Research › Search › Judgment

Rajasthan High Court · body

2011 DIGILAW 321 (RAJ)

L. Rs. of Lohara Singh v. State of Rajasthan

2011-02-11

GOVIND MATHUR

body2011
JUDGMENT 1. - This petition for writ was preferred by the original petitioner Shri Lohara Singh, who has died on 13.3.2004, thus, now is pursued by his legal representatives, who were brought on record on 19.4.2004. For the sake of convenience, the term petitioner is used in this order for Late Shri Lohara Singh. 2. The petitioner while in employment of respondents as Class IV Employees was tried and convicted for an offence punishable under Section 304 Indian Penal Code (it is not made clear that whether that was for Section 304 Part I or II I.P.C.). On basis of the conviction aforesaid, the District Education Officer, Sriganganagar under an order dated 25.5.1991 terminated the2 petitioner from service, however, it is not made clear in the order aforesaid that whether such termination was dismissal or removal from service. 3. Be that as it may, an appeal preferred by the petitioner to challenge the conviction recorded and sentence awarded came to be accepted by this Court under the judgment dated 18.1.2002 in S.B. Cr. Appeal No.78/1991 (Gola Singh and Ors. v. State of Rajasthan) . On setting aside of the conviction recorded and sentence awarded, the petitioner submitted a representation to recall the order of termination from service being solely based on conviction that lost its cradle in view of the judgment dated 18.1.2002. No action, thereupon was taken by the respondents, thus, this petition for writ is preferred. 4. It is urged that the petitioner was terminated from service on exercise of the powers under Rule 19(1) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short 'the Rules of 1958' hereinafter) by dispensing with the regular enquiry as the petitioner was convicted by the competent court. However, on setting aside of conviction and the sentence awarded, the order impugned dated 25.5.1991 has lost its creedal and no foundation now survives to maintain the same. 5. Reliance is placed by learned counsel for the petitioner upon a judgment of this Court in Mathura Lal Mundra v. State of Rajasthan, reported in 2005(5) RDD 1320 (Raj.) , holding therein 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 credil in light of the judgment passed by this4 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." 6. While meeting with the arguments advanced by learned counsel for the petitioner, it is submitted by Dr. G.R. Kalla appearing on behalf of the respondents that the petitioner was terminated from service as on the date of issuance of the order, he was facing conviction. It is further submitted that the acquittal of the petitioner is based on the extension of benefit of doubt, therefore, it cannot be said that he has not committed any misconduct. 7. Heard learned counsel for the parties and considered the arguments advanced. 8. As already stated earlier, in the order impugned it is not made clear by the respondents that whether the petitioner is dismissed from service or removed as the term used in the order impugned is termination from service. 7. Heard learned counsel for the parties and considered the arguments advanced. 8. As already stated earlier, in the order impugned it is not made clear by the respondents that whether the petitioner is dismissed from service or removed as the term used in the order impugned is termination from service. Be that as it may, it is not in dispute that a major penalty as prescribed under Rule 14 of the Rules of 1958 is imposed upon the petitioner. No such penalty could have been imposed without ad-hearing the procedure prescribed under Rule 16 of the Rules of 1958, except in the eventualities referred under Rule 19 of the Rules of 1958. The order impugned was passed in view of the fact that one of the eventuality prescribed under Rule 19 of the Rules of 1958, that is conviction of the petitioner by the competent court was existing, but the conviction so referred is no more in existence in view of the judgment dated 18.1.2002 passed by this Court. In view of it, the authority to exercise powers under Rule 19(1) of the Rules of 1958 has lost its foundation. In view of it, the order impugned is now without authority of law and as such, the law laid down by this Court in the case of Mathura Lal Mundra (Supra) is having absolute application in this matter. 9. So far as the question that the acquittal of the petitioner is based on the extension of benefit of doubt and therefore, that does not mitigate the misconduct of the petitioner is concerned, suffice it to state that the misconduct, if any, survives then that is required to be established by holding a regular enquiry. Merely on the count that the acquittal is based on extension of benefit of doubt it cannot be said that the misconduct is not required to be established by holding an enquiry. 10. On the counts aforesaid, I am having no hesitation in declaring the order impugned dated 25.5.1991 (Annex.10) passed by the District Education Officer, Sriganganagar illegal. Accordingly, this petition for writ deserves acceptance and therefore, the same is allowed. The impugned order dated 25.5.1991 (Annex.10) passed by the District Education Officer, 6 Sriganganagar is quashed. The petitioner is declared entitle for all consequential benefits, which are now required to be given to his legal representatives, pursuing this petition for writ. Accordingly, this petition for writ deserves acceptance and therefore, the same is allowed. The impugned order dated 25.5.1991 (Annex.10) passed by the District Education Officer, 6 Sriganganagar is quashed. The petitioner is declared entitle for all consequential benefits, which are now required to be given to his legal representatives, pursuing this petition for writ. It is also made clear that the original petitioner being dead, no enquiry now can be conducted to establish his misconduct.Petition allowed. *******