Back
2009 Supreme(Raj) 602
[Citation : 2010(2) RLW 1404 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
Man Chand Bhartiya Vs. State of Rajasthan & Anr. (Asopa, J.)
HON'BLE PREM SHANKER ASOPA, J.
Man Chand Bhartiya
Versus
State of Rajasthan & Anr.
S.B. Civil Writ Petition No. 1026 of 1995, decided on 23.4.2009
J.K. Singhi, for Petitioner;
M.F. Beg, Dy. Govt. Counsel
Headnote:(a) Rajasthan Service Rules, 1951, Rule 54 and 86 — Willful absence from duty — Held enquiry u/R. 17 CCA Rules — Removed from service — Removal order held to be without jurisdiction — In de novo enquiry imposed punishment of stoppage of two annual grade increments along with recovery of amount of short fall of store articles — Whether Rule 86 or Rule 54 & RSR would be application in relation to the period from the date of removal to the date of reinstatement? — Held — The removal order being without jurisdiction amounts to exoneration — As per Rule 54 the employee is entitled to full service benefits of the said period as during this period, he remains out of employment for the fault of Govt. — He cannot be allowed to suffer — Entitled to reinstatement with continuity in service. (Para 16)
¼d½ jktLFkku lsok fu;e] 1951] fu;e 54] 86 & M;wVh ls LoSfPNd :i ls vuqifLFkr jguk & fu;e 17 ds rgr tkap dh & lsok,a lekIr dh & lsok lekfIr dk vkns'k] vf/kdkfjrkfoghu gksuk Bgjk;k & u;s fljs ls tkap esa nks okf"kZd osru o`f);ka jksdus ds lkFk lkFk Hk.Mkj x`g esa de feys lkeku dh jkf'k olwyus dh ltk vf/kjksfir dh & D;k lsok lekfIr dh frfFk ls lsok esa cgkyh dh frfFk dh vof/k ds lEcU/k esa lsok fu;e dk fu;e 54 ykxw gksxk ;k fu;e 86\ vfHkfu/kkZfjr &lhek lekfIr dk vkns'k vf/kdkfjrk foghu gksus ds dkj.k foeqDr fd;s tkus dh Js.kh esa vkrk gS & fu;e 54 ds vuqlkj deZpkjh mDr vof/k ds fy, iw.kZ lsok ifjykHk dk gdnkj gksrk gS D;ksafd bl vof/k ds nkSjku og ljdkj dh xyrh ds dkj.k fu;kstu ls ckgj jgrk gS & mls ihfM+r ugha fd;k tk ldrk & dkj.k fu;kstu ls ckgj jgrk gS & mls ihfM+r ugha fd;k tk ldrk &lsok esa fujUrjrk ds lkFk cgky fd;s tkus dk gdnkj gSA ¼in la[;k 16½
(b) Rajasthan Service Rules, 1951, Rule 86; Rajasthan Civil Service (CCA) Rules, 1958, Rule 16 — Willful absence from duty — Disciplinary Authority gave finding that the said period will be regularised as per leave entitlement of delinquent — Sought direction from State Govt. for the period other than absence by applying rule 16 of the CCA Rules and R.S.R. simultaneously in respect of the same incident — Held — There was no need to seek direction, as petitioner was prevented by the Govt. itself from performing his duties — The period is required to be treated as spent on duty for all kind of service benefits — Provisions of Rule 86 RSR and Rule 16 of the CCA Rules are optional — Before taking any action, the Govt. has to decide as to under which rule it has to proceed against the delinquent employee. (Paras 17, 18)
¼[k½ jktLFkku lsok fu;e] 1951] fu;e 86( jktLFkku flfoy lsok ¼oxhZdj.k] fu;U=.k ,oa vihy½ fu;e] 1958] fu;e 16 & M~;wVh ls LosfPNd vuqifLFkfr & vuq'kklukRed izkf/kdkjh us ;g fu"d"kZ fn;k fd mDr vof/k vipkjh ds vodk'k dh ik=rk ds vuqlkj fofu;fer dh tk;sxh & vuqifLFkfr ds vykok dh vof/k gsrq mlh ?kVuk ds lEcU/k esa ,d lkFk lh-lh-,- fu;eksa ds fu;e 16 vkSj jktLFkku lsok fu;e ds izko/kkuksa dks ykxw djrs gq, jkT; ljdkj ls funsZ'k ekaxs & vfHkfu/kkZfjr & funsZ'k ekaxus dh dksbZ t:jr ugha Fkh & D;ksafd Lo;a ljdkj }kjk mls viuh M;wVh djus ls jksdk x;k Fkk & lHkh izdkj ds lsok ifjykHkksa gsrq bl vof/k dks M;wVh ij chrk, x;s le; ds :i esa ekuk tkuk pkfg;s & jktLFkku lsok fu;e ds fu;e 86 vkSj lh-lh-,- fu;eksa ds fu;e 16 ds izko/kku oSdfYid gS & dksbZ Hkh dk;Zokgh djus ls iwoZ ljdkj dks ;g fofuf'pr djuk gksrk gS fd fdl fu;e ds rgr mls vipkjh deZpkjh ds fo:) dk;Zokgh djuh gSA ¼in la[;k 17] 18½
(c) Rajasthan Civil Services (CCA) Rules, 1958, Rule 16; Rajasthan Service Rules, 1951, Rule 86, 54 — Forfeiture of the past services — Whether it amounts to severe major penalty and the same could be imposed without following principles of natural justice? — Held — Forfeitures of the past services is a severe punishment — Principles of natural justice are required to be followed — Violation thereof vitiates the proceedings — Order treating the period `dies non' quashed.
Writ petition partly allowed. (Paras 19 to 21)
¼x½ jktLFkku flfoy lsok ¼lh-lh-,-½ fu;e] 1958] fu;e 16] jktLFkku lsok fu;e] 1951] fu;e 86] 54 & fiNyh lsok tCr djuk & D;k ;g ,d dBksj cM+h 'kkfLr dh Js.kh esa vkrk gS vkSj uSlfxZd U;k; ds fl)kUrksa dk vuqlj.k fd;s fcuk mls vf/kjksfir dh tk ldrh gS & vfHkfu/kkZfjr & fiNyh lsok tCr djuk ,d dBksj ltk gS & uSlfxZd U;k; ds fl)kUrksa dk vuqlj.k djuk vko';d gS & mudk mYya?ku lEiw.kZ dk;Zokgh dks nwf"kr dj nsrk gS & mDr vof/k dks vdk;Z fu ekuus dk vkns'k vfHk[kf.Mr fd;kA
;kfpdk va'kr% Lohdkj dhA ¼in la[;k 19 ls 21½
2. Briefly stated the relevant facts of the case are that charge sheet under Rule 17 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (in short `the CCA Rules') was issued to the petitioner on 10.8.1978 for not joining duty from 19.1.1978 onwards and vide order dated 4.11.1978, the petitioner was removed from service w.e.f. 19.1.1978.
3. On filing review petition under Rule 34 of the CCA Rules, the said removal order was quashed and set aside by the Governor on 26.5.1984 and the case was remanded back to the Government on the ground that no enquiry under Rule 16 of the CCA Rules was conducted.
4. On 22.9.1984, the petitioner was reinstated with effect from the date of joining on the post of Live Stock Assistant, which post was held by him prior to the removal. The petitioner joined on 1.10.1984 and was placed under suspension vide order dated 29.10.1984. On 21.9.1985, a charge sheet under Rule 16 of the CCA Rules was issued to the petitioner levelling six charges including the period of alleged charge of absence. In the said enquiry under Rule 16 of the CCA Rules, the aforesaid impugned order of punishment dated 5.11.1992 of withholding two annual grade increments with the further direction was passed. Thereafter, another impugned order of punishment dated 12.11.1993 was passed by the State Government for the same misconduct of wilful absence, as detailed out hereinabove.
5. The respondent State filed reply to the writ petition and submitted that since the petitioner was wilfully absent from duty, as detailed out in Charges No. 1 and 2 and further there was Charge No. 5 of the short fall of store items, therefore, the respondents have rightly proceeded against him under Rule 16 of the CCA Rules and punished him with minor penalty. Counsel for the State orally submitted that the period of non working from 4.11.1978 to 30.9.1984 was rightly treated as `dies non' under Rule 86 R.S.R. 1951.
6. Submission of counsel for the petitioner is that the de novo enquiry was conducted under Rule 16 of the Rules of 1958 wherein copy of the enquiry report was not given to him and further, when the Enquiry Officer himself found Charges No. 1 and 2 of willful absence as `not proved', then no note of disagreement was served, therefore, not only Rule 16 of the CCA Rules has been violated but the principles of natural justice have also been violated as held by the Supreme Court in Paras 17, 18 and 19 of Punjab National Bank vs. Kunj Behari Misra (1998) 7 SCC 84. Counsel for the petitioner also submits that when the removal was held to be without jurisdiction vide order dated 26.5.1984 by the Governor under Rule 34 R.S.R. then the period from 4.11.1978 i.e. the actual date of removal to 30.9.1984 a day before his joining stand regularized and further he has been punished with withholding of two annual grade increments vide order dated 5.11.1992 for alleged wilful absence from 19.1.1978 to 4.11.1978 then the Disciplinary Authority has passed order of regularization of the per
