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Rajasthan High Court · body

1996 DIGILAW 1439 (RAJ)

Shri Birbal Singh v. State of Rajasthan

1996-12-19

J.C.VERMA

body1996
Honble VERMA, J. – The petitioner, Birbal Singh appointed as a constable of the Rajasthan Police Subordinate Services, has challenged the order of compulsory retirement passed on 29.11.1989 vide Annexure 6, on various grounds, including the ground that he had not been afforded any opportunity as required under the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958. The facts of the case are that the petitioner was appointed initially as constable in the year 1959. He was promoted to the post of head constable in the year, 1983. He was posted in January, 1989 in the police station Surajgarh, District Jhunjhunu. Because of certain reasons about the confinement of certain persons in the judicial lock up, according to the petitioner the S.H.O. became annoyed and he involved the peti- tioner in false case. Without going into the merits of such case at this stage, the petitioner was, however, issued a charge-sheet dated 20.3.1989 attached as Annex. 2 to the writ petition. The petitioner had replied to the charge-sheet denying all the allegations. The Circle Officer Khetri was appointed as inquiry officer to go into the allegations. He was appointed as such on 31.5.1989. The admitted facts are that the Enquiry Officer fixed 16.8.1989 for the purpose of holding enquiry which was so communicated to the petitioner vide letter dated 10.8.1989. The enquiry was to be held at the police station Surajgarh. The petitioner was apprehensive of the fairness of the enquiry to be held in the police station where the S.H.O. had some influence against the petitioner and, therefore, vide his application dated 14.8.1989, he had requested the S.P., Jhunjhunu to change the venue of enquiry. The petitioner alleges that despite the fact that S.P. had passed an order for changing of the venue of enquiry to be held against him, he was never informed of the place of enquiry by any authority whatsoever and still the Enquiry Officer held the enquiry on 16th of August, 1989 at a place known as Gaushala in the same city. As many as 8 witnesses were examined on that date. The enquiry is said to have been adjourned to 23.8.1989 and still no intimation was given to the petitioner even of the adjourned date. Four witnesses were examined by the prosecution on 23.8.1989. As many as 8 witnesses were examined on that date. The enquiry is said to have been adjourned to 23.8.1989 and still no intimation was given to the petitioner even of the adjourned date. Four witnesses were examined by the prosecution on 23.8.1989. The result of such proceedings was that as many as 12 witnesses were examined ex-parte against the petitioner and the petitioner had no opportunity to cross examine any of the witnesses. The Enquiry Officer submitted his report by the end of August, 1989. It is further submitted that no opportunity of defence was even afforded by the Enquiry Officer as the petitioner was never informed of any proceedings later on. After receipt of the enquiry report, the S.P. vide order dated 29.11.1989, imposed a punishment of compulsory retirement vide his order No. 620 on that date which is annexed as Annexure 6. The statutory appeal was filed by the petitioner and the D.I.G., Police, Jaipur dismissed the same without going into the facts of the case vide order Annexure 8 dated 12.7.1990. (2). Review application filed by the petitioner was also dismissed. The respon- dents in the written statements have not denied the material facts, but it has been submitted by the respondents that on 10.8.1989, the petitioners defence counsel was informed of the enquiry proceedings, but the petitioner refused to sign the enquiry proceedings. It is stated that the petitioner deliberately did not appear before the Enquiry Officer on the next date of hearing, i.e. on 16.8.1989 alongwith his defence counsel. It is stated that on that day, the petitioners defence counsel, aggrieved by the behaviour of the petitioner, had expressed his inability to continue to defend him in the enquiry proceedings and consequently the statements of the prosecution witnesses were recorded ex parte on 16.8.1989. When the defence counsel had refused to defend the petitioner, the case was adjourned to 23.8.1989. It is admitted by the counsel that there is no record to show that the petitioner was ever informed of this incident or of the next date, i.e. 23.8.1989. (3). For the purpose to solve the controversy whether the petitioner was ever informed of the change of venue from police station to any other place it was necessary to see the record of the enquiry proceedings. The counsel for the respon- dents had produced the record. (3). For the purpose to solve the controversy whether the petitioner was ever informed of the change of venue from police station to any other place it was necessary to see the record of the enquiry proceedings. The counsel for the respon- dents had produced the record. From the record, it is apparent that on the application of the petitioner dated 14.8.1989, the S.P., Jhunjhunu, had passed the order of change of the venue of the enquiry proceedings from the police station Surajgarh. The S.P. has further mentioned in the order that the Enquiry Officer shall change the venue and shall inform the petitioner of such changed place. It was fur- ther directed by the S.P. on 14.8.1989 itself that he is also directing the enquiry Officer to fix some other place of enquiry instead of police station Surajgarh. However, on the file of the order of the Superintendent of Police, Jhunjhunu, as passed on 14.8.1989, no place has been mentioned as to where the enquiry was to be held. The counsel for the respondents had failed to produce any letter or any intimation showing that the Enquiry Officer or any other officer had ever fixed the place of enquiry at Gaushala and the intimation of the same was ever given to the petitioner. Nothing is forthcoming from the record and the learned counsel appearing for the respondents fairly concedes that no such intimation seems to have been sent to the petitioner or his defence counsel intimating the change of venue of en- quiry proceedings from police station Surajgarh to Gaushala where the enquiry was to be held on 16.8.1989. In such situation, it is clear that the petitioner was not informed of the change of venue of enquiry and the contention of the learned counsel for the petitioner in this regard is true. There is still another aspect in this case, which needs to be noted that even as per the contention of the respondents assuming it to be true in the enquiry proceedings on 16.8.1989 at the changed venue, the defence counsel of the petitioner was present and had refused to participate in the enquiry on the ground that the petitioner was not co-operating with him, in that situation, it was necessary for the Enquiry Officer or other authorities concerned to at least inform the petitioner of the adjournment date, i.e. 23.8.1989 alongwith the place of enquiry. It is admitted by the learned counsel for the respondents at Bar that no such information was ever given to the petitioner. (4). After perusing of the record, it is clear that the petitioner was never given any intimation of the enquiry to be held on 16.8.1989 at the changed venue, i.e at Gaushala and as such, there was no fault on the part of the petitioner if he was not present on that date. Similarly no intimation was given to the petitioner on the changed date of 23.8.1989 and in such situation recording of ex parte evidence of 8 witnesses on 16.8.1989 and four witnesses on 23.8.1989 was violative of principles of natural justice and the enquiry proceedings in this regard are likely to be quashed. (5). It has also been revealed from the enquiry file that even after 23.8.1989, no intimation was given to the petitioner to produce any defence evidence and the enquiry report has been submitted almost immediately after 23.8.1989. (6). It is settled law that no action can be taken against a person without affording any opportunity or associating him in the enquiry. Opportunity means an effective opportunity, where the enquiry is to be heard. The intimation for any change of the venue of the enquiry, date of enquiry, persons to be examined during enquiry and right of cross-examination and the right to defence is to be afforded to the delinquent official as per law. From the record, it is very clear that the petitioner was deprived of such opportunities. In the absence of non-affording of opportunity, there is no alternative, but to quash the enquiry proceedings and enquiry report as well, and the order based on the enquiry proceedings or enquiry report, i.e. order Annexure 6, the appellate order Annexure 8 and the review order are quashed. The petitioner shall be entitled to all consequential benefits as if he was never compulsorily retired. (7). However, the counsel for the petitioner has also challenged the authority of the Superintendent of Police to take action against the constable on the ground that he was not legally authorised to pass any such order. Because of the reason that the impugned order is being quashed on the grounds mentioned above, there is hardly any necessity to go into this matter. (8). Because of the reason that the impugned order is being quashed on the grounds mentioned above, there is hardly any necessity to go into this matter. (8). This order is to be implemented within two months and the arrears of pay be paid within the stipulated period and in case the arrears of pay are not paid within the stipulated period, it will carry the interest of 12% p.a. from the due date till payment. (9). However, if the department still is of the opinion that the enquiry is required to be held against the petitioner, the department is at liberty to proceed in accordance with law after giving proper opportunity to the petitioner. (10). The writ petition is allowed with no costs.