Dismissed

Dr. Pankaj Saxena Son of Shri Brij Mohan Saxena, v. the State of Rajasthan

Rajasthan HC9 Aug 2019SAW/142/2019

Case brief

AI extract

What is this about?

This is an appeal challenging the dismissal of a writ petition filed by a retired Doctor against disciplinary penalty and denial of promotion. The High Court held that the lower court correctly refused to reappreciate evidence or interfere with the disciplinary authority's findings, finding the penalty lawful and the retirement irrelevant to the appeal.

What did the court decide?

The appeal was dismissed; the Single Judge's order dismissing the writ petition was affirmed.

Dr. Pankaj Saxena Son of Shri Brij Mohan… — Pension and Retirement Benefits | Rajasthan HC (2019)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. Special Appeal Writ No. 142/2019

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S.B. Civil Writ Petition No.6270/1998

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Dr. Pankaj Saxena Son Of Shri Brij Mohan Saxena, Aged About 60 Years, Resident of 1 Jha 1 Dadawadi, Kota.

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----Appellant

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Versus

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The State of Rajasthan, Through The Secretary To The Government, Department Of Personnel, Government Of Rajasthan, Secretariat, Jaipur.

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----Respondent

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For Appellant(s) : Shri R.C. Joshi For Respondent(s) : Shri S.S. Raghav, AAG

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HON'BLE MR. JUSTICE MOHAMMAD RAFIQ HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA

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Judgment

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09/08/2019

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(PER HON’BLE MOHAMMAD RAFIQ, J.)

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This appeal has been filed by Dr. Pankaj Saxena challenging the judgement of learned Single Judge dated 13.11.2015. The learned Single Judge by the aforesaid judgement has dismissed the writ petition filed by the appellant.

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The appellant in the writ petition had challenged the order dated 20.05.1998, whereby disciplinary authority awarded him penalty of stoppage of two grade increments with cumulative effect. Further prayer was made that the respondent be directed to promote the appellant on the post of Senior Veterinary Officer w.e.f. 4.7.1998 by placing him between S.No.41 and 42 in the

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(2 of 7)

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[SAW-142/2019]

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order of such promotion dated 4.7.1998 with all consequential benefits. It was prayed that the respondents be directed to make payment of the salary to the appellant from the period 6.5.1992 till 27.9.1993 when he remained under suspension.

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Appellant was appointed in the services of the respondent as Veterinary Assistant Surgeon on the recommendation of the Rajasthan Public Service Commission vide order dated 19.7.1982. He was placed under suspension vide order dated 6.5.1992 in contemplation of the disciplinary enquiry. He was then served with a charge sheet on 30.1.1993 under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short-`the Rules of 1958’) containing 7 charges. Petitioner filed reply to the aforesaid charge sheet on 2.3.1993 denying the allegations. The disciplinary authority after considering the reply of the appellant dropped the charge nos.3, 5 and 6, however, appointed the enquiry officer by order dated 13.3.1993 to conduct enquiry for the charge nos.1, 2, 4 and 7. The enquiry officer recorded statement of 11 witnesses. The department produced 11 witness namely; Shri Mohan Lal Bothra (PW1), Shri Om Prakash Mehta (PW2), Shri Birdi Lal (PW3), Shri Sultan (PW4), Shri K.R. Pillai, (PW5), Shri Kailash Chandra Vijay (PW6), Shri Bansi Lal (PW7), Shri Amar Chand Vyas (PW8), Shri Devki Nandan (PW9), Shri Prabhu Lal (PW10) and Shri Prem Shankar (PW11). The appellant in his defence has produced 5 witnesses namely; Dr. T.N. Saxena (DW1), Dr. Daya Krishna Sharma (DW2), Shri Mukut Bihari Meena (DW3), Shri Ram Gopal (DW4) and Shri Harish Kumar Chaturvedi (DW5). Apart from producing witnesses, the appellant also produced 23 documents before the enquiry officer. Appellant submitted his written arguments before the enquiry

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(3 of 7)

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officer. The enquiry officer in his report dated 23.11.1995 did not find charge nos.1, 2 and 7 proved against the appellant and with regard to charge no.4 held that since the matter was pending trial before the Court, it would not be appropriate to give any comment on the same. The disciplinary authority served upon the appellant the notice of dissent on 8.5.1996. The appellant submitted the representation thereagainst on 25.6.1996. The disciplinary authority by order dated 20.5.1998 concluded that all the three charges were proved against the appellant and served upon him the copy of such conclusion along with notice dated 17.3.1997/2.6.1997 and awarded penalty of stoppage of two grade increments with cumulative effect. Case of the appellant in the meantime came to be considered for promotion on the post of Senior Veterinary Officer, but owing to the aforesaid penalty, he was superseded and his juniors were promoted by order dated 4.7.1998. It is thereafter that appellant preferred the petition before this Court, which has been dismissed by the learned Single Judge vide impugned order.

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Shri R.C. Joshi, learned counsel for the appellant has submitted that the learned Single Judge has dismissed the writ petition filed by the appellant without considering any of his arguments and without the due application of mind. The learned Single Judge has simply held that a writ court under Article 226 of the Constitution cannot re-appreciate the evidence. Besides, the learned Single Judge was also in dismissing the writ petition swayed away by the fact that the appellant “has already retired from service and enjoying his life after his retirement.” Learned counsel submitted that the fact that appellant had retired from service is wholly irrelevant for decision of the writ petition on

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(4 of 7)

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merits. It is argued that the enquiry officer recorded the finding in favour of the appellant on charge nos. 2, 4 and 7. The disciplinary authority in the notice of dissent has not given any reason as to why, he differs on such finding.

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Learned counsel for the appellant submits that charge no.1 against the appellant was to the effect that when he was posted as Incharge Veterinary Hospital, Sangod (Kota), an order dated 17.1.1991 was issued by Animal Husbandry Department to transfer him to Veterinary Hospital, Baniyana (Jaisalmer). The District Animal Husbandry Officer, Kota by order dated 21.10.1991 relieved him with effect from 22.10.1991 and sent copy of the relieving order to him with one Mohan Lal Gautam, Veterinary Assistant. Even though the appellant was present in the Veterinary Hospital on that date, but he after reading the order, returned the same to Mohan Lal Gautam and refused to accept the same. Learned counsel submitted that enquiry officer was perfectly justified in holding the charge no.1 not proved because the appellant was on leave on that day, therefore, the copy of the relieving order could not be offered to him. The appellant submitted his reply to the notice of dissent, which has been completely overlooked by the disciplinary authority.

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We do not find any strength in the argument of learned counsel for the appellant because the disciplinary authority in the notice of dissent has given valid reason. The finding recorded in the order of penalty referred to statement of Mohan Lal Bothra proved that even if the appellant was present in the office, but he having read copy of the relieving order, refused to accept the same on the pretext that he was on leave. The disciplinary authority found that he thereby wanted to disobey the order of

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transfer. He subsequently submitted the application for leave. No contrary evidence was produced by him to disapprove the allegation of the department that why he despite having submitted the leave, was present in the office.

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As regards the charge no.2, Shri R.C. Joshi, learned counsel for the appellant has argued that the allegation against the appellant is that when he was present in the Veterinary Hospital on 22.10.1991 and was offered the copy of the relieving order, in order to create a defence for himself and avoid relieving, he in the attendance register marked his seal, whereas no application for grant of casual leave was submitted by him to District Animal Husbandry Officer, Kota. He has thus abused his official position.

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The disciplinary authority in the penalty order has noted that Ex.P1 was the order of sanctioning earned leave to the appellant for 22.10.1991 and therefore as per the own showing of the appellant, he was on leave on 22.10.1991. The enquiry officer was not justified in holding that this charge was not proved against the appellant because the evidence proved that he was very much present in the office and marked in his own hand “C.L.” in the attendance register on 22.10.1991 thereby abusing his official position. The disciplinary authority has also noted that on careful examination of the attendance register, it appears that appellant instead of making C.L. has marked P.L., whereas the P.L. was not sanctioned and could not have been indicated in the attendance register.

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Charge no.7 was to the effect that the appellant despite sufficient availability of medicines in the store was pressuring the cattle owners to purchase the medicines from the open market by

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(6 of 7)

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writing prescription and thereby deprived them of the facility provided by the Government.

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Learned counsel for the appellant has argued that the enquiry officer has not found even this charge proved and there was no evidence to that effect. The disciplinary authority has served the notice of dissent only on the premise that the enquiry officer has not correctly analysed the statement of witnesses that the appellant pressurised most of the cattle owners to buy the medicine from the open market.

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The disciplinary authority has given the notice of dissent even on this charge. The disciplinary authority having considered the representation of the appellant even on this charge has reversed the finding of the enquiry officer by relying on the statement of independent witnesses namely; Shri Bansi Lal (PW7), Shri Amar Chand Vyas (PW8) and Shri Devki Nandan (PW9) and Prabhu Lal (PW10), all of whom supported the charge. Even though it may be true that there was no justification for the learned Single Judge to have additional state that the writ petition filed by the appellant deserves to be dismissed for the reason that he has already retired from service, but the first two reasons, (i) that the disciplinary authority has imposed penalty after granting ample opportunity to the appellant and proper application of mind and (ii) that the writ court in the scope of judicial review under Article 226 of the Constitution cannot re-appreciate the evidence are well founded on the material available on record. The cited judgements in Punjab national Bank vs. Kunj Behari Mishra-1998 (7) SCC 84, Yoginath D Bagde vs. State of Maharashtra-1999(7) SCC 739 and Datar Singh vs. State of Rajasthan-1989 (1) RLW 387 do not in any manner help the appellant.

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[SAW-142/2019]

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The Supreme Court in Union of India & Ors. vs. P.Gunasekaran-(2015) 2 SCC 610 has held that the High court in exercise of its powers under Articles 226 and 227 cannot venture into reappreciation of evidence or interfere with conclusions in enquiry proceedings if the same are conducted in accordance with law, or go into reliability/adequacy of evidence, or interfere if there is some legal evidence on which findings are based, or correct error of fact however grave it may be, or go into proportionality of punishment unless it shocks conscience of court. It can only consider whether enquiry held by competent authority was in accordance with procedure established by law and principles of natural justice, whether irrelevant or extraneous considerations and/or exclusion of admissible or material evidence or admission of inadmissible evidence have influenced decision rendering it vulnerable. It was further help that the High Court can interfere where finding is wholly arbitrary and capricious based on no evidence which no reasonable man could ever arrive at. In the present case, none of those parameters are attracted inasmuch as it cannot be held that there is a total lack of evidence or the conclusion arrived at by the disciplinary authority are such which no reasonable person could ever arrive at.

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The Supreme Court in Central Industrial, Security Force & Ors. vs. Abrar Ali-(2017) 4 SCC 507, the judgement relied on by learned Single Judge has also expressed the similar view.

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In view of above discussion, we find no merit in this appeal, which is accordingly dismissed.

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(NARENDRA SINGH DHADDHA),J

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(MOHAMMAD RAFIQ),J

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RAVI SHARMA /77

Dr. Pankaj Saxena Son of Shri Brij Mohan Saxena, v. the State of Rajasthan

Case brief

What is this about?

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Dr. Pankaj Saxena Son of Shri Brij Mohan Saxena, v. the State of Rajasthan

Case brief

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