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2015 DIGILAW 1053 (RAJ)

Bajrang Lal Sharma v. State of Rajasthan

2015-05-12

AJIT SINGH, ANUPINDER SINGH GREWAL

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JUDGMENT : Ajit Singh, J. This Intra Court Appeal is directed against the order dated 28.10.2013 passed by the learned Single Judge of this High Court, whereby he has dismissed appellants Single Bench Civil Writ Petition No.2163/2007 confirming the order of dismissal from service as passed by the Disciplinary Authority and also the Appellate Authority. 2. The facts in short are that on 27.4.2004 the appellant while working on the post of Senior Personal Assistant in the Office of Director, Prosecution was served with a charge sheet. The charge of misconduct levelled against him was that he had received Rs. 35,000/- in two instalments of Rs. 15,000/- and Rs. 20,000/- from Sikander Mohammad for securing him employment and on a complaint being made to the Chief Minister, he returned the amount. The Disciplinary Authority thereafter appointed Shyam Lal Sharma, Deputy Director, Prosecution (Headquarters) as Enquiry Officer. The appellant submitted his reply dated 30.3.2005 to the charge sheet and stated that he had been falsely implicated. On 29.7.2005 the Disciplinary Authority changed Shyam Lal Sharma and appointed Gordhan Lal Meena, Additional Director, Prosecution (Judicial) as new Enquiry Officer. 3. On 27.7.2005 Sikander Mohammad (complainant) and his father Rashid Mohammad sent their affidavits to the Enquiry Officer deposing therein that they did not want to give any evidence and also did not want any further proceedings in the matter. The appellant then made a representation dated 24.8.2005 for dropping the enquiry proceedings. The Enquiry Officer instead adopted coercive methods by issuing bailable warrants against the witnesses for ensuring recording of their statements. The statements of complainant Sikander Mohammad and Rashid Mohammad were recorded on 17.10.2005. 4. On 29.1.2006 the Presenting Officer submitted an application before the Enquiry Officer admitting that complainant and his father had turned hostile and that the charge was proved against the appellant on the basis of statements recorded by an Enquiry Officer during the preliminary enquiry. Gordhan Lal Meena submitted his enquiry report on 25.3.2006, a copy of which appellant says was never supplied to him despite his request. 5. On 10.5.2006 Gopesh Chand Dixit was transferred to the post of Additional Director, Prosecution, with additional charge of Director, Prosecution. He also took charge from Gordhan Lal Meena (Enquiry Officer in the matter). He then even served a notice on the appellant for personal hearing. The appellant submitted his reply on 12.9.2006. 5. On 10.5.2006 Gopesh Chand Dixit was transferred to the post of Additional Director, Prosecution, with additional charge of Director, Prosecution. He also took charge from Gordhan Lal Meena (Enquiry Officer in the matter). He then even served a notice on the appellant for personal hearing. The appellant submitted his reply on 12.9.2006. Gopesh Chand Dixit as Disciplinary Authority however on 25.9.2006 appointed Brij Lal Vyas, Director, Prosecution (Headquarters) as new Enquiry Officer. He by the same order also remanded the matter for a fresh enquiry report. The Disciplinary Authority on receiving a fresh enquiry report asked the appellant to submit his reply. The appellant in his reply objected to the remand and submitted that there was no evidence against him. But the Disciplinary Authority vide order dated 20.11.2006 dismissed the appellant from his services. 6. Thereafter on 11.12.2006 the appellant submitted an application and demanded copies of certain documents. The Disciplinary Authority although supplied certain documents, he refused to supply the copy of earlier enquiry report on the ground that charge was not found to be proved therein. 7. Aggrieved, the appellant filed a statutory appeal before the Appellate Authority but it was dismissed vide order dated 12.2.2007. He then filed Single Bench Civil Writ Petition No.2163/2007 which the learned Single Judge has dismissed by the impugned order. It is in this background, the appellant has filed the present appeal. 8. It is argued on behalf of the appellant that he has been illegally held guilty of misconduct only on the basis of conjectures and surmises despite the fact that there was absolutely no evidence against him. It has also been argued that the statements recorded stating preliminary enquiry under no stretch of imagination can be the basis for treating the charge proved against the appellant. The learned Additional Advocate General, on the other hand, has argued that there is ample evidence against the appellant to prove the charge and he has been properly dealt with for a serious misconduct. 9. As already mentioned above, the charge against the appellant was that he had taken Rs. 35,000/- in two instalments from Sikander Mohammad for getting him appointed/employed and that he later returned that amount when a complaint to the Chief Minister was made in this regard. During departmental enquiry Sikander Mohammad and his father Rashid Mohammad did not support the charge against the appellant. 35,000/- in two instalments from Sikander Mohammad for getting him appointed/employed and that he later returned that amount when a complaint to the Chief Minister was made in this regard. During departmental enquiry Sikander Mohammad and his father Rashid Mohammad did not support the charge against the appellant. Sikandar Mohammad in fact stated that he did not ever meet the appellant at any stage and money was given by him to one Hazari Lal who was posted as LDC in the Court of Additional Chief Judicial Magistrate (Fast Track), Badod and it was Hazari Lal who had promised to secure an employment through the appellant. Sikandar Mohammad has further stated that when he had given money to Hazari Lal no one was present. Sikandar Mohammad then also stated that Rs. 35,000/- was returned to him but he can't say by whom. Likewise, Rashid Mohammad also stated that he did not know from which source Sikandar Mohammad gave money and to whom. He also denied having telephoned the appellant at the instance of Sikandar Mohammad. During the departmental enquiry both Sikandar Mohammad and Rashid Mohammad were declared hostile and then they were surprisingly confronted with the earlier statements recorded during preliminary enquiry. Rashid Mohammad during cross-examination stated that appellant had returned Rs. 25,000/- to his son Sikandar Mohammad in the Secretariat in front of a Senior Officer. But we have seen above that Sikandar Mohammad has denied having met the appellant at any stage for any purpose and he also admitted of not knowing the person who had returned the money. It is also to be noted that Hazari Lal to whom bribe amount was paid by Sikandar Mohammad has not been examined by the department. Rashid Mohammad has nowhere stated in the departmental enquiry that bribe money was demanded by the appellant or the amount was paid to him. Also the Senior Officer before whom money was allegedly returned in the Secretariat has not been examined. There is thus, no direct evidence against the appellant that he either demanded money or was paid amount to provide employment to Sikandar Mohammad. In Union of India and Ors. v. Gyan Chand Chattar (2009) 12 SCC 78 , the Supreme Court has held that a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. In Union of India and Ors. v. Gyan Chand Chattar (2009) 12 SCC 78 , the Supreme Court has held that a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty award able in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities. 10. Despite this, Presenting Officer in his application stated that charge was proved against the appellant on the basis of statements recorded by an Enquiry Officer during the preliminary enquiry. In our considered opinion, this is not permissible under law. It is well settled that the purpose behind holding preliminary enquiry is only to take a prima facie view as to whether there can be some substance in the allegations made against an employee which may warrant a regular enquiry and that the evidence recorded in preliminary enquiry cannot be used in regular departmental enquiry as the delinquent is not associated with it. And also once regular enquiry is held, preliminary enquiry looses its importance. Using such evidence has been held by the Supreme Court to be violative of the principles of natural justice. (See Nirmala J.Jhala v. State of Gujarat AIR 2013 Supreme Court 1513 & Narayan Datratraya v. State of Maharashtra AIR 1997 SC 2148 ). 11. For these reasons, we are of the view that the present case is of no evidence and the finding of misconduct against the appellant is based essentially on conjectures and surmises which cannot substitute the requirement of proof. It is well-settled that charge must be established by some cogent evidence on which objectively a finding can be given about the commission of misconduct. The record also reveals that when first Enquiry Officer Gordhan Lal Meena in his enquiry report did not give finding about the charge having been proved against the appellant, the Disciplinary Authority appointed new enquiry officer and asked for fresh report. The finding of this Enquiry Officer relied upon by the Disciplinary Authority about charge of misconduct having been proved is perverse and cannot be sustained. 12. The finding of this Enquiry Officer relied upon by the Disciplinary Authority about charge of misconduct having been proved is perverse and cannot be sustained. 12. In the result, we set aside the order dated 28.10.2013 passed by the learned Single Judge in S.B.Civil Writ Petition No.2163/2007 and also the order dated 20.11.2006 passed by the Disciplinary Authority dismissing the appellant from the service. We also set aside the order dated 12.02.2007 passed by the Appellate Authority and direct the respondents to immediately reinstate the appellant with all consequential benefits. 13. The appeal is allowed with Rs. 5000/- as costs. Appeal Allowed.