Research › Search › Judgment

Himachal Pradesh High Court · body

2017 DIGILAW 1242 (HP)

Tilak Raj v. High Court of Himachal Pradesh

2017-11-10

AJAY MOHAN GOEL, SURESHWAR THAKUR

body2017
JUDGMENT : Sureshwar Thakur, J. 1. Through the instant writ petition, the petitioner prays for quashing of Annexure P-12, and of Annexure P-14, whereunder, the petitioner's espousal for restoration in service claimed under Annexure P-11, was declined respectively, by the District and Sessions Judge, Bilaspur and thereafter in an appeal, borne in Annexure P-13, carried therefrom before the High Court, the latter proceeded to affirm the rendition occurring in Annexure P-12. 2. Annexure P-8, unfolds, the apt imputations of misconduct vis-a-vis the delinquent/ petitioner herein. The apt imputations of misconduct, embodied therein read as under: “1. Whereas you are appointed as Chowkidar on temporary basis and posted as such in the Court of Civil Judge (Sr. Division)-cum-Addl. Chief Judicial Magistrate, Ghumarwin, under this office, office order No. DSJ/BLP/EC/2001-25, dated 10th April, 2001 and you were working as such in the said court w.e.f. 19th April, 2001. On 3.11.2002 at abut 11 a.m., while you were working as Chowkidar in the Court of Civil Judge (Sr. Division)- cum-All. Chief Judicial Magistrate, Ghumarwin had committed rape on one Miss Anurag d/o Sh. Surtia Ram, Caste Brahamn, village Gehra, Tehsil Ghumarwin, District Bilaspu and for which case FI.R. No. 211/2002 of offence under Sections 376, 506 IPC was registered against you in police station, Ghumarwin. The above act amounts to an offence of moral turpitude on your part, which is highly unbecoming of a public servant. 2. And whereas you had proceeded on compensatory leave and casual leave w.e.f. 20th December, 2004 to 27th December, 2004 and you were due to report for your official duty on 28th December, 2004. You had neither reported for duties on 28.12.2004, nor you had submitted any application for leave. You are wilfully absent from your duties w.e.f. 28th December, 2004 onwards, which is also highly unbecoming of your part being public servant and is vilation of sub-rule (1) (iii) of Rule 3 under Central Civil Services (Conduct) Rules, 1964. (c) That the respondent may kindly be directed to allow the petitioner to participate in the interview to be held from 26.12.2016 to 28.12.2016.” 3. In pursuance to FIR No. 211/2002 being loged against the petitioner for his committing offences punishable under Sections 376 and 506 of the IPC, he was arrested on 3.11.2002, whereafter he was placed under suspension w.e.f. 3.11.2002. However, on his being released on bail, he reported for duty on 22.5.2003. In pursuance to FIR No. 211/2002 being loged against the petitioner for his committing offences punishable under Sections 376 and 506 of the IPC, he was arrested on 3.11.2002, whereafter he was placed under suspension w.e.f. 3.11.2002. However, on his being released on bail, he reported for duty on 22.5.2003. Under an order recorded on 27.09.2003, the suspension visited vis-a-vis the petitioner/delinquent, was hence revoked. The delinquent/petitioner was sanctioned compensatory casual leave w.e.f. 20.12.2004 to 27.12.2004 and was enjoined to report for duty on 28.12.2004 at 9.45 a.m. However, the petitioner did not report for duties, on 28.12.2004 nor he submitted any application for meteing's, of, extension of leave. In sequel, it was also imputed vis-a-vis the petitioner qua his remaining willfully absent from duty w.e.f. 28.12.2004. Consequently, an apposite approval was meted by the learned District and Sessions Judge, Bilaspur, for, a notice being issued upon him, for his purveying the reasons for precluding the disciplinary authority, from, under Rule 14 of the Central Civil Services (Calssification, Control and Appeal) Rules, 1965, hence initiating action against him. The bailiff of the Court of Civil Judge (Sr. Division)-cum-ACJM, Ghumarwin, made, a visit vis-a-vis the abode of the delinquent/petitioner, whereupon, upon a communication, made, in writing by the father of the delinquent/petitioner, he made a report of his missing therefrom. Thereafter, the disciplinary authority, hence, adopted the statutory mechanism contemplated in sub-rule (9)(2) appended below Rule 19 of the Central Civil Services (Control, Classification and Appeal) Rules, 1965, provisions whereof are extracted hereinafter:- “2. After careful consideration, it has been decided that in such cases the competent disciplinary authorities may take the following actions:- (a) A certificate should be obtained from the local police authorities to the effect that the whereabouts of the officials concerned are not known. This certificate would be placed on record in the concerned file. (b) A brief statement of allegations and charges should be prepared and kept on the file. (c) The disciplinary authority should himself record on the file the fact that the whereabouts of the officials concerned are not known and that the police authorities have also certified to that effect and therefore, it is not reasonably practicable to hold the inquiry contemplated under Rule 14 of the C.C.S. (C.C.A.) Rules, 1965. (c) The disciplinary authority should himself record on the file the fact that the whereabouts of the officials concerned are not known and that the police authorities have also certified to that effect and therefore, it is not reasonably practicable to hold the inquiry contemplated under Rule 14 of the C.C.S. (C.C.A.) Rules, 1965. The disciplinary authority can then take recourse to rule 19 (ii) of C.C.S. (C.C.A.) Rules, 1965 wherein enquiry has to be dispensed with. Reasons for not holding enquiry should then be recorded in writing and the disciplinary authority should issue orders imposing such penalty as it deems fit. The allegations and charges have to be briefly discussed in the punishment order. Normally, in such cases the punishment that could be meted out would be either removal or dismissal from service.” 4. In compliance with the provisions occurring therein, a copy of the order rendered by the learned Additional Sessions Judge, whereby, the delinquent/petitioner was declared a proclaimed offender and a copy of notice issued vis-a-vis the delinquent/petitioner under Section 82 of the Cr.P.C. as also, a copy of police report filed before the trial Court under the provisions of Section 173 of the Cr.P.C. was ordered to be procured. The aforesaid material, for hence satiation thereto being begotten, was purveyed, by the learned trial Court, to the disciplinary authority. Also, with its being unveiled therein, of, the learned Additional Sessions Judge concerned being seized with a report instituted under the provisions of Section 173 of the Cr.P.C. by the Investigating Officer concerned, with e-choing's therein of the delinquent/petitioner committing offences under Sections 376 and 506 of the IPC, hence, amended imputations of misconduct, embodying the aforesaid misconduct, was ordered to be framed against the delinquent/petitioner. An amended show cause notice, embodying therein, the aforesaid imputations of misconduct vis-a-vis him, was ordered to be served upon the delinquent/petitioner. The aforesaid amended imputations of misconduct ordered to be served upon the delinquent/petitioner, yet, given the absence of the delinquent, from his abode, it, as ordered, was hence, affixed, by the process server concerned, on the outer door of the abode/premises of the petitioner. Since, in pursuance thereto, the delinquent/petitioner did not appear before the Inquiry Officer concerned, thereupon, it was concluded, of, his being amenable for being charge sheeted for his committing the aforesaid misconducts. Since, in pursuance thereto, the delinquent/petitioner did not appear before the Inquiry Officer concerned, thereupon, it was concluded, of, his being amenable for being charge sheeted for his committing the aforesaid misconducts. Copy of the charge sheet, could not be personally served upon the delinquent, thereupon, it was affixed by the process server concerned, upon, the outer door of his premises. Given, the delinquent absconding and his being declared, a proclaimed offender, under valid orders in respect thereof, being pronounced by the learned Additional District Judge, Ghumarwin, (i) thereupon, on anvil of the provisions, vested, in the disciplinary authority concerned by Rule 19(ii)(9) of Central Civil Services (Classification, Control and Appeal) Rules, 1965, (ii) whereupon it stood empowered to dispense with the holding of a regular enquiry upon evident satiations thereof vis-a-vis the delinquent, (iii) thereupon, with obviously satiation thereof being meted, constrained the disciplinary authority concerned, to, hence make a valid ex-parte conclusion, of the imputations of misconduct vis- a-vis the delinquent, comprised in his remaining absent from duty w.e.f. 28.12.2004 till 22.12.2005 being proven, (iv) whereupon it proceeded to impose upon him a major penalty, of his being ordered to be removed from service. 5. However, subsequent thereto, the delinquent surrendered on 20.02.2008, before the trial Court concerned. On his surrendering before the learned trial Court, he was charged for his committing an offence punishable under Sections 376 and 506 of the IPC. On conclusion of the trial of the case, the learned Additional Sessions Judge, Ghumarwin, pronounced an order of acquittal upon the delinquent/petitioner. Uncontrovertedly, the aforesaid order of acquittal pronounced upon the petitioner/delinquent by the learned Additional Sessions Judge, Ghumarwin, led him to address an application comprised in Annexure P-11, to the District & Sessions Judge, Bilaspur, whereunder he sought relief of his being ordered to be reinstated in service. The aforesaid application was rejected under Annexure P-12 and the aforestated rejection order was also, under Annexure P-14, hence affirmed by the High Court. The order of acquittal pronounced upon the delinquent/petitioner by the learned Additional Sessions Judge, Ghumarwin, does, on its close reading, unveil, of it being founded upon the prosecutrix turning hostile, thereupon, the ensuing sequel, is of the petitioner/accused/delinquent being beset with a humiliation, of, his may be, being maliciously prosecuted. The order of acquittal pronounced upon the delinquent/petitioner by the learned Additional Sessions Judge, Ghumarwin, does, on its close reading, unveil, of it being founded upon the prosecutrix turning hostile, thereupon, the ensuing sequel, is of the petitioner/accused/delinquent being beset with a humiliation, of, his may be, being maliciously prosecuted. Moreover, (i) the order of the acquittal pronounced upon the accused/delinquent/petitioner, being founded, upon reasons not tantamounting, of theirs being construed, to be of hence the learned Additional Sessions Judge concerned, upon his traversing through the apposite evidence vis-a-vis the charge, existing on record, concluding of it being infirm and inconsistent, (ii) thereupon, it affording vis-a-vis the accused/petitioner/delinquent, the benefit of doubt, (iii) rather it appears, of, with the prosecutrix reneging from her previous statement recorded in writing, hence, prevailing upon the learned Additional Sessions Judge concerned, to pronounce an order of acquittal, upon, the accused/petitioner/delinquent, (vi) thereupon, it can be befittingly concluded that the acquittal of the delinquent/petitioner being construable to be an honourable acquittal. However, yet on the basis of his honourable acquittal aforesaid, the petitioner/delinquent, cannot make any valid espousal vis-a-vis his being reinstated in service, for the reasons, (i) though one of the imputations of misconduct vis-a-vis the accused, is comprised in his committing offences punishable under Sections 376 and 506 of the IPC, yet dehors the aforesaid infirmity ingraining one of the imputations of misconduct, encumbered upon the petitioner/delinquent, would not, per se render also likewise infirm, the other imputations of misconduct entailed upon the delinquent, comprised in his remaining evidently willfully absent from duty w.e.f. 28.12.2004 till 22.12.2005, whereupon, he was ordered to be removed from service. The reason as purveyed in Annexure P-12, vis-a-vis the aforesaid imputations of misconduct, being formidably proven, does evidently, personify of the petitioner, not, attending his duties on 28.12.2004, rather upto his surrendering before the learned Additional District Judge on 20.02.2008, his neither applying for extension of leave before the authority concerned, contrarily, rather his being declared a proclaimed offender. He concerts to validate his absence from duty w.e.f. 28.12.2004 upto 20.02.2008, whereat he surrendered before the Addl. Sessions Judge, Ghumarwin, on anvil (a) of his suffering from mental depression. He concerts to validate his absence from duty w.e.f. 28.12.2004 upto 20.02.2008, whereat he surrendered before the Addl. Sessions Judge, Ghumarwin, on anvil (a) of his suffering from mental depression. The aforesaid ground reared in Annexure P- 11, for his hence proceeding, to remain absent from duties, appears to be an afterthought besides a clever stratagem, given his not appending therewith, any apposite medical certificate issued by the competent doctor and (b) his neither at the time contemporaneous to the expiry of the leave sanctioned vis-a-vis him, nor his in the interregnum, since expiry thereto upto 20.02.2008, whereat he surrendered before the trial Court concerned, purveying any application, wherewith, an apposite medical certificate, stood appended, personificatory of his being beset with a mental ailment or depression, thereupon, his being precluding to attend his duties. 6. Reinforcingly, the absence of the aforesaid material, galvanizes, a clinching conclusion of (i) the prolonged period of absence, of the delinquent, from, his duties w.e.f. 28.12.2004 uptill 20.02.2008, whereat he surrendered before the learned trial Court, remaining unexplained also thereupon, the inordinate prolonged duration thereof, (ii) not warranting any meteings of leniency vis-a-vis the delinquent besides its duration being not amenable, of, its being extenuated on any ground whatsoever (iii) rather the imposition of penalty of removal, of the petitioner/delinquent, from service, being construable to be validly imposed upon him, dehors making of the afore conclusion by this Court, of, the order of acquittal pronounced upon the delinquent/petitioner, being construable to be his honourable acquittal vis-a-vis the charges framed against him. 7. For the foregoing reasons, there is no merit in the instant petition which is accordingly dismissed. All pending applications also stand disposed of.