The Disciplinary Authority is required to consider the representation made by a Government servant in response to a show cause notice and record its reasons for rejecting the submissions made by the Government servant.

Headnote:
WITHHOLDING OF PENSION - PENALTY - DISCIPLINARY PROCEEDINGS - REASONABLE OPPORTUNITY TO DEFEND - CONSIDERATION OF REPRESENTATION - WITHHOLDING OF PENSION UNDER RULE 170 OF RSR - SHOW CAUSE NOTICE - LEGALITY OF ORDER.
Fact of the Case:

Petitioner, a Civil Assistant Surgeon, was suspended in 1959 and dismissed in 1965. He challenged the dismissal order and was reinstated in 1971. A fresh inquiry was ordered in 1972, and the petitioner was again found guilty of misconduct. The Disciplinary Authority proposed to dismiss him from service, but since he had retired, it imposed a penalty of withholding 50% of his pension for 10 years under Rule 170 of the Rajasthan Service Rules (RSR). The petitioner challenged this order, arguing that he was not given a reasonable opportunity to defend himself, that his representation was not considered, and that the order was not in accordance with law.
Finding of the Court:

The court held that the petitioner was not denied a reasonable opportunity to defend himself, as he had participated in the departmental inquiry and had been paid subsistence allowance, albeit with some delay. However, the court found that the Disciplinary Authority had failed to consider the petitioner's representation in response to the show cause notice, in violation of Rule 16(10)(ii)(b) of the CCA Rules. The court also held that the order imposing the penalty of withholding pension was not in accordance with law, as it was not one of the penalties specified in Rule 14 of the CCA Rules and no show cause notice had been issued under Rule 170 of the RSR.
Issues: 1. Whether the petitioner was denied a reasonable opportunity to defend himself in the disciplinary proceedings? 2. Whether the Disciplinary Authority considered the petitioner's representation in response to the show cause notice? 3. Whether the order imposing the penalty of withholding pension was in accordance with law?
Ratio Decidendi: 1. The court held that the petitioner was not denied a reasonable opportunity to defend himself, as he had participated in the departmental inquiry and had been paid subsistence allowance, albeit with some delay. The court relied on the decision in Ghanshyam Das Srivastava v. State of Madhya Pradesh, where it was held that the non-payment of subsistence allowance alone does not amount to denial of a reasonable opportunity to defend oneself. 2. The court held that the Disciplinary Authority had failed to consider the petitioner's representation in response to the show cause notice, in violation of Rule 16(10)(ii)(b) of the CCA Rules. The court relied on the decision in Phool Chand v. The State of Rajasthan and Ors., where it was held that the Disciplinary Authority is required to record its reasons for rejecting the submissions made by a Government servant in his representation. 3. The court held that the order imposing the penalty of withholding pension was not in accordance with law, as it was not one of the penalties specified in Rule 14 of the CCA Rules and no show cause notice had been issued under Rule 170 of the RSR. The court held that before an order under Rule 170 of the RSR can be passed against a Government servant, it is necessary to issue a show cause notice and give an opportunity to show cause against the proposed action.
Final Decision: The court allowed the writ petition and quashed the order imposing the penalty of withholding pension. The court directed the Government to pay the petitioner the balance of his pension, unless it decided to take action under Rule 170 of the RSR.

JUDGMENT

1. - Under order Ex. 22 dated May 9, 1977 a penalty of withholding of 50% pension of Dr. J.N. Purohit, the petitioner, for a period of 10 years for various charages levelled against him, was imposed by the Government. The Government further ordered that the petitioner who was placed under suspension may not be paid anything beyond the subsistence allowance already drawn by him and the period of suspension be treated as period spent on duty for purposes of pension only. The aforesaid order Ex. 22 has been challenged by the petitioner, J.N. Purohit, and the petitioner has prayed that the same may be quashed and set aside and other reliefs have also been claimed.

2. The petitioner, Dr. Purohit, entered the Rajasthan Government service in the year 1951 as Civil Assistant Surgeon Class II. On September 10, 1959 while he was working as Civil Assistant Surgeon he submitted a conditional resignation but the same was not accepted and an order dated May 26, 1960 was passed suspending the petitioner from the services with retrospective effect from August 11, 1959 and a disciplinary inquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, the CCA Rules) was initiated against the petitioner. As many as 11 charges were framed against the petitioner and under order dated May 7, 1965 the petitioner was served and the petitioner was informed that he has been dismissed vide order dated February 16/17, 1965. When the review petition before the Governor filed by the petitioner was not heard, he filed a civil writ petition (No. 541/1968) in this Court at Jodhpur on July 1, i968. The same was allowed by P.N. Singhal, J. as his Lordship then was under his judgment dated November 5, 1971 and the order dated February 16/17, 1965 was quashed. However, it was left open for the Disciplinary Authority to order fresh inquiry in accordance with law.

3. A fresh inquiry into the charges of misconduct framed earlier against the petitioner was decided to be held by the Disciplinary Authority and the State Government passed an order dated September 6, 1972 after about 10 months of the decision of this court in which it was mentioned that the petitioner shall be placed under suspension and be deemed to have been placed under suspension with effect from the date of original order of dismissal viz., February 17, 1965 and he shall continue to remain under suspension until further orders. The inquiry was transferred by the Commissioner of Departmental Inquiries to the Additional Commissioner of Departmental Enquiries, who held the inquiry and submitted his inquiry report Ex. 20 dated November 10, 1975 to the Disciplinary Authority in which some of the charges/allegations were not held to be established against the petitioner whereas some charges were held to be made out which in the opinion of the Additional Commissioner appear to be resultant of a particular attitude adopted by him towards his working conditions and the men and matters around him. After receipt of the report of the Additional Commissioner of Departmental Enquiries a notice to show cause under Article 311(2) of the Constitution was served upon the petitioner by the Disciplinary Authority provisionally proposing penalty of removal from Government Service. The petitioner submitted his reply Ex. 21. The Disciplinary Authority consulted the Rajasthan Public Service Commission. Before the advice of the Rajasthan Public Service Commission could reach the petitioner Dr. Purohit was retired on attaining the age of superannuation from Government Service with effect from May 31, 1976 (after-noon) vide Government order F. 1(24)(19)MPH/58 Gr. II dated May 31, 1976. The Commission suggested that 50% of the pension of Dr. J.N. Purohit may be with-held for a period of 10 years under Rule 170 of the RSR. The Disciplinary Authority imposed the penalty which has been stated in the beginning of this order.

4. Dr. Purohit filed this writ petition challengin

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1986 Supreme(Raj) 673

RAJASTHAN HIGH COURT AT JAIPUR BENCHMahendra Bhushan Sharma, J.Dr. J.N. Purohit - AppellantVersusState of Rajasthan and anr. - RespondentS.B. Civil Writ Petition No. 396 of 1977.Decided On : 11-09-1986

The Disciplinary Authority is required to consider the representation made by a Government servant in response to a show cause notice and record its reasons for rejecting the submissions made by the Government servant.

Cases Referred (1)

RAJASTHAN HIGH COURT AT JAIPUR BENCH
Mahendra Bhushan Sharma, J.
Dr. J.N. Purohit - Appellant
Versus
State of Rajasthan and anr. - Respondent
S.B. Civil Writ Petition No. 396 of 1977.
Decided On : 11-09-1986