S N MISRA Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY this writ petition under Art. 226 of the Constitution the petitioner Shri S. N. Misra, who was at the relevant time a member of the Rajas-than Administrative Service, is questioning the validity of the order of his dismissal No. F. 1 (25) Apptts. (A. III)/68, dated 22-8-1966 passed by the Government and he has prayed for an appropriate writ, direction or order. The relevant facts may briefly be stated as follows:

(2.) THE petitioner who was a resident of the former State of Jaipur joined the service of that State in the State Army in 1940 as an Officer Cadet. He subsequently came to be promoted as a Major and was eventually transferred on the civil side. THEreafter the petitioner came to be posted as an Under Secretary to the Government. On the formation of Rajasthan the petitioner was appointed as Deputy Director of Rehabilitation and when the R. A. S. Cadre was formed he was taken on the R. A. S. Cadre. He served on various posts. At the material time relating to which disciplinary proceedings were instituted against the petitioner he was Deputy Commissioner Colonisation, Bhakra Project, Hanumangarh. Petitioner proceeds to say that as Deputy Commissioner Colonisation it had come to his notice that a number of persons had taken unlawful possession of Government lands and they had also constructed houses on such lands. THE petitioner felt that such persons should be required to pay the price of the land occupied by them and accordingly he addressed a letter on 4-11-1961 to the Colonisation Commissioner at Bikaner. By this letter he brought it to the notice of the Commissioner as to how a number of persons had trespassed on Government land and taken possession of it and made constructions thereon. He desired the Commissioner to indicate the price of the land in the Municipal limits not covered by the New Mandi Scheme at an early date so that price of the land occupied by trespassers could be recovered by the petitioner. THE petitioner states that in reply to his letter the Commissioner laid down the policy for the auctioning of the Government lands, but in those cases in which the possession was found to be old, it was desired that such possession be regularised and price be charged at rates applicable to low income group together with a penalty equivalent to the price. This course was to be adopted till the Government had finally decided the matter. THE case of the petitioner is that in accordance with the instructions of the Colonisation Commissioner he passed orders for realisation of the price of the plots from the occupants of Government lands. THE petitioner maintains that in some cases he did not impose the penalty on account of the particular facts of such cases. THE petitioner was transferred from Hanumangarh after sometime and he was succeeded by one Shri N. C. Bhatnagar. Shri Bhatnagar discovered that the petitioner had no authority or jurisdiction for selling the Government lands as the same could have been sold by the Mandi Development Committee only. Accordingly, Shri Bhatnagar reviewed all the orders passed by the petitioner and cancelled the allotments. THE irregularities committed by the petitioner were brought to the notice of the Government and the Government instituted disciplinary proceeding against the petitioner and served him with a charge sheet together with a statement of allegations according to the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, hereinafter to be referred as the "rules". In all, 11 charges were framed against the petitioner. THE charges covered almost 8 pages and I will not like to burden this judgment by reproducing the charges, but the gist of the charges was that the petitioner had made allotments of land which was beyond his powers and in doing so he had completely disregarded the rules on the subject of allotment. A number of charges pertained to the series of allotments made by the petitioner- In charge No. 5 it was mentioned that by the undesirable and unauthorised action the Government had been put to great loss as the sites were to be sold by public auction as per the Rules, Likewise, in charge No. 9 it was stated that the Government had been put to a considerable loss of income by the irregular act and this had caused illegal gain to all the persons and thus reflected adversely upon the conduct of the officer. THE charges were enquired into by Shri R. N. Hawa to start with but later on it appears that the Government appointed Shri V. D. Sharma, Registrar, Cooperative Societies, Rajasthan as the Enquiry Officer. Shri V. D. Sharma conducted the enquiry and exonerated of the petitioner of three charges namely, charges Nos. 2, 6 and 9, but he held the petitioner guilty of the other charges. THE conclusion reached by Shri V. D. Sharma may be put in his own words as follows: - "the result is that of the 11 charges levelled against Shri S. N. Misra it has not been possible to record any findings on charge No. 2 and 6 for want of evidence. Charge No. 9 has been held to be "not Proved. " Charge No. 8 only formally proved and the rest of the charges i. e. charge Numbers 1, 3, 4, 5, 7, 10 and all have been held as proved. I have indicated at appropriate places in the course of discussion of the above charges that the state of regulation regarding the sale and allotment of land in the Bhakra Area particularly the plots of land falling within the old Municipal area was vague and it appears that lot of action was being taken according to the discretion of the officers on the spot. Even the Colonisation Commissioner's letter No. F. 6 (h) 762/bh/6109, dated 24-11-61 is an example of this discretion and though therefore, in cases in which irregularities have been considered 'proved' against Shri S. N. Misra, there has been an excessive and uncontrolled use of that discretion, but the quantum of fault should be considered in the general background of lack of clarity in the matter of rules and regulations, a state of affairs which is natural in organisations in which there is rapid expansion and where regulation does not some times keep pace with expansion. " THE petitioner thought that Shri V. D. Sharma held him only technically guilty of the charges found proved by him. In other words, according to the petitioner, he was found to have committed mistakes which were not on account of any dishonesty on his part, but were honest mistakes on account of lack of understanding of the Rules on his part; more so for the reason that the rules were vague. THE petitioner proceeds to say that the case was then referred by the Government to the Vigilance Commissioner, Shri Tandon who, according to the petitioner, was not authorised by any rules or regulations to take any action in the matter. THE Vigilance Commissioner, according to the petitioner, recommended the penalty of dismissal to be imposed on the petitioner. Accordingly, the Government issued a show cause notice to the petitioner why the petitioner should not be dismissed from service on the basis of the various charges found proved against him. THE petitioner submitted his reply to this notice and on receipt of the petitioner's reply the Government referred the case to the Rajasthan Public Service Commission in accordance with rule 16 (10) of the Rules. THE Public Service Commission gave its advice to the Government saying that as the report of the Vigilance Commissioner had not been supplied to the petitioner a fresh show cause notice be issued to the petitioner and that the report be supplied to him so that he might submit his objections against the report. After the advice of the Public Service Commission was received by them, the Government issued a fresh show cause notice to the petitioner on 25-1-65 again calling upon him to show cause why the penalty of dismissal be not imposed on him. This time, according to the petitioner, the Government incorporated the report of the Vigilance Commissioner in the notice though they did not make any mention of such report. THE petitioner again submitted his explanation on 19-2-65. On receipt of petitioner's explanation the Government again referred the case to the Public Service Commission for advice. In their second report the Public Service Commission stated that there were material differences in the finding of the Enquiry Officer and the view expressed by the Vigilance Commissioner and there was no evidence on record which could even suggest remotely that the petitioner had indulged in corrupt practices for venal activities and that there was no intention on the part of the petitioner to reap any personal benefits. In other words, though the petitioner was guilty of culpable negligence, there was no corrupt motive on his part. THE Commission accordingly recommended that as the punishment of dismissal would be definitely unduly excessive the ends of justice would be met by visiting the petitioner with the penalty of compulsory retirement on proportionate pension. THE Government, however, took the stand that the penalty of dismissal was justified in the circumstances. THE Government, however, again referred the case to the Commission, but the Commission reiterated its opinion and recommended that the Government should reconsider its decision and looking to the facts and circumstances the order of compulsory retirement of the petitioner should be passed. After receipt of the opinion of the Public Service Commission the Government passed the impugned order dismissing the petitioner.

(3.) IT appears from the Government order extracted above that inspite of the findings of the Enquiry Officer they were led to believe that the action of the petitioner was animated with biased motive of causing a personal gain to him or benefit persons of his choice The petitioner, therefore, was entitled to get an adequate opportunity of trying to clear this factor operating on the mind of the Government. This the petitioner could have done, if he were told on what basis the Government had reached the conclusion adverse to the petitioner about his motives. The Government order does not give any indication of the kind. Then the Public Service Commission had clearly opined in their reply available at page 129 of the paper book and which is marked Appendix-14, that the manner in which the cases had been decided by the petitioner seriously suggest a deficiency in the mental equipment of the charged officer to handle, efficiently such an intricate job demanding constant application and the study of the Rules, but according to the Commission, another factor which was to be examined in the context was that there was no evidence on record which could even suggest remotely that the charged officer indulged in "corrupt practices or venal activities. " The conclusions of the Commission are summarised at page 165 of the paper book and may be quoted: - "as a result of the above it would be thus evident that the charged officer committed the delinquencies attributed to him from culpable negligence. He was bound to study the relevant Rules and Regulations on the subject. He should have decided these cases after acquainting himself throughly with all the legal intricacies involved in them. In fairness to him, however it should be observed that corrupt motives do not appear to have been responsible in his negligent working. " Rule 16 (12) comes into play after the orders have been passed by the disciplinary authority. After the orders are passed they are required to be communicated to the Government servant who is to be supplied with a copy of the report of the Inquiring Authority and where the Disciplinary Authority is not the Inquiring Authority a statement of findings together with brief reasons for disagreement, if any, with the findings of the Inquiring Authority, unless they have already been supplied to him, have to be supplied. Then further a copy of the advice given by the Commission and, where the Disciplinary Authority has not accepted the advice of the Commission, a brief statement of the reasons for such disagreement has also to be supplied to the officer. Sub-rule 12, as I have already observed, comes into play after the order has been passed by the Disciplinary Authority and its noncompliance may not always invalidate the order passed by the Disciplinary Authority. The purpose of this sub-rule is to enable the Government servant to pursue his remedy of appeal, but where the Government is itself the Disciplinary Authority, there is no remedy of an appeal under the Rules. All the same the rule making authority has made this rule in a mandatory form and the purpose is to enable the Government servant to pursue his remedy elsewhere. In an appropriate case the Government servant can approach the High Court and the Supreme Court. All the tribunals including the domestic tribunal like the Government in dealing with such matters are subject to the supervisory control of the High Court and the Supreme Court. Therefore, even if the rule as such is not there in the order of the Government there should be the recording of reasons when they take an opinion different from that expressed by the Public Service Commission. All the same, looking to the nature of the proceedings as they are undoubtedly quasi judicial in character reasons have to be there so that the High Court or the Supreme Court in cases coming before them may be able to appreciate as to what had operated on the mind of the Government to take an opinion different from that of the Public Service Commission. IT cannot be gain said that the Commission has been assigned the function of consultation on all disciplinary matters affecting a public servant. These provisions are designed to give assurance to the Services that wholly independent body not directly concerned with the making of the orders adversely affecting public servant has considered the action proposed to be taken against a particular public servant with an open mind and secondly, to afford the Government unbiased advice and opinion on matters vitally affecting the morale of public services. IT is. therefore, incumbent upon the Executive Government when it proposes to take any disciplinary action against a public servant, to consult the Commission as to whether the action proposed to be taken was justified and was not in excess of the requirements of the situation (vide A. I. R. 1957 S. C. 912 ). Giving of reasons when it has been insisted in the scheme of things brought about by rule 16 is, to my mind, with a view to ensure objectivity of approach on the part of the domestic tribunal namely, the disciplinary authority and to eliminate arbitrariness in dealing with the case. Therefore, the giving of reasons is very significant and its absence may very well lead to the inference that the matter has not been examined with that objectivity as is envisaged in the Rules. The trend of opinion both in our country and in England is to ensure objectivity of approach and the administrative authorities are required to give reasons so that it may be possible to judge that they are acting according to the scheme of the law which gives them a discretion in a particular matter. There is a land mark in the matter of administrative law in England in the shape of a recent decision of the House of Lords in Padfield vs. Minister of Agriculture etc. (1 ). This decision has been examined in July, 1968, issue of the Modern Law Review. This is a major stride in the administrative system. The reasoning is that the Parliament is omnipotent and all the creatures of legislature derive all their power from it. Therefore, if the legislature has not empowered a Minister, a Board or a Local Authority to act in a certain manner that Minister or Agent is powerless. Two questions of interest have been discussed in the House of Lords' case. I am not concerned with the first question namely, whether a mandamus would be issued against a Minister. The second question that has been discussed in the case is whether a Minister is bound to give his reasons. Lord Pearce said at page 714 of this case that if the Minister gives no reason for taking a certain course, the Court may infer that he had no good reasons and that he is not using the power given by Parliament to carry out its intentions.