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PETITIONER: STATE OF RAJASTHAN

       Vs.

RESPONDENT: M.C. SAXENA

DATE OF JUDGMENT:       24/02/1998

BENCH: S. SAGHIR AHMAD, G.B. PATTANAIK

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T G. B. PATTANAIK      These two  appeals, one  by the  state of Rajasthan and the other  by the  concerned employee  arise out of the same judgment and  as such  are being  disposed of by this common judgment. The  respondent Shri.  M.C. Saxena in Civil Appeal No 2536 of 1993 is an engineer who joined the service of the Rajasthan Government in the year 1957 as Assistant Engineer. While he  was continuing  as Executive Engineer at Bharatpur certain complaints  were received  by  the  Anti  Corruption Department to  the effect  that the  material  used  by  the Engineer  as  Seola  and  Baretha  Bandhs  are  sub-standard materials. On  the  basis  of  the  said  complaint  certain preliminary enquiry  was held  and then the State Government issued a  set of  charges against  the respondent  and  four other officials in June 1979. On receipt  of the explanation from the  respondent an  enquiry officer  was  appointed  to enquire into  the charges against the respondent by order of the State  government dated  21st January, 1980. The enquiry officer ultimately  submitted a  report on  24th  July  1984 indicating therein that the samples which have been taken by the concerned  officer and  were sent  to the FSL was not in accordance with  the prescribed  procedure and therefore the report of  the FSL  cannot be  relied upon.  Accordingly the Enquiry  Officer   exonerated  the  respondent.  During  the pendency  of  the  aforesaid  departmental  proceedings  the respondent  was  promoted  to  the  post  of  Superintending Engineer on  provisional basis by order dated 24th November, 1984. The State Government who is the disciplinary Authority of the  respondent considered  the  report  of  the  Enquiry Officer and  disagreed with  the finding of the said enquiry officer. The  State Government  came to  the conclusion that the  charges   against  the   respondent  have   been   duly established  and   accordingly  awarded  the  punishment  of withholding of  two increments  without cumulative effect by order dated  8th October,  1995. On  a Review Petition being filed by the respondent under Rule 33 of the Rajasthan Civil Services (CCA)  Rules, 1958, the Government allowed the same partly by  order dated  17th December  1986 and  reduced the punishment  imposed   to  withhold   one  increment  without

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cumulative effect. The respondent then filed a second Review Petition which  however was  dismissed by  order dated  20th June 1988.  In the  year  1989  the  Departmental  Promotion committee considered  the cases  of promotion  in respect of vacancies in  the post  of Superintending Engineer for 81-82 and 82-83  but did not find the respondent fit for promotion for  the  year  81-82.  The  said  DPC  however,  found  the respondent  suitable   for  promotion   in  respect  of  the vacancies in  the year  82-83. In  accordance with  the said decision the  State Government  finally passed  the order on 27th December  1989 granting  retrospective promotion to the respondent to  the  post  of  superintending  Engineer.  The respondent then  filed a writ petition in the Rajasthan High Court challenging  the validity  of  certain  provisions  of Classification, Control  and Appeal  Rules as  well  as  the recommendations of  the Departmental Promotion committee for selection on  promotion against  the vacancies  of 81-82 and 82-83 for  the  post  of  Superintending  Engineer  and  the consequential order  of  the  State  Government  dated  27th December 1989.  The said  writ petition  was  registered  as Civil Writ  Petition  No  3323  for  1993,  which  is  being impugned by  the State  of Rajasthan in civil Appeal 2536 of 1993. the  employee Shri M.C. Saxena also has come up in the other appeal  challenging the  order of punishment inflicted upon him  by the  State of  Rajasthan,  in  withholding  one increment without  cumulative effect.  It may be stated that during the  pendency of  the writ  petition before  the High Court the  respondent was promoted to the post of Additional Chief Engineer  against the  vacancy of  1992-93.  The  High Court by  the impugned  order came  to the  conclusion  that since the  delinquency in  respect of which respondent stood charged in the Departmental proceeding was of the year 1973, the punishment  awarded would  lapse after  expire of  seven years from  the date  on which  the alleged  delinquency was committed and  therefore non consideration of the respondent for promotion  in the  year 1980 is vitiated. The High Court further  directed   to  hold   the  Departmental   Promotion Committee  to  consider  the  case  of  the  respondent  for promotion to  the post of Superintending Engineer w.e.f 1980 and on  such consideration  if he is found suitable to grant him retrospective  promotion and  should be  considered also for promotion to the higher level.      Mr. Gupta  appearing for  the State in Civil Appeal No. 2536 of  1993 contends  that in  view  of  the  Departmental proceeding initiated  against the  respondent and ultimately order of  punishment  inflicted  upon  by  the  disciplinary authority  withholding   one  increment  without  cumulative effect, the conclusion of the High Court that the respondent was entitled  to be  considered for  promotion w.e.f 1980 is wholly unsustainable  in law.  He further  contended that in view of  the relevant circular of the Government, the period of seven  years can  only be  counted from  the date  of the order of  punishment and  the date  of delinquency is wholly immaterial, and  the High  Court committed  error in holding that the  period of  seven years  could be  counted from the date of  delinquency. Mr.  Gupta further  submitted that the respondent having  been duly considered in the year 1989 but having been  found unsuitable  for promotion  to the post of Superintending Engineer  in respect  of vacancy occurring in 81-82, there  has been  no infringement of Article 16 of the Constitution and  consequently the impugned direction of the High Court cannot be sustained.      Mr. Surya  Kant, the  learned counsel appearing for the employee who  is the  Appellant in  civil Appeal  No 2564 of 1993 though fairly stated that the period of seven years has

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to be  counted from  the date of the award of punishment and not from  the date  of delinquency  but contended  that  the enquiry officer  having exonerated  the  delinquent  of  the charges levelled  against him,  the  disciplinary  authority could  not  have  inflicted  punishment  without  giving  an opportunity of  hearing to  the delinquent  and as  such the impugned order  of punishment  is liable  to be  set  aside, being in  violation of  principle of  natural  justice.  the learned  counsel  accordingly  urged  that  the  High  court committed gross  error in  not setting  aside the  order  of punishment imposed upon the delinquent government servant.      Having heard  the learned  counsel for  the parties and having given  our anxious  consideration to  the submissions made and  on going through the impugned judgment of the High Court, we  are of the considered opinion that the High Court committed gross  error in issuing the impugned directions. A departmental proceeding was admittedly initiated against the respondent by serving upon him a set of charges on 1st June, 1979. that  departmental proceeding  culminated in the order of  punishment  imposed  by  the  State  Government  on  8th October, 1975.  When a  departmental proceeding  is  already pending but  no punishment  has been  inflicted upon and the question of  promotion of  the delinquent government servant arises then the Departmental Promotion committee can adopt a sealed cover  procedure which  is well  known in the service jurisprudence. But if the departmental proceeding culminates in  imposition  of  a  punishment  on  the  delinquent,  the question of  reconsideration of  the delinquent’s  case  for promotion would not arise at that stage. In the case in hand since the disciplinary authority disagreeing with the report of the  enquiring officer  held the  respondent  guilty  and imposed the punishment of stoppage of two increments without cumulative effect which was later on reviewed and punishment of stoppage  of one  increment without cumulative effect was finally imposed,  the High Court could not have directed the State Government  to reconsider the case of promotion of the respondent to the post of Superintending Engineer w.e.f 1980 onwards. The  said direction  is wholly unsustainable and is accordingly set aside. The High Court also committed serious error in holding that in terms of the relevant circular, the seven year  period could  count from the date of delinquency and  would   lapse  in   the  year  1980,  even  though  the departmental  proceeding   was  continued   and   ultimately culminated by  imposing an  order of  punishment in the year 1985. In  fact Mr.  Surya Kant  appearing for the delinquent could not support the aforesaid reasoning of the High Court. In this view of the matter, we have no hesitation to come to the conclusion  that the  High Court committed serious error by requiring  that the  case of  the  delinquent  government servant should  be considered  for promotion  to the post of Supdt.  Engineer  retrospectively  w.e.f  1980  onwards.  We accordingly quash the said direction of the High Court.      The grievance  of the  delinquent government servant is based upon  a through  misconception about the rights of the government servant  concerned. It  is  undisputed  that  the enquiring officer  did not  rely upon  the FSL report on the ground that  the procedure prescribed for taking sample have not been  followed and  therefore exonerated  the delinquent government servant.  But the disciplinary authority recorded reasons for  disagreeing with  the findings of the enquiring officer and held that the charges against the respondent has been established.  It is  well settled that the disciplinary authority can  disagree with  the findings arrived at by the enquiring officer  and act  upon his own conclusion, but the only requirement  is that  the said  disciplinary  authority

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must record  reasons for  his disagreement with the findings of the  enquiry officer. If the disciplinary authority gives reasons for  disagreeing  with  the  findings  of  enquiring officer then  the Court cannot interfere with those findings unless it comes to the conclusion that no reasonable man can come to  the said  finding. In  this view of the matter, the disciplinary authority  was well  within his powers to award punishment on the findings arrived at by him. We do not find any force in the submission of the learned counsel appearing for  the  delinquent  government  servant  that  before  the disciplinary authority  proceeds to  award  punishment,  the delinquent government  servant should  have been  afforded a further  opportunity   of  hearing.   As  it   appears,  the punishment of  stopping two  increments  without  cumulative effect is a minor punishment under CCA Rules. Then again the delinquent government  servant  filed  review  petition  and State Government allowed the review petition and reduced the punishment to  stoppage of  one increment without cumulative effect. In  such circumstances  the argument  that there has been a  gross violation  of principle  of natural justice is devoid of force. A set of charges having been framed and the delinquent government servant having filed his show cause to the set of charges, the regular enquiry having been held and the enquiring  officer  having  recorded  his  findings  and thereafter the  disciplinary authority having disagreed with the  findings   by  recording   the  reasons   therefor  and ultimately awarding  minor punishment  of  stoppage  of  one increment without  cumulative effect, there is no procedural irregularity therein  nor can it be said that there has been any violation  of principle  of natural  justice.  Thus  the punishment imposed  upon by  the authority  has rightly  not been interfered with by the High Court.      In the  aforesaid premises the impugned judgment of the High Court  is set  aside. Civil  Appeal No  2536 of 1993 is allowed. Civil  Appeal No  2564 of  1993 filed  by shri  M.C Saxena stands  dismissed and  Writ Petition  filed by him is dismissed. No order as to costs.