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2006 DIGILAW 121 (RAJ)

Babu Khan v. State of Rajasthan

2006-01-10

AJAY RASTOGI

body2006
Judgment Ajay Rastogi, J.-By instant writ petition, petitioner has challenged his dismissal from service vide order dated 13.05.1987 (Annexure-7) so also rejection made by appellate as well as review authority vide orders dated 04.04.1989 (Annexure-14) and dated 04.06.1991 (Annexure-21) respectively. 2. Petitioner initially joined service as Constable on 17.08.1971. For his alleged misconduct, he was served with charge-sheet alongwith memo dated 18.07.1987 (Annexure 1 to 3) under Rule 16 of Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (“CCA” Rules”) and after holding regular departmental inquiry he was held guilty and punished with penalty of dismissal from service vide order dated 13.05.1987 (Annexure-7) against which he preferred appeal, that too was rejected and the same was fate of review petition respectively vide orders dated 04.04.1989 (Annexure 14) and dated 04.06.1991 (Annexure-21). Hence, this petition. 3. Counsel for petitioner contends that copies of documents referred to in Para 3 of writ petition were demanded but not supplied and that apart, he was not permitted to cross-examine departmental witnesses through defence assistant, despite that he had submitted application seeking permission to appoint Shri K.C. Arora as his defence Assistant in course of inquiry but permission was not granted to him, which has caused prejudice to him. He further urged that once the period of leave was regularised as extra ordinary leave, alleged unauthorised leave cannot now be considered to be misconduct. Counsel placed reliance upon decision of Apex Court in State of Punjab vs. Bakshish Singh, 1998 (8) SCC 222 . So far as other charges are concerned, Counsel contends that in all criminal cases referred to in the charge-sheet, he was acquitted before the charge-sheet was served upon him and in criminal cases referred to in charge Nos. 10 and 11, orders of acquittal were passed by competent Court of jurisdiction after the impugned dismissal was passed by respondents, as such holding the petitioner guilty of misconduct was uncalled for and based upon these charges, very dismissal passed vide impugned order of punishment is not legally unsustainable and is violative of principles of natural justice. Counsel further urged that neither appellate authority nor reviewing authority has considered submissions made by petitioner while passing orders of rejection, which is in violation of Rule 30 of CCA Rules. 4. Counsel further urged that neither appellate authority nor reviewing authority has considered submissions made by petitioner while passing orders of rejection, which is in violation of Rule 30 of CCA Rules. 4. Respondents have filed reply to writ petition inter-alia averring that inquiry was finally concluded on 14.06.1988 while application seeking permission to engage Shri K.C. Arora as defence assistant was received on 24.06.1988 as such there was no occasion to provide him defence assistant after conclusion of inquiry proceedings. As regards documents demanded by petitioner, it has been specifically pleaded in Para 13 of the reply that petitioner was directed vide letter dated 18.08.1987 to take necessary documents but the fact is that petitioner proceeded on leave from 05.06.1987 and never turned back; as such he was never deprived of taking note of documents as demanded by him. So far as cross-examination of departmental witnesses is concerned, it has been averred that when petitioner failed to appear in the Course of inquiry, despite information of date fixed by inquiry officer was given to him, there was no occasion to deprive him of cross-examining the witnesses, for which no grievance at this stage could be raised by petitioner. 5. Counsel for respondents urged that merely because period of unauthorised leave was regularised, that would not absolve him from charge of willful absence. Counsel further urged that even if he was discharged or acquitted in criminal cases, that could not have precluded the department to hold disciplinary inquiry and even in cases of like nature, instituted against petitioner, he was not a fit person to be retained in service as Constable looking to gravity of charges, and after holding disciplinary inquiry, and holding guilty of impugned charges, penalty of dismissal from service was considered to be appropriate by disciplinary, appellate and reviewing authority, hence no interference is called for in view of limited scope of judicial review by this Court under Article 226 of Constitution of India. 6. I have considered contentions urged by both the Counsel for the parties and with their assistance, examined material on record. This fact has not be disputed by petitioner that he had prior notice of the dates fixed by inquiry officer and for good reasons, he had not participated in course of inquiry as is evident from his own application (Annexure-5) dated 13.06.1988. This fact has not be disputed by petitioner that he had prior notice of the dates fixed by inquiry officer and for good reasons, he had not participated in course of inquiry as is evident from his own application (Annexure-5) dated 13.06.1988. In such circumstances, when he failed to participate in course of inquiry despite notice/due intimation of dates, he could not complain of denial of opportunity during inquiry proceedings. As regards seeking permission for engaging K.C. Arora as defence assistance, in my opinion, once inquiry was finally concluded on 14.06.1988 while application seeking such permission was received thereafter on 24.06.1988, no fruitful purpose was going to be served to accord permission sought for by petitioner. So far as documents demanded by petitioner are concerned, in view of specific pleading in the reply that he was permitted vide letter dated 18.08.1987 to take note of documents but he himself proceeded on leave and not turned up thereafter, no complaint can now be made in this regard particularly when he has failed to show any prejudice caused to him on account of non-availability of documents. 7. As regards grant of extra ordinary leave for the period under charge Nos. 1 to 4, in my opinion, merely because his willful absence on different occasions for a span of service was treated as extra ordinary leave, that will not absolve him from charge of willful absence. From a bare reading of impugned charge-sheet and order of punishment, it depicts that though his absence was treated as extra ordinary leave but he was never exonerated of the charge of willful absence on different occasions for a span of his services. In this view of facts situation of instant case, Judgment cited by Counsel for petitioner is not at all applicable and does not render any help to the petitioner. 8. As regards submission made with respect to discharge/acquittal in criminal cases, suffice is to say that approach and objective in criminal proceedings and disciplinary proceedings are altogether distinct and different. Standard of proof , mode of enquiry and the rules governing enquiry and trial are conceptually different. In disciplinary enquiry technical rules of evidence and doctrine of proof beyond doubt have no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent committed misconduct. Standard of proof , mode of enquiry and the rules governing enquiry and trial are conceptually different. In disciplinary enquiry technical rules of evidence and doctrine of proof beyond doubt have no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent committed misconduct. Mere discharge/acquittal in criminal cases will not in my opinion preclude the department from holding disciplinary inquiry and take action after affording due opportunity of hearing to the delinquent under CCA rules. In instant case, despite due opportunity of hearing being afforded, petitioner failed to participate in course of inquiry and that apart, he has not disclosed as to how prejudice has been caused to him by non-supply of demanded documents. In this view of matter, it cannot be said that conclusions drawn by competent authority while passing impugned order of punishment are perverse or not based on any material. That apart, scope of judicial review in matters of disciplinary inquiry being restricted, this Court has to consider challenge to the impugned order with a limited degree of scrutiny being called for. 9. Consequently, this writ petition fails and is hereby dismissed. No order as to costs.