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2011 DIGILAW 270 (RAJ)

Arun Ram v. State of Rajasthan

2011-02-07

GOVIND MATHUR

body2011
JUDGMENT 1. - By judgment dated 22.2.1994 the petitioner, a Constable with Rajasthan Police, was convicted for an offence punishable under Section 304B Indian Penal Code. Accordingly, the disciplinary authority, while exercising powers under Rule 19(1) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as "the Rules of 1958"), dismissed him from service vide order dated 19.4.1994. A Division Bench of this Court by its judgment dated 14.2.2008 set aside the conviction of the petitioner made by the trial court. The petitioner, therefore, submitted a representation to the disciplinary authority to recall the order of dismissal and to reinstate him in service. The Superintendent of Police, Jaisalmer rejected the petitioner's claim with assertion that "Departmental inquiries and court proceedings are independent of each other. The decision based in departmental inquiry against the complainant does not relate to the decision of the court. He should have gone to the appeal in case of decision of DE not acceptable. At this stage review of decision in DE is not within the ambit of Rules or any law. He may have recourse to a legal authority". The petitioner in such circumstances preferred this petition for writ challenging the order of his dismissal and subsequent decision taken by the Superintendent of Police. 2. As per the petitioner the order impugned dated 19.4.1994 was passed while exercising powers under Rule 19(1) of the Rules of 1958 which is a provision corresponding to clause(a) to proviso(ii) of Article 311(2) of the Constitution of India after setting aside of the conviction no authority exists with the disciplinary authority to maintain such an order. 3. As per the respondents the order impugned is an out come of disciplinary action, therefore, setting aside of the conviction by Division Bench of this Court is of no consequence and acquittal of the petitioner from the charges relating to a criminal offence in no manner effects the misconduct committed by him. 4. Heard counsel for the parties. 5. It is not in dispute that the petitioner was not subjected to any disciplinary action as per Rule 16 of the Rules of 1958. His dismissal from service was made by resorting to the powers available under Rule 19 of the Rules of 1958. As such there was no occasion for the disciplinary authority to examine conduct of the petitioner and to give any finding in that regard. His dismissal from service was made by resorting to the powers available under Rule 19 of the Rules of 1958. As such there was no occasion for the disciplinary authority to examine conduct of the petitioner and to give any finding in that regard. The order impugned is solely based on the conviction made by the trial court under the judgment dated 22.2.1994. 6. This Court while dealing with the similar issue in Mathura Lal Mundra v. State of Rajasthan & Anr., reported in 2005(5) RDD 1320 (Raj) , held as under:- "The disciplinary authority has passed the order dated 31.10.1996 while exercising powers under sub-rule(1) of Rule 19 of the Rules of 1958 which is a provision corresponding to clause (a) to proviso (ii) of Article 311(2) of the Constitution of India. The powers under sub-rules(1), (2) and (3) of Rule 19 of the Rules of 1958 are exception to the constitutional right of a civil servant enshrined under Article 311 of the Constitution of India which prescribes that no civil servant can be dismissed, removed or reduced in rank except after an enquiry in which he has been informed the charges against him and without providing a reasonable opportunity of being heard. Procedure to hold enquiry and to provide reasonable opportunity to be heard is given under Rule 16 of the Rules of 1958. A deviation from this procedure can be made in exceptional circumstances as provided under clauses (i), (ii) and (iii) of Rule 19 of the Rules of 1958. The disciplinary authority by order dated 31.10.1996 deviated from normal course on the count that the conduct of the petitioner led to his conviction on a criminal charge and dismissed the petitioner. This conviction of the petitioner is no more in existence in light of the judgment dated 10.9.2002 passed by this Court in revision petition No.26/88. No conviction now stands giving foundation and support to the order dated 31.10.1996. The order dated 31.10.1996 has lost its credit in light of the judgment passed by this Court on 10.9.2002 (Anx.3), as such the order dated 31.10.1996 is non-est in eye of law as it imposes a punishment of dismissal without affording a reasonable opportunity of hearing to the petitioner. The same, therefore, is in violation of Article 311(2) of the Constitution of India and also in violation of Rule 16 of the Rules of 1958." 7. The same, therefore, is in violation of Article 311(2) of the Constitution of India and also in violation of Rule 16 of the Rules of 1958." 7. In the instant case also the order of dismissal has lost its credit as the conviction made by the trial court has already been set aside by the Division Bench vide judgment dated 14.2.2008. The power under Rule 19(1) of the Rules of 1958 is dependent to conviction and on setting aside of the conviction, the order passed by exercising the power aforesaid looses its legal sanctity, thus, the5 dismissal of the petitioner after setting aside of the conviction is non-est in eye of law. The respondents, if desire to examine petitioner's conduct then they have to proceed against the petitioner as per provisions of Rule 16 of the Rules of 1958 being a constitutional requirement as per provisions of Article 311(2) of the Constitution of India. 8. The petition for writ, therefore, deserves acceptance. Accordingly, the same is allowed. The order dated 19.4.1994 passed by the Superintendent of Police, Jaisalmer, dismissing the petitioner from service while exercising powers under Rule 19(1) of the Rules of 1958, is declared illegal and, therefore, the same is quashed. The petitioner is declared entitled to be reinstated in service with all consequential benefits including the back wages.No order to cost.Writ Petition Allowed. *******