HIRA LAL PATHAK Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) IN this writ petition, the first submission made by the learned Counsel for the petitioner is that the inquiry was not fair inasmuch is the petitioner was neither allowed any defence counsel nor he was allowed an opportunity to cross examine the witnesses appearing for the department nor he was allowed to examine witnesses in his defence. Under Sub -rule (5) of Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the Rules') the delinquent Government servant, who is served with a charge sheet under Rule 16, is permitted to present his defence with the assistance of any other Government servant approved by the Disciplinary Authority. It is not the case of the petitioner that he desired to take the assistance of any other Government servant or any other person for purposes of presenting his d fence but the Disciplinary Authority or the Inquiry Officer refined permission to the petitioner to allow such Government servant or other person to assist the petitioner, either in preparing his defence or cross -examining the witnesses The allegation on the score is, therefore, completely unfounded and has no basis.

(2.) AS regards the other contention of the learned Counsel for the petitioner, the non -petitioners in their reply to the show cause notice have asserted that the petitioner was given an opportunity to cross -examine the witnesses produced by the department and also to produce his evidence in defence, but he did not do so and that on the other hand the petitioner submitted an application on April 15, 1970 (a copy of which has been produced with the reply to the show cause notice and marked Ex R. 1) in which he admitted his carelessness and stated that he did not wish to submit anything in opposition to the charges. The non -petitioners have categorically stated in their reply that the witnesses of the Department were examined on April 14, 1970 and April 15, 1970, but the petitioner did not cross -examine them 'though he had every opportunity to do so'. It has also been stated in the reply to the show cause notice that the petitioner did not submit any application for summoning any defence witnesses. The content of the application Ex R 1 support the case of the non -petitioners, both in respect of the fact that the petitioner was present on April 15, 1970, before the Inquiry Officer and that he was not inclined to present any defence. The petitioner has admitted his presence before the Inquiry Officer on April 14, 1970 in para 8 of the writ petition. Thus, it cannot be held that the petitioner was not afforded any opportunity to cross -examine the witnesses produced on behalf of the Department or to produce his defence. The first contention of learned Counsel for the petitioner, therefore, is repelled.

(3.) THE third contention of the learned Counsel is that the petitioner submitted a reply to the show cause notice but the same was not considered by the Disciplinary Authority and without considering his aforesaid reply the Disciplinary Authority imposed a penalty of stoppage of one grade increment without cumulative effect upon the petitioner. In substance his argument is that the order passed by the Disciplinary Authority on March 23, 1971 (Ex 9) imposing penalty upon the petitioner is not a speaking order and no reasons have been given therein for holding the petitioner guilty of the charges levelled against him. Similarly, the contention of the learned Counsel further is that the order passed by the Appellate Authority on April 15, 1976, is also not a speaking order. The non petitioners in para 3 of their reply to the show cause notice issued by this Court have stated that the representation of the petitioner in reply to the show cause notice was duly considered by the Disciplinary Authority, but the same was rejected as it had no merit. The grievance of the petitioner is justified to this extent that the order Ex. 9, passed by the Disciplinary Authority imposing penalty upon the petitioner, does not ex facie show that the Disciplinary Authority duly considered the representation of the petitioner, which was submitted by him in reply to the show cause notice and rejected the contentions advanced therein The fact hat after the reply to the show cause notice was received by the Disciplinary Authority, it proceeded to hold the petitioner guilty of the charges vide Ex. 9, coupled with the contents of para 3 of the reply to the show cause notice issued by this Court in the writ proceedings, lead to the conclusion that the grievance of the petitioner in this respect has no substance. It must, however, be emphasised that normally the order passed by the Disciplinary Authority imposing punishment upon a delinquent employee, should show that it has considered the representation of the employee submitted in reply to the show cause notice and that it did not find any merit therein. If that would have been done in the present case, the Court would not to have to issue a show cause notice to the respondents in the present writ petition. However, on a perusal of the reply submitted by the respondents in this Court in response to the show cause notice in the writ petition, I am satisfied that the representation of the petitioner appears to have been duly considered by the Disciplinary Authority. Then Lordships of the Supreme Court in Tara Chand v. Municipal Corporation of Delhi and Ors. : (1977)ILLJ331SC have held that no doubt the disciplinary proceedings are quasi judicial in nature, but having regard to the manner in which the disciplinary inquiries are conducted, if the orders passed by the Disciplinary Authority and the Appellate Authority are of concurrence with the findings arrived at by the Inquiry Officer, it may not be necessary to set out therein the reasons for such agreement. Their Lordships have been pleased to observe in the aforesaid case: We would like to make it clear that while it may be necessary for a disciplinary or administrative authority exercising quasi -judicial functions to state the reasons in support of its orders if it differs from the conclusions arrived at and the recommendations made by the enquiring officer in view of the scheme of a particular enactment of the rules made thereunder, it would be laying down the proposition a little too broadly to say chat even an order of concurrence must be supported by reasons. It cannot also, in our opinion, be laid down as a general rule that an order is a non -speaking order simply because it is brief and not elaborate. Every case, we think, has to be judged in the light of its own facts and circumstances. Their Lordships in Tara Chand Khatri's case (supra) after considering a catena of cases, have come to the conclusion that the disciplinary proceedings against delinquent employees under Article 311 of the Constitution stand on a slightly different footing, on account of the peculiar nature of the disciplinary proceedings and the decided cases under the Mines and Minerals Act and other laws were distinguished by their Lordships on the ground that they had nothing to do with disciplinary proceedings.