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2011 DIGILAW 1755 (RAJ)

Rajesh Kumar v. State of Rajasthan

2011-08-18

M.N.BHANDARI

body2011
Hon'ble BHANDARI, J.—By this writ petition, a challenge has been made to the order of dismissal and subsequent order passed on appeal/review. 2. The petitioner was charge-sheeted with the charge of absence from the duty and committing rape of a girl belongs to the reserved caste. This was when petitioner was holding the post of Constable in the Police Department. Both the charges were held to be proved in the inquiry and accordingly order of dismissal was passed taking into consideration the gravity of the offence. 3. Learned counsel for petitioner submits that the inquiry officer himself recommended the punishment in the case though he has no authority to do so. The order of dismissal, therefore, deserves to be set aside on the aforesaid ground itself. 4. It is further urged that a criminal case was also lodged against the petitioner wherein he was acquitted by order dated 21.10.202 at Annexure-3. It was taken to be a case of consent, hence, petitioner should not have been dismissed from the service merely for the reason that the prosecutrix became pregnant in between. The case of the Department was not even supported by the prosecutrix in the inquiry, thus all these reasons, petitioner deserves to be reinstated in service by setting aside the order of dismissal. 5. A reference of the judgment of this Court in the case of Ten Singh vs. State of Rajasthan & Ors. reported in 2008(2) CDR 1546 (Raj.) = 2008(4) RLW 3176 (Raj.) has been given to show that if the period of absence was regularized by granting leave for absence, dismissal on the aforesaid charge is not proper. 6. I have considered arguments of learned counsel and judgment cited at Bar. 7. The petitioner was charge-sheeted for two charges and both the charges were found to be proved in the inquiry. The period of absence of the petitioner is 185 days and otherwise he remained absent till issuance of the charge-sheet thereby total period comes to more than 15 months. The petitioner failed to give explanation or produce medical certificate to show justification of the absence. In the light of the aforesaid, charge was held proved. 8. The period of absence of the petitioner is 185 days and otherwise he remained absent till issuance of the charge-sheet thereby total period comes to more than 15 months. The petitioner failed to give explanation or produce medical certificate to show justification of the absence. In the light of the aforesaid, charge was held proved. 8. So far as the judgment in the case of Ten Singh (supra) is concerned, it was decided by this Court in the light of the judgment rendered by this Court in the case of Ram Karan vs. State of Rajasthan & Ors. reported in 2007 WLC 484 though appeal against the said judgment was filed and otherwise judgment of the Hon'ble Apex Court in the case of State of Punjab vs. Bakshish Singh reported in 1999(2) SRJ 264 has been referred ignoring the subsequent judgment of the Hon'ble Apex Court in the case of Maan Singh vs. Union of India and Others reported in (2003) 3 SCC 464 wherein regularization of period of absence was not taken as exoneration of the employee from the charge of absence. Since subsequent judgment of the Hon'ble Apex Court considered all the earlier judgments on the issue, hence, binding on this Court. Paras 4 to 6 are relevant, thus quoted as under : "4. When this appeal came up for consideration before this Court, a Bench of two learned Judges referred this matter to a Bench of three judges in view of apparent conflict between the decisions of this Court in Harihar Gopal and Bakshish Singh. It is thus this matter is set down for hearing before us. 5. In Harihar Gopal's case this Court noticed that the delinquent officer in failing to report for duty and remaining absent without obtaining leave had acted in a manner irresponsibly and unjustifiedly; that, on the finding of the Enquiry Officer, the charge was proved that he remained absent without obtaining leave in advance; that the order granting leave was made after the order terminating the employment and it was made only for the purpose of maintaining a correct record of the duration of service and adjustment of leave due to delinquent officer and for regularizing his absence from duty. This Court's attention was not invited to any rule governing the respondent's service conditions under which an order regularizing absence from duty subsequent to termination of employment had the effect of invalidating termination. Thus, this Court concluded that it could not be held that the authority after terminating the employment of delinquent officer intended to pass an order invalidating that earlier order by sanctioning leave so that he was to be deemed not to have remained absent from duty without leave duly granted. 6. Bakshish Singh's case arose out of a suit filed by Bakshish Singh who was a police constable in Punjab but was dismissed from service on 1.6.1988 after a regular departmental enquiry on the charge of unauthorized absence from duty. This order was challenged on several grounds and the trial Court decreed the suit on the basis that the order of dismissal could not have been passed by the defendants inasmuch as they themselves had regularised and treated the period of the plaintiff's absence from duty as the period of leave without pay and they could not legally say that he was guilty of misconduct of unauthroised absence from duty. Having found that it was not a case of misconduct of the gravest kind, the lower appellate court, while upholding the findings of the trial Court, remanded the case back to the disciplinary authority for passing a fresh order of punishment. Second appeal preferred before the High Court was dismissed in limine. In those circumstances, this Court noticed that : "Once it was found as a fact that the charge of unauthorized absence from duty did not survive, we fail to understand how the lower appellate Court could remand the matter back to the punishing authority for passing a fresh order of punishment." It was further noticed that the finding of the trial Court was that proper opportunity of hearing was not given and the signatures of the Bakshish Singh were obtained under duress during departmental proceedings and when that finding remained intact, there was no occasion to remand the case to the punishing authority merely for passing a fresh order of punishment. It is in these circumstances this Court ultimately passed an order as set out in para 11 of the judgment, which is as under : "It will be noticed that the trial Court recorded a categorical finding of fact that a proper opportunity of hearing was not afforded to the respondent in the departmental proceedings and that his allegation that his signatures on certain papers during those proceedings were obtained under duress, was not controverted as the State of Punjab had led no evidence in defence. The trial Court also recorded a finding that unauthorized absence from duty having been regularized by treating the period of absence as leave without pay, the charge of misconduct did not survive. It was with this finding that the suit was decreed. the lower appellate Court confirmed the finding that since the period of unauthorized absence from duty was regularized, the charge did not survive but it did not say a word about the finding relating to the opportunity of hearing in the departmental proceedings. Since those findings were not specifically set aside and the lower appellate Court was silent about them, the same shall be treated to have been affirmed. In the face of these findings, it was not open to the lower appellate Court to remand the case to the punishing authority for passing a fresh order of punishment. The High Court before which the second appeal was filed by the State of Punjab, did not advert itself to this inconsistency as it dismissed the appeal summarily, which indirectly reflects that it allowed an inconsistent judgment to pass through its scrutiny." Therefore, the appeal in Bakshish Singh's case was allowed. It is only in the head note of the report that the question whether an employee could be held guilty of misconduct on the basis of unauthorized absence is set out as decided in the trial court and affirmed by the first Appellate Court and not from the judgment of this Court such a conclusion can be drawn since there is no consideration or discussion at all, much less any declaration of law is made by this Court on this aspect of the matter. This Court in that case really considered the scope of powers of remand, made the order as set out above and did not, in fact, consider the question whether the view expressed by the first Appellate Court in affirming the order of the trial Court was justified or not, but proceeded on the basis that on the conclusion reached by the first appellate Court whether remand to disciplinary authority is permissible in law and recorded its findings. Therefore, the decision of this Court in Bakshish Singh's case is not an authority for the proposition that the order terminating the employment cannot be sustained inasmuch s in the later part of the same order the disciplinary authority also regularized unauthorised absence from duty by granting an employee leave without pay. In our view, thus, there is no conflict in this regard with the decision in Harihar Gopal's case." 9. Perusal of the paras quoted aforesaid shows that after judgment in the case of State of Punjab vs. Bakshish Singh reported in (1998) 8 SCC 222 , matter was referred to three judges bench, which has decided the aforesaid case holding that regularization of unauthorized absent does not vitiated the order of termination. The same view was earlier taken by three judges bench in the case of State of Madhya Pradesh vs. Harihar Gopal reported in 1969 SLR 274 as referred in the case of Maan Singh (supra). Recently, same view has also been taken by the Hon'ble Apex Court in the case of State of Punjab and Others vs. Charanjit Singh reported in (2003) 8 SCC 458 . 10. In reference to the judgment of the Hon'ble Apex Court in the case of Maan Singh (supra), the judgment of this Court in the case of Ten Singh (supra) has to be rendered per incuriam. 11. The regularization of period of absence does not effect order of dismissal from the service. In the case in hand, total period comes to more than 15 months, otherwise period of absence is 185 days in the charge-sheet. This is apart from the fact that a serious charge exists against the petitioner for committing rape and thereby lady became pregnant. Aforesaid charge was found proved in the inquiry and accordingly order of dismissal was passed. It is a settled law that standard of proof required in the departmental inquiry is different than required in the criminal. This is apart from the fact that a serious charge exists against the petitioner for committing rape and thereby lady became pregnant. Aforesaid charge was found proved in the inquiry and accordingly order of dismissal was passed. It is a settled law that standard of proof required in the departmental inquiry is different than required in the criminal. Thus, subsequent acquittal of the petitioner in the criminal case does not nullify the order of dismissal dated 20.8.2011. The position of law on the aforesaid issue is now settled in view of the judgment of the Hon'ble Apex Court in the case of Noida Entrepreneurs Association vs. Noida and Ors. reported in (2007) 10 SCC 385 = RLW 2007(4) SC 2790. Looking to the aforesaid, I find that punishment imposed upon the petitioner cannot be said to be disproportionate. 12. So far as the issue pertains to proposed punishment by the inquiry officer is concerned, I find that no punishment has been proposed. The only observation is to award severest punishment, looking to the gravity of the misconduct. This cannot be said to be a proposed punishment by the inquiry officer. 13. So far as the factual aspect raised by learned counsel for petitioner is concerned, this Court while exercising the jurisdiction under Article 226 of the constitution of India does not seat as a court of appeal over the report of the inquiry officer. Thus, finding of fact recorded by the inquiry officer and accepted by the disciplinary authority need not to be interfered, more so when the disciplinary authority has considered all the relevant aspects of the matter in the light of the material available on record. The writ petition is accordingly found to be devoid of merit, hence, dismissed. This disposed of stay application also.