Rajasthan High Court - Jaipur
Birdhi Chand vs Jaipur Development Authority on 16 September, 1991
Equivalent citations: 1992(1)WLC309, 1991WLN(UC)342
JUDGMENT G.S. Singhvi, J.
1. The petitioner Birdhi Chand presently an employee of the Jaipur Development Authority and he is holding post of Upper Division Clerk. A memorandum dated 7.12.82 was issued by the Additional Secretary, Jaipur Development Authority (for short JDA) and a departmental enquiry under rule 16 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958 was proposed against the petitioner. This memorandum was accompanied by a charge-sheet and a statement of allegations. An enquiry was held against the petitioner Shri S.N. Tandan, retired RAS officer was appointed as Enquiry officer. Shri Tandon recorded the evidence of both the parties and then submitted his report. He held that the charges levelled against the petitioner have not been proved. Secretary, JDA (Disciplinary Auhority) accepted the Enquiry Report, He, however, recorded further finding that the petitioner had taken a loan of Rs. 4000/- from Chand Behari Lal Goyal and Suresh Kumar Gupta and this action of his was contrary to Rule 19(4)(i)(a) of the Rajasthan Civil Services (Conduct) Rules 1971 and that this amounted to corruption and misconduct. He, therefore, awarded a penalty of stoppage of 4 annual grade increments with cumulative effect on the petitioner vide his order dated 18.4.85. The petitioner filed an appeal before the Commissioner, JDA. In the appeal the petitioner raised grievance that there was no charge against him with reference to violation of rule 19(4)(i)(a) of Rajasthan Civil Services (Conduct) Rules, 1971 and therefore, he had no opportunity to defend himself. The appellate authority observed that the action of not giving a new chargesheet and not holding a separate enquiry was only a technical matter and since the charge had been proved during the course of enquiry action could be taken by the disciplinary authority. It also observed that there is every possibility of the transaction being projected as loan in order to escape the charge of bribe. Appellate Authority, however, held that once disciplinary authority has felt satisfied and the charge is proved, then it cannot be said to be a serious irregularity that no fresh chargesheet was issued to the petitioner and no new enquiry was held. Accordingly the appeal was dismissed by order dated 23.5.89.
2. The petitioner has assailed the order of punishment and the appellate order on the ground that the enquiry proceeding held against the petitioner is vitiated because the relevant documents were shown to the petitioner. He was not supplied that the copies of the statement of witnesses and copy of enquiry report. The petitioner had made a demand for supply of copies of these documents before filing of appeal but even then same as not made available to him. The further submission of the petitioner is that when the Enquiry Officer had found that the charge levelled against the petitioner was not proved and if the disciplinary authority wanted to disagree with the Enquiry Officer, he ought to have been given an opportunity to the petitioner to make his representation against the proposed action of the disciplinary authority to disagree with the findings of the Enquiry Officer. The petitioner has stated that the punishment has been imposed on conjectures and surmises and the appellate authority has also committed the same error.
3. In reply to the writ petition, the respondents has submitted that the enquiry was held in accordance with the rules. The petitioner was given full opportunity of defending himself. After affording him full opportunity, the disciplinary authority has recorded a finding of guilt against the petitioner. The petitioner was fully aware of the charges levelled against him and it cannot be said that he has been prejudiced because no separate charge of taking money as loan was levelled against the petitioner. The petitioner knew about the case against him and he had full opportunity of making his submissions. He cannot plead that he was unaware of the allegations. It has further been stated that in fact the discipinary authority has never agreed with the findings of the Enquiry Officer.
4. The first question which required determination in this case is as to whether the Secretary JDA was justified in punishing petitioner for alleged violation of Rule 19(4)(i)(a) of the Rajasthan Civil Services (Conduct) Rules, 1971 because no charge had been levelled against the petitioner in respect of his alleged misconduct with reference to the aforesaid rule.
5. Rule 19(4)(i)(a) of the Rajasthan Civil Services (Conduct) Rules reads as under:
19. Investment leading and borrowing-
(1)....
(2)....
(3)....
(4)(i) No Government servant shall, save In the ordinary course of business with a bank or a firm of standing duly authorised to conduct banking business, either himself or through any member of his family or any other person acting on his behalf-
a) lend or borrow money, as principal or agent to or from any person within the local limits of his authority or with whom he is likely to have official dealings or otherwise place himself under any pecuniary obligation to such person, or
6. A perusal of this rule clearly shows that a distinct charge can be levelled against Government servant in relation to his act of lending or borrowing money. Punishment can be imposed on the Government Servants if he found responsible of breach of the aforesaid rule. There is, however, one salutary principle in departmental enquiries that the delinquent can be held guilty and can be punished only on the basis of an enquiry held in accordance with the principle of natural justice and also in accordance with the statutory rule which contain procedure for imposing penalties. Wherever procedure for holding departmental enquiry is laid down by rules, that has to be followed. In the absence of the rules, principles of natural justice are required to be complied with. One of the requirement of principles of natural justice is that a delinquent can be punished only in respect of the charges levelled against him. The delinquent is required to defend himself only in respect of the charges which are specifically levelled against him and in respect of which an enquiry is held. He cannot be punished with reference to the charge which is not levelled against him. The basis of this principle lies in the rule of audi aultrem partem that is no man can be condemned unheard.
7. Rule 16(2) of 1958 rules requires that the disciplinary authority shall frame definite charges on the basis of the allegations on which the enquiry is proposed to be held. Such charges together with a statement of allegations on which they are based, shall be communicated in writing to the Government Servant. Rule 16(8)(vi) provides that record of enquiry shall include a report setting out the findings on each charge and the reasons therefor. As per Rule 16(9) disciplinary authority shall, if it is not, the enquiry authority, consider the record of the enquiry and record its findings on each charge.
8. In Sur Enamel and Stampling Works Ltd. v. Workmen their lordships of the Supreme Court held that an enquiry cannot be said to have been properly held unless (i) the employee proceeded against which has been informed clearly of the charges levelled against him, (ii) the witnesses are examined, ordinarily in the presence of the employee-in respect of the charge, (iii) the employee is given a fair opportunity to cross examine the witnesses, (iv) He is given a fair opportunity to examine witnesses including himself in his defence if he so wishes on any relevant matter, (v) Enquiry Officer records his findings with reasons for the same in his report. In the particular case the Court found that the charge being for causing damage to property and the enquiry officer's report being in respect of the same, the dismissal order was made for something else and that itself would be a sufficient ground for setting aside the order of dismissal.
9. In Slate of Punjab v. Bakhatawar Singh the Court found that a member of the State Electricity Board was removed for a charge which was not leveled against him. The Court found that the Minister had not found the member guilty of any of the charges levelled against him. On the other hand two other reasons were given for removing the member from office. The Court observed as under:
It may be noted that Shri Bakhtawar Singh was not charged with having not discharged his duties impartially. None of the charges levelled against him accused him of not discharging his duties impartially. Hence the Minister was not justified in taking into consideration a charge in respect of which the member was not given any opportunity to explain his position.
10. In Virendra Kumar v. Chief of the Army Staff 1986 (2) S.C.C. page 127 their lordships of the Supreme Court found that the appellant was called upon to show cause as to why his licence should not be cancelled for withholding certain information at the time of his admission the Bar. He was absolved of that charge. The Bar Council was, therefore, not correct in removing him from the role on a charge which he was not asked to defend namely that he had been restored to Government Service. The action of the Bar Council was declared as bad on the ground of violation of principles of natural justice.
11. In Annamunthodo v. Oil Fields Workers Trade Union 1961 (3) All. E.R. 621 the Privy Council found that the appellant's expulsion from the respondent trade union was vitiated because the rule under which he was expelled created a separate and distinct offence with which he has not been charged and even if that rule did not create a separate offence and merely imposed servere penalties when the conduct was prejudicial to the interests of the union, the rule should not have been invoked without giving the appellant notice of it. Lord Denning speaking for the bench observed as under:
The first question is : Did Rule 11(7) create a separate and distinct offence of "conduct prejudicial to the interests of the union"? - for in that case it ought to have been separately charged or did Rule 11(7) merely empower the general counsel to impose more severe penalties for the various other offences specified in the rules, provided that the conduct of which he was convicted under them was prejudicial to the interests of the union? - for in that case Rule 11(7) so it was said, need not be separately charged, but only the other offences Phillips, J., in the Supreme Court and Archer and Rennie, JJ., in the Federal Supreme Court (2) thought that Rule 11(7) only empowered the general council to impose more severe penalties, and sought support for this view from some observations of Eve. J., in Wolstenholme v. Amalgamated Musicians, Union (3). But Wylie, J., thought it created a separate and distinct offence, and their Lordships agree with him. As he said (4):
It stands entirely on its own, authorising expulsion of a member who is proved to the satisfaction of the general council to have been guilty of the conduct prejudicial to the interests of the Union.
In the opinion of their Lordships, it should not have been invoked for the purpose to expelling the appellant unless he was given notice of the charge under it and had a fair opportunity of meeting it. But, even if Rule 11(7) only empowered more severe penalties, never the less those severe penalties could only be imposed when the conduct was prejudicial to the interests of the respondent union; and their Lordships think that even on the view, the rule should not have been invoked without giving that appellant notice of it. Counsel for the respondent union sought to treat, the specific formulation of charges as immeterial. The substance of the matter lay, he said, in the facts alleged in the letter as to the meeting of the matter lay, he said, in the facts alleged in the letter as to the meeting which the appellant had attended and the allegations he had made. Their Lordships cannot accede to this view. If a domestic tribunal formulates specific charges, which lead only to a fine, it cannot without notice resort to other charges which lead to far more severe penalties.
12. It is clear from the above noted cases that an employee cannot be punished for a charge which is not levelled against him. Employer's action of punishing an employee in respect of the charge which is not levelled against him results in breach of the principles of natural justice and it has the effect of rendering the order passed by the employer is nulity. It is an emlementary rule of natural justice that a man whose civil rights are going to be affected by an action of a public authority he must know the basis on which the action is being taken against him and must have an opportunity of defending himself. Unless specific charge of misconduct is levelled, the employee cannot be penalised. He cannot be punished for a charge which is not made subject matter of enquiry.
13. In the present case it is more than clear from perusal of the order of punishment that the Secretary, Jaipur Development Authority had agreed with the findings of the Enquiry Officer, who had held that charge of acceptance of bribe levelled against the petitioner was not proved. That was the only charge levelled against the petitioner. No allegations was levelled against him about the alleged loan taken by him from Shri Chand Behari lal Goyal or another person. Obviously he had no opportunity to meet with these allegations. No enquiry was held against him in respect of this charge. No indication of any allegation of violation of Rule 19(4)(i)(a) of the Conduct Rules was given to him. The petitioner had no occasion to meet this part of the allegation. Therefore, it is to be held that the petitioner has been punished in violation of the principles of natural justice. He has been condemned unheard. K is evident from the order of the appellate authority that the appellate authority did realise that specific charge has not been levelled against the petitioner. It however, thought that this was minor or technical violation. In my opinion the approach of the appellate authority is clearly erroneous. A patent violation of the principles of natural justice has been brushed aside by describing it is a technical violation. The appellate authority committed a serious error of law in upholding the order passed by the disciplinary authority.
14. The writ petition is, therefore, allowed. The order of punishment dated 18.4.85 as well as the order of appellate authority dated 23.5.85 are quashed. The petitioner shall be entiled to consequential benefits. Parties are left to bear their own costs.