Allowed

Jagdish Gir v. State and Ors.

Rajasthan HC6 Jan 2016CW/3394/2001

Case brief

AI extract

What is this about?

In a writ petition challenging recovery orders for alleged negligence, the Court held that the disciplinary procedure violated natural justice due to lack of evidence submission and the appellate authority's failure to exercise independent mind. The orders were quashed.

What did the court decide?

The orders dated 6.7.2001 and 1.9.2000 are quashed; the writ petition is allowed with all consequential benefits.

Jagdish Gir Vs State and Ors. — Pension and Retirement Benefits | Rajasthan HC (2016)

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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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ORDER

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Jagdish Gir vs. The State of Rajasthan & ors.

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S.B.Civil Writ Petition No. 3394/2001 under Article 226 of the Constitution of India.

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Date of Order:

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06.05.2016

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PRESENT HON'BLE MISS JUSTICE JAISHREE THAKUR

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Mr. Hemant Shrimalee, Advocate, for the petitioner.

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Dr. Pratishtha Dave, AGC, for respondents.

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BY THE COURT:

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The challenge in the present writ petition is to the order dated 6.7.2001 passed by the Divisional Commissioner, Bikaner and order dated 1.9.2000 passed by the Collector, Sri Ganganagar by which recovery of Rs 4,52,057/- has been ordered.

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Brief facts of the case are that the petitioner, a Class IV employee, worked as process server in Tehsil Anoopgarh up till 15.9.1998 when he was entrusted the duty of a watchman in the Tehsil by the Tehsildar. He was compelled to work from 5 p.m. To 10 a.m. which amounts to 17 hours of duty. On the night of 19.1.1999, on account of exertion and not keeping good health, the petitioner dozed off and it was during that time a theft was committed. On coming to know about the theft at 7.10 a.m., the petitioner immediately informed the Tehsildar, and an FIR No.

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36 dated 20.1.1999 came to be lodged at Police Station, Anoopgarh. A police case was registered but to no arrests were made. The petitioner was suspended and thereafter, a chargesheet dated 22.2.1999 came to be served upon the petitioner. During the inquiry, the petitioner produced Dr. Murarilal, who stated on oath that the petitioner, who was aged 59 years, was not keeping good health. The Inquiry Officer submitted his report on 25.4.2000 holding the petitioner guilty of negligence. Thereafter, the Collector affirmed the finding that the petitioner did not perform his duty and slept, as a result thereof, the Government had suffered a loss of Rs. 4,52,057/- and imposed punishment of recovery of amount to be made by deduction of 1/3^rd pay every month. An appeal was filed before the Divisional Commissioner, Bikaner, who dismissed the appeal vide order dated 6.7.2001. Aggrieved against the said orders passed and on account of recovery to be affected against the salary of the petitioner, the present writ petition has been filed.

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Mr. Hemant Shrimalee, learned counsel appearing on behalf of the petitioners has argued that the impugned orders are violative of Article 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short “the Rules of 1958”) in so far as it was obligatory on the Inquiry Officer to submit list of witnesses and documents on behalf of the prosecutor in support of the charges, but the same was not done. Moreover, no oral or documentary evidence were produced in support of the charge-sheet. It is further argued that it is not proved that the duties of the petitioner were fixed for

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night watchman. It is also submitted that there is no evidence that an amount of Rs. 4,52,057/- has been stolen and the same could be proved only by producing the concerned employee who had put the cash in the sub-treasury in the evening at the time of closing of the office. It is submitted that the Appellate Authority is required to give a definite finding after applying its mind to the charges leveled against the delinquent employee which has not been done in the present case.

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Per contra, learned counsel appearing on behalf of the petitioner submits that the petitioner had been given ample opportunity to present his case and the Disciplinary Authority and the Appellate Authority after considering the facts of the case, found the petitioner to be guilty of serious dereliction of duty, which resulted in substantial loss of an amount of Rs. 4,52,057/- from the office.

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I have heard learned counsel for the parties and have perused the record of the case.

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There can be no dispute with the propositions of law that the writ court while exercising its extraordinary jurisdiction under Article 226 of the Constitution of India does not function as an appellate court. It is not concerned with the merits of an order which is challenged before it but with the decision making process. The writ court cannot reappraise the evidence on the basis whereof an inquiry officer has come to a finding or the disciplinary authority has imposed punishment. So long as the order impugned is not based on no evidence at all or is not perverse, the writ court will be reluctant to interfere with the

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order. The only concern would be whether or not the order impugned has been arrived at following a fair procedure and by duly observing the principles of natural justice.

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Rule 16(6) of the Rules of 1958, lays down the procedure for holding an inquiry. The Inquiring Authority shall ask the Presenting Officer appearing on behalf of the Disciplinary Authority to submit a list of witnesses and documents and, thereafter, the parties are given an opportunity to admit or deny the documents. On the basis thereof, the inquiring Authority shall consider the relevance of the statements recorded, the documents summoned and thereafter record a finding. In the present case, the inquiry report does not reflect that any such procedure was followed as the report itself does not indicate that any statement was recorded on the part of the authorities concerned to prove the charge-sheet. In my opinion therefore the delinquent should have been given an opportunity of crossexamining the witnesses or explaining the documents. The normal principle is that the onus to prove a person guilty lies on the prosecution, whereas in the present case, it appears that onus of proving that he was not guilty is upon the petitioner himself.

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In the present case, a detailed appeal had been filed against order passed by the Disciplinary Authority upholding the inquiry report. On perusal of the appeal preferred by the petitioner and the order passed by the Appellate Authority it shows that there is no independent application of mind. It is well settled principle of law that the Appellate Authority has to examine the issue

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independently and the same has to be considered in the light of Rule 16(9) of the Rules of 1958. Rule 16(9) of the Rules of 1958 reads as under:-

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“Rule 16(9)

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The Disciplinary Authority shall, if it is not the Inquiring Authority, consider the record of the inquiry and record its finding on each charge.”

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The entire appeal stands disposed of on the basis of the finding of the Inquiry Officer and by concluding that the petitioner is guilty only on account the fact that he had not informed about the theft in time. There is no conclusion or reasoning in support of finding the petitioner guilty of dereliction of duty which caused the State a loss of Rs. 4,52,057/-. The Appellate Authority herein has, in most casual manner, disposed of the appeal and the finding arrived at is unsustainable in law.

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Resultantly, the orders dated 6.7.2001 and 1.9.2000 are hereby quashed and the writ petition is allowed with all consequential benefits.

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(JAISHREE THAKUR), J.

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mlt.

Jagdish Gir v. State and Ors.

Case brief

What is this about?

What did the court decide?

Jagdish Gir v. State and Ors.

Case brief

What is this about?

What did the court decide?

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