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2017 DIGILAW 736 (RAJ)

Prabhu Dayal v. State of Rajasthan

2017-03-09

SANJEEV PRAKASH SHARMA

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JUDGMENT : SANJEEV PRAKASH SHARMA, J. 1. The petitioner, who was holding the post of Head Constable, approached this Court challenging the order dt. 17.08.1998 by which he has been dismissed from service as well as the appellate order dt. 6.01.1999 by which his appeal was also rejected. 2. During the pendency of this writ petition, the said petitioner expired and his legal representatives are on record. 3. The facts, which have culled out, are that the petitioner was served with a charge-sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 vide memorandum dt. 24.01.1998 leveling allegation that when the petitioner was posted as a Head Constable at Police Station Salempur, an FIR No. 89/1997 under Section 302, 201, 394, 397 IPC was registered. During investigation of the said FIR, one Rajaram, a resident of Pavta had been called. It was alleged that while the said Rajaram was entering at the Police Station, he met the petitioner across the road and informed the petitioner about the incident and the material looted. However, the petitioner advised Rajaram not to disclose the information to any officer or any person and assured him to save him from the said accusation and also stated that when the petitioner would ask him, then only he may handover the ‘Kadas’ to the petitioner alone. In this manner, it was alleged that the petitioner had tried to save the accused deliberately and did not inform higher authorities of the correct facts and instigated the accused to withhold information from the Police and in this manner, the petitioner caused loss to the prestige of the Police. 4. Enquiry was conducted against the petitioner by the Enquiry Officer who, after recording evidence of the concerned Circle Inspector as well as other police persons and the concerned accused Rajaram, who is said to have been guided by the petitioner, reached to conclusion that there is a conflict in submissions of the witnesses and the guilt of the petitioner has not been pro-ved beyond doubt. He has also recorded that the accused Rajaram has denied that he has given statement to the CI of having been guided by the petitioner. 5. He has also recorded that the accused Rajaram has denied that he has given statement to the CI of having been guided by the petitioner. 5. Learned counsel for the petitioner submits that in spite of such an enquiry report having been submitted which did not hold the petitioner guilty of the charges but only on the basis that the charges were not proved beyond doubt, the Disciplinary Authority held him guilty of charges without serving disagreement notice to the petitioner. The petitioner had taken up this submission even in appeal but the appellate authority has not examined this aspect and merely being influenced by Shri Alok Shrivastava who was at that time Circle Officer and an I.P.S. Officer, dismissed the appeal. 6. Per Contra, learned counsel for the respondents submits that the Disciplinary Authority has rightly reached to the conclusion based on the statement of the concerned C.O., who was conducting investigation, and the petitioner has been rightly dismissed from service. He was given fair opportunity before the enquiry officer and there is no question of any malice or bias against him by the then concerned Circle Officer. Affidavit has also been submitted along with the reply of the said officer wherein it has been stated that he had no prejudice as against the petitioner Prabhu Dayal Head Constable and there has been no reason of being prejudiced against any of the constable or Head Constable during his tenure or after that. 7. Heard counsel for both the parties. 8. From perusal of the affidavit filed by Shri Alok Shrivastava, it is seen that he has filled in the blank spaces. He has just put in his signature on his affidavit and even the period for which he was working as Circle Officer, Mahawa has been filled up on blank space. Thus the said affidavit cannot be treated to be a correct affidavit and there are no signature on even the blank lines filled by him. That apart, the statement is vague statement of denial and there is no specific denial to the averments made in the writ petition. The said officer who was impleaded as a party to the writ petition and duly served, should have filed his own reply independent to that of the Government as there was specific averments against him. 9. That apart, the statement is vague statement of denial and there is no specific denial to the averments made in the writ petition. The said officer who was impleaded as a party to the writ petition and duly served, should have filed his own reply independent to that of the Government as there was specific averments against him. 9. That apart, this Court finds and is satisfied that there has been a basic illegality committed by the Disciplinary Authority by not giving disagreement notice to the petitioner after disagreeing with the enquiry report in view of the law settled by Supreme Court in the case of Punjab National Bank v. Kunj Behari Misra (1998) 7 SCC 84 wherein it has been held as under:— “19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.” 10. It is apparent that when the concerned suspect himself deposed before the enquiry officer that the petitioner had not in any manner guided him and he had not met the petitioner before he was called for investigation by the concerned Circle Officer, the order of Disciplinary Authority can be safely held to be passed on conjectures and surmises. It cannot be allowed to be sustained. Once the disciplinary authority reaches to a conclusion that he disagrees with the findings arrived at by the enquiry officer, like in the present case, a notice of disagreement ought to have been served upon the petitioner which has not been done in the present case. 11. It cannot be allowed to be sustained. Once the disciplinary authority reaches to a conclusion that he disagrees with the findings arrived at by the enquiry officer, like in the present case, a notice of disagreement ought to have been served upon the petitioner which has not been done in the present case. 11. Accordingly, the order of dismissal passed by the disciplinary authority dt. 17.8.1998 as well as the appellate order dt. 6.1.99 are quashed and set aside and the legal representatives of the petitioner shall be entitled to get all the consequential benefits which the petitioner would have got as if he would have been reinstated in service. 12. The compliance of this order be made within a period of three months from the date the certified copy of this order is submitted in the office of the respondents. It goes without saying that if this order is not complied with by the respondents within the period as specified above, the legal representatives of the petitioner shall be free to initiate contempt proceedings. 13. The writ petition stands disposed of with the directions/observations as indicated above. Petition disposed of.