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2006 DIGILAW 172 (RAJ)

Purshotam Lal v. State of Rajasthan

2006-01-17

R.P.VYAS

body2006
Judgment Rajesh Balia, J.-The petitioners in the writ petition ware employed in the Police Department. On a complaint filed by one Muni Ratandeep Vijayguru on 29.02.1992, criminal proceedings were initiated against the petitioners for alleged incident which took place between the intervening night of 16.01.1992 and 17.01.1992 in which the petitioners were involved in beating and threatening the complainant and inmates. Thereafter, on 16.05.1992, a joint charge-sheet was served on the petitioners. The first charge is that both the petitioners in the writ petition left their place of duty at different times on different pretext but have not returned and they were marked absent. Shakti Bhanwar Singh was marked absent at 9:50 PM by the inspecting party. The inspecting party had visited the police station and the report of absence was submitted in case of appellant Purhsotam Lal when he did not return until 6 AM. 2. The facts about serving of charge-sheet, lodging of complaint by Muni Ratandeep, and the arrest of petitioners in connect on with said complaint and initiation of criminal trial are not in dispute. 3. On receipt of charge-sheet dated 16.05.1992, the petitioners filed S.B. Civil Writ Petition No. 4503/1992 seeking the stay of enquiry proceedings during the pendency of the trial inter alia on the ground that the criminal trial and the substance of charge are identical. Though there was no interim order, but by order dated 111.1992 which was passed in the presence of Counsel for both the parties, the writ petition was allowed and the enquiry proceedings were directed to be stayed until termination of criminal trial. After aforesaid order was passed on 111.1992, enquiry report was submitted by the Enquiry Officer, who was Dy. S.P. of the Department on 112.1992. Thereafter, in pursuance of order dated 111.1992, no further action was taken on the enquiry report. 4. By order dated 112.1994, the petitioners were acquitted of the criminal charges by the trial Court. Thereafter, by order dated 111.1995, on considering the objections, the Disciplinary Authority namely S.P., Udaipur accepted the findings of the enquiry officer and dismissed the petitioners from service by way of punishment. 5. The appeal against the aforesaid order was also dismissed. The petitioners thereafter filed S.B. Civil Writ Petition No. 2688/1997 (Defect) which was dismissed on 27.04.1998 with liberty to file fresh writ petition. 6. 5. The appeal against the aforesaid order was also dismissed. The petitioners thereafter filed S.B. Civil Writ Petition No. 2688/1997 (Defect) which was dismissed on 27.04.1998 with liberty to file fresh writ petition. 6. This led to filing of S.B. Civil Writ Petition No. 3344/1998, out of which this appeal had arisen. 7. The petitioners have objected to the validity of proceedings of the Disciplinary Authority as well as the Appellate Authority inter alia on the ground that the enquiry has been conducted without affording any opportunity to the delinquents and the evidence has been led in their absence and they had no opportunity to cross-examine the witnesses. On failure to get relief in departmental appeal, the writ petition is also founded on the same ground alongwith others. 8. The contention of the learned Counsel for the petitioners that enquiry was proceeded against the stay orders of the Court and was in violation of principles of natural justice was rejected inter alia on the ground that there was no interim order during the pendency of the writ petition and there was no pleading that after the order was passed on 111.1992, the petitioners submitted the Judgment of the Court before the enquiry officer. There is no proof that the departmental proceedings proceeded against the orders of the Court after the respondents came to know about the order. 9. The other contentions namely about the dichotomy between the judicial trial and departmental enquiry and non-furnishing of the enquiry report which has prejudiced the case of the petitioners were also rejected. The same were rejected inter alia on the ground that enquiry proceedings as well as the criminal trial can proceed together. There is no legal bar in proceeding with the departmental enquiry and criminal trial simultaneously and there can be different findings. The learned Single Judge found that in fact the enquiry report was furnished to the delinquents and there is no substance in that issue. 10. Having carefully perused the material placed before us, we are of the opinion that the petition must succeed on the first ground itself . There is conclusive evidence available on record showing that the entire evidence against the petitioners have been recorded after the order was passed by this Court on 111.1992 staying further proceedings in the enquiry in presence of both the learned Counsel for the parties. There is conclusive evidence available on record showing that the entire evidence against the petitioners have been recorded after the order was passed by this Court on 111.1992 staying further proceedings in the enquiry in presence of both the learned Counsel for the parties. The evidence has been recorded in the absence of the petitioners on or after 012.1992, only when in terms of the orders of the High Court, the petitioners were not under an obligation to participate in the enquiry. It was equally responsibility of the Counsel for the State who was present when the order dated 111.1992 was passed representing respondents to inform the enquiry officer and disciplinary authority immediately about the result of the case and to stay off their hands from further continuing with the enquiry at whatever stage it was pending. There is nothing on record to presume that this information was not communicated. Even the impugned order of dismissal was passed with reference to the orders of this Court dated 111.1992 but it does not inform us when he came to know about this order. It cannot be presumed that Government Advocate acted in derogation of his duty to inform the litigant promptly about the outcome of the writ petition particularly when a restraint order has been passed against the respondents from further proceeding in the matter. 11. From the perusal of the enquiry report itself , it has been clearly made out that the petitioners have not appeared on certain dates, which fall during the pendency of the writ petition before this Court and no proceeding took place on those dates, and on the date the order was passed in writ petition, no evidence of prosecution was recorded. The next date for enquiry was 012.1992 about 15 days after the order staying further proceedings in enquiry until conclusion of criminal trial was passed by this Court on 111.1992. In view of order dated 111.1992, the delinquents have not appeared before the Enquiry Officer for continuing with enquiry. 12. It was only on 012.1992 when the statements of the prosecution witnesses were recorded. In view of order dated 111.1992, the delinquents have not appeared before the Enquiry Officer for continuing with enquiry. 12. It was only on 012.1992 when the statements of the prosecution witnesses were recorded. Apparently, much before 012.1992, on 111.1992, the order of this Court staying the further proceedings came into existence and in view thereof , the petitioners were under no obligation to appear before the enquiry officer and they could well depend on the order of the Court and assume that no further enquiry can be held when the order has been passed in the presence of the learned Counsel for the parties. 13. Shorn of technicalities, the fact remains that after the order of this Court, the statements of all the witnesses of the prosecution have been recorded in the absence of the delinquent officers and no opportunity was given to the petitioners to cross-examine those witnesses. It appears that this fact has not been noticed by the learned Single Judge while laying too much stress that there being no interim order and thereafter there being no communication by the petitioners to the enquiry officer that the record of the enquiry officer itself clearly shows that until passing of the order of this Court, no effective steps have been taken by the enquiry officer. Hence, non existence of interim order could hardly be a ground to continue with enquiry after 111.1992. As the order dated 111.1992 was not an ex-parte interim order, but was in the presence of learned Counsel for the respondents, and knowledge of such order on the part of party represented by such Counsel is present. There is no assertion that the Counsel has not communicated the result of the writ petition to the respondents to rebut the aforesaid presumption. Merely stating that petitioner has not presented the copy of order does not rebut the presumption that knowledge of Counsel is the knowledge of parties. The learned Single Judge, in our opinion, was not right in raising presumption about ignorance of order staying further proceedings in favour of respondents even after 15 days of passing of order in the presence of their Counsel. If we go by pleadings there is no pleading by the respondents that they were not informed of the outcome of the writ petition by their Counsel in time. If we go by pleadings there is no pleading by the respondents that they were not informed of the outcome of the writ petition by their Counsel in time. Therefore, nothing turns on petitioners in pleading that certified copy of the order was placed by them. 14. In the peculiar facts and circumstances of the case, we are of the opinion that non-participation of the petitioner on 012.1992 cannot be treated as if the petitioner has not voluntarily participated in the enquiry and allowed the witnesses to be examined in their absence. This being the clear position appearing out from the records of the respondents, the consequence is obvious that the statements recorded in the absence of the party who had no opportunity to cross-examine them cannot provide the foundation of any finding against the delinquents as the findings which are in total breach of principles of natural justice are vitiated. Non affording opportunity has seriously prejudiced the case of the petitioner. 15. Consequently, the orders founded on such enquiry report also stand vitiated and cannot be sustained. Accordingly, this appeal deserves to be allowed which we do. The Judgment of learned Single Judge is set aside. In view of the aforesaid findings, the impugned orders passed by the Disciplinary Authority as well as the Appellate Authority are quashed as the enquiry report itself stand vitiated, whose findings have been accepted. 16. As a result of this order, the appellant shall be reinstated. 17. Since, the order relates to give misconduct alleged against the delinquent officers in acting in total derogation of their office we leave it open to the respondents if they so choose to hold an enquiry de novo and in that event to pass appropriate orders about allowing the petitioner to remain on duty or otherwise during the pendency of such enquiry. In case the respondents decide to hold an enquiry against the delinquent officer, it must be initiated within a period of three months from today and in case the enquiry is initiated within the aforesaid time, no arrear shall be paid to the appellant for the period until reinstatement, which will be subject to the outcome of such enquiry. 18. The special appeal is accordingly allowed. No order as to costs.