Judgment:
Madan, J.
1. In second inning of his legal battle the petitioner has challenged impugned orders dt.13.1.94 (Annex.4) dismissing him from service for the misconduct and which has been affirmed in his appeal by order dt.29.7.94 (Annex,6).
2. Facts relevant for disposal of this petition, in brief, are that the petitioner was initially appointed as Constable on 1.12.1973 by the Superintendent of Police (S.P.) Jaipur and later on was transferred to the office of S.P. Sikar in January, 1987. During his posting as Constable in Treasury Guard, Sikar on 12.5.91; as per charge sheet dated 21.8.91, the petitioner is alleged to have left place of his duty (Treasury Guard) alongwith a register but in a drunkard condition had proceeded to the office of S.P. Sikar alongwith his rifle, inasmuch as he ill-behaved with officials deployed in election duty in his drunkard state on the way and thereafter entered in the chambers of the S.P. The charge-sheet is said to have been served on 24.8.91 and where after the Addl. S.P. was appointed as Enquiry Officer who during inquiry is said to have informed the delinquent (petitioner) as to the inquiry dates on various occasions through special messengers - as detailed out in inquiry report dated 31.3.92 (Annex.1) but he remained allegedly absent despite service of notice on 2.3.92 for date 4.3.92, hence proceedings were ordered as ex-parte. During inquiry the department produced eleven witnesses and got seven documents exhibited. The Inquiry Officer submitted his report on 31.3.92 holding misconduct of the petitioner for the allegations under both the charges as proved and thereby held him guilty of two charges. On the basis of inquiry report, the S.P. Sikar (disciplinary authority) punished the petitioner for the guilt of misconduct directing his dismissal from service by order dated 30.4.92 against which appeal filed by him too was rejected by the appellate authority under order dated 26.12.92 holding his appeal as time barred. Against both the orders of punishment and the appellate authority, the petitioner had also approached this Court by way of his CWP No. 1796/93 wherein though several grounds were raised but this Court considered it necessary to refer only the plea that copy of enquiry report was not furnished before punishing him but with punishment order, thereby he had no opportunity to make his submissions against conclusions drawn by the inquiring authority, which has resulted in depriving him of reasonable opportunity of being heard as contemplated by Article 311(2) of the Constitution so also Rule 16 of 1958 Rules. This Court after having considered rival contentions and various decisions cited at the Bar, in its judgment dated 29.7.1993 (Ann.2) allowed the petitioner's writ petition in the following terms:
'Since there has been a clear non-compliance of the Rules and the principle of natural justice, order of punishment passed by the Superintendent of Police is liable to be quashed. There is no escape from the conclusion that by not giving a copy of the inquiry report to the petitioner as well as an opportunity to make submissions with reference to adverse findings recorded by the inquiry officer, the Superintendent of Police has breached Article 311(2) of the Constitution as well as Rule 16 of the Rules, of 1958 and principles of natural justice.
Once it is held that the original order of punishment passed by the Superintendent of Police is vitiated, the appellate order passed by the Dy. Inspector General of Police, Jaipur Range, Jaipur is also liable to be declared as void.
In the result, the writ petition-is allowed. Orders dated 30.4.92 (Ann. I) passed by the Superintendent of Police, Sikar and dated 26.12.92 (Ann.4) passed by the Dy.Inspector General of Police, Jaipur Range, Jaipur are declared illegal and are hereby quashed. The petitioner shall be reinstated in service. The Superintendent of Police shall be free to make fresh order after calling upon the petitioner to make representation against the findings of the inquiry officer. Parties are left to bear their own costs.'
3. Thereupon, pursuant to afore quoted direction, the petitioner has reinstated in service by order dated 19.10.93 (Ann.3) but the disciplinary authority (S.P,. Sikar) by impugned order dated 13.1.94 (Ann.4) after considering explanation of the petitioner held him guilty of misconduct of both the charges and dismissed him from service, and against which appeal was also filed but it was also rejected by the appellate authority by its order dated 29.7.94 (Annex.6). Hence, this writ petition.
4. First attack to the validity of the impugned order of punishment, as contended by Shri M,K. Sharma, learned counsel for the petitioner, is that for the punishment of dismissal of the petitioner from service, the Superintendent of Police was neither competent nor having jurisdiction to punish the petitioner with major penalty inasmuch as he jvas having authority under the State Government's Circular dated 17.10.86 Issued under Rule 15(1) of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, 'CCA Rules'), only to impose minor penalty upto stoppage of two grade increments without cumulative effect.
5. Since the petitioner holding the post of Constable was a member of Subordinate & Ministerial Services in the Police department, 1 must look at the Appendix HI of the CCA Rules which deals with delegation of powers under Rule 15(1). According to this Appendix III, it is crystal from D.O.P. Order No.F3(1) Karmik/A-1ll/85, dated 17.10.86 that the State Government in exercise of the powers conferred by sub-rule (1) of Rule 15 of the CCA Rules, had empowered all Heads of Offices (in case of Police constable, the office of the S.P. is the Head Office and its head is the S.P. in the district) to impose minor penalties upto the stoppage of two grade increments (without cumulative effect) in respect of the Ministerial Staff working under them. This circular was partially modified by Order No.F.3(1) Karmik-A-111/85 dated 18.4.90 as under: -
'In partial modification of this Department Order No.F.3(1) Kar-mik/A-HI/85, dated 17.10.86 and in exercise of the powers conferred by sub-rule (1) of Rule 15 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958, the Government hereby empower all Heads of Offices to impose penalties upto the stoppage of two grade increments (without cumulative effect) in respect of the Ministerial Staff working under mem.'
(reproduced from CCA Rules Book published by Sachivalaya San-desh Cooperative Society Ltd. Secretariat, Jaipur p.124).
6. In this view of the matter, once it stands established that the Superintendent of Police, Sikar being head of his office in the district Police was empowered by the Stale Government under aforequoted circulars lo impose penalties upto the stoppage of two grade increments (without cumulative effect) in respect of the Ministerial Staff working under them, then legally the S.P. was not competent so also having no jurisdiction to impose penalty of dismissal from service in respect of the petitioner who admittedly being a constable was Ministerial Staff working under the S.P. Therefore, the order of punishment of dismissal from service in case of the petitioner Is Illegal and without jurisdiction having been passed without any authority under CCA Rules and thereby such a penalty order deserves to be set aside.
7. Next piunk of attack as to the validity of the impugned orders of punishment, as vociferously contended by learned counsel for the petitioner is that the impugned orders require judicial review on manifold reasons inter alia that not only the inquiry but also its report has been in utter disregard of principles of natural justice and in violation of the CCA Rules, because the inquiry itself was conducted ex parte and no intimation of the date of inquiry proceedings was ever communicated nor any notice thereof was served, which has resulted in depriving of the petitioner of his valuable right of cross-examination to the departmental witnesses.
8. The inquiry record of the impugned charge sheet given to the petitioner was produced during the course of hearing by the respondents. From this record, I find thatcharge sheet alongwith allegation of charges so also a list of departmental witnesses and documents was served on the petitioner on 24.8.91. After the inquiry officer (Addl. SP Sikar) was appointed, it was found that the petitioner did not present himself before him so, the inquiry officer sent a notice D-431 on 15.2.92 for his appearance on 19.2.92 to the petitioner and as per service report submitted by Mehtab Hussain Constable No.34l Addl.SP Office Sikar, the petitioner was reported to have been not found at his address and on 12.2.92 & 13.2.92 he was alleged to be there in Sikar and then went to his village. Thereupon notice No.447 dated 18.2.92 was sent to the petitioner for his appearance on 22.2.92 alongwith application for appointing his defence counsel (it should have been defence nominee) with consent and this notice dated 18.2.92 was got allegedly served on 20.2.92 on the petitioner. But again he did not appear on 22.2.92 pursuant to the said notice.
9. Again notice was sent for service upon him vide letter No.483 dated 24.2.92 again with same message for his alleged absence during inquiry proceedings on previous date 22.2.92 but for his appearance on 28.2.92 alongwith consent of his defence nominee and this notice was sent through special messanger Mehtab Hussain who further reported as to having not found him either at his address to also in the office, rather at the back of notice dated 24.2.92 it has been reported by Head Mohrir C.P. Reserve Police Line, Jaipur City that the petitioner on his transfer had joined on 4.1.92 but thereafter from 7.1.92 he has been absent at his own will. Again, at the village address of the petitioner, he was informed through SHO PS Khandela (Sikar) for his appearance before the inquiry officer on 4.3.92 and this wireless message through SHO was got served on the petitioner on 2.3.92, wherein it was also stated that the petitioner should appear alongwith consent of his defence nominee and the ex parte proceedings had already been ordered.
10. Whereafter admittedly neither the petitioner appeared on 4.3.92 or thereafter despite wireless message dated 21.3.92 for inquiry date of 26.3.92 nor the inquiry officer intimated as to each & every date on which he proceeded ex parte by conducting inquiry till its completion, nor I find any letter of communication proved to have been served on the petitioner for such intimation of dates of proceedings either for recording departmental witnesses or before submitting the inquiry report. From the inquiry file I find that on 4.3.92 statements of departmental witnesses namely Ranjit Singh (IO) (PW1), Banshidhar Aswal Dy. SP (PW2), Nahar Singh (PW3), Mahavir Prasad UDC (PW4), Jawahar Singh (HC) (PW5) were recorded with the direction to come up on 12.3.92 on which date none appeared so, the inquiry was taken up on 21.3.92 when Rajendra Sharma (PW6) & Babulal (PW7) were examined and on 26.3.92 Dr. V.K. Jain (PW8) was examined while on 28.3.92 rest of departmental witnesses were examined. During recording of statements of the departmental witnesses, in all documents Ex.1 to Ex.7 including medical report (Ex.6) was produced and got exhibited. And, on 31.3.92 the Inquiry Officer (Addl. SP) sent his report by his letter dated 31.3.92 to the SP Sikar holding both the charges proved and held the petitioner guilty of the impugned charges.
11. Be that as it may, the decks are clear and crystal, rather from a careful perusal of the inquiry file it stands founded that whatever the intimation was sent by the Inquiry Officer to the petitioner, either through special messanger or wireless message (supra), they pertained to appear before the Inquiry Officer alongwith consent of his defence nominee or to the effect that ex parte proceedings have been ordered but curiously enough as I find from the note sheet in the inquiry file, on 13.2.92 the inquiry stood initiated and the Inquiry Officer acted in a very hasty manner and that being so, in between 13.2.92 to 28.2.92 only two dates were fixed and ex parte proceedings were ordered on 28.2.92:
12. Even thereafter in any of afore-alleged intimations through special messanger or wireless message, only message communicated was that the petitioner should appear on the date fixed alongwith consent of his defence nominee but noneof such communication did slate as to which of the witnesses were directed to be examined on the dates fixed or intimated in the notices. Merely because ex parle proceedings were ordered by the Inquiry Officer, it does not mean that the delinquent would not be intimated of the proceedings conducted on each and every date in the inquiry, inasmuch as it does not mean that every time such proceedings would remain ex parte and the delinquent should be deprived of his right of cross-examination or opportunity of being heard. Further though after having recorded statements of five departmental witnesses on 4.3.92, next dates 12.3.92,21.3.92,26.3.92 and 28.3.92 were fixed and only on 12.3.92 no evidence was led but on rest of dates upto 28.3.92 all departmental evidences stood concluded.
13. The manner in which the inquiry proceedings were conducted in hot haste, depicted that the inquiry was got conducted in a biased manner with an oblique motive to punish the petitioner as if predetermined, Further more I do not find any material on inquiry record to show that before getting the departmental witnesses examined, documents enlisted in the list of documents and which were got exhibited by the department during recording of its evidence, were ever furnished to the petitioner with a view to afford him an opportunity of not only being heard of explaining his defence but also of providing him an opportunity of his right or cross-examination of the departmental witnesses.
14. Further more, for the incident alleged to have taken place on 12.5.91, impugned charge sheet was issued on 21.8.91 and after its service on the petitioner, the Spsikar issued notice lastly on 28.10.91 but curiously enough it was not got served and as per report endorsed on 28.10.91 the petitioner was alleged to have been absent from 18.10.91.and whereafter no notice was sent except an order having been issued on 13.2.92 (after about four months) appointing the Addt.S.P. Sikar as Inquiry Officer but again curiously enough, this order was got served on the petitioner on 6.3.92 till then the Inquiry Officer as detailed above had already got five departmental witnesses examined on 4.3.92 in his absence that too with no prior intimation.
15. After the Inquiry Officer is appointed, though an elaborate procedure is provided under sub-rule (4), (4A), (5) & (6) of Rule 16 of the CCA Rules, which must be followed by such inquiring authority while conducting inquiry on each and every date but curiously enough in the instant case the inquiry officer has failed to discharge its legal duty enshrined under Rule 16, ibid. Even the disciplinary authority did not nominate any person to present the case in support of the charges before the inquiring authority as required under sub-rule (5) of Rule 16 of CCA Rules. The Inquiry Officer did not ask the delinquent (petilioner) as to whether he is guilty to any of the articles of charge and thereby did not record the plea, sign the record and obtain the signature of the petitioner thereon, as required under sub-rule (4A) of Rule 16 of CCA Rules. The inquiry officer acted as if he were presenting officer also and he had acted upon list of witnesses & documents annexed with the articles of charge sent by the disciplinary authority under his letter dated 13.2.92 (i.e. appointment of inquiry officer). Even under sub-rule (6)(a) of Rule 16 of CCA Rules, after the close of the prosecution evidence, the delinquent (petitioner) is required to Be called upon to submit the list of the witnesses within 10 days which he would like to produce in his defence. But as held above, the inquiry officer in the instant case has not at alt followed the mandatory requirement as envisaged under Rule 16 of CCA Rules, rather after ordering ex-parte proceedings against the petitioner merely because he did not appear on any of the dates fixed by him, whereas he was not at all intimated as to recording of departmental evidence on the dates when statements were recorded by him and rather he went on recording of the statements ex -parte without calling the petitioner to cross examine those witnesses and further did not call him after close of the departmental evidence to produce a list of his witnesses within ten days which he would like to produce in his defence as he was having valuable right contemplated under Sub-rule (6) of Rule 16 of CCA Rules, which has resulted in miscarriage of justice so also violating theprinciples of natural justice besides violation of mandatory requirement under Rule 16 of CCA Rules (supra) and above all it has vitiated the inquiry proceedings being in total disregard of mandate warranting interference by this Court by invoking writ jurisdiction under the Constitution of India.
16. Inquiry proceedings and charge sheet itself stack of arbitrariness and deserves to be quashed and set aside because the charge sheet & statement of allegations to the articles of charges^ did not disclose name of the witnesses in whose presence the incident had happened whereas the witnesses produced by the department during ex parte proceedings before the inquiry officer disclosed themselves as eye witness then again curiously enough what prevented the disciplinary authority to have disclosed their names in the charge sheet, itself. Alt the witnesses produced by the department are of police department who too are subordinate to the SP Sikar in whose office the incident of misbehaviour on the part of the petitioner has allegedly taken place, while as per allegations in the articles of charges there were also officers. & employees deployed with election duty being present in the campus but again surprisingly none of them have been produced in evidence by the department nor their names have been disclosed in the articles of charges. In fact the charge has been made grave with an oblique motive, inasmuch as even as per the medical report (Ex.6) 1 find that the delinquent (petitioner) was not stated by the doctor to be so heavily drunken rather the medical report (Ex.6) which was given after clinical examination depicts that his blood pressure was 120/80, respiration - smell of alcohol 18% minimum regular - his consciousness was shown as duly conscious with normal speech, normal gait, state of clothing as normal & CNS as normal also, and under the heading 'impression' it has been slated that the petitioner had consumed alcohol but he was not intoxicated. This medical report (Ex.6) probablises rather proves defence of the petitioner that he had consumed an ayurvedic syrup renown as 'Drakshava' for his stomach ache and such a syrup was alleged to have contained an alcoholic contents and that being so,' the doctor has not held him to be intoxicated. Had such an incident taken place, again it is a matter of surprise, why report was not made by the staff attached to the S.P. Sikar in whose office the petitioner is alleged to have misbehaved? Thai apart, even as per daily diary report Nb.437 of 12.5.91 (Ex.P/27) it was only the petitioner who was on duty with rifle at the place of posting of his duty i.e. Treasury guard as against five other police sepoys who as per Ex.P/7 were not present there especially when election duly servants were deployed there, and thereby the entire guard learn was changed as is depicted from Ex.P/7. But no action appears to have been taken against those absentee. And the petitioner has been made scapegoat for his having made a request to make an entry in the register which admittedly was in his hand, to his superiors which in fact is made the cause of issuing charge sheet under the garb of misbehaviour in a drunkard stale. The words used by the disciplinary authority in the impugned charge sheet are 'smack of indiscipline and punishable' but failed to state as to whether it is his misconduct under the Conduct Rules? Thus it is a case where the inquiry has been held against the delinquent (petitioner) without disclosing the material which has been sought to be utilised against him and hence the proceeding itself is totally vitiated inasmuch as the conclusion arrived at in such inquiry stand vitiated on the principles of natural justice. The action on the part of the disciplinary as well as appellate authority is not based on relevant principles applicable and is guided by extraneous or irrelevant considerations and unreasonableness and the inquiry report is based on clear ignorance and disregard of provisions of CCA Rules, inasmuch as the punishment impugned is also disproportionate. The disciplinary authority has failed to record good and sufficient reasons for passing the impugned order imposing punishment of dismissal from service against the petitioner. Consequently, the impugned order of punishment is liable to be set aside.
17. Rule 30(2) of CCA Rules provides that me appellate authority shall consider whether the procedure prescribed under CCA Rules has been complied with and if not whether such non- compliance has resulted in violation of any provision of theConstitution or in failure of justice. It further impose a duty on the appellate authority to ascertain whether the facts on which the order was passed have been established, and further whether the facts established afford sufficient justification for making the order and further whether the penalty imposed is excessive, adequate or inadequate. I am fortified by the view taken by this Court (D.BJ in Vasudeo K. Hardasani v. State of Rajasthan (I) wherein this court also followed the decision of the Apex Court in Ramchander v. Union of India (2), as per which the appellate authority must not only give a hearing to the government servant concerned but also pass a reasoned order dealing with the contentions raised by him in the appeal. Thus viewed, find that both the orders of the disciplinary authority as well as that of the appellate authority cannot be upheld and the impugned orders are laconic and cryptic.
18. By virtue of holding the punishment order illegal and inquiry proceedings vitiated, the petitioner is entitled to reinstatement in service. I would have remanded the case back for exercise of powers of the competent authority under the service rules but keeping in view peculiar facts and circumstances of the case : (1) that the petitioner has been fighting this legal battle second time: (2) that in earlier writ petition first order of punishment dated 30.4.92 was set aside and the matter was remanded back but again the petitioner was visited with punishment of dismissal from service by reiterating evidence and selfsame reasons resulting in present petition pending since 1994 and further (3) looking to the nature of incident relating back to 1991 and ultimate nature of the conclusions recorded against him, which I have found to be not good and sufficient reasons to impose punishment of dismissal from service, I find that directing fresh enquiry would itself be disproportionately harmful to the petitioner as has been observed by the Apex Court in B.C. Chaturvedi v. Union of India (3) followed by this Court in Suresh Kumar Chugh v. State (4) and, therefore, shortening the duration of litigation, I have on over all view of the matter decided not to remand the matter to the Disciplinary Authority as that would entail multiplicity of litigation besides infraction of several procedure on account of earlier lapses on the part of the authority which is neither desirable nor warranted in the interest of justice.
19. In the result, this writ petition is allowed; the order dated 13.1.94 (Ann.4) as also the order dated 29.7.94 (Ann.6) are hereby quashed. The petitioner shall be deemed to be in continuous service shall also be entitled to all consequential benefits, meaning thereby the petitioner is directed to be reinstated with continuity of service from 30.4.92 & with all consequential benefits (to which he would be otherwise entitled to on quashing of penalty in disciplinary proceedings) including promotion and salary except that he shall be entitled to only 50% of back wages; including pay fixation on revision of pay scales admissible, but arrears of pay & allowances allowed as above will be paid to the petitioner alongwith interest @ 12% per annum from the date of its payability till the realisation thereof. No order as to costs. The respondents are directed to reinstate the petitioner in service within fifteen days from today and to implement the aforesaid directions of this Court for consequential benefits within eight weeks from the date of submission of certified copy of this order. A copy of this order be sent to the Chief Secretary of the State for compromise in letter & spirit.