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2007 DIGILAW 937 (RAJ)

Ram Karan v. State of Rajasthan

2007-05-04

PREM SHANKER ASOPA

body2007
JUDGMENT 1. - With the consent of the parties, the matter was heard finally and is being decided. 2. By this writ petition, the petitioner has challenged the order of dismissal dated 5.8.1992 and, appellate. authority's- order dated 29.9.1997 whereby the appeal filed against the order dated 5.8.1992 was dismissed. 3. The facts, in brief, of the case as per the petitioner, who was constable, are that a charge sheet was served to the petitioner on 11.11.1991 alleging therein that he has not attended the Parade in the Police Line on 7.6.1991 and continuously remained willful absent from 7.6.1991 without any information despite two notices dated 25.7.1991 and 25.9.1991. The petitioner had not submitted any reply to the said charge sheet. On 8.4.1992, the enquiry officer was appointed. Subsequently, Traffic Inspector was appointed as enquiry officer by the Superintendent of Police, Jaipur. On completion of the enquiry, after issuing notice to the petitioner his reply was considered, the order of dismissal from service was passed by the Superintendent of Police on 5.8.1992. 4. One of the legal submission of counsel for the petitioner is that Superintendent of Police was not competent to pass the order in respect of Constable and this issue has been settled by this Court in a case Rameshwar Lal v. The State of Rajasthan & Ors., WLR 1992 (S) Raj. 521 . Other points have also been argued by Mr. Sohan Lal Sharma, counsel for the petitioner. 5. An opportunity was given to Addl. Government Advocate whether any appeal has been filed against the aforesaid judgment. According to him, no appeal has been filed and the judgment has attained finality, therefore, I need not to consider other points. 6. In view of the aforesaid judgment of this Court, submission of Addl. Government Advocate is that whatever other points, which have been raised by the petitioner can be raised before the competent authority. Submission of Addl. Govt. Advocate is that the aforesaid legal issue be decided and other points be left open for the competent authority. 7. Heard learned counsel for the parties and gone through the record of the writ petition and further considered rival submissions of the parties. 8. The para 6 & 7 of the judgment in Dinesh Chand Sharma (supra) are as follows : "6. Rules 15 of the Rajasthan (Classification, Control and Appeal) Rules, 1958 reads asunder: "15. 7. Heard learned counsel for the parties and gone through the record of the writ petition and further considered rival submissions of the parties. 8. The para 6 & 7 of the judgment in Dinesh Chand Sharma (supra) are as follows : "6. Rules 15 of the Rajasthan (Classification, Control and Appeal) Rules, 1958 reads asunder: "15. Disciplinary Authorities-(1) in respect of the State Services the Government or the authority specially empowered by the Government in that behalf, in respect of the Subordinate and Ministerial Services, the Head of Department or the authority specially empowered by the head of the Department with the approval of the Government and in respect of Class IV Services the Head of Office shall be the disciplinary authority. Note : (i) The authority specially empowered to make appointment to a Service under Rule 12 of these Rules shall have power to inflict any of the penalties specified in Rule 14. (ii) The State Government or the Head of the Department as the case may be shall not empower under this Rule any other authority to impose penalties specified in Cl. (vi) and (vii) of Rule 14. (2) In respect of the State Services the powers of appointment to which is not delegated to a subordinate authority, before imposing the penalties other than censure, and withholding of increments, the Public Service commission shall be consulted." 7. A bare reading of this Rule goes to show that a delegation by Head of Department can be made only with the prior approval of the Government. In the present case, there is neither averment nor any material to show that delegation had been made by the I.G. of Police in favour of the S.P. with the prior approval of the government. When it is so, the S.P. was not competent to inflict the penalty of dismissal upon the petitioner. In Gopi Krishna's case (supra), the petitioner was a Sub-inspector of the Police and like the present petitioner, he also joined the Rajasthan Police Subordinate Services. Disciplinary proceedings were taken against Gopi Krishan by D.I.G. of Police who imposed punishment of compulsory retirement on the petitioner. The Special Inspector General of Police partly allowed the appeal and punishment of compulsory retirement imposed by the D.I.G. was substituted by punishment of reversion to the lower post for a period of 5 years. Aggrieved, Gopi Krishna approached this Court. The Special Inspector General of Police partly allowed the appeal and punishment of compulsory retirement imposed by the D.I.G. was substituted by punishment of reversion to the lower post for a period of 5 years. Aggrieved, Gopi Krishna approached this Court. There also the question arose as to who was the disciplinary authority in respect of an officer belonging to the Rajasthan Police Subordinate Services, 1974. It was hold that the D.I.G. of Police was not competent to take action against a member of the Rajasthan Police Subordinate Service and I.G. of Police was alone competent to take disciplinary action who is the Head of the Department for such purposes." (emphasis supplied) 9. Since the Superintendent of Police was not competent to dismiss the petitioner from the post of Constable, the writ petition is liable to be succeeded on this point alone. The initiation of enquiry vide charge sheet dated 11.11.1991 by the Superintendent of Police, Jaipur (Rural) as well as further conclusion of the same and passing dismissal order by him on 5.8.1992 are without jurisdiction, therefore, the aforesaid proceedings as well as dismissal order are liable to be set aside. Further, the appellate order dated 29.9.1997 passed by the D.I.G., Jaipur Range whereby the appeal was dismissed is also liable to be quashed for the same reason, as principle of merger will not apply. 10. Consequently, the writ petition is partly allowed, the dismissal order dated 5.8.1992 and appellate order dated 29.9.1997 are quashed and set aside. The petitioner is reinstated in service. However, it will be open for the disciplinary authority to conduct fresh inquiry wherein the issue of salary of intervening period will also be decided. In case, no enquiry is initiated within three months from the date of receipt of copy of the order then the petitioner will also be entitled for all consequential benefits.Writ Petition Partly Allowed. *******