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1991 DIGILAW 150 (RAJ)

Shiv Lahari v. State of Rajasthan

1991-02-06

MOHINI KAPUR, V.S.DAVE

body1991
JUDGMENT 1. - In this writ petition the petitioner has challenged the action taken against him in pursuance of the Departmental Enquiry held against him, while he was serving as Deputy Controller Civil Defence, Jaipur. A memorandum dated 8.11.1974 was served on him wherein an enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control And Appeal) Rules, 1958(hereinafter referred to as "the CCA Rules"), was proposed against him. It was accompanied with the charges and statement of allegations. The charge levelled against the petitioner was that he indulged in unnatural sexual intercourse with one of his class IV employee, Prabhu Lal Mali, and also indecent and immoral act with another class IV employee of his office, Bhoora Singh.The petitioner field a detailed reply which was considered and thereafter an enquiry officer was appointed to hold enquiry. Shri B.P. Sood, Commissioner of Departmental Enquiries conducted a detailed enquiry. 8 witnesses were examined on behalf of the department. The Delinquent Officer, Petitioner, examined one witness in support of his defence. After hearing arguments which, it appears, had also been given in writing, he submitted a very detailed report to the Disciplinary Authority. He held the part of the charge proved to the extent that the delinquent officer was found having committed sodomy with class IV employee, Prabhulal. Disciplinary Authority served a show-cause notice on 5.2.1976 asking as to why the penalty of reduction of 10% pension for a period of five years be not imposed on him. This recommendation was accompanied with the report and sent to the Commissioner, Departmental Enquiries. A detailed reply was filed to the show cause notice which was considered by the Disciplinary Authority and Finally decided vide order dated March 17, 1977. After considering the report of the enquiry officer coupled with the reply and the advice of the Rajasthan Public Service Commission ordered the reduction of 1/10 pension payable to the petitioner fora period of 3 years. He filed a review petition on January 27, 1978 which was rejected on 4.8.1978. He went on filing review petitions on various grounds which have been rejected time and again and it was in 1984 that he filed the present writ petition. He filed a review petition on January 27, 1978 which was rejected on 4.8.1978. He went on filing review petitions on various grounds which have been rejected time and again and it was in 1984 that he filed the present writ petition. The petitioner in this writ petition has submitted that he ought to have been associated with the preliminary enquiry preceding the charge-sheet in a case where such serious charge about his moral conduct had been levelled by class IV employee against whom he had taken serious actions and who was having hostility towards him. His submission is that at one stage, even the Commissioner, Departmental Enquiries who was holding the enquiry himself had come to the conclusion that there was no prima fade case against the petitioner, but he could not drop the proceedings that there was no provision of law to do so. His submission is that the persual of the record relating to the enquiry would further show that even the Chief Secretary at one time had different opinion and was of the view that this was a case for proceeding under Rule 17 CCA Rules and no matter to be dealt with under Rule 16 of the CCA Rules. However, in between the petitioner was compulsorily retired and though it was obligatory for the Authorities to have dropped the enquiry, but it was not dropped and the petitioner has been subjected to double jeopardy. It is submitted that after retirement of the petitioner for continuing the enquiry sanct of the Governor under Rule 170 of the Rajasthan Service Rules was essential and as the same has not been taken the enquiry is vitiated. The petitioner also attempted to take the court through the report of the enquiry officer and the order of the Disciplinary Authority. 2. Learned Government Advocate opposed the writ petition and submitted that jurisdiction of this court in a writ of certiorari is very limited. There is neither any error apparent on the face of the record nor the circumstances intimate any,thing that there is any error in the procedure laid down by the Rules. 3. We have heard the learned counsel for the parties and have perused the entire record. 4. There is neither any error apparent on the face of the record nor the circumstances intimate any,thing that there is any error in the procedure laid down by the Rules. 3. We have heard the learned counsel for the parties and have perused the entire record. 4. It may be mentioned at the outset that in the matter of Departmental Enquiry this court has to look into the case within the parameters laid down by their Lordships of the Supreme Court time and again, muchless in the matter of domestic enquiries. It is not within the competence of the court to either re-assess the evidence of to look into the adequacy of the punishment which has been imposed. The court can only interfere if there is an error apparent on the face of the record of that the petitioner is able to show that there has been such material irregularity in following the procedure which has caused serious prejudice to him, in as much as it is either malafide in law or malafide in fact. No such thing has been shown in this case nor is exhibited from the entire record.A detailed protracted enquiry has been conducted and where full opportunity has been provided to the petitioner and the petitioner has not only participated in the enquiry effectively but has also led defence evidence, he has been given full opportunity to place his case which has been considered by the Disciplinary Authority in detail. The decision of the Disciplinary Authority may be right or wrong but it is not for this court to re-assess the evidence and come to a different conclusion on facts. We could neither see any defect in the procedure followed by the Enquiry Officer and the Disciplinary Authority nor find any error on the face of the report. In the circumstances of this case looking to the charge and the evidence which has been brought on record and which has been believed by the Commissioner, Departmental Enquiries as well as the Disciplinary Authority, if there is any error in imposing the punishment in the circumstances of the case the error is on the side of leniency. The petitioner has made repeated review petitions which have been rejected from time to time and we find no justification in interfering with the orders at this stage. 5. The petitioner has made repeated review petitions which have been rejected from time to time and we find no justification in interfering with the orders at this stage. 5. We are also inclined to dismiss this writ petition on the ground of latches in as much as the order of punishment has been passed as early as March 7, 1977, and this writ petition has been filed on September 15, 1983. Thus, this petition has been filed after 6 years. The petitioner has tried to justify the delay by saying that he had been filing review petitions before the Governor. For that it may be said that review petition of the petitioner had been rejected as early as August 4, 1978 and there was no necessity for filing any subsequent review petitions one after another. Such repeated filing of the petitions and repeated rejection do not give any right to the petitioner to delay in approaching the court of law even if any ground for challenging the action exist in this case. 6. For the aforesaid reasons we are not inclined to interfere with the order of Disciplinary Authority and dismiss this writ petition. In the circumstances of the case, since no reply has been filed by the State, the cost is made easy.Petition Dismissed. *******