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2009 DIGILAW 378 (RAJ)

Udai Singh v. State of Rajasthan

2009-02-05

ASHOK PARIHAR, G.S.SARRAF

body2009
Hon'ble Parihar, J.—The appellant was initially appointed as a Constable in the respondent-department in the year 1989. Though, a charge sheet under Rule 16 of the Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as `the CCA Rules' for short) was issued to the appellant, however, while dispensing the departmental enquiry as per provisions of Rule 19(2) of CCA Rules, the appellant was dismissed from service by the Disciplinary Authority vide order dated 6.10.1994. The reason given by the Disciplinary Authority for dispensing with the enquiry had been that looking to the serious nature of the allegations of rape with the sister of one of the colleagues against the appellant and the hostile agitated atmosphere in the department, it will not be possible to hold a regular enquiry against the appellant. As has come on record, a charge sheet for the offence under Sections 366, 376 IPC had also been filed against the appellant before the trial Court. However, the trial Court, vide order dated 6.1.1995, acquitted the appellant from both the charges levelled against him. After acquittal, the appellant filed an appeal against the order of dismissal before the Appellate Authority on 10.1.1995. The appeal was dismissed by the appellate authority in a summary manner only on the ground of limitation. 2. Challenging the order of dismissal as also the order dated 3.5.1995 passed by the Appellate Authority, a writ petition came to be filed before this Court. The writ petition was disposed of by this Court vide order dated 16.5.1997 directing the Appellate Authority to decide the appeal of the appellant afresh on merits according to law as per provisions of Rule 30(2) of the CCA Rules. The appeal again came to be dismissed by the Appellate Authority vide order dated 27.9.1997. A fresh writ petition was filed by the appellant before this Court challenging the order of dismissal as also the appellate order dated 27.9.1997. The writ petition, however, came to be dismissed by learned Single Judge vide order dated 18.8.1998. Hence, the present appeal. 3. After hearing counsel for the parties we have carefully gone through the material on record. 4. The facts referred above are not disputed so far. The enquiry was dispensed with by the Disciplinary Authority mainly considering the seriousness of allegations levelled against the appellant and the atmosphere existed at the relevant time. Hence, the present appeal. 3. After hearing counsel for the parties we have carefully gone through the material on record. 4. The facts referred above are not disputed so far. The enquiry was dispensed with by the Disciplinary Authority mainly considering the seriousness of allegations levelled against the appellant and the atmosphere existed at the relevant time. The fact of acquittal by the trial court had also clearly been mentioned by the appellant in his earlier appeal. The same fact has also been referred by this Court while remanding the matter back to the Appellate Authority in the order dated 16.5.1997. A bare reading of the order passed by the learned trial Court in the criminal case would show that the prosecutrix herself had not supported the case of the prosecution and clearly stated that the appellant was not the person committing the offence alleged against him. It was not the case giving benefit of doubt by the trial Court to the appellant. However, unfortunately, the appellate Court totally ignored the above fact and did not even consider the material available on the record while dismissing the appeal in a very casual manner. Though, learned Single Judge has heavily relied upon the judgment of Supreme Court in case of Tulsi Ram Patel, However, in our opinion, that judgment or observations made by the Supreme Court in the above judgment are not applicable in peculiar facts of the present case. Once appellant having been acquitted by the trial Court in the criminal case and there being no independent department enquiry in regard to same charges, the Appellate Authority ought to have considered the above circumstances while dismissing the appeal filed by the appellant. In our opinion, the Appellate Authority either should have allowed the appeal or, at the most, should have ordered for holding a regular departmental enquiry. 5. After considering the entire facts and circumstances, the dismissal order dated 6.10.1994 as also the impugned order of the appellate authority dated 27.9.1997 cannot be sustained in the eyes of law. The incident alleged to have taken place in the year 1994. More than 14 years have lapsed. After such a long lapse of time, it will also not be justifiable for giving liberty to the department to hold a fresh departmental enquiry into some charged when the appellant had already been acquitted by the trial Court way back on 6.1.1995. 6. More than 14 years have lapsed. After such a long lapse of time, it will also not be justifiable for giving liberty to the department to hold a fresh departmental enquiry into some charged when the appellant had already been acquitted by the trial Court way back on 6.1.1995. 6. Accordingly, the appeal is allowed. The impugned order dated 18.8.1998 passed by the learned Single Judge is quashed and set aside and consequentiantly order of dismissal dated 6.10.1994 as also the appellate order dated 27.9.1997 are also quashed and set aside. The appellant is entitled for reinstatement with continuity of service. However, on the principles of "no work, no pay", the appellant shall not be entitled for any back wages from the date of dismissal till date of reinstatement. However, the respondent-department is directed to maintain his seniority as also give him benefit of pay fixation for the post he was working at the time of his termination. Necessary consequential orders be passed by the respondents within a period of 30 days from the date of receipt of certified copy of this Court.