ORDER
Mohammad Rafiq, J.
1. Heard learned Counsel for parties.
2. This writ petition has been filed by petitioner challenging order dated 08.06.1994 of his removal and order dated 11.09.1996 rejecting his appeal filed there-against.
3. Petitioner was initially appointed as Patwari by order dated 02.03.1968 and was later on confirmed on that post by order dated 20.05.1975. Petitioner was placed under suspension by order dated 17.12.1987 pursuant to order of Board of Revenue dated 07.12.1987. A charge-sheet was issued to him on 14.08.1988. He submitted reply thereto. Along-with reply, the petitioner produced ten documents and a list of witnesses to be examined on his behalf in disciplinary enquiry. He submitted a representation to District Collector, Baran, on 20.07.1991 requesting for his reinstatement pending conclusion of disciplinary enquiry. The order of suspension was revoked on 01.11.1991 and petitioner was reinstated back in service. The petitioner submitted a representation to the District Collector on 21.12.1991 demanding fresh enquiry and alleging that the enquiry so conducted was not fair and proper because the enquiry officer has first of all examined the petitioner and his witnesses and the witnesses of the department were examined subsequently, which is contrary to the procedure contained in Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, 'the CCA Rules'), which vitiated the entire enquiry. The District Collector, by his order dated 08.06.1994, imposed penalty of dismissal from the services. Petitioner filed appeal against that order of his removal before the Divisional Commissioner, Kota, who rejected the same by order dated 11.09.1996. Hence this writ petition.
4. Shri Manoj Pareek, learned Counsel for petitioner, contended that copy of the enquiry report was not supplied to the petitioner prior to passing of order dated 08.06.1994, which has seriously prejudiced his case. The petitioner submitted an application to disciplinary authority on 23.06.1994 demanding copies of fifteen documents, but the In-charge of the Land Records Section, by his order dated 29.06.1994 refused to supply him any of these documents on the pretext that the same were not available. Only two documents were given to him.
5. Learned Counsel submitted that enquiry report was supplied to him after imposition of penalty.
6. Learned Counsel has argued that Sub-rule (6) of Rule 16 of the CCA Rules was completely flouted in the enquiry by inquiring authority. According to that sub-rule, presenting officer appearing on behalf of Disciplinary Authority, was required to submit his list of witnesses and documents within ten days by simultaneously sending a copy thereof to the delinquent, who thereafter within ten days is required to furnish his list of witnesses and documents. The enquiry officer was then required to ask the parties to either admit or deny the documents and then, if necessary, to summon the witnesses of the Department first giving an opportunity to delinquent to cross-examine them and thereafter witnesses of the delinquent are required to be summoned with opportunity to presenting officer to cross-examine them. In that, of-course a discretion has been given to enquiry officer to summon only such witnesses who may appear to him relevant and, if necessary, also the party concerned may have opportunity of re-examination of its witnesses and after the cross-examination by the opposite party. The enquiry officer could also put questions to witnesses if he thinks fit in the interest of justice. Learned Counsel submitted that in present enquiry that procedure has been flouted. Not only this, the provisions contained in Rule 16(10) of the CCA Rules was also violated because disciplinary authority did not furnish to petitioner copy of the enquiry report prior to imposition of penalty calling upon him to give his representation against the finding of enquiry officer, or against proposed penalty.
7. Learned Counsel submitted that the appellate authority has failed to consider mandatory provisions of Rule 30(2) of the CCA Rules which inter-alia require to examine whether procedure provided in the CCA Rules has been violated or not by the enquiry officer and whether such non-compliance has resulted in violation of any of provisions of the Constitution or failure of justice or whether the facts on which order was passed have been established or whether the facts aforesaid justifies the order of penalty and lastly and most importantly whether the penalty imposed is excessive, adequate or inadequate. The appellate authority in that condition was required to afford an opportunity of personal hearing to the petitioner.
8. Learned Counsel submitted that the defence of the petitioner taken by him in reply to the charge-sheet has not been considered. Statements of the witnesses recorded on behalf of the delinquent have not at all been dealt with either by the enquiry officer or the disciplinary authority. The evidence in the matter has been recorded in the reverse order; in that, first statements of witnesses of delinquent/petitioner have been recorded with opportunity to presenting officer to cross-examine him, whereas according to Rule 16(6)(a), the enquiry officer is required to first record statements of departmental witnesses.
9. It was argued that the Tehsildar, Kishanganj, himself being the complainant, could not have been nominated to act as presenting officer on behalf of the department. His statement was not recorded for that reason. The disciplinary authority has, by cryptic and non-speaking order, awarded penalty of removal against petitioner. The site inspection report dated 20.06.1990 was not considered by the enquiry officer as also the daily diary of the petitioner dated 20.06.1986, verified by Sub Tehsildar, has also not been considered. Report dated 03.07.1986 had been modified by amended report dated 05.07.1986. It is further contended that if at all the mutations No. 45 and 67 were attested by Sub Tehsildar Puranmal on the noting made by his Reader (LDC) Ishaq Mohammad, the petitioner singularly could not be held responsible on the assumption that such mutation was anti-dated and was shown to have been attested on 20.06.1986 so as to frustrate the status-quo order passed by the Revenue Appellate Authority on 11.07.1986.
10. Learned Counsel submitted that no order of penalty was passed against office-kanoongo Ram Kishan Mehra because he had already been removed from service in another disciplinary proceedings whereas Sub Tehsildar was spared of any penalty because by the time the final order could be passed by the disciplinary authority he had already expired. It was only Ishaq Mohammad who was rather dealt with leniently by the disciplinary authority to award penalty of stoppage of two grade increments with cumulative effect. Subsequently in his appeal however the Divisional Commissioner has exonerated him of all the charges. As against this, the petitioner, who was initially appointed with the respondent Department as Patwari on 02.03.1968 has been awarded sever penalty of removal by order dated 08.06.1994 after completion of 26 years of unblemished service. There is no other delinquency proved on the part of the petitioner nor he was awarded any such penalty in the past.
11. Learned Counsel submitted that Ishaq Mohammad has been exonerated only because of his defence that he was Reader of Sub Tehsildar and followed his command in making the verification note on the mutation proposal which in any case was signed by Sub Tehsildar and he being his subordinate was bound to follow his dictates. In doing so, the learned Divisional Commissioner has even accepted his plea that even wrongful command of the superior was required to be followed by him and therefore he could not be held guilty.
12. Learned Counsel submitted that the petitioner has been dealt with rather in harsh and oppressive manner in award of penalty of removal as against the minor penalty of stoppage of two grade increments without cumulative effect awarded to Ishaq Mohammad and even that penalty against him was subsequently set aside by the appellate authority.
13. It is contended by learned Counsel for petitioner that the enquiry should have been halted till criminal trial remained pending against him and others for offence under Sections 468, 420 and 34 of the IPC in the Court of Civil Judge-cum-Judicial Magistrate 1st Class, Kishanganj.
14. The learned Counsel on the question of discrimination in the matter of penalty has cited a judgment of Division Bench of this Court in Babu Lal v. State of Rajasthan and Ors. 2000 (3) RLR 416.
15. Shri S.D. Khaspuria, learned Additional Government Counsel appearing on behalf of the respondents, opposed the writ petition and submitted that the petitioner never objected to nomination of the then Tehsildar, Kishanganj, as presenting officer on behalf of the department and now at this stage he cannot be allowed to raise such objection. In any case Shri Khyali Ram Meena, who was the presenting officer, was not Tehsildar at the time when anti-dating entry was made by the delinquents. It is submitted that since the petitioner never demanded copy of enquiry report before passing of the penalty order, he was not and could not be supplied such report. It is submitted that the petitioner did not object for recording of statement/evidence of the delinquent/petitioner earlier than recording of statement/evidence of the department. He is therefore estopped from raising such objection at this stage.
16. Learned Counsel submitted that charge against petitioner was a serious one, in that he along-with certain other officials had made mutation entry by anti-dating the same showing to have been made on 20.06.1986 in order to frustrate the status-quo order passed by the Revenue Appellate Authority on 11.07.1986.
17. So far as non-consideration of copy of daily diary and site-inspection report is concerned, learned Counsel submitted that those documents were prepared by petitioner subsequently and thereon signatures of beneficiaries were obtained by him in order to cover his misdeeds. The penalty of removal for tempering with the government record and making frauds, cannot be said to be disproportionate. No order of penalty could be passed against Sub Tehsildar Shri Puranmal Sharma because he had expired in the midst of disciplinary proceedings, therefore the proceedings had to be dropped against him; whereas LDC Ishaq Mohammad was awarded penalty of stoppage of two grade increments with cumulative effect. The office-kanoongo was also in collusion with the petitioner who was not supposed to receive the mutation which was attested by the Tehsildar. Since his services were terminated as a outcome of another disciplinary proceedings, he was not proceeded against in the present disciplinary enquiry.
18. Learned Additional Government Counsel cited the judgment of the Court of Judicial Magistrate 1st Class, Kishanganj, Baran, dated 31.10.2002 in Criminal Case No. 308/1996, and argued that both, petitioner and Shri Ishaq Khan, have been convicted by that judgment for offence under Section 4/8 of the Act, were left out while extending the benefit of probation for good conduct within a period of two years. Learned Counsel submitted that the analogy on which the Divisional Commissioner awarded the light penalty of stoppage of two grade increments without cumulative effect was that he was merely following the orders of his superiors, has not been accepted by the criminal court.
19. Learned Counsel for petitioner in rejoinder submitted that in view of the judgment, the court has held that both, petitioner and Ishaq Khan, would be entitled to benefit of Section 12 of Probation of Offenders Act which would mean that their service career would not be affected by their conviction and any disqualification attached with conviction would not be incurred by them. Learned Counsel submitted that when in the criminal trial, petitioner as well Ishaq Khan have been found to be guilty of same misconduct, disciplinary authority was wholly unjustified in awarding greater penalty of removal to petitioner as against penalty of stoppage of two annual grade increments without cumulative effect to co-delinquent Ishaq Khan and subsequently even that penalty has been set aside by Divisional Commissioner on the analogy that Ishaq Khan was reader of the Nayab Tehsildar and as such he was merely following the command of his superiors.
20. Upon hearing learned Counsel for parties and perusing material on record, I find that even though as per ratio of aforesaid judgment of this Court in Babulal (Supra), the disciplinary authority as also appellate authority have acted illegally in not treating otherwise, the similarly situated delinquents at part in the matter of awarding penalty, but at the same time it cannot be accepted that neither of them would be responsible for manipulating the entries particularly when they have been both convicted for offence under Section 218. The analogy on which the Divisional Commissioner has set aside even the minor penalty of stoppage of two annual grade increments without cumulative effect to delinquent Ishaq Khan was wholly absurd because even if Ishaq Khan was following directions of his superior Nayab Tehsildar and in the capacity of reader, he was to discharge only such duties which were lawful. He was not bound to follow such directions which were opposed to law. In other words, even if Nayab Tehsildar required him to make manipulation in the record by entering false or forged entries, he was not bound to follow such orders. His status as that of reader to the Nayab Tehsildar is not therefore, a mitigating factor in his favour. But at the same time, in view of the ratio of the judgment of this Court in Babu Lal (Supra), the discrimination in the matter of award of penalty as against the petitioner is writ large. Such an order cannot be allowed to stand since the petitioner has been held guilty for offence under Section 218 along with his co-delinqeunt Ishaq Khan. Other irregularities etc. committed by the enquiry officer or disciplinary authority in the disciplinary proceedings while conducting the enquiry and not in following the provisions of CCA Rules, may not now be relevant. What is left to be examined is the only question of award of penalty.
21. In result, this writ petition is partly allowed. The order of penalty of removal passed as against petitioner is set aside. The matter is remanded back to disciplinary authority for awarding any other penalty on the petitioner except removal/dismissal keeping in view the law laid down by the Division Bench of this Court in Babu Lal's case (supra) and the fact that petitioner as well as his co-delinquent Ishaq Khan were both held guilty for offence under Section 218 and that the Court held them entitled to benefit under Section 12 of the Probation of Offenders Act which meant that they would not suffer from any of the disqualification attached with conviction for the purpose of continuity in employment. The disciplinary authority would therefore pass a fresh order of penalty in accordance with law. The petitioner however would not be entitled to any monetary benefits for the intervening period. In other words, he would be entitled only for notional benefits for the intervening period.
22. Compliance of this order be made within a period of three months from the date of its submission before respondents.