ROOP CHAND SHAH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS petition is directed against the order of dismissal dated 11 -11 -75 (Ex.21) and maintained in appeal by the Government on 7 -2 -80 (Ex. 23). The petitioner was posted as Excise Inspector, Bilara in the Excise Department of the Government of Rajasthan. He was served with a memorandum dated 3 -1 -75 and enquiry Under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 was conducted against him. After enquiry finding the petitioner was found guilty of charges No. 1,2 partially 3 and 5. A show cause notice dated 18 -10 -75 (Ex. 18) against the proposed penalty of dismissal was served on the petitioner. The petitioner submitted reply to the show cause notice on 20 -10 -75 (Ex. 20). The Disciplinary Authority, however, passed the order of dismissal agreeing with the findings of the Enquiry Officer and the petitioner was dismissed from service. The petitioner preferred an appeal before the Government but the same was dismissed vide communication dated 7 -2 -80. The disciplinary proceedings resulting in the petitioner's dismissal, have been challenged on various grounds. The principal ground of challenge is that the petitioner was not permitted to engage the services of an Advocate or any other departmental nominee to assist him to conduct the enquiry. According to the petitioner, after initiation of the enquiry by the Enquiry Officer, the petitioner submitted a representation dated 4 -8 -75 (Annx. 5), application dated 6 -8 -75 (Annx. 6) and representation dated 8 -8 -75 (Annx. 7). The petitioner submitted his reply to the charge sheet dated 8 -8 -75 (Annx. 9). But before submission of reply, the petitioner had made a request for permitting him to engage the services of an Advocate or representative. It may be stated that the petitioner's request for engaging the services of an Advocate was not considered by the Enquiry Officer as well as by the disciplinary authority. From the order -sheet of the disciplinary proceedings, it was pointed out that the matter was referred to the Government and it has also been pointed out that the Government had not taken any decision and nothing was communicated to the petitioner. It may be mentioned that the petitioner even made a request for providing , assistance of a defence nominee. Even that request was not considered on 6 -8 -75 (Annx. 6) The petitioner stated that in case permission to engage the services of an Advocate is not given pointing out the reason, that the request was made for providing him a defence nominee. On 8 -8 -75 a request was again made for allowing the petitioner to avail the services of an Advocate or representative. In reply to the charge -sheet as well, it was reiterated by the petitioner at the end of the reply that he has not so far been permitted to avail the services of an Advocate or representative

(2.) LEARNED Deputy Government Advocate, in this connection, submitted that the petitioner participated in the enquiry proceedings. He never insisted for availing the services of an Advocate or a departmental nominee So, from the conduct of the petitioner, it would appear that he didn't want to avail the services of an Advocate or a departmental nominee and besides that, the petitioner himself conducted by lengthy cross - examination of the witneeses and as such, no prejudice has been caused to the petitioner.

(3.) REFERENCE in this connection may well be made to a decision of this Court in Deokinandan Kulshrcshtha v. State of Rajasthan 1985 WLN(UC) 103, after quoting Sub -rule (5) of Rule 16 of the CCA Rules in para 7, it has been stated that the delinquent Government servant in his reply to the charge may mention the name of Government Servant of which he wants assistance as defence nominee but no order was passed by the Disciplinary Authority with regard to the appointment of defence nominee and a defence was taken that the consent of Government servant was not submitted and so, the Disciplinary Authority could not have appointed the defence nominee and a defence nominee and a plea was also raised that no prejudice has been caused to the petitioner in the absence of defence nominee. The learned Judge did not agree with the aforesaid submission made on behalf of the Government. The learned Single Judge observed as under: