Rajasthan High Court - Jaipur
Miss Seema Jain vs Raj High Court And Anr ... on 7 July, 2023
Bench: Ashok Kumar Gaur, Ashutosh Kumar
[2023:RJ-JP:13575-DB]
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Civil Writ Petition No.10126/2016
Miss Seema Jain D/o Dhan Kumar Jain, age about 54 years,
R/o 106, Vrindavan Colony, Khatipura Road, Jaipur.
----Petitioner
Versus
1. The Rajasthan High Court through its Registrar
(General), Jaipur (Raj.)
2. State of Rajasthan through its Secretary, Department of
Law, Government Secretariat, Jaipur.
----Respondents
For Petitioner : Mr.Ashwinee Kumar Jaiman, Adv.
with Mr.Hardik Singh, Adv.
For Respondent(s) : Mr.N.K. Maloo, Senior Advocate
assisted by Ms.Abhilasha Vaishnav,
Adv.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
HON'BLE MR. JUSTICE ASHUTOSH KUMAR
Order
Order Reserved on: 11.05.2023
Date of Order: 07.07.2023
REPORTABLE
BY THE COURT [Per Hon'ble Gaur, J]
The instant writ petition has been filed by the petitioner challenging the order dated 02.06.2016 removing the petitioner from service by way of penalty. The petitioner also challenges the memorandum-charge-sheet dated 05.07.2012 issued to her and relief of reinstatement in service with all consequential benefits, is claimed. (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (2 of 58) [CW-10126/2016]
2. The brief facts of the case, as pleaded in the writ petition, are as under:-
2.1 The petitioner who was working as an Additional District and Sessions Judge, was in receipt of memorandum dated 05.07.2012 served under Rule 16 of the Rajasthan Civil Service (Classification, Control & Appeal) Rules, 1958 (hereafter 'the CCA Rules'). The memorandum was issued by the Enquiry Officer.
2.2 The petitioner has pleaded that statement of charges under Rule 16 of the CCA Rules along-with statement of allegations primarily levelled the following allegations against the petitioner:-
(I) The petitioner disposed of Motor Accident claim petitions arbitrarily by granting much higher compensation where the injured had suffered lesser permanent disability.
(II) The petitioner arbitrarily awarded comparatively lesser amount of compensation, where the injured had suffered permanent disability to a larger extent or lost their lives in the accident.
(III) The brother in law of the petitioner contacted injured/relatives of the deceased and demanded money from them in lieu of passing higher award of (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (3 of 58) [CW-10126/2016] compensation and the same was done by him few days prior to the date of judgment. (IV) The petitioner awarded higher amount of compensation either to bestow undue favour for extraneous consideration or awarded lesser amount of damages with malafide intention, as she could not get extraneous consideration.
(V) The petitioner failed to maintain absolute integrity and devotion to duty, which was unbecoming of a Judicial Officer and amounted to violation of provisions of Rule 3 of the Rajasthan Civil Services (Conduct) Rules, 1971 (hereafter 'the Rules of 1971').
3. The petitioner has pleaded that prior to issuance of charge-sheet, the respondent-High Court conducted preliminary enquiry and recorded the statement and copy of the preliminary enquiry report was not given to the petitioner and the same was denied terming it to be 'confidential'.
4. The petitioner has pleaded that after receipt of charge-sheet, she demanded various documents and also the report of the preliminary enquiry and she was made available certain documents but not given the preliminary enquiry report.
5. The petitioner submitted her detailed reply to the charge-sheet on 24.09.2012 and denied all the allegations (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (4 of 58) [CW-10126/2016] levelled against her. The petitioner pleaded in the reply that she did not violate any of the provisions of service Rules. She further stated in her reply that the MACT awards were passed in accordance with law and further the act performed by the petitioner in a judicial capacity, could not have been questioned in the departmental enquiry proceedings.
6. The petitioner also pleaded that the awards which were passed by her, were also subject matter of challenge before the High Court and merit of the awards could not be adjudicated in the departmental proceedings.
7. The petitioner also denied allegations regarding extraneous consideration and demand of any money through her brother in law.
8. The petitioner after filing of the reply, demanded appointment of a defence nominee and she proposed the name of one--Shri U.C. Barupal, RHJS (Retd.) however, the said request was rejected by the respondent-High Court and defence nominee of her choice was not permitted to be appointed and as such, she later on appointed another Judicial Officer Shri Kamal Raj Singhvi, RHJS as defence nominee.
9. The petitioner has pleaded that during course of the enquiry, several witnesses were produced by the employer and their statements were contradictory and inconsistent. The petitioner has given details in respect of the statements, (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (5 of 58) [CW-10126/2016] which had been recorded during enquiry and has controverted the evidence led by the respondent to prove the charge against her.
10. The petitioner has pleaded that initially the enquiry was conducted by the then Registrar (Vigilance) and later on, one Hon'ble Judge of the High Court, was appointed as Enquiry Officer.
11. The petitioner has pleaded that the Enquiry Officer conducted the enquiry and submitted its report but he did not conduct the enquiry in just and fair manner.
12. The petitioner in her petition has given detailed description to controvert the inconsistent pleas ignored by the Enquiry Officer while reaching to conclusion for finding the charges proved against the petitioner.
13. The petitioner has pleaded that the Enquiry Officer submitted his report on surmises and conjectures, however, she was supplied copy of enquiry report and a representation was sought and she submitted her detailed representation pointing out the irregularities committed by the Enquiry Officer, during course of the enquiry.
14. The petitioner has pleaded that the Enquiry Officer in para 40 of his report, made certain comments and observations, which were not based on any record or any evidence produced during course of the enquiry. The petitioner also highlighted that she was always rated 'Good' (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (6 of 58) [CW-10126/2016] and 'Very Good' in APAR and only on concocted complaints alleging financial irregularities, the same could not have been enough to hold the petitioner guilty or charges being proved against her.
15. The petitioner has pleaded that by non-speaking and unreasoned order dated 02.06.2016, she has been 'removed from service' and the said order has been passed on the basis of recommendation made by the Full Court of High Court and the petitioner was not informed about the recommendation as well as decision of the Full Court and as such, the petitioner was deprived to have an opportunity to submit any representation.
16. The petitioner in the memo of her petition has raised several grounds to assail the punishment order of removal from service as well as the charge-sheet issued to her under Rule 16 of the CCA Rules.
17. The respondent No.1--High Court has filed reply to the writ petition.
18. The respondent-High Court in preliminary objection has submitted that the petitioner has been removed from service for the misconduct proved against her after due enquiry and she wants this Court to reexamine and reappreciate the evidence and substitute the findings recorded by the Authorities and as such, the High Court may not act as an Appellate Authority under Article 226 of the (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (7 of 58) [CW-10126/2016] Constitution of India and as a Court of appeal over the decision of the Authorities for holding the departmental enquiry against a public servant.
19. The respondent-High Court while giving the brief history, has stated that the petitioner had entered in Rajasthan Judicial Service in the year 1992 and she came to be promoted as 'ACJM' in the year 2000 and she was later on promoted on ad-hoc temporary basis to man the Fast Track Court for six months and later on, she was considered for promotion in ADJ (Regular) cadre, however, recommendation was kept in a sealed cover on account of enquiry pending against the petitioner under Rule 16 of the CCA Rules.
20. The respondent has also given the performance of the petitioner mostly treating her to be 'Average Officer'.
21. The respondent-High Court has stated that petitioner while working as Special Judge, Dacoity Affected Area-cum-MACT, Bharatpur in the year 2011, did not discharge her duties in proper manner and several complaints were received against her and the matter was placed before the Hon'ble Chief Justice and thereafter, preliminary enquiry was conducted by the Registrar (Vigilance) and report was submitted before the Hon'ble Chief Justice and the Hon'ble Chief Justice on 30.03.2012 ordered to initiate a departmental enquiry under Rule 16 of the CCA Rules and as such, vide memorandum dated 05.07.2012, statement of (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (8 of 58) [CW-10126/2016] charges alongwith statement of allegations, were served upon the petitioner.
22. The petitioner after submitting her reply was given adequate opportunity before the Enquiry Officer, statements of witnesses were recorded from both sides and the Enquiry Judge after considering all the submissions and materials, submitted enquiry report, wherein charge Nos.2, 3, & 4 were proved against the petitioner.
23. The enquiry report dated 29.06.2015 was placed before the Hon'ble Chief Justice and then matter was placed before the Full Court and on 08.08.2015, the Full Court was pleased to accept the enquiry report and called the petitioner for her explanation. The petitioner was forwarded copy of enquiry report and was asked to submit her written representations/submissions within 15 days and the petitioner submitted her representation on 07.09.2015 and again the matter was placed before the Hon'ble Full Court and the Full Court considered the same in its meeting held on 07.05.2016 and as such, the representation of the petitioner was found without any substance and the Full Court resolved to recommend imposition of penalty of removal from service against the petitioner and she was kept as 'APO' at Rajgarh (Alwar) with immediate effect and later on, recommendations of the Full Court were communicated to the State (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (9 of 58) [CW-10126/2016] Government and they passed the order of removal from service.
24. The respondent-High Court has taken a stand that after initiation of the departmental enquiry against the petitioner under Rule 16 of the CCA Rules and considering reply of the petitioner, decision was taken to hold regular enquiry and Enquiry Officer was appointed.
25. The respondent High Court has taken a stand that since the preliminary enquiry report was not the basis of finding in the regular enquiry and as such, the copy of enquiry report was not supplied to the petitioner.
26. The respondent-High Court has pleaded that as far as the request to allow inspection of documents and getting copies of the documents was concerned, the respondent had complied with the said request of the petitioner and except the inspection of preliminary enquiry report, all the documents were supplied to the petitioner.
The petitioner examined herself as a witness and other departmental witnesses were cross-examined by the defence nominee at length and the Enquiry Judge had appreciated the entire oral and documentary evidences and thereafter, he prepared the enquiry report.
The respondent has denied the allegation of not appointing a defence nominee of own choice of the petitioner, the respondent has explained that defence nominee initially (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (10 of 58) [CW-10126/2016] was suggested by the petitioner, since he had given his consent as defence nominee in another enquiry at Jodhpur and had also participated as defence nominee in other departmental enquiry of the petitioner and as such, in view of Rule 16(5) of the CCA Rules, the application of the petitioner was rejected and later on, request of the petitioner to appoint defence nominee of her own choice, was accepted.
27. The respondent-High Court has also pleaded that the departmental enquiry against the petitioner was initiated by serving a memorandum and initially, enquiry was conducted by the Registrar (Vigilance) and later on, since resolution was passed by the Full Court in its meeting held on 19.01.2013, the departmental enquiries against the officer in the cadre of RHJS were entrusted to the Hon'ble Judge of this Court and as such, the Hon'ble Chief Justice made the nomination of the Hon'ble Judge of the High Court as Enquiry Judge on 01.03.2013 and thereafter enquiry had been conducted strictly in accordance with the applicable rules and principles of natural justice.
28. The respondent-High Court has taken a plea that after receipt of enquiry report, the matter was examined by the Full Court and accordingly, considering the nature of gravity of charges proved against the petitioner, the penalty order of removal from service was passed. (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (11 of 58) [CW-10126/2016]
29. The respondent-High Court, in reply to the grounds raised by the petitioner, has taken a specific plea that there has been no violation of Rule 16 of the CCA Rules and while exercising the powers conferred under Article 235 of the Constitution of India, the Full Court of the High Court delegated the powers to transact the business in the disciplinary matters to the Hon'ble Chief Justice and a resolution was passed by the Full Court, empowering the Hon'ble Chief Justice or the Hon'ble Administrative Judge to initiate the disciplinary proceedings against the Judicial Officers in the capacity of disciplinary authority. Subsequently through an amended resolution, the Hon'ble Administrative Judge or a Judge nominated by the Hon'ble Chief Justice was empowered to issue a charge-sheet and conduct an enquiry.
30. The respondent-High Court has taken a stand that at the relevant time, the Hon'ble Judge was nominated by the Hon'ble Chief Justice, as an Enquiry Judge, instead of disciplinary authority and he had power to issue charge-sheet for enquiry under Rule 16 and 17 of the CCA Rules and as such, charge-sheet was rightly issued by the Hon'ble Enquiry Judge as per resolution of the Full Court.
31. Learned counsel appearing for the petitioner Mr.Ashwinee Kumar Jaiman has made following submissions assailing the charge-sheet and the removal order, passed against the petitioner:-
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(i) Charge-sheet dated 05.07.2012 has been issued by the Registrar (Vigilance), who is an incompetent Authority to issue charge-sheet. The Registrar (Vigilance) is neither the Appointing Authority nor the disciplinary authority of the petitioner as the petitioner was working as Additional District and Sessions Judge at relevant time and therefore, charge-sheet has been issued in violation of Rule 16(2) of the CCA Rules.
(ii) As per Rule 16(2) of the CCA Rules, only disciplinary authority can frame the charges and as per Rule 15(1), the Governor has been pleased to delegate to Administrative Judge or a Judge nominated by the Chief Justice of the Rajasthan High Court the power to impose on members of [the Rajasthan Higher Judicial Service and] the Rajasthan Judicial Service any of the penalties prescribed under the said Rules except those of removal and dismissed from service and hence, no power was delegated to the Officer of the level of Registrar (Vigilance) to frame the charges.
(iii) The Enquiry Officer was appointed even before the receipt of reply by the petitioner and the same has been in violation of Rule 16(4) of the CCA Rules and (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (13 of 58) [CW-10126/2016] as such, proceedings are liable to be quashed and set aside.
(iv) The application of the petitioner seeking certain documents including the preliminary enquiry report was wrongly denied by the Registrar (Administration), as he was not the Competent Authority. Moreover, the Registrar (Administration) was neither the Disciplinary Authority nor Enquiry Officer and he could not have exercised power and only the Disciplinary Authority could approve or disapprove, the appointment of defence nominee under the Rule 16(5) of the CCA Rules.
(v) The role of Enquiry Officer is of a Judge and he has to perform the job in a neutral manner to prepare the enquiry report on the basis of evidence adduced during the enquiry and his opinion cannot be based on extraneous material as has been observed in para-
40 of the enquiry report.
(vi) The delegated power cannot be further delegated to any other authority and the exercise of power has to be exercised by the Authority upon whom, the same power is conferred and no one else can exercise such power.
(vii) The enquiry report has been submitted without considering the version of the petitioner and shows (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (14 of 58) [CW-10126/2016] total non-application of mind, as while considering the charge No.2 as proved, the entire charge (from the charge-sheet) has been quoted verbatim.
32. Learned Senior Counsel Mr.N.K. Maloo appearing for the respondent-High Court has made the following submissions :-
(i) The charge-sheet issued by the respondent is as per resolution dated 15.01.2011, as the High Court vide resolution dated 15.01.2011 had approved the recommendations of the Hon'ble Committee with respect to the departmental enquiries for minor penalties and major penalties and enquiry could be conducted either by the Hon'ble Judge of the High Court or through Vigilance Cell of the High Court, as was considered fit by the Hon'ble Chief Justice in the facts of a particular case. The Registrar (Vigilance) was rightly appointed as Enquiry Judge in terms of the said resolution dated 15.01.2011.
(ii) The Hon'ble Chief Justice before issuing the charge-
sheet by the Registrar (Vigilance), had approved action of issuing the charge-sheet and in view of such approval by the Hon'ble Chief Justice, no fault can be found while issuing the charge-sheet to the petitioner by the Registrar (Vigilance).
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(iii) The Registrar (Vigilance) was only communicating on behalf of the Hon'ble Chief Justice and as such, no legal flaw can be found and no prejudice was caused to the petitioner on the said action of the Registrar (Vigilance) by communicating the charge-sheet.
(iv) The preliminary enquiry report was not given to the petitioner in a rightful manner, as the same was not the basis for imposition of punishment, as regular enquiry was conducted and no prejudice was caused to the petitioner on account of not supplying the copy of preliminary enquiry report.
(v) The defence nominee was provided to the petitioner as per her own consent, as the initial choice of a defence nominee by the petitioner, was already participating in departmental enquiry for another Judicial Officer and further he had already participated in another enquiry against the petitioner as defence nominee. The defence nominee was appointed as per choice of the petitioner later on and has not resulted into any prejudice to her.
(vi) The enquiry report was an opinion of the Enquiry Judge and the same was not the sole basis. The Disciplinary Authority considered the entire record of enquiry and thereafter punishment order was passed. The Full Court after considering the report and (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (16 of 58) [CW-10126/2016] representations submitted by the petitioner, recommended for punishment of removal.
(vii) The petitioner was not prejudiced in any manner in the entire departmental enquiry and as per Rule 32 of the Rajasthan High Court Rules, 1952, even if, there has been some omission in the procedure, the same would not invalidate the disciplinary proceedings.
The scope of judicial review is limited under Article 226 of the Constitution of India and until findings of Enquiry Officer are perverse and without considering the relevant material, the same cannot be substituted by the High Court, while exercising the writ jurisdiction.
(viii) The allegation of the petitioner that before filing reply to the charge-sheet, the enquiry officer was appointed, would not result into any violation of principles of natural justice, since the petitioner has submitted her reply denying the charges and once regular enquiry is conducted, no delinquent officer can be allowed to raise a plea that the disciplinary authority has to wait for getting reply and only thereafter, Enquiry Officer can be appointed.
33. Learned counsel for the petitioner Mr.Ashwinee Kumar Jaiman has placed reliance on the following judgments :- (Downloaded on 11/11/2023 at 06:11:50 PM)
[2023:RJ-JP:13575-DB] (17 of 58) [CW-10126/2016]
1. Union of India & Others Vs. B.V. Gopinath & Others reported in [(2014)1 SCC 351].
2. State of Tamil Nadu Rep. by Secretary to Govt.
(Home) Vs. Promod Kumar IPS and Anr. reported in [(2018) 17 SCC 677].
3. Sunny Abraham Vs. Union of India & Anr. reported in [2022 AIR SC 336].
4. State of Punjab Vs. V.K. Khanna reported in [(2001)2 SCC 33].
5. The Ld. Registrar General, High Court, Calcutta & Ors. Vs. Ananya Bandyopadhyay & Ors.
reported in [(2006)8 SLR 330].
6. Mathura Prasad Vs. Union of India & Ors. reported in [(2007)1 SCC 437].
7. M.V. Bijlani Vs. Union of India reported in [(2006)5 SCC 88].
8. Narendra Mohan Arya Vs. United India Insurance Co. Ltd. & Ors. reported in [(2006)4 SCC 713].
9. Ramesh Chandra Vs. Delhi University & Ors. reported in [(2015)5 SCC 549].
10. Marathwada University Vs. Seshroa Balwant Rao Chavan reported in [(1989)3 SCC 132].
(Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (18 of 58) [CW-10126/2016]
11. Abdul Naim Khan Vs. High Court of Judicature for Rajasthan reported in [(2016)4 RLW 2686 (Raj.)].
12. Smt. Sushila Nagar Vs. High Court of Judicature for Rajasthan, Jodhpur reported in [(2002)3 RLW (Raj.) 1549].
13. Ugam Raj Bhandari Vs. The State of Rajasthan & Ors. reported in [(1979) WLN 737].
14. Union of India & Ors. Vs. R.P. Singh reported in [(2014)7 SCC 340].
34. Learned Senior Counsel for the respondent-High Court Mr.N.K. Maloo has placed reliance on the following judgments, hereunder:-
(i) Abdul Naim Khan Vs. High Court of Judicature for Rajasthan reported in [(2016)4 RLW 2686 Raj.]
(ii) Smt. Sushila Nagar Vs. High Court of Judicature for Rajasthan Jodhpur reported in [(2002)3 RLW (Raj.) 1549].
(iii) Arundhati Ashok Walavalkar Vs. State of Maharashtra reported in [(2011)11 SCC 324].
(iv) Union of India & Ors. Vs. P. Gunasekaran reported in [(2015)2 SCC 610].
(v) State of Karnataka and Another Vs. N. Gangaraj reported in [(2020)3 SCC 423].
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(vi) Secretary, Ministry of Defence and Ors. Vs.
Prabhash Chandra Mirdha reported in
[(2012)11 SCC 565].
35. We have heard the submissions made by learned counsel for the parties and perused the material available on record.
36. This Court, in order to adjudge the legality of actions taken by the respondents, deems it proper to examine the first stage of issuing the charge-sheet to the petitioner in the present matter.
37. This Court would also like to examine the subsequent step of appointment of an Enquiry Officer in rightful manner or not without waiting for reply of charge- sheet by the delinquent officer.
38. This Court, deems it proper to quote the Rule 15 and Rule 16(1), (2), (3), (4) and (5) of the CCA Rules, hereunder:-
"15 Disciplinary Authorities:- In respect of the State service the Government or the Authority specially empowered by the Government in that behalf, in respect of the Subordinate and Ministerial Service, the Head of Department or the authority specially empowered by the Head of the Department with the approval of the Government and in respect of Class IV Services, the Head of the office shall be the disciplinary authority. Note:- (1) The authority specially empowered to make appointment to a Service under Rule (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (20 of 58) [CW-10126/2016] 12 of these rules shall have power to inflict any of the penalties specified in Rule 14.
(ii) The State Government or the Head of Department as the case may be shall not empower under this rule any other authority to impose penalties specified in clause (vi) and
(vii) of Rule 14.] "In exercise of the powers conferred by Rule 15(1) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958, the Governor has been pleased to delegate to Administrative Judge or a Judge nominated by the Chief Justice of the Rajasthan High Court the power to impose on members of [the Rajasthan Higher Judicial Service and] the Rajasthan Judicial Service any of the penalties prescribed under the said Rules except those of removal and dismissal from service.
(2) In respect of the State Service, the power of appointment to which is not delegated to a subordinate authority, before imposing the penalties other than censure, and withholding of increments, the Public Service Commission shall be consulted."
16.(1) Procedure for imposing major penalties:- Without prejudice to the provisions of the Public Servants (Inquiries) Act, 1850, no order imposing on a Government servant any of the penalties specified in clauses (iv) to (vii) of Rule 14 shall be passed except an inquiry held, as far as may be, in the manner hereinafter provided.
Rule 16(2):- The disciplinary Authority shall frame definite charges on the basis of the allegations on which the inquiry is proposed to be held. Such charges together with a statement of the allegations on which they are (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (21 of 58) [CW-10126/2016] based, shall be communicated in writing to the Government servant, and he shall be required to submit, within such time as may be specified by the Disciplinary Authority, a written statement indicating whether he admits the truth of all or any of the charges, what explanation or defence, if any, he has to offer and whether he desires to be heard in person:
Provided that it shall not be necessary to frame any additional charge when it is proposed to take action in respect of any statement or allegation made by the person charged in the course of his defence.
Explanation:- In this sub-rule (2) and in sub- rule (3) the expression 'the Disciplinary Authority" shall include the authority competent under these rules to impose upon the Government servant any of the penalties, specified in clauses (i) to (iii) of Rule 14.
Rule 16(3):- The Government servant shall, for the purpose of preparing his defence, be permitted to inspect and take extracts from such official records as he may specify provided that such permission may be refused if, for reasons to be recorded in writing, in the opinion of the Disciplinary Authority such records are not relevant for the purpose or it is against the public interest to allow him access thereto.
Rule 16(4):- [On receipt of the written statement of defence, or if no such statement is received within the time specified, the Disciplinary Authority may itself inquire into such of the charges, as are not admitted or if, it considers it necessary so to do, appoint a Board of Inquiry or an Inquiring Authority for the purpose, and where all the articles of charges have been admitted by the Government servant in his written statement of defence, the Disciplinary Authority shall record its findings on each charge."(Downloaded on 11/11/2023 at 06:11:50 PM)
[2023:RJ-JP:13575-DB] (22 of 58) [CW-10126/2016] (4A) If the Government servant who has not admitted any of the articles of charge in the written statement of defence or has not submitted any written statement of defence appears before the Inquiring Authority, such Authority shall ask him whether he is guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the Inquiring Authority shall record the plea, sign the record and obtain the signature of the Government servant thereon.
The Inquiring Authority shall return a finding of guilt in respect of those articles of charge which the Government servant pleads guilty.] Rule 16(5):- The Disciplinary Authority may nominate any person to present the case in support of the charges before the authority inquiring into charges (hereinafter referred to as the Inquiring Authority). The Government servant may present his case with the assistance of any other Government servant [or retired Government servant] approved by the Disciplinary Authority, but may not engage a legal practitioner for the purpose unless the person nominated by the Disciplinary Authority is a legal practitioner or unless the Disciplinary Authority, having regard to the circumstances of the case, so permits.
[Explanation. For the purpose of this sub-rule, a Public Prosecutor, Prosecuting Inspector or a Prosecuting Sub-Inspector shall be deemed to be a legal practitioner.]
(i) Provided that no Government Servant shall be entitled to take up more than one case at a time. At the time of appearance before the Inquiry Officer. He will produce a certificate in this regard. The above condition will not to be apply in the case of retired Government Servant and he may take more than one case at a time.] Provided further that if the retired Government servant is also a legal practitioner, the (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (23 of 58) [CW-10126/2016] restrictions on engaging a legal practitioner by a delinquent Government servant to present the case on his behalf, would apply.]"
39. This Court, deems it proper, to quote Notification dated 03.02.2011 issued by the Registrar (General) in view of resolution dated 15.01.2011 passed by the Rajasthan High Court and the same is quoted as hereunder:-
RAJASTHAN HIGH COURT, JODHPUR NOTIFICATION RAJASTHAN HIGH COURT RESOLUTION DATED 15.01.2011 No.2/S.R.O./2011 Dated 03.02.2011 In accordance with the powers conferred under Article 235 of the Constitution of India, the Hon'ble High Court has passed a resolution dated 15.01.2011 approving the recommendations of the Hon'ble Committee with respect to departmental enquiries for minor penalties and major penalties, which are as under:-
"It is further proposed that with respect to minor penalties, departmental enquiry may be got conducted by the Vigilance Cell or by such Officer, who may be authorized by Hon'ble Chief Justice.
It is further proposed that with respect to major penalties, enquiry may be got conducted either by Hon'ble Judge of the High Court or through Vigilance Cell of this Court, as may be considered fit by Hon'ble the Chief Justice in the facts of the case".
Now, therefore, the procedure as Resolved herein above shall be followed.
BY ORDER Sd/-
REGISTRAR GENERAL No.Gen/XV/8/2011/525 Dated 03.02.2011 (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (24 of 58) [CW-10126/2016]
40. This Court also deems it proper to reproduce the resolution of the Full Court dated 31.03.2013 regarding departmental proceedings against the members of the Rajasthan Judicial Service, as under:-
"ANY OTHER MATTER WITH THE PERMISSION OF THE CHAIR The Full Court unanimously expressed its concern over the quality of the disciplinary proceedings being conducted and the reports submitted therein, in general, and resolved as follows:
"All disciplinary enquiries against the members of the Rajasthan Judicial Service presently pending with the Registrar(s) (Vigilance) be recalled and necessary steps be taken in accordance with the relevant rules for conducting the same--
(i) so far as they relate to the members of the Service pertaining to the Cadre of District Judge by the Hon'ble Judges of this Court to be nominated by Hon'ble the Chief Justice.
(ii) so far as they relate to the officers of the other cadres in the Service, by the Hon'ble Judges of this Court to be nominated by Hon'ble the Chief Justice, in case it is deemed necessary by His Lordship, amongst others, in view of the seriousness and gravity of the charge(s) involved".
The other disciplinary proceedings be entrusted to the Registrar(s)(Vigilance) to be completed at the earliest. It is resolved that this arrangement be followed for all disciplinary proceedings hereafter."
41. This Court finds that the charge-sheet dated 05.07.2012 has been issued to the petitioner for holding an (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (25 of 58) [CW-10126/2016] enquiry against her under Rule 16 of the CCA Rules. The allegations, on which enquiry was proposed, were also set out in the statement of allegations and charges were framed against her and as such, the memorandum was issued by the Registrar (Vigilance)--Enquiry Officer.
42. This Court finds that the learned Senior Counsel for the respondent-High Court has placed reliance on the Notification dated 03.02.2011, which was issued in pursuance of resolution passed on 15.01.2011 approving recommendation of the Committee with respect to departmental enquiry for minor penalties and major penalties.
This Court, on a bare perusal of the said notification, finds that with respect to minor penalties, the departmental enquiry could be conducted by the Vigilance Cell or by such Officer, who was to be authorized by the Hon'ble Chief Justice.
43. This Court finds that with respect to major penalties, enquiry could be conducted by Hon'ble Judge of the High Court or through Vigilance Cell of the High Court, as was considered fit by the Hon'ble Chief Justice in the facts of the case.
This Court finds that the said notification issued in pursuance of resolution, had only authorized the Hon'ble Chief Justice to get the enquiry conducted either by the Judge (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (26 of 58) [CW-10126/2016] of the High Court or through Vigilance Cell of the High Court, however, the power to issue charge-sheet in respect of major penalties, was not bestowed upon the Registrar (Vigilance).
44. This Court finds that the Disciplinary Authority as per Rule 16(2) of the CCA Rules has to frame definite charges on the basis of allegation on which enquiry is proposed to be held and as such, the Disciplinary Authority alone can frame the charges and Rule 15(1) of the CCA Rules, defines the Disciplinary Authority.
This Court finds that in the present case at hand the Registrar (Vigilance) issued a memorandum to the petitioner and even if before issuing memorandum--charge- sheet, the same was put up before the Hon'ble Chief Justice for his approval, the same will not cloth the Registrar (Vigilance) to usurp the power of the Disciplinary Authority to issue a charge-sheet for imposing major penalties under Rule 16 of the CCA Rules.
45. This Court finds substance in the submission of counsel for the petitioner that even as per notification dated 03.02.2011, the enquiry could be conducted by the Hon'ble Judge of the High Court or through Vigilance Cell of the High Court, however, the charge-sheet was required to be issued by the Disciplinary Authority.
46. This Court finds no substance in the submission of learned Senior Counsel for the respondent-High Court that (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (27 of 58) [CW-10126/2016] the issuance of charge-sheet by the Registrar (Vigilance) was a rightful act and at the relevant time, since the Registrar (Vigilance) was having the power to conduct enquiry and as such, he could issue the charge-sheet as well.
47. This Court also does not find any substance in the submission of learned Senior Counsel for the respondent that no prejudice has been caused to the petitioner when the charge-sheet has been issued by the Registrar (Vigilance), as the enquiry subsequently was transferred to the Enquiry Judge i.e. Judge of the High Court and the Enquiry Officer has considered the entire evidence and thereafter, prepared an enquiry report.
48. This Court finds that the Officer, who had issued the charge-sheet to the petitioner, was not having any competence to issue the charge-sheet to an officer of rank of Additional District Judge. The power which was required to be exercised by the Disciplinary Authority, could not have been delegated and the notification dated 03.02.2011 will not confer any power to the Registrar (Vigilance) to initiate the disciplinary enquiry by issuing the charge-sheet.
49. The submission of learned Senior Counsel for the respondent Mr.N.K. Maloo that Rule 32 of the High Court Rules shall not affect the validity of any order, if the procedure laid down is not followed in issuing the charge- sheet, as the same can be at the most be treated as an (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (28 of 58) [CW-10126/2016] irregularity or omission to follow the procedure, this Court finds that Rule 32 of the High Court Rules, shall not have any application to the present case. The Rule 32 of the High Court Rules is quoted as under:-
"32. Effect of any irregularity in or omission to follow the procedure laid down in this Chapter.- *1 (1) No irregularity in, or omission to follow, the procedure laid down in this Chapter shall affect the validity of any order passed or anything done under these Rules.
*2 (2) For the removal of doubt, it is hereby mentioned that all administrative work disposed of by Chief Justice, the Administrative Judge or any other Judge or Judges to whom the work has been assigned by the Chief Justice for disposal shall be deemed to be disposed of by the Court."
This Court finds that the Division Bench in the case of Ugam Raj Bhandari Vs. State of Rajasthan & Anr. (supra) has dealt with the scope of Rule 32 of the High Court Rules and a distinction was drawn in a case of irregularity and want of competency. The judgment passed by the Division Bench in the case of Ugam Raj Bhandari Vs. State of Rajasthan & Anr. (supra) in paras -30 and 31 has considered the scope of the CCA Rules of 1958 vis-a-vis Rule 32 of the High Court Rules. The relevant paras 30 and 31 are quoted as hereunder:-
"30. We are also unable to agree with the submission of the Addl. Government Advocate that the appointment of Shri Justice P.N. Shinghal as the Disciplinary Authority to proceed further with the disciplinary proceedings against the appellant under the order dated 10th January, 1970 and the disciplinary proceedings conducted by him amounted to (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (29 of 58) [CW-10126/2016] mere irregularity and which did not affect the validity of the order of removal in view of the provisions contained in Rule 32 of the High Court Rules. Rule 32 of the High Court Rules provides as under:
"Rule 32: (1) No irregularity in or omission to follow, the procedure laid down in this chapter, shall affect the validity of any order passed or anything done under these Rules.
(2) For the removal of doubt, it is hereby mentioned that all administrative work disposed of by the Chief Justice, the Administrative Judge or any other Judge or Judges to whom the work has been assigned by the Chief Justice for disposal shall be deemed to be disposed of by the Court."
31. In our opinion, Rule 32 cannot have any application to the present case. As laid down by the Privy Council in N.A. Subrahmaniam Iyer v. Emperor [28 A.I. 257], a distinction has to be drawn between a mere irregularity and an illegality. Similarly in the contest of Article 212(1) of the Constitution which lays down that the validity of any proceedings in the legislature of a State shall not be called in question on the ground of any alleged irregularity of procedure, the Supreme Court in Special Reference No.1 of 1964 [AIR 1965 SC 745] has observed that if the impugned procedure is illegal and unconstitutional, it would be open to be scrutinised in a court of law though such scrutiny is prohibited if the complaint against the procedure is no more than this that the procedure was irregular. The same test will have to be applied for purpose of determining whether Rule 32 affords protection to the impugned orders in the present case. Since we are of the view that in cases where the Administrative Judge is in seisin of a disciplinary inquiry against a judicial officer, the Chief Justice is not competent to withdraw the disciplinary proceedings from the Administrative Judge and assign it to a (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (30 of 58) [CW-10126/2016] Judge nominated by him the order dated 10th January, 1970, passed by the Chief Justice nominating Shri Justice P.N. Shinghal as the Disciplinary Authority to proceed further with the disciplinary inquiry pending the appellant was "not a case of irregularity but want of competency.
Provisions of Rule 32 of High Court Rules which are applicable to case of irregularity only cannot, therefore, have any application to the present case."
50. This Court finds that holding of a departmental enquiry by issuing a charge-sheet by the Disciplinary Authority--Competent Authority is the most important aspect of initiating departmental proceedings in service jurisprudence. Conducting a departmental enquiry by another Authority than disciplinary authority can be treated as a valid procedure in certain enquiries, if the same power is being delegated to any other authority, like in the present case i.e. either to the Hon'ble Judge of the High Court or through Vigilance Cell of the High Court, however, both cannot be at the same pedestal for the purpose of issuing charge-sheet, as has been canvassed by learned Senior Counsel for the respondent-High Court.
51. This Court finds that the Apex Court in the case of Union of India & Ors. Vs. B.V. Gopinath (supra) had occasion to deal with the power/competence of the Disciplinary Authority while issuing the charge-sheet. The (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (31 of 58) [CW-10126/2016] Apex Court after considering the Rule 14(2) of the CCS (CCA) Rules, 1965 held that when the Disciplinary Authority proposed to hold an enquiry against a government servant under Rule 14 or 15, the Disciplinary Authority was to draw up or cause to be drawn up a charge-sheet and Rule 14(4) mandated that the Disciplinary Authority shall deliver or cause to be delivered, the copy of the articles of charge.
The Apex Court specifically rejected the submission made on behalf of employer that once the disciplinary authority approves the initiation of disciplinary proceedings, the charge-sheet can be drawn up by an Authority other than the Disciplinary Authority. The Apex Court held that a charge- sheet can only be issued by the Disciplinary Authority and no other person can exercise this power. The relevant paras 40, 41, 42, 48, 49, 51 & 52 of the said judgment are quoted, as under:-
"40. Article 311(1) of the Constitution of India ensures that no person who is a member of a civil service of the Union or an all India service can be dismissed or removed by an authority subordinate to that by which he was appointed. The overwhelming importance and value of Article 311(1) for the civil administration as well as the public servant has been considered stated and re-stated, by this Court in numerous judgments, since the Constitution came into effect on 19th January, 1950 (sic). Article 311(2) ensures that no civil servant is dismissed or reduced in rank except after an inquiry held in accordance with the rules of natural justice. To effectuate the guarantee contained in Article 311(1) and to ensure compliance with the mandatory requirements of Article 311(2), the (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (32 of 58) [CW-10126/2016] Government of India has promulgated CCS (CCA) Rules, 1965.
41. Disciplinary proceedings against the Respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet. Rule 14(4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary authority. This would destroy the underlying protection guaranteed under Article 311(1) of the Constitution of India.
Such procedure would also do violence to the protective provisions contained under Article 311(2) which ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge sheet. Such a charge sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.
42. In fact, issuance of the office order No. 205 dated 19th July, 2005 makes it evident that the Respondents were aware of the legal position. The office order clearly sets out the levels of the decision making authorities depending on the gravity of the consequences that would have to be faced by a delinquent public servant in case the decision is taken to proceed against the public servant. Clause (1) deals with closure of complaints which are anonymous/pseudonymous; if the decision is taken to close the complaint it can be taken by (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (33 of 58) [CW-10126/2016] the CVO. But in case of verifiable facts, the complaints have to be referred to the next level of hierarchy CVB (Central Vigilance Bureau). For placing an officer under suspension, the decision has to be taken by the Finance Minister himself. Even review of suspension at quarterly/half yearly interval rests with the Finance Minister.
This is so, as suspension during contemplation/pendency of enquiry, though may not be penal in nature per se, still has very serious adverse consequences on the professional as well as the personal life of the officer suspended. The office order recognizing the gravity of the consequences ensures that the decision in relation to suspension/review of suspension shall be taken by the highest authority in the department i.e. the Finance Minister. In matters related to reference to CVC for first stage advice, the competent authority is the Secretary (Revenue). Similarly, for reconsideration of CVC's first stage advice, again the competent authority is the Secretary (Revenue), but in case of disagreement with CVC's first stage advice on approval for referring the case to Department of Personnel and Training, the competent authority is the Finance Minister.
48.Much was sought to be made by Ms. Indira Jaising on Clause (10) of the order which provides that once the Finance Minister has approved the initiation of departmental proceedings, the ancillary action can be initiated by the CVO. According to the learned Addl. Solicitor General, the decision taken by the Finance Minister would also include the decision for approval of charge memo. She pointed out the procedure followed for initiation of penalty proceedings/disciplinary proceedings. She submitted that the decision to initiate disciplinary proceedings is based on a Satisfaction Memo prepared by the CVO. This satisfaction memo is submitted to the Member (P&V), Central Board of Direct Taxes, New Delhi who after being satisfied that the memo is in order, forwards it to the Chairman, CBDT who in turn, upon his own satisfaction forwards it to Secretary (Revenue) and finally to the Finance Minister. Based on the satisfaction memo, the (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (34 of 58) [CW-10126/2016] Finance Minister, who is the disciplinary authority in this case, takes the decision to initiate disciplinary proceedings. While taking the said decision, the Finance Minister has before him, the details of the alleged misconduct with the relevant materials regarding the imputation of allegations based on which the charge memo was issued. Therefore, approval by the Finance Minister for initiation of the departmental proceedings would also cover the approval of the charge memo.
49.We are unable to accept the submission of the learned Addl. Solicitor General. Initially, when the file comes to the Finance Minister, it is only to take a decision in principle as to whether departmental proceedings ought to be initiated against the officer. Clause (11) deals with reference to CVC for second stage advice. In case of proposal for major penalties, the decision is to be taken by the Finance Minister. Similarly, under Clause (12) reconsideration of CVC's second stage advice is to be taken by the Finance Minister. All further proceedings including approval for referring the case to DoP&T, issuance of show-cause notice in case of disagreement with the enquiry officer's report; tentative decision after CVC's second stage advice on imposition of penalty; final decision of penalty and revision/review/memorial have to be taken by the Finance Minister.
51.Ms. Indira Jaising also submitted that the purpose behind Article 311, Rule 14 and also the Office Order of 2005 is to ensure that only an authority that is not subordinate to the appointing authority takes disciplinary action and that rules of natural justice are complied with. According to the learned Addl. Solicitor General, the Respondent is not claiming that rules of natural justice have been violated as the charge memo was not approved by the disciplinary authority. Therefore, according to the Addl. Solicitor General, the CAT as well as the High Court erred in quashing the charge sheet as no prejudice has been caused to the Respondent.
(Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (35 of 58) [CW-10126/2016]
52. In our opinion, the submission of the learned Addl. Solicitor General is not factually correct. The primary submission of the Respondent was that the charge sheet not having been issued by the disciplinary authority is without authority of law and, therefore, non est in the eye of law. This plea of the Respondent has been accepted by the CAT as also by the High Court. The action has been taken against the Respondent in Rule 14(3) of the CCS (CCA) Rules which enjoins the disciplinary authority to draw up or cause to be drawn up the substance of imputation of misconduct or misbehaviour into definite and distinct articles of charges. The term "cause to be drawn up" does not mean that the definite and distinct articles of charges once drawn up do not have to be approved by the disciplinary authority. The term "cause to be drawn up"
merely refers to a delegation by the disciplinary authority to a subordinate authority to perform the task of drawing up substance of proposed "definite and distinct articles of charge sheet".
These proposed articles of charge would only be finalized upon approval by the disciplinary authority. Undoubtedly, this Court in the case of P.V. Srinivasa Sastry and Ors. Vs. Comptroller and Auditor General and Ors.; 1993 (1) SCC 419 has held that Article 311(1) does not say that even the departmental proceeding must be initiated only by the appointing authority. However, at the same time it is pointed out that: (SCC p.422, Para 4.
4."However, it is open to Union of India or a State Government to make any rule prescribing that even the proceeding against any delinquent officer shall be initiated by an officer not subordinate to the appointing authority." It is further held that "Any such rule shall not be inconsistent with Article 311 of the Constitution because it will amount to providing an additional safeguard or protection to the holders of a civil post."
52. This Court finds that the Apex Court again in the case of State of Tamil Nadu Rep. by Secretary to Govt. (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (36 of 58) [CW-10126/2016] (Home) Vs. Promod Kumar IPS & Anr. (supra), reiterated the principle laid down by the Apex Court in the aforesaid case of B.V. Gopinath (supra) and held that the charge memo has to be drawn up or cause to be drawn up by the Disciplinary Authority.
The plea raised on behalf of the employer that approval of the Disciplinary Authority for initiation of disciplinary proceedings was sufficient and there was no need for another approval for issuance of charge-memo, was not accepted by the Apex Court and it was reiterated that if any Authority other than the Disciplinary Authority is permitted to draw the charge memo, the same results in destroying the protection under Article 311(2) of the Constitution of India. The relevant paras 18 to of the said judgment, are quoted as under:-
"Validity of the Charge-Memo
18. Rule 8 of the All India Services (Discipline and Appeal) Rules, 1969 prescribes a procedure for imposing major penalties. A major penalty specified in Rule 6 cannot be imposed except after holding an enquiry in the manner prescribed in Rule 8. Where it is proposed to hold an enquiry against a member of the service under Rule 8, the disciplinary authority shall "draw up or caused to be drawn up" the substance of the imputation of misconduct or misbehavior into definite and distinct article of charge. The Rule further provides for an opportunity to be given to the delinquent to submit his explanation, the appointment of an inquiring authority and the procedure to be followed for imposition of a penalty with which we are not concerned in this case. The disciplinary authority as defined (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (37 of 58) [CW-10126/2016] in Rule 2(b) is the authority competent to impose on a member of the service any of the penalties specified in Rule 6. Rule 7 provides that the authority to institute proceedings and to impose penalty on a member of All India Service is the State Government, if he is serving in connection with the affairs of the State. There is no doubt that the Government of Tamil Nadu is the disciplinary authority. The authority to act on behalf of the State Government as per the Business Rules is the Minister for Home Department. There is no dispute that the Hon'ble Chief Minister was holding the said department during the relevant period (2011-2016).
19. Matters pertaining to disciplinary action against IPS, IAS and IFS officers had to be dealt with by the Chief Minister as per Standing Order No.2 dated 09.01.1992 issued by the Chief Minister of Tamil Nadu under Rule 35(4) of the Business Rules which reads as follows:-
Paragraph 18. Disciplinary Action:
Files relating to disciplinary action against IAS/IPS/IFS Officers in the senior-grade and above at the stage of issue of charge memo/show cause notice to the above officers alone should be circulated to the Chief Minister.
In the case of Secretaries to Government where action is contemplated under Rule 17(a) or 17(b) of the Tamil Naidu Civil Services (CC & A) Rules such files should be circulated to the Chief Minister. In the case of Heads of Department files where action is contemplated under Rule 17(b) of the T.N.C.S. (CC & A) Rules, alone should be circulated to the Chief Minister. In the case of District Revenue Officers, the files should be circulated to the Chief Minister only at the stage of imposition of (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (38 of 58) [CW-10126/2016] penalty after obtaining the explanation of the officers.
In the case of Joint Secretary Deputy Secretary where action is contemplated under Rule 17(b) of the T.N.C.S. (CC & A) Rules such cases should be circulated by the Chief Secretary to the Chief Minister.
In respect of all other officers files should be circulated to the Chief Minister as per Business Rules."
20. By an order dated 19.04.2018, we directed the Chief Secretary, State of Tamil Nadu to file an affidavit explaining the position pertaining to the Business Rules and the standing orders. The affidavit filed by the Chief Secretary, Government of Tamil Nadu dated 14.05.2018 discloses that the first Respondent was arrested on 02.05.2012. He was placed under suspension on 10.05.2012 under Rule 3(2) of the All India Services (Discipline and Appeal) Rules, 1969 after obtaining the approval of the Hon'ble Chief Minister on the note for circulation dated 09.05.2012. It was further stated in the affidavit that regular departmental action for a major penalty was initiated against Respondent No. 1 under the All India Services (Discipline and Appeal) Rules, 1969 on 05.04.2013 after obtaining the approval of the Hon'ble Chief Minister.
21. It is clear that the approval of the disciplinary authority was taken for initiation of the disciplinary proceedings. It is also clear from the affidavit that no approval was sought from the disciplinary authority at the time when the charge memo was issued to the delinquent officer. The submission made on behalf of the Appellant is that approval of the disciplinary authority for initiation of disciplinary proceedings was sufficient and there was no need for another approval for issuance of charge memo. The basis for such submission is that initiation of disciplinary proceedings and issuance of charge memo are at the same stage. We are unable to agree (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (39 of 58) [CW-10126/2016] with the submission in view of the judgment of this Court in B.V. Gopinath (supra). In that case the charge memo issued to Mr. Gopinath under Rule 14(3) of the Central Civil Service (Classification, Control and Appeal) Rules, 1965 was quashed by the Central Administrative Tribunal on the ground that the Finance Minister did not approve it. The judgment of the Tribunal was affirmed by the High Court. The Union of India, the Appellant therein submitted before this Court that the approval for initiation of the departmental proceedings includes the approval of the charge memo. Such submission was not accepted by this Court on an interpretation of Rule 14(3) which provides that the disciplinary authority shall "draw up or cause to be drawn up" the charge memo. It was held that if any authority other than the disciplinary authority is permitted to draw the charge memo, the same would result in destroying the underlying protection guaranteed under Article 311(2) of the Constitution of India.
22. Rule 8(4) of the All India Service (Discipline and Appeal) Rules, 1969 also mandates that the disciplinary authority shall "draw up or cause to be drawn up" the charge memo. We see no reason to take a view different from the one taken by this Court in B.V. Gopinath (supra). We also see no substance in the submission made by the Senior Counsel for the State that the said judgment needs reconsideration. Assuming that Mr. Giri is right in his submission that the initiation of disciplinary proceedings and issuance of charge memo are at the same stage, the mandatory requirement of Rule 8 which provides for the charge memo to be drawn by the disciplinary authority cannot be ignored. We reject the submission on behalf of the Appellant that Gopinath's case can be distinguished on facts. We are not in agreement with the contention of the Appellant that the business Rules and standing orders of the State of Tamil Nadu are quite different from the office orders and circulars issued by the Union of India which formed the basis of the judgment in Gopinath's case. A close (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (40 of 58) [CW-10126/2016] reading of the said judgment would disclose that reliance on the office note was only in addition to the interpretation of the Rule.
23. It is also settled law that if the Rule requires something to be done in a particular manner it should be done either in the same manner or not at all- Taylor Vs. Taylor [(1875) 1 Ch. D. 426, 431]. In view of the mandatory requirement of Rule 8(4) and the charge memo being drawn up or cause to be drawn up by the disciplinary authority is not complied with, we are of the considered opinion that there is no reason to interfere with the judgment of the High Court on this issue. The only addition we would like to make is to give liberty to the disciplinary authority to issue a charge memo afresh after taking approval from the disciplinary authority."
53. This Court finds that the Apex Court in the case of Sunny Abraham Vs. Union of India & Anr. (supra) has also dealt with an issue of ex-post facto approval by the Disciplinary Authority and found that charge-sheet/charge memo if not having approval of the Disciplinary Authority, would be non-est in the eye of law. The relevant paras 10 to 12 of the said judgment are quoted, as under:-
"10. As it has already been pointed out, the High Court sought to distinguish the case of B.V. Gopinath (supra) with the facts of the present case on the ground that in the case of the Appellant, the Disciplinary Authority had not granted approval at any stage and in the present case, ex-post facto sanction of the charge memorandum or chargesheet was given when the departmental proceeding was pending. The High Court found such approach to be practical and pragmatic, having regard to the fact that the departmental proceeding had remained pending in the case of the Appellant and evidences had been recorded. The High Court thus considered (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (41 of 58) [CW-10126/2016] the fact that in the case of B.V. Gopinath (supra), the proceeding stood concluded whereas in the Appellant's case, it was still running when ex-post facto approval was given.
That was the point on which the ratio of B.V. Gopinath (supra) was distinguished by the High Court.
11. We do not think that the absence of the expression "prior approval" in the aforesaid Rule would have any impact so far as the present case is concerned as the same Rule has been construed by this Court in the case of B.V. Gopinath (supra) and it has been held that chargesheet/charge memorandum not having approval of the Disciplinary Authority would be non est in the eye of the law. Same interpretation has been given to a similar Rule, All India Services (Discipline and Appeal) Rules, 1969 by another Coordinate Bench of this Court in the case of State of Tamil Nadu v. Promod Kumar, IPS and Anr. [(2018) 17 SCC 677] (authored by one of us, L. Nageswara Rao, J). Now the question arises as to whether concluded proceeding (as in the case of B.V. Gopinath) and pending proceeding against the Appellant is capable of giving different interpretations to the said Rule. The High Court's reasoning, referring to the notes on which approval for initiation of proceeding was granted, is that the Disciplinary Authority had taken into consideration the specific charges. The ratio of the judgments in the cases of Ashok Kumar Das (supra) and Bajaj Hindustan Limited (supra), in our opinion, do not apply in the facts of the present case. We hold so because these authorities primarily deal with the question as to whether the legal requirement of granting approval could extend to ex-post facto approval, particularly in a case where the statutory instrument does not specify taking of prior or previous approval. It is a fact that in the Rules with which we are concerned, there is no stipulation of taking "prior" approval. But since this very Rule has been construed by a Coordinate Bench to the effect that the approval of the Disciplinary Authority should be there before issuing the charge memorandum, the principles of law enunciated in the aforesaid two cases, that is Ashok Kumar Das (supra) and Bajaj (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (42 of 58) [CW-10126/2016] Hindustan Limited (supra) would not aid the Respondents. The distinction between the prior approval and approval simplicitor does not have much impact so far as the status of the subject charge memorandum is concerned.
12. The next question we shall address is as to whether there would be any difference in the position of law in this case vis-à-vis the case of B.V. Gopinath (supra). In the latter authority, the charge memorandum without approval of the Disciplinary Authority was held to be non est in a concluded proceeding. The High Court has referred to the variants of the expression non est used in two legal phrases in the judgment under appeal. In the context of our jurisprudence, the term non est conveys the meaning of something treated to be not in existence because of some legal lacuna in the process of creation of the subject-instrument. It goes beyond a remediable irregularity. That is how the Coordinate Bench has construed the impact of not having approval of the Disciplinary Authority in issuing the charge memorandum. In the event a legal instrument is deemed to be not in existence, because of certain fundamental defect in its issuance, subsequent approval cannot revive its existence and ratify acts done in pursuance of such instrument, treating the same to be valid. The fact that initiation of proceeding received approval of the Disciplinary Authority could not lighten the obligation on the part of the employer (in this case the Union of India) in complying with the requirement of Sub-clause (3) of Rule 14 of CCS (CCA), 1965. We have quoted the two relevant sub-clauses earlier in this judgment. Sub-clauses (2) and (3) of Rule 14 contemplates independent approval of the Disciplinary Authority at both stages-for initiation of enquiry and also for drawing up or to cause to be drawn up the charge memorandum. In the event the requirement of Sub-clause (2) is complied with, not having the approval at the time of issue of charge memorandum under Sub-clause (3) would render the charge memorandum fundamentally defective, not capable of being validated retrospectively. What is non-existent in the eye of the law cannot be revived retrospectively. Life cannot be breathed into the stillborn charge (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (43 of 58) [CW-10126/2016] memorandum. In our opinion, the approval for initiating disciplinary proceeding and approval to a charge memorandum are two divisible acts, each one requiring independent application of mind on the part of the Disciplinary Authority. If there is any default in the process of application of mind independently at the time of issue of charge memorandum by the Disciplinary Authority, the same would not get cured by the fact that such approval was there at the initial stage. This was the argument on behalf of the authorities in the case of B.V. Gopinath (supra), as would be evident from paragraph 8 of the report which we reproduce below:
8. Ms. Jaising has elaborately explained the entire procedure that is followed in each and every case before the matter is put up before the Finance Minister for seeking approval for initiation of the disciplinary proceedings. According to the learned Additional Solicitor General, the procedure followed ensures that entire material is placed before the Finance Minister before a decision is taken to initiate the departmental proceedings.
She submits that approval for initiation of the departmental proceedings would also amount to approval of the charge memo.
According to the learned Additional Solicitor General, CAT as well as the High Court had committed a grave error in quashing the departmental proceedings against the Respondents, as the procedure for taking approval of the disciplinary authority to initiate penalty proceeding is comprehensive and involved decision making at every level of the hierarchy."
54. This Court, in view of principle laid down by the Apex Court considering the power of Disciplinary Authority to issue charge-sheet to delinquent, finds in the present case the action of the respondent-High Court in issuing charge- (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (44 of 58) [CW-10126/2016] sheet by the Registrar (Vigilance) to the petitioner, cannot be treated lawful and justified.
55. This Court also finds that the notification dated 03.02.2011 issued by the High Court, was further substituted by the Full Court resolution dated 31.03.2013.
56. This Court, on a bare perusal of the aforesaid subsequent resolution, finds that all disciplinary enquiries which were pending against the members of the Rajasthan Judicial Service with the Registrar (Vigilance), were recalled and necessary steps were taken for conducting the same and as such, the enquiry with respect to the members of the service pertaining to the cadre of District Judge, the same was to be conducted by the Judge of the High Court, to be nominated by the Hon'ble Chief Justice.
57. This Court has to now consider the concomitant submission made by counsel for the petitioner framed by this Court, as the issue No.2 relating to appointment of Enquiry Officer without waiting for reply to the chare-sheet to be submitted by the delinquent to the Disciplinary Authority.
58. This Court finds that after issuance of memorandum/charge-sheet, the delinquent is asked to file a reply/written statement of the defence and if such statement is received within the time specified, the Disciplinary Authority may itself enquire into such of the charges, as are not admitted or the Disciplinary Authority can appoint a (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (45 of 58) [CW-10126/2016] Board of Enquiry or Enquiry Authority and where all the articles of the charges are admitted by the delinquent officer in his written submission of defence, the Disciplinary Authority can record its finding on each charge.
59. This Court finds that a bare perusal of Rule 16(4) provides that the written statement/reply of a delinquent officer, is sought by the disciplinary authority and after receipt of such reply/written statement, the disciplinary authority has to proceed either by conducting the enquiry himself or to entrust it to some other Authority.
The Disciplinary Authority finds that if charge has been admitted, then there is no need to appoint any other Authority and he himself can record finding on each charge.
60. The very purpose of providing an opportunity to a delinquent after receipt of charge-sheet, necessarily gives him a right to defend himself i.e. either to deny the charge or to admit the charge. The Disciplinary Authority can make up its mind of appointing Enquiry Officer only in the eventuality of charges not being admitted and as a necessarily corollary, the Disciplinary Authority at the time of issuing charge-sheet, cannot appoint the Enquiry Officer simultaneously, otherwise there would be no purpose of seeking written statement/reply of the delinquent and it would reflect the predetermination of the Disciplinary Authority to conduct the disciplinary proceedings.
(Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (46 of 58) [CW-10126/2016]
61. The principles of natural justice also require that the delinquent has to be given a fair opportunity to defend himself and if charges are not admitted and regular departmental enquiry is conducted, then on the basis of findings recording against the Delinquent Officer, the Disciplinary Authority has ample power to punish a guilty officer.
62. The facts of the case at hand show that at the time of issuing charge-sheet to the petitioner, the decision was also taken to appoint an Enquiry Officer i.e. the Registrar (Vigilance) at the relevant time and later on, the Enquiry Judge and as such, the procedure adopted by the respondent-High Court, cannot be considered valid according to the Rule of law.
63. This Court finds that the respondent-High Court has taken a stand of appointing an Enquiry Officer without waiting for the reply on the basis of judgment passed by the Division Bench of this Court in the case of Abdul Naim Khan Vs. High Court of Judicature for Rajasthan (supra).
This Court, on a careful reading of the said judgment, finds that in para-20 of the judgment, the Division Bench of this Court rejected the contention raised on behalf of the petitioner therein that appointment of Enquiry Officer and issuance of charge-sheet simultaneously was not proper on account of reliance placed on a judgment of the Apex (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (47 of 58) [CW-10126/2016] Court passed in the case of South Bengal State Transport Corporation Vs. Ashok Kumar Ghosh reported in [(2010)11 SCC 71].
The Division Bench of this Court quoted para 13 of the said judgment passed by the Apex Court in the said case of Ashok Kumar Ghosh (supra) and the Apex Court specifically, in the said judgment, recorded a finding that it was open for the Disciplinary Authority to initiate the departmental proceedings on consideration of the reply of an employee, but as an absolute proposition of law, it could not be said that before initiating the departmental enquiry or appointing an enquiry officer, reply of the delinquent employee was required to be obtained and considered unless it was the requirement of the rules. The said judgment was on the basis of considering a particular service rule and not as a general principle.
64. This Court finds that in the present case at hand, there is requirement under the Rule i.e. Rule 16(4) that only after receipt of reply, the Disciplinary Authority has power to appoint Enquiry Officer and to pass an order of conducting the enquiry.
65. This Court with due importance to the observations made in the case of Abdul Naim Khan Vs. High Court of Judicature for Rajasthan (supra) finds that in the aforesaid case, the judgment of the Apex Court was followed for the (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (48 of 58) [CW-10126/2016] purpose of considering the illegalities said to be committed by the High Court.
The said judgment will be of little assistance to the respondents to take a view that appointment of enquiry officer and issuance of charge-sheet can be simultaneously done by the Disciplinary Authority.
66. Reliance is placed by the learned Senior Counsel for the respondent-High Court on a judgment passed in the case in the Smt.Sushila Nagar Vs. High Court of Judicature for Rajasthan, Jodhpur (supra), this Court on a careful reading of the judgment of the Division Bench finds that the resolution of the Full Court dated 06.01.1995 was considered by the Division Bench and at the relevant time, the enquiry Judge was empowered to issue charge-sheet under Rule 16 or 17 of the CCA Rules and as such, the Division Bench in view of earlier resolution being amended dated 30.10.1971 in view of subsequent resolution dated 06.01.1995, found that the Administrative Judge or the Judge nominated by the Hon'ble Chief Justice could issue the charge-sheet and conduct enquiry. The effect of resolution was that the Judge nominated by the Hon'ble Chief Justice, was an Enquiry Judge instead of Disciplinary Authority and he had power to issue a charge-sheet for enquiry under the Rule 16 or 17 of the CCA Rules.
(Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (49 of 58) [CW-10126/2016] This Court finds that the said judgment is of little assistance to the learned Senior Counsel for the respondent- High Court to hold that the power of disciplinary authority has rightly been exercised by the Registrar (Vigilance) and as such, the Disciplinary Authority has not committed any illegality in approving the charge-sheet issued to the petitioner and validly issued by the Registrar (Vigilance).
67. Reliance is placed by the learned Senior Counsel for the respondent-High Court on a judgment passed by the Apex Court in the case of Arundhati Ashok Walavalkar Vs. State of Maharashtra (supra), this Court finds that the Apex Court in the said case was considering the 'proportionality of a punishment' for a judicial misconduct committed by a Judicial Officer. The Apex Court while not interfering with the quantum of punishment as the delinquent in that case was a Magistrate travelling without ticket in the local train thrice and her behaviour with the railway staff was improper and as such, she committed grave misconduct. The Apex Court observed that in a country governed by the rule of law, nobody is above law, including judicial officers and judicial officers have to present a continuous aspect of dignity in every conduct. The relevant para-24 of the said judgment is quoted, as under :-
"24. In a country governed by rule of law, nobody is above law, including judicial officers. In fact, as judicial officers, they have to present (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (50 of 58) [CW-10126/2016] a continuous aspect of dignity in every conduct. If the rule of law is to function effectively and efficiently under the aegis of our democratic setup, Judges are expected to, nay, they must nurture an efficient and enlightened judiciary by presenting themselves as a role model. Needless to say, a Judge is constantly under public glaze and society expects higher standards of conduct and rectitude from a Judge. Judicial office, being an office of public trust, the society is entitled to expect that a Judge must be a man of high integrity, honesty and ethical firmness by maintaining the most exacting standards of propriety in every action. Therefore, a judge's official and personal conduct must be in tune with the highest standard of propriety and probity. Obviously, this standard of conduct is higher than those deemed acceptable or obvious for others. Indeed, in the instant case, being a judicial officer, it was in her best interest that she carries herself in a decorous and dignified manner. If she has deliberately chosen to depart from these high and exacting standards, she is appropriately liable for disciplinary action."
The said judgment is of little relevance in the present facts of the case, as this Court has not gone into the proportionality of punishment imposed on the present petitioner.
68. Learned Senior Counsel for the respondent has placed reliance on a judgment passed in the case of Secretary, Ministry of Defence and Ors. Vs. Prabhash Chandra Mirdha (supra), this Court finds that the issue before the Apex Court was, as to whether, the Authority lower or higher at the Appointing Authority could initiate the (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (51 of 58) [CW-10126/2016] proceedings against the delinquent on the grounds of alleged misconduct.
The respondent-employee therein challenged the charge-sheet before the Central Administrative Tribunal on the ground that the charge-memo was issued to him by the Authority not competent to do so being Subordinate to the Appointing Authority. The Central Administrative Tribunal allowed the application of the delinquent and the employer feeling aggrieved against the order, filed a writ petition before the High Court and as such, the said writ petition as well as the review application, were also dismissed. The Apex Court after considering the different aspects of the Article 311 of the Constitution of India, made certain observations and finally the Apex Court, considering the facts of the case, left the question of law open and as such, the said judgment cannot be a proposition to hold that any other Authority than the Disciplinary Authority can issue a charge-sheet to the delinquent and as such, the said judgment is of little assistance to the learned Senior Counsel for the respondent- High Court. The relevant paras 4 to 7 of the said judgment are quoted, as under:-
"4. The legal proposition has been laid down by this Court while interpreting the provisions of Article 311 of the Constitution of India, 1950 that the removal and dismissal of a delinquent on misconduct must be by the authority not below the appointing authority. However, it does (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (52 of 58) [CW-10126/2016] not mean that disciplinary proceedings may not be initiated against the delinquent by the authority lower than the appointing authority.
5. It is permissible for an authority, higher than appointing authority to initiate the proceedings and impose punishment, in case he is not the appellate authority so that the delinquent may not loose the right of appeal. In other case, delinquent has to prove as what prejudice has been caused to him. (Vide: Sampuran Singh v. State of Punjab [AIR 1982 SC 1407]; Surjit Ghosh v. Chairman and Managing Director, United Commercial Bank and Ors. [AIR 1995 SC 1053]; Balbir Chand v. FCI Ltd. and Ors.: [AIR 1997 SC 2229]; and A. Sudhakar v. Postmaster- General Hyderabad and Anr.: [(2006) 4 SCC
348)].
6. In Inspector General of Police and Anr. Vs. Thavasiappan,:[AIR 1996 SC 1318], this Court reconsidered its earlier judgments on the issue and came to the conclusion that there is nothing in law which inhibits the authority subordinate to the appointing authority to initiate disciplinary proceedings or issue charge memo and it is certainly not necessary that charges should be framed by the authority competent to award the punishment or that the inquiry should be conducted by such an authority. In Steel Authority of India and Anr. v. Dr. R.K. Diwakar and Ors.: [AIR 1998 SC 2210]; and State of U.P. and Anr. v. Chandrapal Singh and Anr.: [AIR 2003 SC 4119], a similar view has been reiterated.
7. In Transport Commr. Vs. A. Radha Krishna Moorthy: [(1995) 1 SCC 332], this Court held (SCC p.335, para 8):...8.Insofar as initiation of enquiry by an officer subordinate to the appointing authority is concerned, it is well settled now that it is unobjectionable. The initiation can be by an officer subordinate to the appointing authority. Only the dismissal/removal shall not be by an authority subordinate to the appointing authority. Accordingly it is held that (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (53 of 58) [CW-10126/2016] this was not a permissible ground for quashing the charges by the Tribunal."
69. Learned Senior Counsel for the respondent has placed reliance on a judgment passed by the Apex Court in the case of Union of India & Ors. Vs. P. Gunasekaran (supra), this Court finds that the Apex Court in the said case was considering the nature of punishment imposed on a delinquent and limits of judicial review for interference with the findings of fact. The relevant paras 12, 13 & 20 of the said judgment are quoted, as under:-
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No.I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;(Downloaded on 11/11/2023 at 06:11:50 PM)
[2023:RJ-JP:13575-DB] (54 of 58) [CW-10126/2016] f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii). go into the adequacy of the evidence;
(iv). go into the reliability of the evidence;
(v). interfere, if there be some legal evidence on which findings can be based.
(vi). correct the error of fact however grave it may appear to be;
(vii).go into the proportionality of punishment unless it shocks its conscience.
20. Equally, it was not open to the High Court, in exercise of its jurisdiction Under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the Respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (55 of 58) [CW-10126/2016] righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values."
This Court is not considering the nature of punishment and quantum imposed on the petitioner in the present case at hand as it is confining to the issue of competence of Disciplinary Authority to issue charge-sheet as well as the power of Disciplinary Authority to initiate departmental enquiry even without waiting for reply of delinquent and as such, the said judgment is of little assistance to the Senior Counsel for the respondent.
70. Learned Senior Counsel for the respondent has placed reliance on a judgment passed by the Apex Court in the case of State of Karnataka & Anr. Vs. N. Gangaraj (supra), this Court finds that the Apex Court in the said case has again reiterated the power of judicial review conferred on constitutional Courts and the cannot proceed as an Appellate Authority but can confine to only decision making process. The said judgment is of no relevance in the present facts of the case and as such, of little assistance to the learned Senior Counsel for the respondent. The relevant paras 14 and 15 of the said judgment are quoted, as under:- (Downloaded on 11/11/2023 at 06:11:50 PM)
[2023:RJ-JP:13575-DB] (56 of 58) [CW-10126/2016] "14. On the other hand learned Counsel for the Respondent relies upon the judgment reported as Allahabad Bank v. Krishna Narayan Tewari:
[2017 2 SCC 308], wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the Writ Court could interfere with the finding of the disciplinary proceedings. We do not find that even on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the Respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The Inquiry Officer has appreciated the evidence and returned a finding that the Respondent is guilty of misconduct.
15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the Courts are the Appellate Authority. We may notice that the said judgment has not noticed larger bench judgments in S. Sree Rama Rao and B.C. Chaturvedi as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law."
71. This Court, in the present facts of the case, has found that the Disciplinary Authority did not exercise its power in rightful manner as per Rules and as such, the action of the respondent in issuing a charge-sheet is found to be illegal and not having proper legal sanctity. (Downloaded on 11/11/2023 at 06:11:50 PM) [2023:RJ-JP:13575-DB] (57 of 58) [CW-10126/2016]
72. This Court since has found action of the respondent-High Court not legal in issuing charge-sheet by the Registrar (Vigilance) and further appointment of enquiry officer, simultaneously too is illegal therefore all other submissions raised before this Court are not dealt with by the Court.
We therefore have to now consider as what further course can be adopted, in the present facts of the case. We have been informed that the petitioner has already attained age of superannuation during pendency of the writ petition.
73. This Court is conscious of the fact that allegations against the petitioner are alleged to be serious in nature and may not be ignored and scuttled on purely technical ground.
This Court cannot denude the employer to pursue the matter on the allegations of serious misconduct against the petitioner and their right cannot be foreclosed to proceed further in the matter.
74. We, therefore, considering the fact that proceedings against the petitioner relate to the incident which was alleged to have taken place somewhere in the year 2011 and the departmental proceedings were initiated in the year 2012, deem it proper to hold and direct that the respondent-High Court would be within its right to continue with the departmental enquiry against the petitioner by following law. (Downloaded on 11/11/2023 at 06:11:50 PM)
[2023:RJ-JP:13575-DB] (58 of 58) [CW-10126/2016] The Competent Disciplinary Authority would have power to issue a fresh charge-sheet/memorandum to the petitioner by serving it within a period of two months from the date of this order and thereafter, the disciplinary enquiry would be concluded within a period of 6 months.
75. This Court also makes it clear that any observation made by this Court will not prejudice the rights of the respective parties and the matter will be proceeded further in accordance with law.
76. This Court, accordingly, quashes and sets aside the charge-sheet dated 05.07.2012 and the order of punishment dated 02.06.2016 and future course of action may take place in terms of aforesaid direction.
77. Consequently, the present writ petition stands allowed.
(ASHUTOSH KUMAR), J (ASHOK KUMAR GAUR), J Himanshu Soni/36 (Downloaded on 11/11/2023 at 06:11:50 PM) Powered by TCPDF (www.tcpdf.org)