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2014 DIGILAW 584 (RAJ)

Hari Mohan v. State of Rajasthan

2014-02-28

MOHAMMAD RAFIQ

body2014
JUDGMENT 1. - This writ petition has been preferred by petitioner Hari Mohan challenging the order dated 10/5/1994 (Ann.1) by which he has been awarded penalty of stoppage of two annual grade increments with cumulative effect and forfeiture of the salary for the period of suspension i.e. from 16/12/1991 to 16/5/1992 except the subsistence allowance already to him, the order dated 18/8/1994 (Ann.2) by which his appeal filed against the aforesaid order dated 10/5/1994 (Ann.1) was dismissed and the order dated 4/8/1997 (Ann.3) by which review petition filed by the petitioner has been dismissed. 2. Facts of the case are that a joint charge-sheet under Rule 18 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, the "Rules of 1958") was served upon petitioner-Hari Mohan and co-delinquent Bijendra Singh alleging that petitioner along with co-delinquent Bijendra Singh, while they were on duty of Vehicle No.RNG 3236 Chetak No.4 on 15/12/1991 as a Driver in Police Stations Mansarovar and Sodala, took the vehicle for the private work to Rajasthan Police Academy, Nehru Nagar, Jaipur, where the vehicle met with an accident and got damaged. Charge against them was that this act of theirs proved their negligence and dereliction of duties. Petitioner submitted reply to the charge-sheet denying the charges. He even denied the fact he was deputed on duty on the said vehicle. It was submitted that the documents do not prove that both were simultaneously given duty on the same vehicle. At the time of accident also, petitioner was not present. Department examined 10 witnesses and exhibited 6 documents. The enquiry officer in his enquiry report proved all the charges against both of them. 3. The disciplinary authority on that basis awarded penalty of stoppage of two annual grade increments with cumulative effect vide order dated 20/3/1993. Petitioner preferred departmental appeal, which was allowed by the appellate authority vide order dated 17/7/1993 and remanded the matter back to the disciplinary authority with the directions to supply the findings of the enquiry officer and then to afford an opportunity of hearing to the petitioner. In compliance of the order of the appellate authority dated 17/7/1993, the enquiry officer furnished copy of the enquiry report to the petitioner and asked him to submit his explanation. Petitioner submitted reply. In compliance of the order of the appellate authority dated 17/7/1993, the enquiry officer furnished copy of the enquiry report to the petitioner and asked him to submit his explanation. Petitioner submitted reply. The disciplinary authority passed the fresh order of penalty on 10/5/1994 (Ann.2) again reiterating the same punishment of withholding of two annual grade increments with cumulative effect and forfeiture of the salary for the period of suspension i.e. from 16/12/1991 to 16/5/1992 except the subsistence allowance already to him. Petitioner filed departmental appeal before the Deputy Inspector General of Police, Jaipur Range, Jaipur, who dismissed the same vide order dated 18/8/1994 (Ann.3). Petitioner filed review petition against the order dated 18/8/1994 before His Excellency, the Governor of Rajasthan, who too dismissed the review petition vide order dated 4/8/1997 (Ann.3). Regarding the incident, a first information was also lodged against both of them being FIR No.384/1991 at Police Station Banipark, Jaipur for offence u/Ss.279 and 337 IPC. However, after investigation, the police filed a negative final report in the court holding petitioner not responsible for the rash and negligent driving. The court accepted the final report. 4. Mrs.Anupama Chaturvedi, learned counsel for the petitioner has argued that the enquiry officer has committed serious illegality in holding the petitioner guilty on the basis of statement of Bijendra Singh, who was also co-delinquent facing the same enquiry. It is well settled principle of law that statements of one accused cannot be used against another accused. This is so because the petitioner was not given opportunity to cross examine Bijendra Singh. Learned counsel further argued that in terms of Section 30 of the Indian Evidence Act, 1872, when more person than one are being tried jointly for the same offence and a confession made by one of such person, affecting himself and some other of such person is proved, the court cannot take into consideration such confession as against such other person. In the present case, Bijendra Singh has tried to save his skin and made an attempt to shift the entire guilt upon petitioner. Thus, his statement cannot be used against petitioner. Otherwise also, police filed negative final report in a criminal case registered against petitioner, which was accepted by the court. In the present case, Bijendra Singh has tried to save his skin and made an attempt to shift the entire guilt upon petitioner. Thus, his statement cannot be used against petitioner. Otherwise also, police filed negative final report in a criminal case registered against petitioner, which was accepted by the court. It is argued Rule 12 of the Rules of 1958 provides that all appointments to the subordinate and ministerial services shall be made by Head of the Department or by any authority specially empowered by the Head of the Department with the approval of the Government on that behalf. The Superintendent of Police in the instant case is not an appointing authority and hence was not competent to impose penalty, therefore, the punishment awarded is without jurisdiction. 5. It is further argued that power to appoint includes the power to suspend and dismiss also vide Section 16 of the General Clauses Act, 1897 and Article 311(1) of the Constitution prohibits the dismissal or removal by an authority subordinate to the Appointing Authority. Counsel argued that as per Rapat Rojnamcha No.141 of Police Line on 15/12/1991 at 7.10 pm., there was duty of co-delinquent Bijendra Singh, Constable at Vehicle No.RNG-3236. As per another Report No.1195 at 8.00 pm. of the same day, it is proved that Bijendra Singh, Constable was performing the duty of Driver on the said vehicle and this fact has been proved from the documents of the department itself viz. Exh.P-2 and Exh.P-4. Not only this, Sayar Singh, Sub Inspector has also proved by stating that co-delinquent Bijendra Singh was driver on the said vehicle. The charge alleged against petitioner is thus not made out and consequently, the penalty imposed upon petitioner on the basis of said charge cannot be sustained. Learned counsel for the petitioner in support of her arguments has placed reliance upon the judgments of this Court in Rameshwar Lal v. State of Rajasthan : WLN 1992(5) Raj. 521 and Hanuman Singh v. State of Rajasthan : 1998 (3) WLC 235. 6. Per contra, Shri A.S. Khangarot, learned Additional Government Counsel has opposed the writ petition and argued that charge in the disciplinary enquiry has been proved against petitioner. Mere acceptance of the negative final report by the court, does not mean that the penalty imposed is disproportionate to the charge. 6. Per contra, Shri A.S. Khangarot, learned Additional Government Counsel has opposed the writ petition and argued that charge in the disciplinary enquiry has been proved against petitioner. Mere acceptance of the negative final report by the court, does not mean that the penalty imposed is disproportionate to the charge. The penalty has been imposed on the basis of evidence proving charge against petitioner. The disciplinary authority has fully applied its mind to the enquiry report. Statement of Sayar Singh did not in any manner exonerate the petitioner. In fact, petitioner and co-delinquent Bijendra Singh jointly took the official vehicle Chetak No.4 for their personal work while on official duty. It was argued that Superintendent of Police is fully competent to pass the order of penalty. 7. I have given my anxious consideration to the rival submissions and perused the material available on record. 8. At the outset, the question whether Superintendent of Police was competent to impose a major penalty has been ultimately decided by the larger bench of this Court in Prem Singh v. State of Rajasthan & Ors. : 2012(4) WLN 264 : 2013(3) RLW 2505 (Raj.). 9. Coming now to the submission that charges against petitioner have not been proved on evidence, it has to be noted that the enquiry officer has found the charges proved against both, the petitioner-Hari Mohan and co-delinquent Bijendra Singh in taking the official vehicle without permission of the Incharge of Chetak No.4 for their private work. Rather, they were on duty in Police Stations Mansarovar and Sodala. They took the vehicle near Rajasthan Police Academy, Nehru Nagar, Jaipur, which is in Banipark area. the accident took place due to their negligence and the official vehicle got damaged. The appellate authority and the reviewing authority have concurred with the opinion of the disciplinary authority. But on the basis of the evidence, slight difference is made between the case of petitioner and that of Bijendra Singh. That difference is that as per rojnamcha rapat Exh.2 and Exh.4, Bijendra Singh was deputed as driver on the said vehicle, whereas petitioner as a Police Constable was member of the police party on Vehicle No.RNG 3236 (Chetak No.4). Therefore, gravity of charge against him would be slightly lesser than that of co-delinquent Bijendra Singh. 10. That difference is that as per rojnamcha rapat Exh.2 and Exh.4, Bijendra Singh was deputed as driver on the said vehicle, whereas petitioner as a Police Constable was member of the police party on Vehicle No.RNG 3236 (Chetak No.4). Therefore, gravity of charge against him would be slightly lesser than that of co-delinquent Bijendra Singh. 10. Apart from above, Lalluram, Sub Inspector (PW4) has also proved that he was party in-charge at Chetak No.4 on 15/12/1991 and was deputed in Sodala area. Driver of the vehicle was Bijendra Singh. Sawai Singh Bareth, Head Constable (PW5) has stated that he was deputed as H.M.M.T. in the Police Line, Jaipur City on 15/12/1991 in the day duty, whereas Nathu Singh Head Constable was on duty in the night on 15/12/1991. He had given duty to Hari Mohan (petitioner) as driver on the vehicle in question in the night of 15/16.12.1991 but he cannot say as to how the petitioner was replaced by Bijendra Singh in the night of 15/16.12.1991. Sayar Singh Sub Inspector (PW7) has stated that he was on duty on Chetak No.4 on the relevant day. He was accompanied by Girraj and Prahlad Constables. Bijendra Singh was driver on that vehicle and the entry in this regard was made in the rojnamcha. When he came out of police station, he did not find vehicle and the driver both. He along with police party waited for the vehicle. He came to know about 25 minutes thereafter that the vehicle Chetak No.4 has met with an accident. Sayar Singh Sub Inspector (PW7) in cross-examination made by Hari Mohan (petitioner) categorically stated that he correctly remembered that Bijendra Singh was deputed as driver of the vehicle. Prahlad Sahay Constable (PW8) has also proved that Bijendra Singh was driver of the vehicle and that vehicle was being parked outside the police station and both, Hari Mohan and Bijendra were standing by the side of the vehicle. Pramod, Constable put the blanket in the vehicle and thereafter he also put his blanket. When he enquired as to who is the driver on that vehicle in the night, Bijendra Singh stated that his entry should be made in the rojnamcha. When Sayar Singh (PW7) asked this witness (PW8) as to who is the driver, he named Bijendra Singh. Pramod, Constable put the blanket in the vehicle and thereafter he also put his blanket. When he enquired as to who is the driver on that vehicle in the night, Bijendra Singh stated that his entry should be made in the rojnamcha. When Sayar Singh (PW7) asked this witness (PW8) as to who is the driver, he named Bijendra Singh. Thus, differentiation of gravity of charge of petitioner-Hari Mohan and co-delinquent Bijendra Singh stands proved from rojnamcha rapat Exh.2 and Exh.4 that Bijendra Singh in fact was deputed as driver on Vehicle No.RNG 3236 (Chetak No.4), whereas petitioner as a Police Constable was member of the police party on the said vehicle. Petitioner therefore deserves award of the lesser penalty in comparison to co-delinquent Bijendra Singh. 11. In view of above, therefore, the writ petition partly succeeds and it is accordingly allowed in part. The impugned-order 10/5/1994 (Ann.1) passed by Superintendent of Police Jaipur City, Jaipur is quashed and set-aside to the extent of withholding of stoppage of two annual grade increments with cumulative effect, which penalty is reduced to withholding of stoppage of only one annual grade increment with cumulative effect.Petition Partly Allowed. *******