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High Court Of Rajasthan
Judgename : Dave,Modi
KANHAIYALAL - Appellant
Versus
STATE OF RAJASTHAN - Respondent
Civil Writ Case 2 Of 1956
Decided On : 04/16/1957
RAJASTHAN CIVIL SERVICES - REMOVAL FROM SERVICE - PROCEDURE - REASONABLE OPPORTUNITY - NATURAL JUSTICE - PUBLIC DEMANDS RECOVERY ACT - RECOVERY OF MONEY.
Fact of the Case:
The petitioner, a clerk-cum-cashier in the Tehsil Vallabhnagar, was accused of receiving Rs. 204/12/- from one Deepchand of Doongla towards the payment of "toji" (a kind of lagan), but instead of depositing it in the treasury, he kept it with himself and gave no receipt for that amount to the complainant. An enquiry was conducted, and the petitioner was given a charge-sheet and directed to submit his reply on the same day. He submitted his reply, and the Sub-divisional Officer made a report to the Collector, Chittorgarh, recommending prosecution of the petitioner in a criminal Court. The matter went through various levels of authorities, and eventually, the petitioner was dismissed from service. He appealed to the Board of Revenue, but it was dismissed. He then filed an appeal before the Government of Rajasthan, which referred the matter to the Public Service Commission. 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 filed a review application, and it was ordered that the order of his removal from service would not disqualify him for future employment. He was given a temporary appointment as Jagir clerk, but it was terminated after a short period.
Finding of the Court:
The court found that the petitioner was not given a reasonable opportunity to defend himself against the charges, as the officer conducting the enquiry did not follow the procedure laid down in Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules. The court also found that the Commissioner, who passed the order of dismissal, did not apply his mind to the evidence against the petitioner and simply stated that he had not led any evidence in defence. The court further found that the petitioner was entitled to have the money realized from him by the State returned to him, as the order of his removal from service was being set aside.
Issues: 1. Whether the petitioner was given a reasonable opportunity to defend himself against the charges? 2. Whether the Commissioner applied his mind to the evidence against the petitioner before passing the order of dismissal? 3. Whether the petitioner was entitled to have the money realized from him by the State returned to him?
Ratio Decidendi: 1. The court held that the petitioner was not given a reasonable opportunity to defend himself against the charges, as the officer conducting the enquiry did not follow the procedure laid down in Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules. The court stated that the officer should have recorded the entire oral evidence in the presence of the petitioner, and that it was not enough to simply allow the petitioner to cross-examine the witnesses. 2. The court held that the Commissioner did not apply his mind to the evidence against the petitioner before passing the order of dismissal. The court stated that the Commissioner should have referred to the evidence against the petitioner and given his finding on its strength, and that it was not enough to simply refer to the weakness of the defence. 3. The court held that the petitioner was entitled to have the money realized from him by the State returned to him, as the order of his removal from service was being set aside.
Final Decision: The court allowed the petitioner's application and set aside the order of his removal from service. The court also directed the State to return the money realized from the petitioner to him.
Key Points: - The judgment holds that a civil servant is entitled to a reasonable opportunity to defend himself, including two stages of opportunity under Article 311(2) and Rule 16 adherence (!) (!) (!) (!) (!) . - The court finds that recording of entire oral evidence in the presence of the petitioner and strict compliance with Rule 16 of the Rajasthan Civil Services Rules is mandatory; merely cross-examining witnesses is insufficient when evidence was recorded in the absence (!) (!) (!) . - The order of removal was set aside due to procedural defects; the State is directed to return money (Rs. 205) collected from the petitioner if the removal stands reversed, indicating relief for the petitioner and the conditional return of funds (!) (!) (!) .
DAVE J.
( 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 petitioners 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 petitioners 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 petitioners 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
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