NISAR AHMED Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This present writ petition is directed against the order dated 28.11.1995 passed by the Department of Personnel, Government of Rajasthan by which a penalty of withholding one increment without cumulative effect has been inflicted upon the petitioner. Memorandum of Chargesheet dated 29.11.1991 (Annx.-2) was issued to the petitioner and the same was received by the petitioner on 16.1.1992. The memorandum of chargesheet was answered by the petitioner vide its reply dated 3.2.1992 (Annex.-3). After giving opportunity and considering the reply submitted by the petitioner the Inquiry officer has submitted his report on 28.6.1995 and copy of the inquiry report was also sent to the petitioner on 17.7.1995. In the month of Sept. 1995 the representation against the finding given by the Inquiry Officer was submitted by the petitioner alongwith the written argument in support of his contention. After hearing the petitioner and appreciating the reply as well as the written argument the Disciplinary Authority vide its order dated 28.11.1995 imposed a penalty upon the petitioner for withholding one grade increment without cumulative effect. The writ petition was admitted on 2.4.1996 by this Court. The petitioner has assailing the order dated 25.11.1995 on the ground that the initiation of disciplinary proceedings against the petitioner itself is erroneous in as much as the mis-conduct alleged against the petitioner is unsustainable and the petitioner is not guilty of committing any mis-conduct whatsoever. And on the basis of the memorandum of chargesheet was served upon the petitioner. Charges levelled against the petitioner are not proved by the Disciplinary Authority itself. Learned counsel for the petitioner, Mr. G.K. Garg gave much emphasis to the Annex.1 dated 28.11.1995 order of the penalty by which the penalty of stoppage of one grade increment without cumulative effect has been inflicted upon the petitioner. He referred certain portion of the order dated 28.11.1995 wherein the Disciplinary Authority itself has held that it is not mandatory requirement that two Government employees are always be accompanied as witness in trap cases. Para 4 simply provides that independent witnesses should be selected to inspire confidence in all concerned including the Trial Court. In appropriate cases the trap laying officer in his discretion may include two public servants to witness the transaction. Thus para 4 of Chapter-IX of Manual emphasises on independent witnesses and subsequently a circular dated 18.4.1970 has clearly indicated that in case a requisition is sent to send Government employees as witnesses in trap cases the employee should made available. Mr. Garg also submits that as per the Schedule A appended alongwith the writ petition and the order sheet drawn by the petitioner clearly indicates that the petitioner has tried his level best to summon two independent witnesses. He further submits that on this count alone in the memorandum of chargesheet no charges made out against the petitioner. Mr. Garg further assailed the order dated 28.11.1995 on the ground that Inquiry Officer has not given any reason in support of his finding as to how the petitioner is responsible for misconduct. In view of the Rule 14 of the Rules of 1958 penalties can only be imposed for good and sufficient reasons which shall be recorded by the Inquiry Officer. In reply to the charges that the petitioner deliberately not recorded the statement and proceeded in accordance with the procedure laid down under the Chapter IX of the trap cases (Annex.8). Learned counsel for the petitioner submits that by bare perusal of the evidence as stated in the F.I.R. reveals and establishes that the petitioner had taken all possible measures which may be reasonable and prudent officer thereof taken for laying trap. Since no case is made out against the petitioner, therefore, the order dated 28.11.1995 (Annex. 1) resisted to be quashed and set aside.

(2.) In support of the argument learned counsel for the petitioner Mr. G.K. Garg placed reliance on the judgment in the case of S.C. Das Chhabra Vs. State of Rajasthan & Ors. reported in 1999 (1) RLR 104 and also submits that the inquiry was initiated after two years of the incident and the Inquiry Officer was also appointed after lapse of two years thereafter. Since four years have been lapsed and on the ground of delay in initiating of the inquiry against the petitioner should be dropped, as held in these judgments Yasin Khan & Anr. Vs. State of Rajasthan reported in 1999 RLR (1) 146 and Rajbir Singh Gill Vs. State of Rajasthan & Anr. reported in 1999 (7) SLR 422 . Learned counsel for the respondent Mr. Satish Bijarnia submits that this writ petition is not maintainable as the petitioner has not availed the alternative efficacious remedy which was available to him. This writ petition should be dismissed only on this count alone that the petitioner has not availed alternative efficacious remedy by way of submitting the review before His Excellency the Governor of Rajasthan. Mr. S. Bijarnia referred Rule 33 and 34 of the CCA Rules. Rule 33 reads as under:

(3.) Review of orders in disciplinary cases against members of State Services: