Remanded

State of Raj. and Ors. v. Rajendra Kumar Bhola

Rajasthan HC10 Sept 2018SAW/755/2009

Case brief

AI extract

What is this about?

High Court bench quashed a lower court order that had remanded a government servant's removal case. While upholding the removal penalty due to lack of rebuttal to enquiry findings, the court directed that the period between initial removal and eventual reinstatement cannot count as pensionable service.

What did the court decide?

Removal penalty upheld; period between removal (10.8.1998) and reinstatement excluded from pensionable service.

State of Raj. and Ors. Vs Rajendra Kumar… — Labour and Industrial Disputes | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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D.B. Spl. Appl. Writ No. 755/2009

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The State Of Rajasthan through the Secretary, Ground Water Department, Secretariat, Jaipur (Rajasthan).

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The Chief Engineer, Ground Water Department, Jodhpur.

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The Superintending Engineer, Ground Water Department, Jodhpur.

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----Appellant Versus

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Rajendra Kumar Bhola Son of Shri C.S.Bhola, By Caste Punjabi, Presently residing at 59, Gali Jain Mandir, Rampura, Kota (Rajasthan).

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	----Respondent
For Appellant(s)	: Mr.K.L.Thakur, Additional Advocate General with Mr.Rishab Tayal
For Respondent(s)	: Mr.Manoj Bhandari Mr.Sunil Purohit

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HON'BLE THE CHIEF JUSTICE PRADEEP NANDRAJOG HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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10/09/2018

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As per the charge-memo dated 12.2.1997, four articles of charge were listed against the respondent. Charge No.1 was that for the period mentioned as per the charge he remained unauthorizedly absent. The period is as under:-

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(2 of 6)

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[SAW-755/2009]

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Month	Year	Dated	Days
August,	1991	20.8.91 to 31.8.91	12
Sept.,	1991	1.9.91 to 30.9.91	30
Oct.,	1991	1.10.91 to 31.10.91	31
Nov.,	1991	1.11.91 to 30.11.91	30
Dec.,	1991	1.12.91 to 31.12.91	31
Jan.,	1992	13.1.92 to 31.1.92	19
Feb.,	1992	8.2.92 to 29.2.92	22
March.,	1992	1.3.92 to 31.3.92	31
April.,	1992	1.4.92 to 30.4.92	30
May.,	1992	1.5.92 to 31.5.92	31
June.,	1992	1.6.92 to 30.6.92	30
July.,	1992	1.7.92 to 25.7.92 29.7.92 to 31.7.92	28
Aug.,	1992	1.8.92 to 31.8.92	31
Sept.,	1992	1.9.92 to 30.9.92	30
Oct.,	1992	1.10.92 to 16.10.92 18.10.92 to 31.10.92	30
Nov.,	1992	1.1.92 to 30.11.92	30
Dec.,	1992	1.12.92 to 31.12.92	31
Jan. to Dec.,	1993	1.1.93 to 31.12.93	365 (Full Year)
Jan. to	1994	1.1.94 to 31.12.94	365
Dec.,			(Full Year)
Jan. to Dec.,	1995	1.1.95 to 31.12.95	365 (Full Year)
Jan.,	1996	1.1.96 to 23.4.96	113

¶16

Second charge was a fall out of the first charge being the allegation that assigning survey work in district Pali, Jalore and Sirohi he did not comply with the instructions by remaining absent. Charge No.3 was that audit inspection revealed the respondent having failed to render accounts for advance received by him in sum of ₹5484/-. The fourth charge was a fall out of the first charge being after a long absence he joined duty on 24.4.1996.

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(3 of 6)

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[SAW-755/2009]

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The respondent denied the charges and claimed reason for absence; being he mentally unwell. Enquiry officer was appointed. Report was submitted holding the charges to be proved.

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Supplying to the respondent the report of the enquiry officer a memo was issued on 9.6.1998 by the disciplinary authority and in respect of which the respondent’s pleadings in the writ petition filed by him are in paragraph 9. He pleads that copy of the notice issued to him along-with the enquiry report is Annexure.7. In the next paragraph i.e. paragraph 10 of the of the writ petition he pleads that he submitted a reply to the show cause notice vide his communication dated 1.7.1998 copy whereof is annexed as Annexure-8.

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A perusal of Annexure-8 would show that the respondent wrote the same in reference to the memo forwarding to him a copy of the enquiry report. The same is in Hindi and translated it reads as under:-

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“Sir,

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With reference to the documents filed by me it has been found that pertaining to the charge memo dated 12.2.1997 I had filed a reply on 22.2.1997.

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As per the communication dated 4.12.1997 I was called for a hearing on 17.12.1997 but on 15.12.1997 I had informed that due to violence in Jaipur and resultant curfew I cannot appear before the enquiry officer. Thereafter I was directed to appear before the enquiry officer on 31.1.1998. But due to an accident I could not appear...”

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In respect of the response learned counsel for the respondent concedes that it makes no sense.

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Be that as it may, the relevance of noting said fact is that in respect to the charge-memo forwarding report of the enquiry

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(4 of 6)

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[SAW-755/2009]

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officer to the respondent he did not file any reply dealing with the findings of guilty recorded by the enquiry officer.

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The disciplinary authority considered the report of the enquiry officer and there being no challenge to the report of the enquiry officer proceeded to levy the penalty of removal from service on 10.8.1998.

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The writ petition filed by the respondent has been allowed on April 16, 2009 and we are pained to note that the reasons recorded by the learned Single Judge are totally contrary to the record and a misreading of the pleadings of the parties.

¶32

The learned Single Judge has referred to the averments made in paragraphs 9 and 10 of the writ petition to hold that the appellants, impleaded as respondents, admitted that the respondent who was the writ-petitioner had filed a reply to the enquiry report. Punching the order of removal from service which records that no reply was filed to the report of the enquiry officer the learned Single Judge has held that it is a case of a complete non-application of mind.

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Now, the so called reply to the report of the enquiry officer has been noted by us hereinabove. It is no reply to the report of the enquiry officer.

¶34

The reasoning of the learned Single Judge that after a reply is filed to the report of the enquiry officer the order passed by the disciplinary authority must show application of mind and in this case there was none, is noted and rejected by us in the instant case for the reason the respondent did not point out anything to the disciplinary authority concerning the report of the enquiry officer.

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(5 of 6)

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[SAW-755/2009]

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We add a line more. If all material has been considered by the enquiry officer and the same contentions which were advanced before the enquiry officer are repeated before the disciplinary authority after the enquiry report is forwarded to the delinquent, it would be enough for the disciplinary authority to record that said contentions have already been dealt with in the enquiry report and the disciplinary authority concurs. But, where the evidence not considered in the enquiry report is highlighted or a reason is given as to why an inference is not permissible, then alone the disciplinary authority needs to give reasons while dealing with said contentions.

¶38

As noted above, in the instant case, nothing of the kind has happened.

¶39

This takes us then to the merits of the enquiry report and we find that the respondent i.e writ-petitioner admitted his absence as per the first charge but claimed to be medically unfit. He had to prove the same. But, he failed to prove the same.

¶40

The impugned order is palpably erroneous and has to be set aside. But a problem has arisen. In the absence of any stay the respondent was reinstated in service and back wages directed to be paid by the learned Single Judge i.e. from the date when the respondent filed the writ petition till when it was allowed has been paid. Date of removal from service is 10.8.1998. Date of reinstatement would be somewhere after April 16, 2009. The respondent is now nearing the age of superannuation.

¶41

For nearly 9 years after the impugned order was passed the respondent has worked.

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Balancing the equities we maintain the impugned order passed by the learned Single Judge. The result of which is

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(6 of 6)

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[SAW-755/2009]

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respondent being already reinstated and having worked for 9 years the back wages as per the impugned order have already been paid but the period post removal from service i.e. 10.8.1998 till when the respondent was reinstated in service would not be counted as pensionable service.

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Declaring as above the appeal is disposed of.

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(PUSHPENDRA SINGH BHATI),J

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(PRADEEP NANDRAJOG),CJ

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Parmar

State of Raj. and Ors. v. Rajendra Kumar Bhola

Case brief

What is this about?

What did the court decide?

State of Raj. and Ors. v. Rajendra Kumar Bhola

Case brief

What is this about?

What did the court decide?

What the court decided

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