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DR. SAFDAR HUSSAIN versus STATE OF RAJ & ORS

High Court of Rajasthan

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DR. SAFDAR HUSSAIN v STATE OF RAJ & ORS - CW Case No. 4490 of 1993 [2005] RD-RJ 1253 (2 August 2005)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR.

ORDER

Dr.Safdar Hussain v. State of Rajasthan & Ors.

S.B.CIVIL WRIT PETITION NO.4490/1993 under Article 226 of the

Constitution of India. 2nd August, 2005

Date of Order :

PRESENT

HON'BLE MR.JUSTICE GOVIND MATHUR

Mr. Ramandeep Singh for Mr.M.S.Singhvi, for the petitioner.

Mr. B.L.Tiwari, Dy.Govt.Advocate.

BY THE COURT :

The present petition for writ is directed against the order dated 23.8.1993 passed by

Dy.Secretary to the Government of Rajasthan, under the orders of Government of Rajasthan exercising powers under Rule 14 of the Rajasthan Civil Services

(Classification, Control and Appeal) Rules, 1958

(hereinafter referred to as "the Rules of 1958") imposing a punishment of removal from service.

The facts in brief giving rise to present petition are that under a memorandum dated 19.1.1991 a charge sheet along with statement of allegation was served upon the petitioner in accordance with Rule 16 of the Rules of 1958. The petitioner was directed to submit explanation for the charge of misconduct that he wilfully remained absent from duties from 6.12.1977 to 23.2.1986 and also that he remained in employment of foreign service without permission after completion of authorised period of deputation.

By an order dated 17.6.1991 the Additional

Commissioner (First), Departmental Inquiries, was appointed as inquiry officer to inquire into the allegations of misconduct levelled against the petitioner. During the inquiry documents Ex.P/1 to

Ex.P/8 were presented before the inquiry officer to substantiate the allegations of misconduct levelled against the petitioner. The petitioner in his defence produced Ex.D/1 to D/3 before the inquiry officer. The inquiry officer after considering whatever material available before him submitted his report to the disciplinary authority on 30.10.1992. A copy of the inquiry report was supplied by the disciplinary authority to the petitioner under a communication dated 3.11.1992 seeking necessary comments on the inquiry report. The petitioner by a communication dated 10.11.1992 sought an opportunity of personal hearing from the disciplinary authority but the same was denied by a communication dated 26.12.1992 with an advise to the petitioner that in event he wants to submit representation making necessary comments with regard to the findings given by the inquiry officer, the same can be given. The inquiry officer submitted a representation dated 4.1.1993 making certain comments with regard to the findings given by the inquiry officer, however, the same were to a very little extent as the inquiry officer did not found the petitioner guilty for misconduct as alleged for wilful absence from duties. The inquiry officer found the petitioner guilty only to the extent that he failed to make necessary correspondence with Government of

Rajasthan for extension of period of deputation. The petitioner in view of it under representation dated 4.1.1993 made comments to the extent he was found guilty by the inquiry officer.

The disciplinary authority by an order dated 23.8.1993 while disagreeing with the findings given by the inquiry officer imposed a punishment of removal from service, hence the present writ petition is preferred before this Court.

The challenge is given by the petitioner to the order impugned dated 23.8.1993 on two grounds, viz. (1)the disciplinary authority failed to communicate the reasons for disagreement before imposing punishment of removal, as such the petitioner was denied a reasonable opportunity to defend himself, and (2)the order impugned dated 23.8.1993 is a discriminatory as for the same misconduct the persons named in Schedule-A appended with the writ petition were subjected to lesser punishment.

A reply to the writ petition has been filed on behalf of the respondents. It is contended by the respondents in their reply that no prejudice is caused to the petitioner due to non supply of reasons for disagreement by disciplinary authority while disagreeing with the findings given by the inquiry officer before imposing punishment of removal. It is also contended by the respondents that the contention made by the petitioner with regard to discrimination in imposing punishment for same charge is misconceived as in each and every case disciplinary authority is required to apply his mind looking to peculiar facts of that case, accordingly no such discrimination can be alleged in the cases of imposition of punishment as a consequence of the disciplinary proceedings.

Heard the counsel for the parties.

By memorandum dated 19.1.1991 it was alleged that the petitioner while working as Civil Assistant

Surgeon in the year 1975 at T.B. Eradication Centre,

Udaipur remained wilful absent from duties from 6.12.1977 to 23.2.1986 and he remained in foreign service even after expiry of authorised period of deputation. The inquiry officer after considering the material available on record held that the petitioner was not guilty for wilful absence as he was forcely restrained by Government of Libia from leaving that country and the reasons for not returning on duties were beyond the control of the petitioner. The inquiry officer found the petitioner guilty only to the extent that he failed to make necessary correspondence with the Government of Rajasthan for extension of his retention in Libia due to circumstances beyond his control. The disciplinary authority supplied a copy of inquiry report to the petitioner with instructions to submit his explanation. The petitioner submitted an explanation to the extent he was found guilty by the inquiry officer. The petitioner in these circumstances made reference of certain letters which he wrote to the Government of Rajasthan explaining the circumstances prevailing at Libia and the efforts made by him to return to India and to join the duties. The disciplinary authority by order impugned while disagreeing with complete findings given by the inquiry officer imposed a punishment of removal upon the petitioner. The disciplinary authority while disagreeing with the inquiry officer on article of charge before recording his own finding did not choose to supply tentative reasons for such a disagreement at the time of supply of inquiry report or at any time before imposition of penalty of removal. It is well settled that wherever a delinquent employee succeeds before the inquiry officer to establish his innocence and the disciplinary authority defers with the findings given by the inquiry officer and imposes punishment then the disciplinary authority is required to provide tentative reasons for such disagreement to the delinquent employee. If no such reasons are provided to the delinquent employee by the disciplinary authority then the same shall certainly cause a prejudice to him as he shall not be in a position to place his version to defend himself with regard to the view taken by disciplinary authority.

Hon'ble Supreme Court in the case of Punjab

National Bank v. Chief Personal Officer, reported in

AIR 1998 SC 2713, and in the case of State Bank of

India & Ors. v. Arvind K. Shukla, reported in JT 2001

(4) SC 415, in quite unambiguous terms promulgated the law as referred above.

In light of whatever discussed above, I am is of considered opinion that the disciplinary authority acted in violation of principles of natural justice and also deprived the petitioner from having a reasonable opportunity to defend himself while not supplying the reasons for disagreement with the findings given by the inquiry officer before imposing punishment of removal.

The next contention of the counsel for the petitioner with regard to discrimination in imposition of punishment for the same allegation of misconduct also deserves to be accepted in view of the law laid down by this Court in the case of Dr.Malchand Punia v.

State of Rajasthan & Ors., SBCWP No.1829/89, decided on 31.10.1990. In the case of Malchand Punia (supra) this Court held that no discrimination can be made even in the matter of awarding punishment if the allegations of misconduct are identical.

In the present case the petitioner is subjected to a punishment of removal whereas the persons named in Schedule-A except the persons named at Sr.No.3 and 5 were subjected to lesser punishments then to removal though the allegation of misconduct was identical to the allegation of misconduct levelled against the petitioner. The doctors named at Sr.No.3 and 5 in Schedule-A were exonerated from the allegations of misconduct, therefore, their cases cannot be compared with the petitioner. The petitioner has also placed on record an order passed by His

Excellency the Governor of Rajasthan on 26.8.1992 accepting the review petition preferred by one

Dr.Dalpat Singh Choudhary who too was subjected to an inquiry for remaining absent from duties unauthorisedly and to remain on deputation in Libia without permission of the Government of Rajasthan. By the order dated 26.8.1992 referred above the Governor of Rajasthan reduced the punishment of removal from service as to the stoppage of three grade increments with cumulative effect. I do not find any reason to adopt these different standards and scales for imposing punishment for the same allegation of misconduct.

In view of discussion made above, this writ petition deserves acceptance. Accordingly the same is accepted. The order impugned dated 23.8.1993 passed by

Dy.Secretary to the Government of Rajasthan, is hereby quashed. The petitioner shall be entitled for all consequential benefits.

( GOVIND MATHUR ),J. kkm/ps.


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