BHAJAN LAL BHATIA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS writ petition has been filed by petitioner Dr. Bhajan Lal Bhatia challenging the order dt. 05.05.1997 by which he was removed from service with the prayer the same be quashed and set -aside with the further direction to the respondents to reinstate him in service with all consequential benefits and to grant him pay and allowances. The facts of the case are that petitioner was posted as medical jurist in J.L.N. Hospital, Ajmer in the year 1988. On 14.08.1988, one Dharam Das @ Dharmu Chhablani was brought to the hospital with the complaint that a private doctor administered him injection, which caused reaction. Eventually, he was declared dead. Police was informed and his dead body was referred to the mortuary for post mortem. Police prepared panchnama of the dead body and handed over the same to the post mortem, whereafter the post mortem of the dead body was conducted. It was regarding that dispute that Moolchand Chhablani, brother of deceased Dharam Das @Dharmu Chhablani, lodged a first information report with the Anti Corruption Bureau at Ajmer alleging that petitioner demanded from him a sum of Rs. 500/ - for conducting the post mortem and threatened that if money was not given to him, he would cause disfiguration of the dead body. He had only Rs. 200/ - and borrowed Rs. 100/ - from Bhanwarlal Kankra and gave Rs. 300/ - to Dr. Bhajan Lal Bhatia. But the petitioner insisted for giving Rs. 500/ - and again threatened that if he did not give this money, he would render dead body in such a position that it will have to be carried in a cloth bag. It was at that time, that Atul Maheshwari, a Congress leader came there and when he came to learn about this attitude of the petitioner, altercation took place between him and the petitioner. Separately, complaint was also made to Dr. M.S. Mathur, Superintendent of JLN Hospital, who set up a committee consisting himself, Dr. P. Prasad, Professor and Head Surgery Department and Dr. V.D. Kaviya, Head of Medical Jurists Department. Petitioner submitted explanation to the said committee. Anti Corruption Bureau conducted the investigation in FIR No. 46/1989 for offence u/Ss. 5(1)(D)(2) of the Prevention of Corruption Act, 1988 (for short, the "Act of 1988") and Section 161 IPC and referred the matter for prosecution sanction to the government. The government however refused to grant sanction and accordingly, the final negative report was submitted before the Court. The Special Judge, ACB Cases, Jaipur vide order dt. 31.03.1992 accepted the final report. In the preliminary enquiry, prima -facie case was made out against petitioner. It was thereafter that the memorandum of charge -sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, the "CCA Rules") was issued to the petitioner on 30.12.1992. Petitioner filed his short reply on 10.04.1993 denying the charges. The enquiry officer served upon the petitioner a show cause notice dt. 08.11.1996 submitting therewith the enquiry report dt. 07.10.1995 recording the finding of guilt against petitioner advising him to file representation within fifteen days. Petitioner however vide letter dt. 23.01.1996 demanded copy of the preliminary enquiry report and also statement recorded during preliminary enquiry. Respondents vide their letter dt. 23.01.1996 conveyed him that there was no need for supply with copy of the preliminary enquiry report and the statements recorded therein. Last opportunity of hearing was given to him to file reply thereagainst otherwise appropriate order shall be passed. Petitioner thereafter submitted his representation on 02.02.1996. The disciplinary authority vide order dt. 05.05.1997 imposed penalty of removal of petitioner. Aggrieved therewith, the present writ petition has been filed.

(2.) SHRI M.M. Ranjan, learned senior counsel assisted by Shri Deepak Sharma, learned counsel for the petitioner argued that the impugned order of penalty has been imposed in a most arbitrary and unreasonable manner. The disciplinary authority failed to appreciate that a criminal case was lodged against petitioner on the self -same complaint, which eventually culminated in a negative final report and the Court accepted the same. Petitioner could not therefore be proceeded against in the departmental enquiry on the same subject -matter. It was argued that petitioner was falsely implicated in the criminal case because brother of the deceased was not in a stable state of mind and at that time when some delay took place in the post -mortem, he was annoyed with the petitioner. Soon thereafter, when Shri Atul Maheshwari came there, complainant requested him also to intervene in the matter. Shri Atul Maheshwari as a Congress leader intervened and he had altercation with the petitioner. In fact, he quarreled with the petitioner to put a pressure upon him to immediately conduct the post -mortem. Thereafter, Shri Atul Maheshwari to highlight the issue lodged a false complaint through brother of the deceased. The defence of the petitioner was prejudiced because neither copy of the preliminary enquiry report nor statement recorded therein was supplied to the petitioner. Petitioner has been made a scapegoat. There was no evidence whatsoever against the petitioner. The impugned order is patently illegal being in violation of Rule 16(9) and Rule 16 (10) of the Rules of 1953. Learned senior counsel for the petitioner further argued that it was the duty of the disciplinary authority to record finding on each charge while coming to the conclusion about penalty to be imposed upon the petitioner. Report of preliminary enquiry along with statements recorded therein by the enquiry officer and the penalty proposed by the disciplinary authority were liable to be furnished to the petitioner. However, in the present case, neither notice was issued to the petitioner containing finding of the disciplinary authority nor the proposed penalty. The enquiry officer while recording the finding acted in a perfunctory and cursory manner and he did not at all discuss about cross -examination of the witnesses. Petitioner thus was seriously prejudiced as he could not make any representation against the finding of the enquiry officer without obtaining the copies of the statements of the witness and other relevant documents and the preliminary enquiry report. Rather, the respondents vide letter dt. 23/1/19 refused to give copies of these documents. It was argued that disciplinary authority has neither considered nor applied its mind nor considered the aspect of alternatives penalties and incriminating circumstances: Shri M.M. Ranjan, learned senior counsel argued that Rule 16(10)(ii) of the Rules of 1958 provides for sending the notice under sub -clause (i) and representation to the Rajasthan Public Service Commission for its advice. Such notice under clause (i) was lacking in findings of disciplinary authority and proposal of penalty and consequently, petitioner's right to make representation was seriously prejudiced. Advice of the RPSC is vitiated thus causing prejudice to the petitioner. In fact, the RPSC did not advise, it simply sent its concurrence to the penalty imposed.

(3.) SHRI Dharmendra Pareek, learned Additional Government Counsel for State has opposed the writ petition and argued that petitioner demanded bribe, which fact has been proved by the investigating agency as also the enquiry officer. The negative final report had to be given in the circumstances when government did not sanction but as far as investigation agency is concerned, it found a prima -facie case worth filing charge -sheet and it requested the government to grant sanction to prosecute him. Similarly, the enquiry officer has also found the charges proved against petitioner. Suggestion that Atul Maheshiari (PW9) approached the petitioner before post -mortem conducted is wrong. In fact, Atul Maheshwari fully supported the complainant and remained unshaken during the course of cross examination. He proved that he reached after post mortem and then came to learn about illegal demand of bribe by the petitioner. It is argued that petitioner for the first time now before this Court is alleging that Atul Maheshwari was a Congress leader or a history sheeter. But he failed to produce any proof of the same before the enquiry officer. Petitioner has tried to mislead this Court by narrating wrong facts. It was argued that neither preliminary enquiry report nor statement recorded therein were relied by the enquiry officer and therefore their non supply to the petitioner would not prejudice case of the petitioner. The demand and acceptance of bribe for conducting the post mortem and the quarrel at the public place has been proved against petitioner. Even if government declined to grant sanction, yet it is competent to hold disciplinary enquiry and therefore the impugned order has rightly been passed. Not only the petitioner participated in the enquiry but also during cross examination of all the prosecution witnesses and he was also given liberty to produce his evidence and defend himself. Principles of natural justice were therefore fully complied with. The preliminary enquiry is held for forming a prima -facie opinion as to the necessity of proceeding in a disciplinary enquiry. Impugned order has not been passed on the basis of preliminary enquiry report and therefore its non supply to the petitioner has not prejudiced the case of the petitioner. Whatever documents were demanded by the petitioner were supplied to him except the preliminary enquiry report and statement recorded during the preliminary enquiry. There was no substance in the representation submitted by the petitioner against the enquiry report and therefore it was rightly not accepted. It is argued that in the CCA Rules, there is no provision for giving any hearing at the time of imposing final penalty. Copy of the enquiry report was supplied along with communication to the petitioner calling upon him to file representation thereagainst. That was sufficient compliance. It was also argued that no notice of penalty was given to the petitioner.