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2005 DIGILAW 38 (RAJ)

Sumer Singh v. State of Raj.

2005-01-05

SUNIL KUMAR GARG

body2005
Honble GARG, J.–This writ petition under Articles 226 and 227 of the Constitution of India has been filed by the petitioner against the respondents on 23.9.2002 with the prayer that by an appropriate writ, order or direction, the order dated. 24.1.2000 (Annex. 9) passed by the Superintendent of Police, Bikaner (respondent No. 4) by which apart from charge No. 1, rest charges Nos. 2 and 3 were also found proved against the petitioner and penalty of stoppage of two annual grade increments with cumulative effect were imposed upon the petitioner and the order dated 20.10.2000 (Annex. 11) passed by the respondent No. 3 Dt. Inspector General of Police, Bikaner Range, Bikaner by which the appeal of the petitioner was dismissed and further, the order dated 5.12.2001 (Annex. 13) passed by the respondent No. 3 Dy. Secretary, Department of Home (Appeal), Govt. of Rajasthan, Jaipur by which the review petition of the petitioner was rejected, be quashed and set aside. (2). It may be stated here that when the petitioner was working as Driver in capacity as Constable, a complaint (Annex. 2) was made against him by one Smt. Sujata on 20.7.1998 stating inter- alia that on that day i.e. 20.7.1998 at about 9.00 PM, the petitioner tried to outrage her modesty and snatched her chain and on the basis of that complaint, a criminal case for the offence under sections 341, 324, 354, 382 IPC was got registered against the petitioner. During investigation of that case, an affidavit (Annex. 3) dated 23.7.1998 was submitted by the complainant Smt. Sujata stating that the person, who tested her was not the petitioner and since during trial, the complainant Smt. Sujata and her husband Kanwarjeet Singh became hostile, therefore, the petitioner was acquitted of all the charges framed against him for the offence under Sections 354, 382, 324 IPC through judgment and order dated 8.10.1998 (Annex. 4) passed by the learned Judicial Magistrate First Class, Bikaner. (3). It may further be stated here that during the pendency of above criminal case against the petitioner, a charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ``the CCA Rules) was issued by the respondent No. 4 Superintendent of Police, Bikaner against the petitioner through Memorandum Annex. (3). It may further be stated here that during the pendency of above criminal case against the petitioner, a charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ``the CCA Rules) was issued by the respondent No. 4 Superintendent of Police, Bikaner against the petitioner through Memorandum Annex. 5 dated 17.8.1998 by which the following three charges were framed against the petitioner:- (i) That on 20.7.1998 when the attendance of the police officials was taken, the petitioner was found absent and for that, he had not informed and thereafter, he was marked absent in the attendance register. (ii) That on 20.7.1998 at about 9.00 PM without obtaining permission he went to Shiv Mandir, Mukta Prasad Colony where he tried to outrage the modesty of one Sujata and he also snatched her golden chain and further, when her husband Kanwarjeet Singh tried to catch-hold him, he caused injuries by knife. (iii) That on the basis of complaint filed by Smt. Sujata, FIR No. 260/98 for the offence under sections 341, 324, 382, 354 IPC was registered against the petitioner and in consequence of that, the petitioner was arrested on 21.7.1998 and he remained in police custody upto 25.7.1998 and thus, while working as police official, he had committed criminal act by which the image of police lowered down. A detailed reply to the above charges was submitted by the petitioner through Annex. 6 and after conclusion of departmental enquiry, the Enquiry Officer submitted his report Annex. 7 to the respondent No. 4 Superintendent of Police, Bikaner by which he found charge No. 1 proved against the petitioner, but he did not find the charges Nos. 2 and 3 proved against the petitioner because the complainant Smt. Sujata, PW 4 has become hostile and she has filed her affidavit stating that the person, who tested her was not the petitioner. However, the respondent No. 4 Superintendent of Police, Bikaner (Disciplinary Authority) did not accept the report (Annex. 7) of the Enquiry Officer in respect of charges Nos. 2 and 3 and while disagreeing with the finding of the Enquiry Officer on charges Nos. However, the respondent No. 4 Superintendent of Police, Bikaner (Disciplinary Authority) did not accept the report (Annex. 7) of the Enquiry Officer in respect of charges Nos. 2 and 3 and while disagreeing with the finding of the Enquiry Officer on charges Nos. 2 and 3, he came to the conclusion that part from charge No. 1, the petitioner was also guilty of the charges No. 2 and 3 and thus, after holding the petitioner guilty of all the three charges levelled against him, he imposed the penalty of stoppage of two annual grade increments with cumulative effect through order dated 24.1.2000 (Annex. 9). The gist of that order Annex. 9 passed by the respondent No.4 Superintendent of Police may be summarized in the following manner:- (i) That he was not satisfied with the findings of the Enquiry Officer in respect of charges Nos. 2 and 3. (ii) That petitioner was acquitted because the complainant Smt. Sujata was declared hostile, but the possibility that affidavit would have been filed by the complainant Smt. Sujata under pressure of the petitioner could not be ruled out and he does not want to give any importance to the affidavit of complainant Smt. Sujata in departmental enquiry. Therefore, after giving above findings, he came to the conclusion that the petitioner was guilty of all the three charges levelled against him and thus he imposed penalty of stoppage of two annual grade increments with cumulative effect against the petitioner. (4). Aggrieved from the said order Annex. 9 dated 24.1.2000 passed by the respondent No. 4 Superintendent of Police, Bikaner, the petitioner preferred appeal through Annex. 10 before the Appellate Authority respondent No.3 Dy. Inspector General of Police, Bikaner Range, Bikaner, who through order Annex. 11 dated 20.10.2000 dismissed the appeal of the petitioner. Thereafter, the petitioner submitted a review petition through Annex. 12, but the same was also rejected by the respondent No.2 Dy. Secretary through order Annex. 13 dated 5.12.2001. Hence, this writ petition with the prayer as stated above. (5). In this petition, the learned counsel for the petitioner has not assailed the findings recorded by the authorities below in respect of charge No.1, but he has assailed the findings of the Disciplinary Authority (respondent No. 4) as contained in the order Annex. 9 dated 24.1.2000, Appellate Authority (respondent No. 3) as contained in the order Annex. (5). In this petition, the learned counsel for the petitioner has not assailed the findings recorded by the authorities below in respect of charge No.1, but he has assailed the findings of the Disciplinary Authority (respondent No. 4) as contained in the order Annex. 9 dated 24.1.2000, Appellate Authority (respondent No. 3) as contained in the order Annex. 11 dated 20.10.2000 and Reviewing Authority (respondent No. 2) as contained in the order Annex. 13 dated 5.12.2001 in respect of charges Nos. 2 and 3. (6). The main case of the learned counsel for the petitioner is that since the complainant Smt. Sujata herself has been declared hostile, therefore, charges Nos. 3 and 3 should have not been found proved against the petitioner especially when the Enquiry officer had not found the charges Nos. 2 and 3 proved against the petitioner and furthermore, the Disciplinary Authority respondent No.4 Superintendent of Police while disagreeing with the findings of the Enquiry Officer on charges Nos. 3 and 3, has not assigned any cogent reasons and the findings of the Disciplinary Authority in respect of charges Nos. 2 and 3 are based on conjectures and surmises and they are not supported by any evidence and they are wholly perverse and erroneous one and thus, the same cannot be sustained and liable to be set aside. (7). A reply to the writ petition was filed by the respondents and it was submitted by them that no doubt the petitioner was acquitted in criminal case, but in departmental enquiry, charges could be found proved against him. Hence, no illegality or irregularity has been committed by the Disciplinary Authority in holding the petitioner guilty of the charges Nos. 2 and 3. Thus, no interference is called for and this writ petition deserves to be dismissed. (8). I have heard the learned counsel for the petitioner and the learned counsel for the respondents and gone through the entire materials available on record. (9). Before proceeding further, legal position in respect of departmental enquiry especially when there is acquittal in criminal case has to be mentioned here. Disciplinary Authority disagreeing with enquiry officer (10). It may be stated here that after receiving the enquiry report the Disciplinary Authority may find it difficult to agree with the findings in the enquiry report. (9). Before proceeding further, legal position in respect of departmental enquiry especially when there is acquittal in criminal case has to be mentioned here. Disciplinary Authority disagreeing with enquiry officer (10). It may be stated here that after receiving the enquiry report the Disciplinary Authority may find it difficult to agree with the findings in the enquiry report. The rules generally provide that in case of such disagreement he must record his reasons and also record his own findings if the evidence already on record is sufficient for that purpose or remit the case to the enquiry authority for further enquiry and report. In other words, while disagreeing with the findings of the Enquiry officer, the Disciplinary Authority is not only required to record his reasons but also record his own findings on such charges by analyzing the evidence for the purpose of coming to the conclusion as to how and in what manner the charges as against the employee can be said to have been proved by such evidence on record. (11). It is settled position of law that the appellate authority in a disciplinary proceeding acts in a quasi-judicial capacity and the order passed by it has to be a reasoned one showing application of mind to the question raised by the appellant and if that is not done the appellate order is vitiated. (12). Applying the above principles to the present case, it appears that the Disciplinary Authority-Superintendent of Police, Bikaner (respondent No. 4) while disagreeing with the findings of the Enquiry Officer in respect of charges Nos. 2 and 3, has not assigned any good; valid and cogent reasons and he has simply stated that he would not give any importance to the affidavit filed by the complainant Smt. Sujata. In my considered opinion, the findings recorded by the Disciplinary Authority (respondent No. 4) on charges No. 2 and 3 are based on no evidence and they appear to be wholly erroneous and perverse one. Apart from this, in absence of statement of the complainant Smt. Sujata, charges Nos. 2 and 3 as framed against the petitioner cannot be said to have been proved even in departmental enquiry and therefore, the grounds, which have been given by the Disciplinary Authority (respondent No. 4) while reversing the findings of the Enquiry Officer on charges Nos. Apart from this, in absence of statement of the complainant Smt. Sujata, charges Nos. 2 and 3 as framed against the petitioner cannot be said to have been proved even in departmental enquiry and therefore, the grounds, which have been given by the Disciplinary Authority (respondent No. 4) while reversing the findings of the Enquiry Officer on charges Nos. 2 and 3, cannot be regarded as good and valid one and they appear to be whimsical and based on conjectures and surmises. There are no material or evidence available on record to support the findings recorded by the Disciplinary Authority on charges Nos. 2 and 3. (13). Thus, for the reasons stated above, the findings recorded by the Disciplinary Authority-Superintendent of Police (respondent No. 4) through order Annex. 9 dated 24.1.2000 in respect of charges Nos. 2 and 3, which were confirmed in appeal by the Appellate3e Authority-Dy. Inspector General of Police, Bikaner Range, Bikaner through order Annex. 11 dated 20.10.2000 and interview by the Reviewing Authority through order Annex. 13 dated 5.12.2001, cannot be sustained and liable to be quashed and set aside and the petitioner is entitled to be acquitted of the charges Nos. 2 and 3 as done by the Enquiry Officer through enquiry report Annex. 7. (14). The next question for consideration is when the petitioner has been acquitted of the main charges Nos. 2 and 3 and only charge No.1 which pertained to absence from duties, has been found proved against the petitioner, whether punishment of stoppage of two annual grade increments with cumulative effect imposed upon the petitioner through order Annex. 9 dated 24.1.2000, can be sustained or not. On Punishment (15). In Indian Oil Corporation Ltd. vs. Ashok Kumar Arora ( AIR 1997 SC 1030 ), the Honble Supreme Court while considering the question as to whether the High Courts could in exercise of their powers of judicial review interfere with the punishment imposed by a disciplinary authority pointed out:- ``At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/Authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity; findings are based on no evidence and or the punishment is totally disproportionate to the proved misconduct of an employee... (16). Imposition of punishment is within the power and discretion of the authority and Civil Courts have no jurisdiction to substitute the punishment imposed by such authority. Vide State of Punjab vs. Surjit Singh Conductor ( 1996 (8) SCC 350 ) (17). The punishment or penalty to be imposed must be commensurate with the gravity of the misconduct. A disproportionate penalty would be violative of Art. 14 of the Constitution of India. Vide Bhagat Ram vs. State of H.P. ( AIR 1983 SC 454 ). (18). Although the choice and quantum of punishment is within the jurisdiction and discretion of the authorities, yet it must suit the offence and ``it should not be vindictive or unduly harsh nor ``so disproportionate to the offence so as to shock the conscience and amount in itself to conclusive evidence of bias. (See Ranjit Thakur vs. Union of India ( AIR 1987 SC 2386 ). (19). In the present case, looking to the entire facts and circumstances of the case, since the petitioner has been acquitted of the main two charges Nos. 2 and 3, therefore, the penalty of stoppage of two annual grade increments with cumulative effect cannot be sustained because it appears to be so harsh and totally disproportionate to the proved misconduct and further, it was not commensurate with the gravity of the misconduct and in my considered opinion, looking to the charge No. 1 found proved against the petitioner, if the petitioner is punished with the penalty of censure, it would meet the ends of justice. For the reasons stated above, this writ petition filed by the petitioner is partly allowed in the following manner:- (i) That the order dated 24.1.2000 (Annex. 9) passed by the Superintendent of Police, Bikaner (respondent No. 4) to the extent of holding the petitioner guilty of the charges Nos. 2 and 3, which was affirmed in appeal through order dated 20.10.2000 (Annex. 11) passed by the respondent No.3 Dy. Inspector General of Police, Bikaner Range, Bikaner and also in review petition through order dated 5.12.2001 (Annex. 9) passed by the Superintendent of Police, Bikaner (respondent No. 4) to the extent of holding the petitioner guilty of the charges Nos. 2 and 3, which was affirmed in appeal through order dated 20.10.2000 (Annex. 11) passed by the respondent No.3 Dy. Inspector General of Police, Bikaner Range, Bikaner and also in review petition through order dated 5.12.2001 (Annex. 13) passed by the respondent No.2 Dy. Secretary Departmental of Home (Appeal), Govt. of Rajasthan, Jaipur is quashed and set aside and the petitioner is acquitted of the charges Nos. 2 and 3. (ii) That the order dated 24.1.2000 (Annex. 9) passed by the Superintendent of Police, Bikaner (respondent No. 4) to the extent of holding the petitioner guilty of the charge No.1, which was affirmed in appeal through order dated 20.10.2000 (Annex. 11) passed by the respondent No.3 Dy. Inspector General of Police, Bikaner Range, Bikaner and also in review petition through order dated 5.12.2001 (Annex. 13) passed by the respondent No.2 Dy. Secretary, Department of Home (Appeal), Govt. of Rajasthan, Jaipur is maintained. (iii) That however, the order dated 24.1.2000 (Annex. 9) passed by the Superintendent of Police, Bikaner (respondent No. 4) to the extent of imposing punishment of withholding of two annual grade increments with cumulative effect against the petitioner, which was affirmed in appeal through order dated 20.10.2000 (Annex. 11) passed by the respondent No. 3 Dy. Inspector General of Police, Bikaner Range, Bikaner and also in review petition through order dated 5.12.2001 (Annex. 13) passed by the respondent No.2 Dy. Secretary, Department of Home (Appeal), Govt. of Rajasthan, Jaipur is modified in the manner that instead of punishment of stoppage of two annual grade increments with cumulative effect, the petitioner is punished with the penalty of censure in respect of charges No.1. (iv) That the impugned order Annex. 9 dated 24.1.2000 passed by the Superintendent of Police, Bikaner (respondent No. 4), Annex. 11 20.10.2000 passed by the respondent No.3 Dy. Inspector General of Police, Bikaner Range, Bikaner and Annex. 13 dated 5.12.2001 passed by the respondent No.2 Dy. Secretary Department of Home (Appeal), Govt. of Rajasthan, Jaipur stand modified accordingly to the extent as indicated above. No order as to costs.