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2002 DIGILAW 213 (RAJ)

Jagdish Prasad Khatri v. State of Rajasthan

2002-01-25

O.P.BISHNOI, RAJESH BALIA

body2002
JUDGMENT 1. - Heard learned counsel for the parties. 2. This appeal is directed against the order dated 4.8.1999 passed by the learned single Judge rejecting the writ petition field by the appellant. In the writ petition the petitioner has prayed for quashing the orders Annexure-7, Annexure-8 and Annexure-21 dated 28.9.79, 29.1.80 and 13.9.85 respectively imposing punishment of withholding of five annual grade increments with cumulative effect and other punishments. 3. The petitioner was held guilty of misconduct for allowing 9 steel bundles from his charge to be removed by one Shri Birdhi Chand unauthorisedly and also of being wilfully absent from the duty from 24.8.1971 to 20.9.1971. The appeal against that order was also rejected on the ground that since the appeal has been preferred after expiry of limitation, it is not maintainable. It appears that during this period, the petitioner who had been prosecuted for the same offences viz. theft of 9 bundles of steel was acquitted by the Court of learned Chief Judicial Magistrate vide order dated 29.5.82 which has become final. 4. The petitioner has urged firstly that he was only found guilty of leaving the head quarter without permission but was not found guilty of remaining wilfully absent from duty and that he has also not been found guilty of misconduct in respect of very same charge, by the Criminal Court. It was stated that he has been acquitted of the said charge. He has, therefore, contended that the finding recorded by the learned Chief Judicial Magistrate on the same material ought to prevail over the finding recorded by the Enquiry Officer. 5. Learned single judge was of the view that there is no legal bar in continuing with the departmental enquiry and the prosecution for the same charges simultaneously and the disciplinary authority is entitled to reach his own conclusion independent of the criminal court. He was further of the view that since he was found guilty of theft which involved moral turpitude, the appropriate punishment could be removal from the service but by not terminating the services of the petitioner, the disciplinary authority has acted leniently with the petitioner. Therefore, no interference was called for in the matter of the punishment with forfeiture of past services. Therefore, no interference was called for in the matter of the punishment with forfeiture of past services. This resulted in the rejection of the petitioner's plea that the forfeiture of past services was not a punishment provided in CCA Rules and the Disciplinary Authority has imposed two punishment for the same misconduct. 6. The same contentions are raised in this appeal and we have taken through the documents which has been filed alongwith writ petition and reply submitted by the counsel for the respondents. 7. We are of the opinion, that so far as the principle that a person can be subjected to disciplinary proceedings independent of the criminal prosecution, there cannot be any doubt about the said proposition of law. However, it has also been opined by the apex court that ordinarily when a person has been prosecuted for the same misconduct for which Departmental Enquiry is instituted the employer should await the decision of criminal court so as not to come in conflict with the judicial finding on the same set of allegations where the evidence shall also ordinarily be same before the criminal court as well as before the disciplinary authority. This is in order to keep the authority of the courts in tact in the matter of arising at findings of fact. 8. Be that as it may, having examined the material placed before us we are satisfied that there has been an apparent major flaw in the proceedings of the departmental enquiry and finding of the petitioner guilty of theft. While on the statement of the petitioner has been found guilty of permitting the delivery of 9 bundles of steel to Birdhi Chand, his admission has been dissected by not taking into consideration that he permitted the delivery of goods under the authority of Asstt. Engineer who has in joint charge of the store. It cannot be lost sight of the fact that A.En. was in the joint charge of the store and with his agreement goods were stacked away from the authorised godowns. It was delivered on the basis of a written chit alleged to be issued by the delinquent officer. However, it was not produced on the record of the enquiry proceedings on the ground that said chit was in the police custody to be produced in Criminal Trial. We also have Judgment of the learned Chief Judicial Magistrate on record before us. However, it was not produced on the record of the enquiry proceedings on the ground that said chit was in the police custody to be produced in Criminal Trial. We also have Judgment of the learned Chief Judicial Magistrate on record before us. It has been stated in no uncertain terms that the chit alleged to have been issued by delinquent officer, has not been produced in case to prove that the bundles have been delivered to Birdhi Chand by Ganga Ram. Thus the alleged chit allegedly in the hand of petitioner on the basis of which 9 bundles have been delivered to Ganga Ram by Birdhi Chand was neither before the Enquiry Officer in departmental proceedings nor part of the court record, yet the enquiry officer quotes the contents of said chit. He refers that only contents of chit as " 9- caMy yksgs ds lfj;s tku ns ". The delinquent has stated that he has allowed the delivery of 9 bundles on authorisation of officer who was having joint charge of store. Chit was admittedly not with the delinquent officer, but was delivered to Birdhi Chand and from whom it was alleged to be taken by police. How and on what basis contents of chit could be quoted and on what basis it could be assumed that it did nut containing authorisation of A.En. or that it was in the hand of delinquent. 9. Therefore, the reference to the chit was apparently to non-existence material on record by the enquiry officer which has been relied upon by the disciplinary authority. 10. In the circumstances there was no material to dissect his admission of delivery of goods. For the same reason CJM too found charges of theft against delinquent not proved. We, therefore, hold that conclusion on charge of theft stand vitiated by relying on a document which was not produced on record. 11. This vitiates the finding about unauthorised delivery of goods by the delinquent officer. 12. However, we do not find any fault with the findings about the willful absence form the duty. We can not accept the contention of fine distinction offending him guilty of leaving head quarter without permission but not of remaining absence from duty from 24.8.71 to 20.9.71 and his absence does not amount to wilful absence from duty. 13. 12. However, we do not find any fault with the findings about the willful absence form the duty. We can not accept the contention of fine distinction offending him guilty of leaving head quarter without permission but not of remaining absence from duty from 24.8.71 to 20.9.71 and his absence does not amount to wilful absence from duty. 13. In the- totality of the circumstances it undoubtedly stands proved by the testimony of the petitioner himself that the 9 bundles of the steel were delivered to Birdhi Chand by his permission under the authority of A.En. Engineer. It is also proved that he was wilfully absent from duty as alleged. However, that part of the finding that it was without authorisation from any superior authority remains not proved. 14. In the aforesaid circumstances, we deem it just and proper on the basis of the facts proved that the punishment of with-holding of five increment with cumulative effect is upheld. However, order of forfeiture of past services, in the circumstances will amount to double jeopardy and excessive, looking to findings that could only be sustained, hence set-aside. 15. This appeal accordingly partly succeeds.Appeal partly succeeds. *******