashed and set aside. The respondents are directed to reinstate the petitioner forthwith with all consequential benefits. However, the petitioner will be entitled for 25% back wages only because he has not actually worked on the post in question after dismissal from service.