Research › Search › Judgment

Rajasthan High Court · body

2003 DIGILAW 66 (RAJ)

Jagveer Singh Raghav v. State of Rajasthan

2003-01-17

SHIV KUMAR SHARMA

body2003
JUDGMENT 1. - In the present writ petition the petitioner has sought a direction for quashing the termination order dated May 13, 2002. 2. The facts in brief are that the petitioner while working as Lecturer in Political Science Govt. College Jhalawar served with a memorandum dated October 1, 1991 alleging therein that the petitioner contracted second marriage during the life time of his first wife and the second charge was that he appeared in LL.B. 1st Year Examination without obtaining prior permission from the competent authority. The petitioner averred in the writ petition that he denied the charges at every stage. The enquiry officer was appointed on September 16, 1997 and he submitted enquiry report on May 3, 2000. The petitioner was supplied with the enquiry report by the communication dated May 10, 2000. The petitioner thereafter submitted reply to the enquiry report vide his communication dated July 26 and July 27, 2001. In respect of charge No. 1 the petitioner averred in the reply that this charge was baseless and there was no acceptable evidence on record to prove the same. The enquiry officer prepared the report under bias in violation of the Rules. In relation to second charge the petitioner averred that the adverse remarks in the ACRs, regarding appearing in LL.B. Part I Examination without permission was expunged. The respondents did not consider the explanation of the petitioner and vide order dated May 13, 2000 imposed the punishment of dismissal from service. 3. The respondent No. 1 filed return to the writ petition and averred that the allegations made against the petitioner were found proved after conducting enquiry. It was averred that the petitioner was provided full opportunity to examine the record. The petitioner examined the record on December 16, 1991 and demanded additional documents and the same were collected after great efforts in the year 1995 and the petitioner was informed vide letter dated September 27, 1995 to examine the same. The petitioner was informed vide letters dated 14.2.1996, 15.4.96, 6.5.1996 to examine the record,. thereupon he examined the record from February 26, 1996 to February 28, 1996. The petitioner demanded additional documents but he did not submit reply to the allegations. The enquiry officer was appointed on September 16, 1997. The enquiry officer submitted enquiry report on May 3, 2000. The petitioner was informed vide letters dated 14.2.1996, 15.4.96, 6.5.1996 to examine the record,. thereupon he examined the record from February 26, 1996 to February 28, 1996. The petitioner demanded additional documents but he did not submit reply to the allegations. The enquiry officer was appointed on September 16, 1997. The enquiry officer submitted enquiry report on May 3, 2000. The delay in the enquiry was only on account of the fact that the petitioner did not appear on November 6, 1997, November 22, 1997, December 9, 1997, December 26, 1997, February 5, 1998, January 6, 1999, March 12, 1999, May 7, 1999, June 17, 1999, August 6, 1999, August 23, 1999, September 20, 1999 and October 8, 1999. The petitioner submitted reply to the enquiry report on July 26, 2001. The facts stated in the reply were examined and analysed by the disciplinary authority on merits and on finding the allegations proved against the petitioner after looking into gravity of the charges found proved against him passed the punishment order dated May 13, 2000. 4. On behalf of the respondents written arguments have been submitted wherein it was stated that the charges against the petitioner have been proved and it is not open to the petitioner to challenge the findings of fact. The petitioner was afforded full opportunity of hearing to defend himself. The factum of second marriage by the petitioner has been fully established. Minor discrepancies cannot be made the basis for setting aside the findings of fact. The second charge against the petitioner stood fully proved as he appeared in the examination without prior permission. The order of removal from service is a speaking order wherein a submissions of the petitioner were considered and there is no justifiable ground to interfere under Article 226 of the Constitution of India. 5. In nutshell-the arguments advanced on behalf of the petitioner are as under: (a) The facts of the case demonstrates decisively the dismal story of harassment, sufferings and victimisation. The enquiry officer viewed the culpabilities of the petitioner from the prism of prosecution which is not permissible under law. (b) The charge sheet was served to the petitioner on October 1, 1991 but the inquiry officer was appointed on September 16, 1997 after a lapse of good span of time of about six years. The enquiry officer viewed the culpabilities of the petitioner from the prism of prosecution which is not permissible under law. (b) The charge sheet was served to the petitioner on October 1, 1991 but the inquiry officer was appointed on September 16, 1997 after a lapse of good span of time of about six years. (c) The charge of bigamy was based on the written complaint by Tola Ram Mewara in April 1986. The said Tola Ram did not appear before the enquiry officer and the SP Jhalawar vide his letter dated September 18, 1998 informed that no person in the name of Shri Tola Ram Mewara resides in Jhalrapatan. (4) The enquiry officer in the enquiry report did not deal with the issue of non-examination of complainant during the enquiry and observed that presence of Tola Ram was not essential. (e) In relation to charge of bigamy neither the complainant was produced nor second wife with whom the petitioner contracted second marriage was produced. (f) PW. 2 R.C. Sharma in his statement stated that Mahaveer Singh Solanki PTI extended aid to the petitioner in contracting second marriage. The name of PTI is Ranveer Singh Solanki and no Mahaveer Singh Solanki_ Ranveer Singh Solanki was not produced to support the allegation whether he extended any aid to the petitioner in contracting second marriage. (g) The charge of appearing in LL.B. examination without obtaining prior permission stood condoned in view of the fact that the adverse entries recorded in the confidential report were expunged. (h) The punishment awarded is shockingly dis-proportionate. 6. I have pondered over the rival submissions and scanned the record. 7. Constitution Bench of Hon'ble Apex Court in Union of India v. H.C. Goyal, AIR 1964 SC 364 indicated in para 20 thus : "In dealing with writ petitions filed by public servants who have been dismissed, or otherwise, dealt with so as to attract Article 311(2), the High Court under Article 226 has jurisdiction to enquire whether the conclusion of the Government on which the impugned order of dismissal rests is not supported by any evidence at all. It is true that the order of dismissal which may be passed against a Government servant found guilty of misconduct, can be described as an administrative order; nevertheless, the proceedings held against such a public servant under the statutory rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and there can be little doubt that a writ of certiorari, for instance, can be claimed by a public servant if he is able to satisfy the High Court that the ultimate conclusion of the Government in the said proceedings, which is the basis of his dismissal, is based on no evidence. In fact, in fairness to the learned Attorney General, we ought to add that he did not seriously dispute this position in law." (Emphasis supplied) 8. A bare perusal of the record goes to show that the charge of bigamy against the petitioner was based on the written complaint of Tola Ram Mewara, made in April 1986. Tola Ram did not appear before the enquiry officer and the SP Jhalawar vide his letter dated September 18, 1998 informed that no person in the name of Tola Ram Mewara resided in Jhalrapatan. According to witness R.C. Sharma one Mahaveer Singh Solanki PTI helped the petitioner in contracting second marriage, but no such PTI was produced to support the version of witness R.C. Sharma. It thus appears that conclusion of Disciplinary Authority is based only on the hearsay, testimony of R.C. Sharma and I am satisfied that conclusion in regard to charge of Bigamy is based on no evidence. In regard to second charge I am of the view that extreme punishment of dismissal is not commensurate with the gravity of misconduct and thus is shockingly disproportionate. Three Judges Bench of Hon'ble Supreme court in U.O.I. v. V.K. Chaturvedi, (1995) 6 SCC 749 indicated that the High Court while exercising the power of judicial review cannot normally substitute its. own conclusion on penalty and imposed some other penalty. If the punishment imposed by the disciplinary authority shocks the conscience of the High Court, it would appropriately mould the relief either directing the disciplinary authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons. 9. own conclusion on penalty and imposed some other penalty. If the punishment imposed by the disciplinary authority shocks the conscience of the High Court, it would appropriately mould the relief either directing the disciplinary authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons. 9. In view of what I have discussed herein above, I dispose of the writ petition in the following terms : (i) Impugned termination order dated May 13, 2002 shall stand set aside. (ii) The matter is remitted back to the Disciplinary Authority for imposing appropriate punishment with cogent reasons in support thereof after providing opportunity of hearing to the petitioner. (iii) The petitioner is directed to appear before the Disciplinary Authority on February 3, 2003. (iv) There shall be no orders as to costs. Writ Petition Disposed of in Above Terms. *******