| SooperKanoon Citation | sooperkanoon.com/759990 |
| Subject | Service |
| Court | Rajasthan High Court |
| Decided On | May-09-2005 |
| Case Number | D.N. Civil Mis. Stay Application No. 119 of 1995 |
| Judge | S.K. Keshote and; Ajay Rastogi, JJ. |
| Reported in | RLW2005(3)Raj2142; 2005(3)WLC297 |
| Acts | Rajasthan High Court Ordinance, 1949 - Sections 18; Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 - Rules 14, 16, 16(1),16(10) and 34 |
| Appellant | State of Rajasthan |
| Respondent | Shri Dev NaraIn Pandey |
| Appellant Advocate | J.K. Agarwal, Additional Government Adv. |
| Respondent Advocate | Rakesh Sharma, Adv. |
| Disposition | Appeal allowed |
| Cases Referred | Canara Bank and Ors. v. Debasis Das and Ors.
|
Excerpt:
- section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on 30.11.1998 when the 1986 act was in force and under clause (h) of section 2 a juvenile was described to mean a child who had not attained the age of sixteen years or a girl who had not attained the age of eighteen years - it is with the enactment of the juvenile justice act, 2000, that in section 2(k) a juvenile or child was defined to mean a child who had not completed eighteen years of a ge which was given prospective prospect - appellant was about sixteen years of age on the date of commission of the alleged offence and had not completed eighteen years of age when the juvenile justice act, 2000, came into force - juvenile act, of 2000 has been given retrospective effect by rule 12 of juvenile justice rule, 2007 - as such, accused has to be treated as juvenile under the said act. - 17. where the respondent was not given the enquiry report and he has not made any grievance in the review and the writ petition that due to non-supply of the enquiry report before passing of the penalty order any prejudice was caused to him, we are satisfied that it was not a case where any relief is to be granted to the responded on the ground of violation of the provisions of rule 16(10) of the rules, 1958 by the court.s.k. keshote, j.1. this special appeal under section 18 of the rajasthan high court ordinance, 1949, is directed by the appellant, the state of rajasthan through the secretary, department of personnel, government secretariat, jaipur, against the judgment, dated 21.10.1994, of the learned single judge in s.b. civil writ petition no. 1702/1984.2. briefly stated the facts of the case are that the respondent was working as assistant engineer in the public works department, government of rajasthan; he was served with the memorandum, dated 30.6.1974, under rule 16 of the rajasthan civil service (classification, control & appeal) rules, 1958 (for short, 'the rules, 1958'). enclosed to the said memorandum, the respondent was sent the statements of charges and the allegations.3. the additional commissioner, departmental enquiries, rajasthan, jaipur, conducted the departmental enquiry against the respondent on the charge sheet served upon him vide memorandum aforesaid. the enquiry officer submitted the enquiry report, which is on the record of the writ petition as annexure-5. the enquiry officer found the charges framed against the respondent fully proved.4. the state of rajasthan accepted the enquiry report and under the order, dated 27.1.1977, imposed the penalty of stoppage of three grade increments with cumulative effect up on the respondent. by the time, it appears, the became the executive engineer. the enquiry report was not sent to the respondent along with the order of penalty aforesaid but on his application, dated 5.2.1977, it is not in dispute, the same was given to him. he prayed for supply of the copy of the enquiry report to him, as he was desireous of submitting the review petition.5. after receiving the enquiry report, he filed a review petition to the government of rajasthan; the copy of the review petition is there on the record of the writ petition as annexure- 6. the government of rajasthan dismissed the review petition, of the petitioner, under its order, dated 12.4.1979 (annexure-7).6. the respondent submitted further review petition under rule 34 of the rules, 1958 before his excellency the governor of rajasthan, jaipur. the memo of review petition is on the record of the writ petition as annexure-8. his excellency the governor of rajasthan, jaipur dismissed the said review petition vide order, dated 6.11.1984, which is there on the record of the writ petition as annexure-9.7. thereafter the respondent filed s.b. civil writ petition no. 1702/1984 in this court on 27.11.1984 and the learned single judge, under the impugned order, allowed the same, thus this special appeal on behalf of the state of rajasthan.8. heard learned counsel for the parties and perused the entire record of the writ petition and the special appeal.9. the learned single judge has allowed the writ petition only on the ground that the respondent was not served with the enquiry report, though he was punished with the major penalty. in support of the order, the learned single judge relief upon sub-clauses (a) and (b) to clause (i) of rule 16(1) of the rules, 1958. the learned single judge has also made the reference of the decision of the hon'ble supreme court in mohd. ramzan khan's case : (1991)illj29sc , and also referred the fact that the decision in mohd. ramzan khan's case (supra) has no retrospective applicability. the matter has been decided before the decision of mohd. ramzan khan's case (supra) and the benefit thereof could not be given in favour of the respondent: but relief has been granted as the provision of rule 16(10) of the rules, 1958 held not to have been complied with.10. the learned single judge made also reference to the decision of the court in babulal v. state (s.b. civil writ petition no. 311/1990), decided on 3.1.1990; that stated to be the case of co-delinquent and the view, which has been taken by the learned single judge under the impugned order, was stated to have been taken therein by the court.11. rule 16(10) of the rules, 1958, as it stood prior to the amendment, provided that where the disciplinary authority having regard to its findings on the charges is of the opinion that any of the penalties specified in clauses (iv) to (vii) of the rule 14 should be imposed on the government servant, it shall furnish to the government servant a copy of the inquiring authority and, where the disciplinary authority is not the inquiring authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the inquiring authority; and it shall give him a notice stating the penalty proposed to be imposed on him calling upon him to submit within a specified time such representation as he may wish to make on the proposed penalty, provided that such representation shall be based only on the evidence adduced during the enquiry.12. the rule 16(10), as it stood prior to amendment, it is not gainsay, was a provision for the benefit of the delinquent officers. this provision incorporates there in the principles of natural justice. the principles of natural justice cannot be put in a straitjacket formula. it must be blessed with flexibility and where a deviation taken place as regard to compliance therewith, the court may insist upon to prove the prejudice before setting aside the order of imposition of penalty. the delinquent officer must show sufferance of prejudice by non- supply of the enquiry report. it is not more res integra that a court will refrain itself from interfering with the order of major penalty given to a delinquent officer having regard to 'useless formality theory in a given case.'13. in the of managing director, ecil, hyderabad and ors. v. b. karunakar and ors. : (1994)illj162sc , the hon'ble supreme court has held that the employee must show sufferance of prejudice by non-obtaining a copy of the enquiry report.14. in the case of canara bank and ors. v. debasis das and ors. : (2003)iillj531sc , their lordships of the hon'ble supreme court held as under,'19. concept of natural justice has undergone a great deal f change in recent years. rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. they may be implied for the nature of the duty to be performed under a statute. what particular rule of natural justice should be implied and what its context should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. the old distinction between a judicial act and an administrative act has withered away. even an administrative order, which involves civil consequences, must be consistent with the rules of natural justice. the expression 'civil consequences' encompasses infraction of not merely property or personal right but of civil liberties, material deprivations and non-pecuniary damages. in its wide umbrella comes everything that affects a citizen in his civil life.'15. the respondent delinquent officer has not make the grievance that by non-supply of the enquiry report to him or that non-compliance of the provisions of rule 16(10) of the rules, 1958, as it stood prior to the amendment, any prejudice caused to him in the case.16. it is not the case that the enquiry report has not been supplied to the respondent. the respondent was desireous of the enquiry report for the purpose of filing the review petition, he needed the enquiry report for preparation of the review petition and accordingly the application was submitted for supply thereof on 5.2.1977 and it was made available to him. he filed the review petition against the order, dated 27.1.1997, under which he was penalized with the major penalty, to the government of rajasthan. the memo of review petition is on the record of the writ petition as annexure-6, and having gone through the entire review petition we do not find even any whisper what to say any specific pleading that due to non-compliance of the provision of rule 16(10) of the rule, 1958 he suffered any prejudice. no only this, after dismissal of the review by the government, the respondent filed another review petition under rule 34 of the rules, 1958 before his excellency the governor of rajasthan, jaipur, and the memo of that review petition is there on the record of the writ petition as annexure-8; therein also no such complaint has been made. the matter does not end here. in the writ petition filed by the respondent, it is nowhere mentioned that due to non-supply of the enquiry report or non-compliance of the provision of rule 16(10) of the rules, 1958 any prejudice has been caused to the respondent. even it is not the finding of the learned single judge under the impugned order that due to non-supply of the enquiry report or non-compliance of the provisions of the rule 16(10) of the rules, 1958 any prejudice has been caused to the respondent.17. where the respondent was not given the enquiry report and he has not made any grievance in the review and the writ petition that due to non-supply of the enquiry report before passing of the penalty order any prejudice was caused to him, we are satisfied that it was not a case where any relief is to be granted to the responded on the ground of violation of the provisions of rule 16(10) of the rules, 1958 by the court.18. the learned single judge, in our opinion, has seriously erred into considering the matter from this angle and aspect. the decision of another learned single judge in babulal's case (supra), may be of co-delinquent, is also not of any help to the respondent because the since qua non to take the benefits of the provisions of rule 16(10) of the rules, 1958, as it stood prior to the amendment, is to be established to the satisfaction of the court by the delinquent officer that non-supply of the copy of the enquiry report and that non-compliance faith provisions of rule 16(10) of the rules, 1958, resulted in causing prejudice to him, which is not the case here.19. as a result of the aforesaid discussion, the appeal succeeds and the same is allowed. the order, dated 21.10.1994, of the learned single judge, in s.b. civil writ petition no. 1702/1984, is quashed and set aside. s.b. civil writ petition no. 1702/1984 filed by the respondent is dismissed.20. in view of this order, the stay application, filed along with the special appeal, also stands disposed of.there shall be no order as to costs
Judgment:S.K. Keshote, J.
1. This special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, is directed by the appellant, the State of Rajasthan through the Secretary, Department of Personnel, Government Secretariat, Jaipur, against the judgment, dated 21.10.1994, of the learned Single Judge in S.B. Civil Writ Petition No. 1702/1984.
2. Briefly stated the facts of the case are that the respondent was working as Assistant Engineer in the Public Works Department, Government of Rajasthan; he was served with the memorandum, dated 30.6.1974, under Rule 16 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958 (for short, 'the Rules, 1958'). Enclosed to the said memorandum, the respondent was sent the statements of charges and the allegations.
3. The Additional Commissioner, Departmental Enquiries, Rajasthan, Jaipur, conducted the departmental enquiry against the respondent on the charge sheet served upon him vide memorandum aforesaid. The enquiry officer submitted the enquiry report, which is on the record of the writ petition as Annexure-5. The enquiry officer found the charges framed against the respondent fully proved.
4. The State of Rajasthan accepted the enquiry report and under the order, dated 27.1.1977, imposed the penalty of stoppage of three grade increments with cumulative effect up on the respondent. By the time, it appears, the became the Executive Engineer. The enquiry report was not sent to the respondent along with the order of penalty aforesaid but on his application, dated 5.2.1977, it is not in dispute, the same was given to him. He prayed for supply of the copy of the enquiry report to him, as he was desireous of submitting the review petition.
5. After receiving the enquiry report, he filed a review petition to the Government of Rajasthan; the copy of the review petition is there on the record of the writ petition as Annexure- 6. The Government of Rajasthan dismissed the review petition, of the petitioner, under its order, dated 12.4.1979 (Annexure-7).
6. The respondent submitted further review petition under Rule 34 of the Rules, 1958 before His Excellency the Governor of Rajasthan, Jaipur. The memo of review petition is on the record of the writ petition as Annexure-8. His Excellency the Governor of Rajasthan, Jaipur dismissed the said review petition vide order, dated 6.11.1984, which is there on the record of the writ petition as Annexure-9.
7. Thereafter the respondent filed S.B. Civil Writ petition No. 1702/1984 in this Court on 27.11.1984 and the learned Single Judge, under the impugned order, allowed the same, thus this special appeal on behalf of the State of Rajasthan.
8. Heard learned counsel for the parties and perused the entire record of the writ petition and the special appeal.
9. The learned Single Judge has allowed the writ petition only on the ground that the respondent was not served with the enquiry report, though he was punished with the major penalty. In support of the order, the learned Single Judge relief upon Sub-clauses (a) and (b) to Clause (i) of Rule 16(1) of the Rules, 1958. The learned Single Judge has also made the reference of the decision of the Hon'ble Supreme Court in Mohd. Ramzan Khan's case : (1991)ILLJ29SC , and also referred the fact that the decision in Mohd. Ramzan Khan's case (supra) has no retrospective applicability. The matter has been decided before the decision of Mohd. Ramzan Khan's case (supra) and the benefit thereof could not be given in favour of the respondent: But relief has been granted as the provision of Rule 16(10) of the Rules, 1958 held not to have been complied with.
10. The learned Single Judge made also reference to the decision of the Court in Babulal v. State (S.B. Civil Writ Petition No. 311/1990), decided on 3.1.1990; that stated to be the case of co-delinquent and the view, which has been taken by the learned Single Judge under the impugned order, was stated to have been taken therein by the Court.
11. Rule 16(10) of the Rules, 1958, as it stood prior to the amendment, provided that where the Disciplinary Authority having regard to its findings on the charges is of the opinion that any of the penalties specified in Clauses (iv) to (vii) of the Rule 14 should be imposed on the Government servant, it shall furnish to the Government servant a copy of the Inquiring Authority and, where the Disciplinary Authority is not the Inquiring Authority, a statement of its findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority; and it shall give him a notice stating the penalty proposed to be imposed on him calling upon him to submit within a specified time such representation as he may wish to make on the proposed penalty, provided that such representation shall be based only on the evidence adduced during the enquiry.
12. The Rule 16(10), as it stood prior to amendment, it is not gainsay, was a provision for the benefit of the delinquent officers. This provision incorporates there in the principles of natural justice. The principles of natural justice cannot be put in a straitjacket formula. It must be blessed with flexibility and where a deviation taken place as regard to compliance therewith, the court may insist upon to prove the prejudice before setting aside the order of imposition of penalty. The delinquent officer must show sufferance of prejudice by non- supply of the enquiry report. It is not more res integra that a court will refrain itself from interfering with the order of major penalty given to a delinquent officer having regard to 'useless formality theory in a given case.'
13. In the of Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. : (1994)ILLJ162SC , the Hon'ble Supreme Court has held that the employee must show sufferance of prejudice by non-obtaining a copy of the enquiry report.
14. In the case of Canara Bank and Ors. v. Debasis Das and Ors. : (2003)IILLJ531SC , their Lordships of the Hon'ble Supreme Court held as under,
'19. Concept of natural justice has undergone a great deal f change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied for the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be implied and what its context should be in a given case must depend to a great extent on the facts and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order, which involves civil consequences, must be consistent with the rules of natural justice. The expression 'civil consequences' encompasses infraction of not merely property or personal right but of civil liberties, material deprivations and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life.'
15. The respondent delinquent officer has not make the grievance that by non-supply of the enquiry report to him or that non-compliance of the provisions of Rule 16(10) of the Rules, 1958, as it stood prior to the amendment, any prejudice caused to him in the case.
16. It is not the case that the enquiry report has not been supplied to the respondent. The respondent was desireous of the enquiry report for the purpose of filing the review petition, he needed the enquiry report for preparation of the review petition and accordingly the application was submitted for supply thereof on 5.2.1977 and it was made available to him. He filed the review petition against the order, dated 27.1.1997, under which he was penalized with the major penalty, to the Government of Rajasthan. The memo of review petition is on the record of the writ petition as Annexure-6, and having gone through the entire review petition we do not find even any whisper what to say any specific pleading that due to non-compliance of the provision of Rule 16(10) of the Rule, 1958 he suffered any prejudice. No only this, after dismissal of the review by the Government, the respondent filed another review petition under Rule 34 of the Rules, 1958 before His Excellency the Governor of Rajasthan, Jaipur, and the memo of that review petition is there on the record of the writ petition as Annexure-8; therein also no such complaint has been made. The matter does not end here. In the writ petition filed by the respondent, it is nowhere mentioned that due to non-supply of the enquiry report or non-compliance of the provision of Rule 16(10) of the Rules, 1958 any prejudice has been caused to the respondent. Even it is not the finding of the learned Single Judge under the impugned order that due to non-supply of the enquiry report or non-compliance of the provisions of the Rule 16(10) of the Rules, 1958 any prejudice has been caused to the respondent.
17. Where the respondent was not given the enquiry report and he has not made any grievance in the review and the writ petition that due to non-supply of the enquiry report before passing of the penalty order any prejudice was caused to him, we are satisfied that it was not a case where any relief is to be granted to the responded on the ground of violation of the provisions of Rule 16(10) of the Rules, 1958 by the Court.
18. The learned Single Judge, in our opinion, has seriously erred into considering the matter from this angle and aspect. The decision of another learned Single Judge in Babulal's case (supra), may be of co-delinquent, is also not of any help to the respondent because the since qua non to take the benefits of the provisions of Rule 16(10) of the Rules, 1958, as it stood prior to the amendment, is to be established to the satisfaction of the Court by the delinquent officer that non-supply of the copy of the enquiry report and that non-compliance faith provisions of Rule 16(10) of the Rules, 1958, resulted in causing prejudice to him, which is not the case here.
19. As a result of the aforesaid discussion, the appeal succeeds and the same is allowed. The order, dated 21.10.1994, of the learned Single Judge, in S.B. Civil Writ Petition No. 1702/1984, is quashed and set aside. S.B. Civil Writ Petition No. 1702/1984 filed by the respondent is dismissed.
20. In view of this order, the stay application, filed along with the special appeal, also stands disposed of.
There shall be no order as to costs