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2014 DIGILAW 1575 (RAJ)

MANOJ KUMAR v. STATE OF RAJASTHAN

2014-09-23

MOHAMMAD RAFIQ

body2014
JUDGMENT : This writ petition has been filed by the petitioner Manoj Kumar challenging the order dated 25.04.2008 passed in disciplinary proceedings whereby he was dismissed from service and also challenging the order dated 29.08.2008 by which appeal filed by the petitioner was rejected by the appellate authority and order dated 29.07.2011 by which his review petition was rejected by the reviewing authority. Prayer has also been made for quashing the charge sheet dated 09.05.2007. The petitioner was initially appointed on the post of Constable with Belt No. 1541. He joined his duties on 10.02.1992. A Challan was filed against him in the Court of Additional Chief Judicial Magistrate No. 3, Jaipur for offence under Sections 420, 467, 468, 471 and 120 IPC. On the basis of aforesaid challan, a charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958(hereinafter referred to as ‘the Rules of 1958’) containing nine charges was also served upon him. Learned counsel for the petitioner has submitted that the basis of the charge sheet in the disciplinary proceedings was the criminal case registered against the petitioner vide FIR No. 182/2005 in relation to one Plot No. 47, Green Town, Benar Road, Jhotwara by none other than Shri Vinod Kumar, brother-in-law of the petitioner alleging that the petitioner has taken original papers of said plot and thereafter allegedly forged sale deed and on that basis, took the electricity connection in his name. Learned counsel for the petitioner has submitted that it was nothing but result of misunderstanding between close relatives. The petitioner requested the respondent-disciplinary authority to drop the proceedings in the departmental enquiry till the disposal of the criminal case. His prayer was accepted and disciplinary proceedings were kept in abeyance till the decision of the criminal case. Since the dispute was result of misunderstanding, the matter was compromised between the parties and on that basis an application for compounding of offence under Section 420 IPC was filed before the Trial Court which was accepted vide order dated 16.03.2007. The petitioner filed another application for compounding the entire case for offence under Section 467, 468 and 471 IPC but the same was dismissed on the ground that the offences were not compoundable under Section 320 Cr.P.C. The petitioner then filed S.B. Criminal Misc. Petition No. 724/2007 before this Court. The petitioner filed another application for compounding the entire case for offence under Section 467, 468 and 471 IPC but the same was dismissed on the ground that the offences were not compoundable under Section 320 Cr.P.C. The petitioner then filed S.B. Criminal Misc. Petition No. 724/2007 before this Court. This Court quashed the proceedings in the aforesaid criminal case pending before the trial court. The petitioner on that basis requested the authorities to drop the disciplinary proceeding because it was based on same set of facts and evidence and also the matter had been compromised between the parties. Instead of dropping the proceedings, the disciplinary authority appointed enquiry officer. Learned Counsel for the petitioner argued that the enquiry officer did not take note of entire facts and circumstances of the case and ignored the material evidence. He on the basis of mere oral evidence of the witnesses held Charge No. 1, 2 and 3 proved whereas those very witnesses were witnesses in the criminal case and this fact was not considered by the Enquiry Officer. He also failed to consider petitioner’s alleged absence for 44 days in the right perspective. The petitioner submitted complete information about his illness through telegram to the officer. Even then Charge No. 4, 5 and 6 have been held to be proved. Finding on Charge No. 7 was wholly erroneous because the charge was itself illegal. This charge is about the absence of the petitioner on earlier occasions which had already been condoned by granting of leave that was due. Charge No. 8 and 9 were also illegally held to be proved. Learned counsel for the petitioner therefore submitted that impugned orders are liable to be quashed and set aside. It is argued that despite repeated requests of the petitioner documents were not supplied to the petitioner and he could not submit detailed reply to the charge sheet. Charge No. 1, 2 and 3 could not have been held proved against the petitioner because the charge regarding alleged sale deed forged by the petitioner was not proved in the criminal trial inasmuch as such charge can be proved only when FSL report was called for. When the matter was compromised, there was no question for the Enquiry Officer to hold the same proved. Findings of the Disciplinary authority on that aspect are also vitiated. When the matter was compromised, there was no question for the Enquiry Officer to hold the same proved. Findings of the Disciplinary authority on that aspect are also vitiated. With regard to Charge No. 4, 5 and 6 in respect of alleged absence of 44 days, the petitioner submitted telegram dated 16.11.2005 and the disciplinary authority wrongly held the charge to be proved. The disciplinary authority was required to have examined this aspect with a view to recording finding whether the absence of the petitioner was willful or not. The Disciplinary authority failed to appreciate that enquiry officer did not provide opportunity to the petitioner to cross examine the witnesses of the department and he was asked to remain present and just to sit from morning to evening and he was asked to sign blank papers. The petitioner was never supplied copy of statements. He being mere a constable could not muster enough courage to contradict the enquiry officer. Procedure followed by the Enquiry Officer was violative of provisions of Rule 16 of the Rules of 1958 and principle of natural justice. Enquiry report submitted by the enquiry officer is faulty inasmuch as he has not recorded correct findings. Learned counsel for the petitioner submitted that once the criminal charges were not proved, then only charge of willful absence for 44 days could not form basis for awarding a major penalty of dismissal from service. Learned counsel for the petitioner in support of his arguments relied upon the decision of this Court in the cases of Mohd. Shafi Through L/R Vs. State & Ors., 2012(1) WLC(Raj.) 527; Khawaju Khan Vs. The State of Rajasthan & Ors., 2007(4) WLC(Raj.) 252 and Ramji Lal Vs. State of Rajasthan & Others, 2012(2) WLC(Raj.) 144. Dr. A.S. Khangarot, learned Additional Government appearing on behalf of the respondents opposed the writ petition and submitted that compromise between the petitioner and the complainant in the criminal case can have no effect on the right of the disciplinary authority to continue with the disciplinary proceedings against the petitioner. Superintendent of Police, Head S.B. CIVIL WRIT PETITION NO. 1736/2012 Quarter Jaipur City vide order dated 27.02.2006 directed S.H.O., Police Station Jhotwara, Jaipur to conduct a preliminary enquiry into the allegations against the petitioner. S.H.O., Police Station Jhotwara, Jaipur in preliminary enquiry report dated 10.07.2006 found charges prima facie proved against the petitioner. Superintendent of Police, Head S.B. CIVIL WRIT PETITION NO. 1736/2012 Quarter Jaipur City vide order dated 27.02.2006 directed S.H.O., Police Station Jhotwara, Jaipur to conduct a preliminary enquiry into the allegations against the petitioner. S.H.O., Police Station Jhotwara, Jaipur in preliminary enquiry report dated 10.07.2006 found charges prima facie proved against the petitioner. It was thereupon that the petitioner was served regular memo of charges under Rule 16 of the Rules of 1958. The petitioner was given 15 days time to submit reply. When he failed to submit reply, the disciplinary authority had no option but to appoint enquiry officer vide order dated 20.07.2007. It is disputed that the petitioner demanded copies of statement by application dated 29.05.2007. In fact, the Superintendent of Police, Police Headquarters, Jaipur vide letter dated 23.05.2007 allowed the petitioner to inspect the documents. In response to subsequent application dated 20.06.2007, the petitioner was again vide letter dated 21.06.2007 allowed to inspect the documents. The petitioner submitted reply to charge sheet on 25.06.2007. Being not satisfied with the reply, disciplinary authority appointed Additional Superintendent of Police (Offence & Vigilance) Jaipur Range I, Jaipur as Enquiry Officer. Compromise in the criminal case would have no effect on continuation of the disciplinary enquiry against the petitioner in which provisions of Rule 16 of the Rules of 1958 were strictly adhered to. The petitioner was given full opportunity to defend himself. He was granted time to appoint his defence nominee but he did not do so. He was given opportunity to cross examine the witnesses but he failed to cross examine them. Order awarding of penalty of dismissal from service upon the petitioner was fully justified. I have given my anxious consideration to the rival submissions and perused the material available on record. In so far as Charge No. 1, 2 and 3 are concerned, they are completely based on the allegations against the petitioner in the criminal case which ended in compromise between the petitioner and the complainant and consequential quashment of the proceedings. Findings recorded by the enquiry officer and agreed by the disciplinary authority that agreement to sell was forged and on that basis the petitioner took electricity connection and criminal trial proceedings against him covering all these three charges is only without any basis and to say least, proceeds on assumption rather than proof. Findings recorded by the enquiry officer and agreed by the disciplinary authority that agreement to sell was forged and on that basis the petitioner took electricity connection and criminal trial proceedings against him covering all these three charges is only without any basis and to say least, proceeds on assumption rather than proof. When the charges and evidence were same, with no fresh evidence being there to prove the alleged forgery by the petitioner, the charge cannot be taken as proved. Findings recorded by the disciplinary authority on Charge No. 1, 2 and 3 are nothing but enumerations of the names of witnesses and the documents. When the complainant has himself compromised the matter and compounded the offence against the petitioner with the permission of the Court and when on that basis, proceedings have been quashed, then his statement cannot in law taken as proof of those charges. As regards Charge No. 7, this charge covers absence of the petitioner on number of previous occasions where for on each of occasion, his leave was duly sanctioned. The period of absence which has been regularized by grant of leave cannot be made subject matter of disciplinary proceedings against the petitioner. Charge No. 8 and 9 have not been found proved. Charge No. 4, 5 and 6 are broadly overlapping and covers the allegations of absence of 44 days. In fact, Charge No. 4 and 6 are precisely for willful absence of the petitioner which has been proved by department witness and Charge No. 5 is with regard to petitioner’s arrest on 19.11.2005 by the Investigating Officer Madan Singh(P.W.7). P.W.3, Phool Chand under Charge No. 4 has proved that he recorded departure of the petitioner in Rapat No. 77 on 06.11.2005. P.W.13 Mohan Singh in that charge also proved that after 44 days of absence, the petitioner reported back in Police Line which is proved vide Exhibit 22. This explains that the petitioner remained absent for a period of 44 days. Even if that absence was not for any willful reason, but fact is that it was absence from duty for which the petitioner has valid reasons to give. Though the charge of absence is established but when the Court quashed proceedings against the petitioner, other charges except this cannot be held to be proved against the petitioner. The Co-ordinate Bench of this Court in the case of Mohd. Though the charge of absence is established but when the Court quashed proceedings against the petitioner, other charges except this cannot be held to be proved against the petitioner. The Co-ordinate Bench of this Court in the case of Mohd. Shafi Through L/R(Supra) while dealing with a case of dismissal on ground of unauthorized absence for 76 days referred to decisions rendered by the Hon’ble Supreme Court in the cases of B.C. Chaturvedi Vs. Union of India (1995) 6 SCC 750; Dev Singh Vs. Punjab Tourism Development Corpn. Ltd., (2003) 8 SCC 9 ; Kailash Nath Gupta Vs. Enquiry Officer Allahabad Bank, (2003) 9 SCC 480 ; State of Gujarat Vs. Anand Acharya, (2007) 9 SCC 310 , held that it is settled by judgment of Apex Court that the High Court under Article 226 of the Constitution in exercise of its powers of judicial review, would not normally interfere with quantum of punishment in disciplinary inquiry. Doctrine of proportionality cannot be invoked unless penalty impugned is found to be disproportionate and shocks the conscience of Court. At the same time, while examining quantum of penalty inflicted upon delinquent, several factors are required to be taken note of including conduct of delinquent as well as nature of the charges imputed, which plays vital role. A Co-ordinate Bench of this Court in the case of Khawaju Khan(supra) dealt with similar situation wherein the petitioner who was also a constable was awarded penalty of dismissal from service. The Co-ordinate Bench of this Court while referring catena of decisions rendered by the Hon’ble Supreme Court held the penalty of dismissal from service to be disproportionate and set aside the order of dismissal and reinstated the petitioner therein back in service and remanded the matter back to the disciplinary authority to pass an appropriate order of punishment less then the dismissal and removal and one of which may be compulsory retirement with proportionate pension along with order on the issue of salary of intervening period from the date of dismissal till the date of passing of the order within a period of six months. A Co-ordinate Bench of this Court in the case of Ramji Lal (supra) dealt with a case wherein the petitioner working on the post of constable was served with a charge sheet under Rule 16 of the Rules of 1958 for willful absence of 240 days for which extra ordinary leaves were sanctioned to him, but he was awarded penalty of removal from service. Appeal as well as review petition filed by the petitioner therein were also dismissed by the concerned authorities. This Court held that finding recorded by the disciplinary authority was not acceptable and it was only technical one and that aspect of the matter was not considered by either the appellate authority or the reviewing authority. The Co-ordinate Bench of this Court in those circumstances quashed and set aside the order of dismissal from service as well as orders passed by the appellate authority and reviewing authority and directed the respondents therein to reinstate the petitioner in service with all consequential benefits except back wages. This Court in the case of Atar Singh Vs. State of Rajasthan & Ors., 2010(1) WLN 434 dealt with a case of dismissal of a constable from service on the ground of absence of 16 days. This Court held that charge of willful absence from duty for which the employee already stood penalised, could not again be included in charge for willful absence for subsequent period as the same amounts to double jeopardy under Article 20(2) of the Constitution of India. This Court in that case also set aside the order of penalty of dismissal from the service and order of dismissal of appeal of the petitioner therein and remanded back to the disciplinary authority for awarding any other penalty except the penalty of dismissal or removal. This Court in the case of Sardar Singh Vs. State of Rajasthan & Others decided on 07.01.2009 dealt with case of dismissal from service of a constable on the ground of absence of 39 days. This Court in the case of Sardar Singh Vs. State of Rajasthan & Others decided on 07.01.2009 dealt with case of dismissal from service of a constable on the ground of absence of 39 days. This Court found the penalty of dismissal from service disproportionate to the gravity of charge and set aside the order of penalty of dismissal from service and order dismissing appeal of the petitioner therein and directed for reinstatement of the petitioner will all consequential benefits and remanded the matter back to the disciplinary authority with liberty to furnish notice of dissent to the petitioner as well as copy of enquiry report and proceed in the matter afresh in accordance with law. The disciplinary athority was further directed to pass fresh order of penalty except the order of dismissal or removal. In the present case too, penalty of dismissal on mere charge of absence of 44 days from duty is highly excessive and disproportionate to gravity of charge. Proof of this charge may justify any other penalty except dismissal, removal and compulsory retirement. In the result, this writ petition is partly allowed. The impugned order of dismissal from service dated 25.04.2008, appellate order dated 29.08.2008 and order of reviewing authority dated 29.07.2011 are quashed and set aside. The matter is remanded back to the disciplinary authority for awarding any other penalty except the penalty of dismissal, removal or compulsory retirement. The petitioner shall be deemed to be under suspension for the intervening period entitling him to no other benefits except subsistence allowance. The requisite order under Rule 54 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 shall be passed by disciplinary authority for the intervening period during which the petitioner has remained under suspension till the date fresh order of penalty now be passed. Compliance of the judgment be made within three months from the date copy of this judgment is produced before the respondents.