Judgment:
Prem Shanker Asopa, J.
1. Heard learned Counsel for the parties.
2. By this writ petition, the petitioner has challenged the order of reversion dated 30.5.2007 (Anx.18) whereby penalty of reversion for a period of three years has been imposed against which the petitioner filed an appeal which was dismissed on 27.2.2008 (Anx.21).
3. The brief facts giving rise to the aforesaid punishment are that while the petitioner was working as Inspector in Rajasthan Police in Bharatpur District,he was served with the charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 on 4.1.2005 (Anx.13) levelling three charges i.e. (i) keeping the wife of Ram Kishan, Head Constable with him as wife since 1999; (ii) advancing loan on higher rate to Ram Kishan, Head Constable and (iii) compelling Ram Kishan, Head Constable to file an application under Section 13B of the Hindu Marriage Act, for divorce. The aforesaid charge sheet is said to have been issued on the last complaint filed by Ram Kishan, Head Constable after withdrawal of the earlier two complaints.
4. The petitioner denied all the charges and further submitted that the complaint has been filed with ulterior motive and mala fide intention.
5. The Enquiry Officer vide its report dated 29.11.2006 held Charge No. 1 partly proved and charges No. 2 and 3 proved. The Disciplinary Authority i.e. the Director General of Police dis-agreed with the findings of the Enquiry Officer on Charge No. 1 and issued a note of dis-agreement dated 17.2.2007. The petitioner submitted reply and ultimately the Disciplinary Authority held the petitioner guilty of all the charges and imposed the aforesaid punishment against which appeal was filed and the same was dismissed.
6. The main contention of counsel for the petitioner is that the petitioner was served with the show cause notice dated 17.2.2007 (Anx.15) whereby Charge No. 1 which was partly proved has been treated by the Disciplinary Authority as fully proved by putting a note of dissent,without giving cogent reason and his own finding. The counsel also submits that in the said note of dissent, the Disciplinary Authority has placed reliance on the statement recorded in preliminary enquiry also, without exhibiting the preliminary enquiry report along with statements in the regular departmental enquiry. For the aforesaid two reasons, the petitioner has not been able to defend himself in the enquiry as well as before the Disciplinary Authority who imposed the punishment. Counsel for the petitioner placed reliance on the judgment of the Supreme Court in S.B.I. and Ors. v. Arvind K. Shukla 2001 AIR SCW 2472 (Para 2) and the judgment of this Court in State of Rajasthan and Ors. v. Jag Mohan Singh 2003 (1) WLC Raj.548 (Paras 1,2,3,4,5 and 6).
7. Counsel for the State submits that ample opportunity was given to the petitioner and it was not necessary for the State Govt. to exhibit the preliminary enquiry report during the course of regular enquiry.
8. I have gone through the record of the writ petition and further considered the rival submissions of the counsel for the parties.
9. Before proceeding further, it is relevant to reproduce relevant portion of para 1,2,3 and 5 of the judgment of this Court in Jag Mohan Singh (supra). The same reads as under:
1. ...It was open for the disciplinary authority to agree or not to agree with the findings recorded by the Enquiry Officer, but the obligation which has been cast upon the disciplinary authority under Rule 16(9) of the CCA Rules is that he has to consider the record of the enquiry and record his findings on each charge. Rule 16(9) is reproduced as under:
Rule 16(9)-The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its finding on each charge.
(The Disciplinary Authority may while considering the report of the Inquiring 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).
2. Therefore, the consideration of the record of enquiry and recording of the findings on each charge must precede the issue of show cause notice after due and active application of mind by the Disciplinary Authority on the findings recorded by the Enquiry Officer. What is the record of the enquiry has also been defined under Rule 16(8) of the CCA Rules and the record of the enquiry includes six item as under:
(i) the charges framed against the Government Servant and the statement of allegations furnished to him under Sub-rule (2);
(ii) his written statement of defence, if any;
(iii) the oral evidence taken in the course of the inquiry.
(iv) the documentary evidence considered in the course of the enquiry;
(v) the orders, if any, made by the Disciplinary Authority and the Inquiring Authority in regard to the inquiry; and
(vi) a report setting out the findings on each charge and the reasons therefor.
3. A conjoint reading of Rule 16(8) and 16(9) makes it very clear that in case the disciplinary authority itself is not the enquiry authority it has to consider the six items of record as mentioned in Rule 16(8) and thereupon he has to recordhis own findings on each charge. Further, it is clear from the language of Rule 16(1) that the decision of the Disciplinary Authority has to be with reference findings to his own findings on the charges and the opinion formed on that basis and thereafter, he has to take a decision with regard to any of the penalties under Rule 16(11) of the CCA Rules.
5. Besides this, it is transparently clear rather an admitted position that while giving the show cause notice no tentative reasons were recorded and conveyed to the delinquent officer. There is total absence of reasons for dis-agreement while issuing the show cause notice, whereas such reasons are required to be conveyed to the concerned delinquent officer so that he may represent before the ultimate finding is recorded. Even if the show cause notice with regard to actual proposed penalty is not given,by supplying the copy of the enquiry report with the tentative reasons for dis-agreement with the findings of the Enquiry officer it is a condition precedent and pre-requisite for a valid, order of punishment and such reasons given,by the Disciplinary Authority are also required to be conveyed to the delinquent officer. It is the trite law that non furnishing of the reasons to the delinquent officer at this stage itself is fatal to the validity, correctness and propriety of the enquiry proceedings and such failure on the part of the Disciplinary Authority vitiates the ultimate order of punishment. In case of S.B.I. and Ors. v. Arvind K. Shukla reported in 2001 AIR SCW 2472 the Supreme Court has held that when the Disciplinary Authority itself disagrees with the conclusions and findings arrived at by the Enquiry Officer, the Disciplinary Authority is required to record its tentative reasons for disagreement and give the same to the delinquent officer so as to afford an opportunity to him to represent before ultimate findings are recorded by the Disciplinary Authority. This law as has been laid down by the Supreme Court on consideration of several other decisions rendered by the Supreme Court in past makes the position clear on the point involved in this case.
10. In my view, the Disciplinary Authority has committed an error in relying on the statement recorded in the preliminary enquiry which was neither exhibited nor copy of which was given to the petitioner and further also, the Disciplinary Authority has not given its own finding on the issue after discussing the evidence of the witness(es) referred in the note of dis-agreement and further the same is based on the statements recorded in the preliminary enquiry which has neither been exhibited in the regular enquiry nor copy of the same was given to the petitioner. Thus, the impugned punishment order dated 30.5.2007 suffers from the serious infirmity of not giving any finding on the remaining charge No. 1 said to be proved and it also suffers from the further infirmity of placing reliance on the preliminary enquiry report which was neither exhibited nor copy of the same was given to the petitioner during the course of the regular enquiry and the said infirmities result in denial of reasonable opportunity to the petitioner to defend himself.
11. In view of the above, the enquiry proceedings from the stage of note of disagreement dated 17.2.2007 as well as proceedings of punishment are vitiated.
12. Accordingly, the writ petition is allowed, the punishment order dated 30.5.2007 (Anx. 18) and the oder of the Appellate Authority dated 27.2.2008 (Anx. 21)are quashed and set aside. However, the Disciplinary Authority is free to proceed in accordance with law.