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2005 DIGILAW 3196 (RAJ)

Nasruddin v. State of Rajasthan

2005-12-03

N.P.GUPTA

body2005
Judgment N.P. Gupta, J.-The petitioner by this writ petition seeks to challenge the punishment order Annexure-13, dated 29.01.1992, whereby the petitioner has been dismissed, and his salary, during period of suspension, has been forfeited. The petitioner has also asked for consequential benefits. Some other reliefs have also been claimed, which need not detain me, for the present purposes. .2. The facts of the case, as alleged by the petitioner are, that he was appointed in the Police Department as Constable, on 01.09.1969, however, he was placed under suspension, vide order dated 212.1986, while so being under suspension, he was served with a memorandum, and charge-sheet dated 01.07.1989, being Annexure-4. Thereupon the petitioner requested for supplying copies of all the documents mentioned in the list, but then, he was communicated, that the petitioner may inspect the .document. Thereafter correspondence went on, and the petitioner was called upon to appear in the enquiry. However, since the documents were not supplied, the petitioner asked for change of the Enquiry Officer but nothing came out. According to the petitioner, the Enquiry Officer recorded the evidence of the Department, without supplying documents to the petitioner, and the Defense Assistant participated in the enquiry, without taking the petitioner, in confidence. The petitioner then requested for supplying the copies of the statement, and for change of his Defence Assistant, yet to no good. In the enquiry, so conducted, the statement of five witnesses were recorded, being Sunil Kumar, Tribuvan Singh, Mohan Singh, Suresh Chandra, and Jaymal Singh, and the Enquiry Officer submitted the report, Annexure-11, holding all the charges to be proved, the Disciplinary Authority concurred with the findings, and imposed the punishment, vide Annexure-13, the punishment imposed was, of dismissal from service, and remaining amount of salary, during the period of suspension, was forfeited. The petitioner in that regard filed an appeal, which too was dismissed. It has also been pleaded by the petitioner, that during the period of suspension, he was not paid appropriate subsistence allowance. It is also contended, that the petitioner was criminally prosecuted on the same allegations, and was convicted by the learned trial Court, vide Judgment s Annexures-16 to 16-D, but then, in appeal, he was acquitted in all the five cases by the Appellate Court, vide Judgment s Annexures-17 to 17-D. Inter alia with these averments, the enquiry proceedings, and the punishment order, have been challenged. 3. 3. Arguing the writ petition, it was contended that a bare look at the Enquiry Officers report, would show, that firstly, it is based on no evidence whatever, and secondly, even the conclusions, as have been drawn, cannot be said to be establishing, any of the charges. It is submitted, that even otherwise, there is absolutely no evidence to sustain any of the charges against the petitioner. 4. The matter was heard on 111.2005, and was then heard for more than half an hour on 211.2005, and noticing the contentions of the learned Counsel for the petitioner, and perused of the record the Learned Counsel for the respondent was asked as to how does he support the finding of the enquiry officer and as to how the findings constitute the guilt against the petitioner. Thereupon after giving irrelevant answers here and there, the learned Counsel prayer for adjournment, for which there was no justification, still in the interest of justice the adjournment was granted, subject to payment of costs, to be deposited with the State Legal Service Authority, as a pre-condition for allowing the respondent to argue the matter, and the matter was fixed today. Today the learned Counsel informs that the costs have not been deposited, and also informs that a Special Appeal has been filed against the order dated 211.2005, and also informs that no stay order has been granted therein, rather it has not even come up for admission, so far. In my view, since, the order dated 211.2005, is not even appealable, and since admittedly there is no stay, I proceeded with the hearing, without allowing the learned Counsel to argue the matter. 5. I have considered the submissions of the learned Counsel for the petitioner, and have gone through the record, as is available in the present writ petition. 6. The precise charges framed against the petitioner are 12, contained in Annexure-14. The first being, that on 111.1986, while posted at Police Station Kotgate, Bikaner, he remained absent, without getting the leave sanctioned, and without giving any intimation. The second charge is, that despite being the police employee, he maintained good relations with Ramlal @ Ramla, who is a known burglar. The third charge is, that while being on duty, he actively assisted above Ramlal, in committing burglary in Bikaner town. The second charge is, that despite being the police employee, he maintained good relations with Ramlal @ Ramla, who is a known burglar. The third charge is, that while being on duty, he actively assisted above Ramlal, in committing burglary in Bikaner town. The fourth charge is, that despite knowing the goods to be stolen by Ramlal, were kept by the petitioner in his residence. The fifth charge is, that in FIR No. 319 dated 111.1986, for the offence under Sections 457 and 380, IPC of Police Station Kotgate, the petitioner gave information under Section 27 Evidence Act, that the stolen goods are concealed at his residence, thereupon he was arrested, and on his information, and on the information of the accused Ramlal, the goods were recovered from the petitioners house. Thus, this establishes, an active collusion between the petitioner and Ramlal, the Recovery Memobears signatures of the petitioner, and Challan has been filed against the petitioner. More or less similar are the Charges No. 6, 7, 8 and 9, which relate to different FIRs. Then, Charge No. 10 is, about dereliction or duties, and assisting Ramlal, while Charge No. 11 is, about having not informed the superior officers about Ramlal, despite knowing Ramlal to be a ranked burglar, rather he was extending active assistance, and Charge No.12 is, that by his above conduct the image of the Police Department has been spoiled. 7. A look at the enquiry report, Annexure-11, shows, that the Enquiry Officer verbatim cataloged all the twelve charges, then has purportedly cataloged the oral evidence, then has given the list of documentary evidence. 7. A look at the enquiry report, Annexure-11, shows, that the Enquiry Officer verbatim cataloged all the twelve charges, then has purportedly cataloged the oral evidence, then has given the list of documentary evidence. A look at the list of documents shows, that Exhibit-1is the Recovery Memo dated 112.1986, relating to FIR No. 319, while Exhibit-2 is the Recovery Memo dated 112.1986, relating to FIR No. 337, then Exhibit-3 is the Judgment , about the petitioner having been convicted by the Court of Judicial Magistrate 1st Class, Bikaner City, and having been punished with a sentence of one years imprisonment in Criminal Case No. 261/1987 and 10/1988 relating to FIR No. 319, while Exhibit-4 is the Judgment , about the petitioner having been convicted by the Court of Judicial Magistrate 1st Class, Bikaner City, and having been punished with a sentence of one year imprisonment in Criminal Case No. 262/1987 and 11/1988, relating to FIR No. 328 then Exhibit-5 is the Judgment , about the petitioner having been convicted by the Court of Judicial Magistrate 1st Class, Bikaner City, and having been punished with a sentence of two years simple imprisonment in Criminal Case No. 1033/1989, relating to FIR No. 337, then Exhibit-6 is the Judgment , about the petitioner having been convicted by the Court of Judicial Magistrate 1st Class, Bikaner City, and having been punished with a sentence of one year imprisonment in Criminal Case No. 264/1987, relating to FIR No. 330, and then Exhibit-7 is the Challan filed against the petitioner, in FIR No. 329. Then, after cataloging this written evidence, the learned Enquiry Officer has purportedly discussed the evidence, and while discussing the evidence, with regard to Charge No. 1, all that has been mentioned is, that it is established, that Nasirudeen, petitioner, is employed as Constable No. FC-174 in the Police Department. Significantly even on the face of it, it has not been found, that on 111.1986, he absented or absented without leave, or information. Significantly even on the face of it, it has not been found, that on 111.1986, he absented or absented without leave, or information. Then the evidence regarding Charges No. 2 to 12 has been discussed together, and it has been considered, that it has been found to be correct, that in criminal cases of Police Station Kotgate, the petitioner was having good relations with the accused Ramlal, and the petitioner, alongwith Ramlal, has been prosecuted in the cases, and has been convicted, as is proved by Exhibits-3, 4,5 and 6, while the matters relating to Exhibits-2 and 7 are pending, and that Challan has been filed against him, with respect of FIR Nos. 319, 328, 329, 330 and 337. Then the learned enquiry officer has purportedly drawn his conclusions, to the effect, that Charge No. 1 is fully established from the evidence and regarding Charges Nos. 2 to 12, it has been found, that in FIR Case Nos. 319, 328, 329, 330 and 337 Exhibit-12 the Recovery Memo under Section 27 Evidence Act, the petitioner has been challenged, alongwith Ram Lal, as is proved by PW. 2, and the petitioner has been punished vide Exhibits-3, 4, 5 and 6, and the matter relating to Exhibit-7 is pending. Thus, the petitioner has been found guilty. 8. The Disciplinary Authority, in turn, vide Exhibit-13, has held, that he fully concurs with the report of the Enquiry Officer, and has found, that the Charge No. 1 is partly established, that though the petitioner is employed as Constable in the Police Department, but was not posted at Kotgate Police Station. Then in Charge Nos. 2 to 10, it is established, that he assisted Ramlal, received the stolen goods, and deliberately concealed it in his house. It is also recorded, that in the enquiry, it is established, that in serious offences like Sections 457 and 380 IPC, the petitioner was arrested, Ramlal gave, information, about having given goods to the petitioner, thereupon the petitioner was arrested, and on his information, the various goods were recovered, from various places, and thus the Charges No. 11 and 12 are also established, it has also been found, that the petitioner has been convicted. According to the Disciplinary Authority, thus the petitioner is guilty of all the charges, and he was visited with the punishment, as above. .9. According to the Disciplinary Authority, thus the petitioner is guilty of all the charges, and he was visited with the punishment, as above. .9. At the outset, it may be observed, that so far as the conviction is concerned, a look at Annexures-17 to 17-D which are certified copies of the Judgment of learned Additional Sessions Judge, Bikaner, show, that the petitioner has been acquitted in all the five cases, in which he was convicted. Then coming to the charges and the findings, so far Charge No. 1 is concerned, the charge precisely was, that on 111.1986 he was posted at Police Station Kotgate, and remained absent, and the finding of the Enquiry Officer is that he was in the employment of the Police Department, while the finding of the Disciplinary Authority is, that he was not posted at Police Station Kotgate. It passes all comprehension, as to how, on the findings on Charge No. 1, it could be said to be proved, even to any little extent. Then regarding charge Nos.2 to 4, no finding has been recorded by the Enquiry Officer, about his having developed good relations with Ramlal, or his having extended active assistance to Ramlal, in committing burglary, or about his having received the goods, knowing them to be stolen. It .appears, that the whole thrust of the Enquiry Officer is, on the basis of the allegations contained in charges No. 6, 7, 8 and 9. Significantly, all these charges only comprehend lodging of the first report, recovery of the goods from the house of the petitioner, on the information of the petitioner, and the petitioner having been prosecuted, which prosecution is pending. The charge-sheet does not talk about any conviction, nor there was any charge against the petitioner, contemplating his removal from service on the basis of his having been convicted, simpliciter, mere pendency of the prosecution, by itself , cannot be said to be tantamounting to constitute misconduct, requiring initiation, or continuance, of any disciplinary proceedings. May be, that the factual averments, on the basis on which the employee is being prosecuted, may constitute misconduct, and for that misconduct, the disciplinary proceedings may be taken, but then, mere pendency of prosecution, cannot be said to be misconduct. May be, that the factual averments, on the basis on which the employee is being prosecuted, may constitute misconduct, and for that misconduct, the disciplinary proceedings may be taken, but then, mere pendency of prosecution, cannot be said to be misconduct. In that view of the matter, since mere pendency of prosecution, does not amount to misconduct, conviction having already been set aside, and the petitioner has been acquitted, the only thing requiring to be seen is, as to whether, the factual averments, comprised in the charges, constituting misconduct, have at all been proved. If the enquiry report, and the order of Disciplinary Authority is considered from that stand point once again, I find, that none of the informations said to have been given by the petitioner, under Section 27 Evidence Act, have even been tendered in evidence, much less proved, before the enquiry officer, nor they had been relied upon, by the Enquiry Officer, as a fact, to establish, that the goods were in conscious possession of the petitioner, and were concealed by him, from where, they were recovered. 10. In that view of the matter, significantly, all the authorities below, have not even directed themselves, on this aspect of the matter, and have simply found all the charges proved, because, by then the petitioner was found to have been convicted in four cases, and prosecution was, pending in one case. Even at the cost of repetition, it may be observed, that pending prosecutions, as well as the convictions, have all, finally resulted into acquittal, and since, beyond that, there is no evidence, to establish any of the charges, the impugned order can possibly be not sustained. 11. Even at the cost of repetition, it may be observed, that pending prosecutions, as well as the convictions, have all, finally resulted into acquittal, and since, beyond that, there is no evidence, to establish any of the charges, the impugned order can possibly be not sustained. 11. Consequently, I am left with no option, but to allow the writ petition, with a heavy heart, inasmuch as, it clearly appears that the persons concerned with the enquiry, have not conducted the enquiry in accordance with law, rather they have proceeded superficially, inasmuch as, as I find from Annexure-4, that the Information Memos, about the information given by the petitioner under Section 27, was produced alongwith charge-sheet before the Enquiry Officer, but then, in the evidence led, none of the witnesses have proved any of those information memos, Not only that, no evidence was led, even to show, that the petitioner had given any such information, nor the unproved Information Memos have at all been relied upon by any of the authorities below. In other words, no effort has been made to prove the ingredients of the charges, de-hors the mere fact of pendency, of the prosecution. Notwithstanding all this, as the material stands, the impugned order has to be set aside. 10.12. Accordingly, the writ petition is allowed. The impugned order of punishment is set aside, with all consequential benefits. It is also directed, that the consequential benefits, flowing to the petitioner, including reinstatement, and payment of all emoluments be expeditiously done, inasmuch as, the petitioner be reinstated forthwith, and the emoluments be paid within a period of three months from today. 113. It is also directed that if this order is not complied with, it shall be executable, by the Principal Civil Court, as a Decree of civil Court, in accordance with the provisions of Order 21, CPC. It is made clear, that it will be open to the authorities concerned, to proceed against the officers, who had been at fault, in conducting the enquiry, in such a negligent manner, as has brought about the situation like this, where the petitioner, who is suspected to the extent of the charges, has to be exonerated, after such a long period of time, and with all consequential benefits.