An order of forfeiture of past service is illegal and arbitrary if it is passed without holding an enquiry or giving the employee an opportunity to defend himself, and if the punishment is grossly disproportionate to the alleged act of delinquency.

1. - By this writ petition filed under Article 226 of the Constitution of India, the petitioner has challenged the legality of the order Exhibit-3, dated 19.8.87 passed by the Collector (Land Records) Ajmer, order dated 29.8.89 (Ex. 5), passed by the Divisional Commissioner, Ajmer and order dated, 1.7.91 (Ex. 7) passed by the Government in Revenue (Gr. I) Department.

2. It is necessary to set out some facts in order to decide the controversy involved in the writ petition. The petitioner was appointed as Patwari in the Revenue Department of the Government of Rajasthan and was posted in district Ajmer. He joined service on 10.8.73 and he was confirmed on 2.3.77. A Notice dated, 8.10.85 under Rule 86 of the Rajasthan Service Rules, 1951 (for short Rules of 1951) was issued by the Collector, Ajmer with an allegation that the petitioner was voluntarily absent from duty w.e.f. 9.8.85. He was called upon to submit his explanation within 15 days with the stipulation that in case otherwise, the departmental action will be taken against him for remaining absent without leave.

3. It is alleged that the petitioner did not submit any reply to the notice and therefore, a reminder dated 4.7.86 was sent to him. He was called upon to submit his reply within three days . Thereafter, the petitioner submitted a detailed reply dated, 18.7.86, wherein he stated that he was posted in Patwar Circle, Pagara, Tehsil Ajmer on 2.8.85. He had been transferred to Patwar Circle Ahera, Tehsil Sarwar and he was serving in Tehsil Sarwar since then. He requested that the period of his absence from 9.8.85 may be indicated. He stated that he was in fact on duty in Patwar Circle, Pagara and this was supported by the daily diary maintained by him. He requested that the notice issued against him may be dropped. The Collector (Land Records), Ajmer then passed order dated 19.8.87 (Ex. 3) forfeiting the service of the petitioner upto 9.8.85. In this order the Collector has stated that the petitioner had remained absent on 9.8.85. For recording this conclusion the Collector placed reliance on the letter dated 17.9.85 of the Sub-Divisional Officer, Ajmer. Against the order of the Collector the petitioner filed an appeal before the Divisional Commissioner, Ajmer. This appeal was returned by the Divisional Commissioner vide his order dated 29.8.89 on the ground that the impugned order does not come within the scope of Rule 14 of the Rajasthan Civil Service (Classification, Control and Appeal ) Rules, 1958. Such an appeal can be filed only before the Government. The petitioner then filed appeal before the Government on 7.6.91 (Ex. 6). This appeal has been dismissed by the Government on the ground that it is not maintainable. In its order dated 1.7.91, the Government has stated that the order of the Collector does not amount to penalty under Rule 14 of 1958 Rules.

4. The petitioner has assailed the order (Ex. 3) passed by the Collector by asserting that the forfeiture of past service amounts to termination of service by way of penalty and such action could be taken only after holding an enquiry under rule 16 of 1958 Rules. No such enquiry was held by the Collector, Ajmer before passing the impugned order. The petitioner has stated that under Rule 86 of 1951 rules action for forfeiture of past service can only be taken after compliance of the mandatory provisions of 1958 rules. His service of 12 years has been forfeited without giving any notice to him and without any proof of his alleged misconduct. The petitioner has been stated that the Collector has relied on the letter of the Sub-Divisional Officer for recording a bald conclusion that the petitioner was absent on 9.8.85. However, copy of such letter was not made available to the petitioner and the petitioner was not given any opportunity of defending himself. The petitioner also stated that no finding of wilful absence from duty has been recorded and in fact, no material was available with the Collector on the basi