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2004 DIGILAW 1441 (RAJ)

Asgar Ali v. The State of Rajasthan

2004-10-01

SUNIL KUMAR GARG

body2004
Judgment S.K. Garg, J.-The petitioner has filed the present writ petition under Article 226/227 of the Constitution of India on 07.06.2002 against the respondents with a prayer that by an appropriate writ, order or direction the Annexure-10 (order dated 24.04.2001) by which review petition filed by the petitioner was rejected by His Excellency the Governor, Annexure-8/A (order dated 10.06.1998) by which representation (Annexure-8) filed by the petitioner was rejected by the DIG Police, Jodhpur Range, Jodhpur (Respondent No. 3) Annexure-6 (order dated. 03.06.1981) passed by the Inspector General of Police (Respondent No. 2) by which appeal filed by the petitioner was rejected and Annexure-5 (order dated 07.09.1978) passed by the Deputy Inspector General of Police, Jodhpur Range Jodhpur (Respondent No. 3) by which in an enquiry under Rule 16 of the Rajasthan Civil Services (Classification , Control and Appeal) Rules , 1958 (hereinafter referred to as the Rules of 1958), the petitioner was removed from service be quashed and set aside. 2. It arises in the following circumstances:- (i) That the petitioner was constable at the Police Station, Desuri at the relevant time in the year 1975 and on 28.06.1975, one constable Lal Mohd.brought two men and three women having three small cloth bags with them and on search being conducted by Sub Inspector Idan, 15 kgs. of opium was found in them. It was further stated that the Sub-Inspector Idan did not conduct any investigation and released the accused persons. In respect of that incident, a charge-sheet dated 24.09.1975 (Annexure-1) was issued to the petitioner under Rule 16 of the Rules of 1958, containing two charges. Sum and substance of the charges are as under:- (i)That the petitioner was posted as constable at the Police Station Desuri for the period from 02.03.1975 to 12.09.1975 and while he was posted as such, on 28.06.1975, Lal Mohd. brought two men and three women having three small cloth bags with them and on the search being conducted by Sub Inspector Idan, 25 kgs. of contraband opium was found in them and said opium was misappropriated by Sub-Inspector Idan and Sub-Inspector Idan released the accused persons and thus, the present petitioner was also a party to the conspiracy fulfilling selfish motive and leaving the duty without taking any sort of permission and providing succor in disposition of illegal opium. of contraband opium was found in them and said opium was misappropriated by Sub-Inspector Idan and Sub-Inspector Idan released the accused persons and thus, the present petitioner was also a party to the conspiracy fulfilling selfish motive and leaving the duty without taking any sort of permission and providing succor in disposition of illegal opium. (ii) Not only that, thereafter, the petitioner without informing the higher authorities accompanied Sub Inspector Idan in a jeep and disbursed the contraband opium for illegal consideration and further more he did not inform about happenings of that incident to the higher authorities. (iii) That the petitioner submitted reply (Annexure-2) to the charge-sheet (Annexure-1) and the enquiry against the petitioner for the aforesaid two charges was conducted by Deputy Superintendent of Police, Circle Sojat and after regular enquiry, he found the petitioner guilty of the aforesaid charges and punishment of removal from service was proposed. (ii) That the petitioner was sent a notice dated 24.05.1977 (Annexure-3) alongwith an enquiry report whereby punishment of dismissal from service was proposed against the petitioner. (iv) Further case of the petitioner is that for the same occurrence, a criminal case was registered against the petitioner and on 01.09.1978; challan for offence under Sections 409, 217 and 225 IPC was filed against the petitioner bearing FIR No.43/76. (v) Further case of the petitioner is that through application dated 04.09.1978 (Annexure-4) he made a request to the DIG, Jodhpur Range, Jodhpur (Respondent No.3) that further proceedings in departmental enquiry be stayed. (vi) Further case of the petitioner is that instead of that, through impugned order dated 07.09.1978 (Annexure-5) enquiry report was accepted and the petitioner was dismissed from service by the DIG, Jodhpur Range, Jodhpur (Respondent No.3) (vii) Further case of the petitioner is that thereafter against the order dated 07.09.1978 (Annexure-5) the petitioner preferred an appeal under Rule 23 of the Rules of 1958 before the Inspector General of Police (Respondent No. 2) and the Respondent No. 2 (IGP) vide order dated 03.06.1981 (Annexure-6) dismissed the appeal filed by the petitioner and upheld the order dated 07.09.1978 (Annexure-5) (viii) Further case of the petitioner is that since there was criminal case pending against him, therefore, he was advised not to proceed further against the appellate order dated 03.06.1981 (Annexure-6) passed by the Respondent No. 2 (IGP) and awaited the decision of criminal case. (ix) Further case of the petitioner is that trial of the criminal case bearing No.196/93 came to be concluded through Judgment and order dated 30.03.1996 (Annexure-7) passed by the learned ACJM (Communal Riots), Pali by which the petitioner was acquitted of the charges for offences under Section 409 read with Section 109 IPC. (x) Further case of the petitioner is that the appeal filed by the State against the Judgment and order of acquittal dated 30.03.1996 (Annexure-7) was dismissed by this Court through Judgment dated 07.08.1997. (xi) Further case of the petitioner is that since he was acquitted in criminal case, therefore, he made a representation to the Respondent No. 2 (IGP), but the representation of the petitioner was dismissed vide order dated 10.06.1998 (Annexure-8-A) passed by the Respondent No. 3 (Dy. Inspector General of Police, Jodhpur Range, Jodhpur). (xii) Further case of the petitioner is that against the order dated 10.06.1998 (Annexure-8/A), he filed a representation before the Deputy Secretary, Home Department, Jaipur, but the Deputy Secretary, Home Department, Jaipur through order dated 112.1998 (Annexure-9) dismissed the representation of the petitioner as time barred by treating the same as review. (xiii) Further case of the petitioner is that thereafter he submitted a review petition before His Excellency the Governor of Rajasthan challenging the order dated 112.1998 (Annexure-9), but His Excellency the Governor of Rajasthan vide order dated 24.04.2001 (Annexure-10) dismissed the review petition. Hence, this writ petition with the abovementioned prayer. 3. In this writ petition, the main submission of the learned Counsel for the petitioner is that since the petitioner was acquitted by the criminal Court through Judgment and order dated 30.03.1996 (Annexure-7), therefore, the aforesaid four impugned orders should have been quashed and set aside and the petitioner should be ordered to be reinstated in service. .4. Reply to the writ petition was filed by the respondents and their case is that since appeal of the petitioner was dismissed vide order dated 03.06.1981 (Annexure-6), therefore, the rest proceedings were taken by the petitioner with so considerable delay and hence, the impugned orders were rightly passed against the petitioner and no case for interference is made out and the writ petition be dismissed. .5. Heard. 6. There is no dispute on the point that the petitioner was served with a charge-sheet dated 24.09.1975 (Annexure-1) containing two charges under Rule 16 of the Rules of 1958. 7. .5. Heard. 6. There is no dispute on the point that the petitioner was served with a charge-sheet dated 24.09.1975 (Annexure-1) containing two charges under Rule 16 of the Rules of 1958. 7. There is also no dispute on the point that after departmental enquiry, the Disciplinary Authority after accepting the enquiry report, through order dated 07.09.1978 (Annexure-5) imposed punishment of dismissal from service on the petitioner. 8. There is also no dispute on the point that against the order dated 07.09.1978 (Annexure-5), the petitioner preferred an appeal before the Respondent No. 2 (IGP) and the Respondent No. 2 dismissed the same vide Judgment dated 03.06.1981 (Annexure-6). 9. There is also no dispute on the point that in the criminal case, the petitioner was acquitted through Judgment and other dated 30.03.1996 (Annexure-7). 10. There is also no dispute on the point that against the order dated 03.06.1981 (Annexure-6), the petitioner did not file any review to the higher authorities upto the year 1998 and in the year 1998, the petitioner submitted a representation (Annexure-8) which was dismissed through order dated 10.06.1998 (Annexure-8/A). 11. There is also no dispute on the point that against the order dated 10.06.1998 (Annexure-8/A), the petitioner filed a representation before the Deputy Secretary, Home Department which was dismissed as time barred through order dated 112.1998 (Annexure-9). 12. There is also no dispute on the point that against the order dated 112.1998 (Annexure-9), the petitioner preferred a review petition before His Excellency the Governor of Rajasthan and the same was dismissed vide Judgment dated 24.04.2001 (Annexure-10). 13. Now the question which arises for consideration is whether in the facts and circumstances of the present case order of punishment dated 07.09.1978 (Annexure-5), order dated 03.06.1981 (Annexure-6), order dated 10.06.1998 (Annexure-8/A) and order dated 24.04.2001 (Annexure-10) are liable to be quashed and set aside or not and whether in view of the fact that the petitioner was acquitted in the criminal case, the penalty of dismissal of service imposed vide order dated 07.09.1978 (Annexure-5) after holding an enquiry under Rule 16 of the Rules of 1958 and upheld by order dated 03.06.1981 (Annexure-6) in an appeal filed by the petitioner can be quashed or not. .14. .14. Before proceeding further legal position in respect of continuance of departmental proceedings pending civil or criminal proceeding on the same charges, can be summarized in the following manner: - .(i) It is evident that neither the constitutional provision in Article 20(2) nor the principle of res judicata is applicable to departmental proceedings so that prima facie there is nothing to prevent the Government to proceed against a Government servant departmentally even where he has been exonerated on the same charge by a departmental proceeding previously. .(ii) There is nothing to debar the departmental authorities to initiate and continue disciplinary proceedings merely because a proceeding is pending in a criminal Court, on the same charges. There would be no contempt of Court by the departmental authorities, in the absence of a stay order from the Court and for that law laid down in the case of Jang Bahadur Singh vs. Baij Nath Tiwari, reported in AIR 1969 SC 30 and Union of India vs. Patnaik, M.B, reported in AIR 1981 SC 858 may be referred to. .(iii) Even where the Government servant has been acquitted in the criminal case, it is open to the Government to proceed against him departmentally on the same charge, after complying with Article 311(2). Such proceeding after acquittal by the criminal Court is not barred by Article 20(2), in as much as a departmental proceeding does not constitute a ‘prosecution’ within the meaning of Article 20(2) of the Constitution of India and for that law laid down in the case of State of A.P. vs. Rama Rao, reported in AIR 1963 SC 1723 may be referred to. .(iv) The above proposition holds good even where the acquittal has been made by the High Court and the initiation of departmental proceedings after such acquittal cannot be held to constitute contempt of the High Court, because the two proceedings are entirely different in nature and scope. .15. .(iv) The above proposition holds good even where the acquittal has been made by the High Court and the initiation of departmental proceedings after such acquittal cannot be held to constitute contempt of the High Court, because the two proceedings are entirely different in nature and scope. .15. In my considered opinion, the present writ petition deserves to be dismissed because of the following reasons:- .(i) The questions which have been formulated above, had been answered by the decision of Hon’ ble Supreme Court in the case of Secretary, Ministry of Home Affairs vs. Tahir Ali Khan Tyagi reported in JT 2002 (Supp.1) SC 520, in which the Hon’ble Supreme Court has observed as under:- .“Rule 12- Department proceedings-Maintainability, when for the same charges the person is acquitted by criminal Court - allegations about acceptance of bribe by respondent -Respondent caught in trap-Consequesnt prosecution proceedings - criminal Court however acquitting the accused since the prosecution witnesses did not support the prosecution case-Subsequent department initiating disciplinary proceedings for the same charges-Administrative Tribunal quashing the proceedings on the ground of the acquittal of the accused by criminal Court-High Court dismissing the writ filed by the Government-whether dismissal of writ in order-Whether department proceedings not maintainable in view of acquittal of the accused. Held, there was no prohibition for continuation of criminal proceedings and departmental proceedings simultaneously and that even after acquittal in criminal proceedings the departmental proceedings can continue since the degree of proof varies. That apart in view of Rule 12 the departmental proceedings can be initiated in such a case. Order of High Court as well as Tribunal, therefore, set aside and departmental proceedings directed to be proceeded with expeditiously. .(ii) Placing reliance on the case of Secretary, Ministry of Home Affairs vs. Tahir Ali Khan Tyagi (Supra), it is held that acquittal in criminal case would not affect the fate of departmental enquiry as well as punishment imposed in that enquiry. .(ii) Placing reliance on the case of Secretary, Ministry of Home Affairs vs. Tahir Ali Khan Tyagi (Supra), it is held that acquittal in criminal case would not affect the fate of departmental enquiry as well as punishment imposed in that enquiry. (iii) Sofar as present case is concerned, it may be stated here that the departmental enquiry was concluded in the year 1978 when punishment was imposed on the petitioner vide order dated 07.08.1978 (Annexure-5) by the disciplinary authority and the criminal proceedings came to an end vide Judgment dated 30.03.1996 (Annexure-7) and therefore, these criminal proceedings have no nexus with the departmental enquiry that had taken place long back and thus the acquittal of the petitioner would not effect the impugned orders passed earlier in the departmental enquiry. (iv) Apart form this, there is one more aspect which goes against the present petitioner that the order of punishment (Annexure-5) was passed on 07.09.1978 by the Disciplinary Authority and the order dated 07.09.1978 (Annexure-5) was upheld by the appellate authority (Respondent No. 2) vide order dated 03.06.1981 (Annexure-6) and now the same has been challenged by the petitioner after so many years in the year 1998. In my considered opinion though there is no specific period of limitation for filing the writ petition, but High Court may refuse to exercise this extraordinary power where the petitioner is found guilty of laches and undue delay for which there is no satisfactory explanation. Unless the facts and circumstances of the case clearly justify the laches or undue delay, the petitioners , the citizens or otherwise , would not be entitled to relief . All that the High Court has to see is whether the laches on the part of the petitioner are such as to disentitle him to relief claimed by him. However, the petition should be filed within a reasonable time and from point of view also, the petitioner is not entitled to the relief sought for. 16. So far as reliance placed by the learned Counsel for the petitioner on the case of Capt. However, the petition should be filed within a reasonable time and from point of view also, the petitioner is not entitled to the relief sought for. 16. So far as reliance placed by the learned Counsel for the petitioner on the case of Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. & Anr., reported in JT 1999 (2) SC 346 is concerned, that case pertains to the stay of proceedings and in the present case, punishment of removal was imposed on the petitioner long back in the year 1978 and the petitioner was acquitted in the criminal case in the year 1996 and thus, this authority would not be helpful to the learned Counsel for the petitioner. 17. So far as reliance placed by the learned Counsel for the petitioner on the case of Mangal Chand Sain vs. State of Rajasthan reported in 2001 (5) WLC 219 (Raj) is concerned, it may be stated that facts of that case are altogether different one in the manner that in the present case dismissal order was passed on 07.09.1978 while the order of acquittal was passed by the criminal Court on 30.03.1996. 18. So far as reliance placed by the learned Counsel for the petitioner on the case of Mohd. Umar vs. Rajasthan State Electricity Board, reported in 1993 (1) WLC 253 (Raj) is concerned it is stated that the same cannot be held a good law in view of decision of Hon’ble Supreme Court in the case of Secretary, Ministry of Home Affairs vs. Tahir Khan Tvagi (Supra). 19. For the reasons mentioned above, the order of punishment dated 07.09.1978 (Annexure-5) order dated 03.06.1981 (Annexure-6) order dated 10.06.1998 (Annexure-8/A) and order dated 24.04.2001 (Annexure-10) cannot be said to be suffering from any basic infirmity or illegality and hence, the same do not require any interference by this Court and thus, this writ petition deserves to be dismissed. For the reasons mentioned above, the present writ petition is dismissed. No order as to costs.