KANHAIYALAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THIS is an application by Kanhaiyalal under Article 226 of the Constitution of india.

(2.) IT would be proper first to set out those facts which are not in dispute between the parties and they are as follows:-The petitioner was appointed as a clerk-cum-cashier in Tehsil vallabhnagar, district Udaipur on 18th of February 1944. He was transferred to Tehsil Doongla as cashier on 12th April 1949 and later promoted to the post of accountant sometime in 1951. On 2nd April 1951, one Deepchand of Doongla filed a complaint against the petitioner before the Tehsildar Dcongla alleging that the petitioner had received from him, Rs. 204/12/-- in December 1949 or January 1950. This amount was given towards the payment oft "toji" which was a kind of 'lagan', but the petitioner, instead of depositing it in the treasury, kept it with himself and gave no receipt for that amount to the complainant. On receiving this complaint the Tehsildar Vallabhnagar made an enquiry and then submitted a report (Ex. 1) to the Subdivisional Officer, Nimbahera on 16th of June 1951 saying that he was not satisfied with the correctness of the complaint and suggested that it would be proper for the Sub-divisional Officer himself to enquire into the matter. Thereafter, the Sub-divisional Officer, Nimbahera made an enquiry, gave a charge-sheet (Ex. 2) to the petitioner on 23rd of July, 1951 and directed him to submit his reply on the same day. The petitioner submitted his reply (Ex. 3) and then the sub-divisional Officer made his report (Ex. 4) to the Collector, Chittorgarh dated 25th July 1951 and recommended departmental action against the petitioner since he thought that the complaint was correct. The Collector in his turn forwarded the papers to the Revenue Secretary to the Government of Rajasthan recommending prosecution of the petitioner in a criminal Court'. The Revenue Secretary forwarded the papers to the Board of Revenue and the board asked the Commissioner to give notice to the petitioner why he should not be removed from service. The matter again came to the Sub-divisional Officer in the reverse process and he framed a sort of charge (Ex. 5), and called upon the petitioner on 31st October 1952 to show cause why he should not be removed from service. The petitioner filed his reply. Those papers were then sent by the sub-divisional Officer to the Collector Chittorgarh, who forwarded them to the commissioner Udaipur. On the 3rd of March 1953 the Commissioner passed an order (Ex. 6) dismissing the petitioner from service with immediate effect. The petitioner then filed an appeal to the Board of Revenue, but it was dismissed by its decision (Ex. 7) dated 19th May, 1954. Aggrieved by this order, the petitioner filed an appeal before the Government of Rajasthan which referred the matter to the Public Service Commission. Then, on the advice of the Public Service commission, the petitioner's appeal was partly allowed and the punishment of his dismissal was altered to that of removal. The petitioner moved a review application against this order (Ex. 8) dated 17th of november 1954 and after taking it) into consideration, it was further ordered by the Government (vide Ex 9) that the order of the petitioner's removal from service would not disqualify him for future employment. This order was communicated to the petitioner by the Collector Dungarpur through his letter dated 3rd of June 1955 (Ex. 10 ). Thereafter the Collector Dungarpur gave him a temporary appointment as Jagir clerk on 15th June 1955 vide his order Ex. 12 but since it was a temporary job, it was terminated on 2nd August 1955.

(3.) THE petitioner's contention is that though he is now eligible for appointment and he was actually given a temporary appointment after his removal, it is no solace to him, for he may or may not get any service in future. It is Urged that his very order of removal from service was illegal, that his past services have been wrongly wiped out, and that the said order should, therefore, be set aside. Among the grounds, which he has urged for challenging the validity of the said order of removal, it has been pointed out that the provisions of Rule 16 (a) of the rajasthan Civil Services (Classification, Control and Appeal) Rules, 1950 were not complied with. It is stated that in the first instance it was incumbent upon the officer holding the enquiry to supply the petitioner with a statement of allegations on which the charge was based, but this was not done. Secondly, the evidence, on whose basis his order of removal is founded, was recorded in his absence and he was only given an opportunity to cross-examine the witnesses. He means to say that the evidence from the very start ought to have been recorded in his presence and it was not proper for the officer holding the enquiry to first record the statements of the witnesses in his absence and then simply ask him to cross-examine those witnesses. It is urged that even the principles of natural justice were thus not observed. Thirdly, it is urged that after the charge was framed he was not asked to state if he wanted an oral enquiry to be held. The enquiry made by the Sub-divisional officer behind his back was done before the charge was given to him. Lastly, it is urged that the Commissioner of Udaipur, who passed the order of dismissal did not make any enquiry himself nor did he give any finding. It is contended that he did not apply his mind and passed an order for his dismissal on the mere ground that he had not produced any evidence in defence. According to the petitioner, the provisions of Article 311 of the Constitution of India also were not complied with, and, therefore, it is prayed that his order of removal should be set aside.