POONA RAM Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioner initially was appointed as Lower Division Clerk by the Assistant Registrar, Co -operative Societies At the relevant time he was posted in the office of the Assistant Registrar, Cooperative Societies. Nagaur. He was suspended by the order of the Assistant Registrar, Cooperative; Societies, Nagaur, with effect from 2 -4 -1968. His suspension continued upto 31 -8 -1972. A Memorandum dated 20 -4 -1968 was served upon him by the Assistant Registrar informing him that it is proposed to hold an enquiry against him under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the Rules'). He was served with the charge -sheet to which reply was also submitted by the petitioner, but thereafter a fresh charge -sheet was served by the Registrar, Cooperative Societies. The petitioner gave reply to the charges levelled against him to the Registrar. The Registrar, vide order dated 21 -3 -1970 appointed the Deputy Registrar, Cooperative Societies, Jodhpur, as Enquiry Officer to enquire into the charges framed against the petitioner and the Assistant Registrar was appointed as the presenting officer to present the case in support of the charges before the Enquiry Officer. After recording evidence the Enquiry Officer submitted his report wherein he held that none of the three charges are proved against the petitioner. The report of the Enquiry Officer is Ex. 4. Thereafter a show cause notice was served upon the petitioner by the Registrar, wherein he stated that he does not agree with the finding of the Enquiry Officer with regard to charge No. 1. A punishment withholding of two annual grade increment without cumulative effect was proposed. That show cause notice is Ex. 5, to which the petitioner submitted his reply on 9 -5 -1972. Thereafter the Register vide order dated 16 -1 -1972 imposed punishment of stoppage of one annual grade increment without cumulative effect upon the petitioner and simultaneously directed that only subsistence allowance will be paid to the petitioner during the period of suspension. Against this Order Ex. 6, the petitioner preferred an appeal, but the same was rejected by the Government on 18 -6 -1973 vide order Ex. 7, a copy whereof was received by the petitioner on 5 -11 -1973. The petitioner has challenged the punishment awarded by the Registrar and upheld by the Government inter alia on the ground that in terms of Sub -rule (2) of Rule 16 of the Rules it is the Disciplinary Authority which was required to frame charges and the Disciplinary Authority is the Assistant Registrar. The Registrar, Cooperative Societies was not competent to serve the charge -sheet on the petitioner and to hold the enquiry and to award punishment. The Registrar was not competent to appoint the Enquiry Officer. Thus, the entire enquiry is without jurisdiction. The other contention is t hat the Depruty Registrar is the Appellate Authority of the Disciplinary Authority and the order of the Government passed in appeal, is also without jurisdiction.

(2.) THE respondents submitted reply to the writ petition in which the contents of paras A and B(1) and B(2) were admitted. With regard to para B(3) it was stated that it is incorrect that the petitioner continued to remain suspended upto 31 -8 -1972. The order of re -instatement was passed on 21 -8 -1971. Further, it was stated that the Registrar cancelled the memorandum dated 20 -4 -1968 issued by the Assistant Registrar, Nagaur, on his request. The contents of other sub -paras of para B were admitted. With regard to the ground relating to jurisdiction it was averred that the petitioner submitted to the jurisdiction of the Registrar. The objection as to jurisdiction was nowhere raised by the petitioner Neither it was raised before the Government in appeal. It was stated that if the petitioner felt aggrived by the charge -sheet of the Registrar, he should have approached this Court at the very moment instead of submitting to the jurisdiction and taking chance before the authority. Even on merits it was denied that the Registrar was not competent to issue charge -sheet under the Rules. The Registrar is the superior authority and is entitled to exercise powers of the authority subordinate to him, particularly where it was to avoid any breach of the principles of natural justice. It was denied that the orders under challenge are without jurisdiction. The petitioner had waived and gave up this point from the very beginning of the proceedings and thereby in the writ of certiorari it is not open to the petitioner to take such ground for the first time. Replies to other grounds have also been submitted and in the end it is prayed that the writ petition be dismissed with costs.

(3.) THE main contention advanced by Shri Mridul, learned Counsel for the petitioner, is that the orders of the Registrar as well as of the Government, both arc absolutely without jurisdiction and so they are null and void, hence liable to be quashed. He urged that under the Rules the Disciplinary Authority is the Assistant Registrar and appeal against the Disciplinary Authority lies to the Deputy Registrar, as is evident from Schedule B, Item 8, columns 5 and 6, in case of office of Assistant Registrar. Shri Mridul submitted that the power in connection with holding of departmental enquiry, has been conferred on the Disciplinary Authority under the Rules having the force of law, so the power has to be exercised by the Authority on whom it is confined in accordance with and in the manner in which the power is required to be exercised and not otherwise and the powers can be exercised by none else other than the authority empowered to exercise the power under the statutes or Rules. Reliance was placed by Shri Mridul on Commissioner of Police, Bombay v. Gordhandas Bhanji : [1952]1SCR135 , in which the order of cancellation was not an order by the Commissioner but it was merely an intimation by him of an order passed by the another authority, namely, the Government of Bombay. It was held that there was no valid order of cancellation, as the only person who could effect the cancellation, was the Commissioner of Police.