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2018 DIGILAW 879 (RAJ)

Narendra Singh v. State of Rajasthan

2018-04-03

ASHOK KUMAR GAUR

body2018
JUDGMENT : Ashok Kumar Gaur, J. 1. The petitioner in the instant writ petition has challenged the penalty order dt. 30th March, 1991, whereby he has been dismissed from service, order dt. 5th March, 1992, passed by the Appellate Authority and order dt. 24th August, 1993 passed by the Reviewing Authority. 2. Brief facts of the case are that the petitioner was issued a memo along-with charge-sheet dt. 16th June, 1990, under Rule 16 of CCA Rules, 1958, where four charges were leveled against the petitioner. Charge No. 1 was in relation to absence of the petitioner from duty from 15th March, 1992 to 5th May, 1992 i.e. 51 days. Charge No. 2 relates to absence of the petitioner from duty since 9th May, 1990. Charge No. 3 was in respect of petitioner being habitual absentee, as he was absent from duty on 13 occasions in total service of 5 years. Charge No. 4 was in respect of consuming liquor and quarreling with the accused persons. 3. The Disciplinary Authority appointed CO Jhalawar as Enquiry Officer and the Enquiry Officer conducted the enquiry. The petitioner was summoned three times to attend the enquiry, however, he failed to attend the enquiry and as such ex-parte proceedings were conducted. 4. The Enquiry Officer found the charges proved against the petitioner and he sent his report to the Disciplinary Authority. 5. The Disciplinary Authority vide order dt. 30th March, 1991, found that the petitioner was absent on 13 occasions in his total service tenure of 5 years and he was given minor punishments and chance to change his habits. The Disciplinary Authority further found that the petitioner was absent till passing of the order and as such after considering the entire record and charges being found proved against the petitioner, he dismissed the petitioner from service. The petitioner filed an appeal before the DIG, Kota and his appeal came to be dismissed by order dt. 5th March, 1992. 6. The petitioner preferred a review petition before the Governor and the same came to be dismissed. 7. Learned counsel for the petitioner Mr. Yogesh Singhal has made the following submissions challenging the impugned orders :- 1. Ex-parte proceedings were conducted against the petitioner during the enquiry and the petitioner was not afforded any opportunity to defend himself. 2. No show cause notice was issued before imposing the punishment. 3. 7. Learned counsel for the petitioner Mr. Yogesh Singhal has made the following submissions challenging the impugned orders :- 1. Ex-parte proceedings were conducted against the petitioner during the enquiry and the petitioner was not afforded any opportunity to defend himself. 2. No show cause notice was issued before imposing the punishment. 3. Absence of the petitioner for 51 days was treated as extra ordinary leave and as such on the same charge, no punishment could have been issued. 4. The Appellate Authority and the Reviewing Authority, did not consider grievance of the petitioner in objective manner. 5. The petitioner could not have been visited with major penalty for remaining absent only for 51 days. 8. Per contra, Mr. Prakash Chand Yadav, learned counsel for the respondents, has submitted that authorities have complied with principles of natural justice and after considering the entire facts, the orders came to be passed. 9. The respondents have further pleaded in the reply that the petitioner had not raised any grievance in his memo of appeal, about non supply of copy of enquiry report and no prejudice is caused due to non supply of enquiry report & as such no benefit can be claimed by the employee that he was denied the right to defend himself in Department Enquiry. 10. Mr. Prakash Chand Yadav, appearing on behalf of the respondents has submitted that the petitioner was also found involved in a serious offence of committing rape and as such he was issued a charge-sheet by the Department on 1st January, 1991 and since petitioner was dismissed from service vide order dt. 30th March, 1991, the said charge-sheet was dropped vide order dt. 6th April, 1991 and it was ordered that in case the petitioner would be reinstated in service in pursuance of earlier charge-sheet dt. 16th June, 1990, the Department would be free to make enquiry for offence of committing rape. 11. Counsel submitted that though petitioner is said to have been acquitted, however, the conduct of the petitioner was of such a grievous nature and as such no indulgence can be shown with the petitioner. 12. Counsel for the respondents has placed reliance on the judgments passed by the Apex Court in the case of Ex-Constable Ramvir Singh vs. Union of India and Ors. reported in (2009) 3 SCC 97 ; Central Industrial Security Force and Ors. 12. Counsel for the respondents has placed reliance on the judgments passed by the Apex Court in the case of Ex-Constable Ramvir Singh vs. Union of India and Ors. reported in (2009) 3 SCC 97 ; Central Industrial Security Force and Ors. vs. Abrar Ali (Civil Appeal No. 2148/2015) decided on 14.12.2016. 13. Counsel has submitted that for absence from duty, the Apex Court has clearly held that in the armed forces, the absence from duty is a serious misconduct and such act of the delinquent cannot be taken lightly. Counsel has further submitted that the Apex Court in the case of Central Industrial Security Force & Ors. vs. Abrar Ali (supra) has again reiterated the position of law and has laid down the parameters of interference in a writ jurisdiction under Article 226 & 227 of Constitution of India. 14. Learned counsel has submitted that the High Court may not re-appreciate the evidence and interfere with the conclusions of the enquiry. 15. I have heard the submissions made by learned counsel for the parties and perused the material on record. 16. This Court finds that the charges which were leveled against the petitioner were of serious nature, as petitioner was not only found absent from duty but in his previous track record, petitioner had remained absent in a total tenure of 5 years on different 13 occasions. The charge also related to consuming of liquor and quarreling with the other persons. 17. The Disciplinary Authority after considering the report of the Enquiry Officer has come to a conclusion that the petitioner has committed a serious misconduct and as such penalty of dismissal from service has been passed. 18. The submission of the learned counsel for the petitioner that ex-parte proceedings were conducted against him during enquiry, this Court finds that the Disciplinary Authority has specifically mentioned in the order that several opportunities were granted to the petitioner but he failed to avail and as such ex-parte order came to be passed, as he has not participated in the proceedings. The Appellate Authority has also recorded the same finding while considering the plea of the petitioner that he was not given adequate opportunity to defend himself. 19. The Appellate Authority has also recorded the same finding while considering the plea of the petitioner that he was not given adequate opportunity to defend himself. 19. This Court finds that once several opportunities and notices have been given to petitioner to participate in the enquiry but he ignored all the opportunities, no such plea can be raised at this juncture. 20. The submission of the learned counsel for the petitioner that no show cause notice and copy of the enquiry was given to him, this Court finds that petitioner at no point of time, even when he filed the appeal, has raised the grievance that he has been denied the opportunity to defend himself and he was prevented to file representation against such penalty order. The petitioner has developed his case before this Court by making an averment that the respondents ought to have supplied him copy of the enquiry report and the show cause notice. 21. This Court finds that the petitioner has not shown any prejudice, which is being caused to him due to non supply of enquiry report. The Apex Court and this Court time and again have reiterated the principle of law in service jurisprudence that delinquent has to make an averment and plead specifically with respect to the prejudice caused to him, due to non supply of copy of the report. The petitioner has not made any such averment in the petition and only as a routine manner, this plea has been taken that there has been a violation of principles of natural justice. This Court finds that until prejudice caused to the delinquent is pleaded and proved, no such benefit can be made available to such employee. 22. The submission of the learned counsel for the petitioner that since petitioner has been granted extra ordinary leave of 51 days his misconduct being condoned, this Court finds that grant of extra-ordinary leave will not absolve the petitioner from the charge which was leveled against him for remaining absent for 51 days. The Disciplinary Authority and other authority have specifically recorded the finding that the petitioner has remained absent from duty of 13 different occasions in total span of 5 years. This Court finds that grant of extraordinary leave of 51 days will not mitigate the serious misconduct of remaining absent consistently. 23. The Disciplinary Authority and other authority have specifically recorded the finding that the petitioner has remained absent from duty of 13 different occasions in total span of 5 years. This Court finds that grant of extraordinary leave of 51 days will not mitigate the serious misconduct of remaining absent consistently. 23. The submission of learned counsel for the petitioner that the Appellate Authority has not considered the appeal in a proper manner as per the requirement of Rule 23 of CCA Rules, this Court finds that the Appellate Authority has taken due note of plea, which has been raised by the petitioner in his memo of appeal and it has given categorically a finding that the petitioner has not participated in the Department Enquiry, in spite of several notices being served. 24. This Court finds that the Appellate Authority as well as the Reviewing Authority have acted absolutely in consonance with the requirement of law and no fault can be found in their orders. 25. The submission of the learned counsel for the petitioner that the petitioner has been visited with a major penalty of dismissal and as such the respondents could have awarded minor punishment to the petitioner for his alleged misconduct of remaining absent, this Court finds that track record of the petitioner has not been up to the mark and in a total service of 5 years he remained absent from duty on 13 occasions and as such he is visited with major penalty. 26. The Disciplinary Authority not only considered the absence from duty but also considered the three other charges which were leveled against the petitioner, which were duly found to be proved by the Enquiry Officer. The petitioner being a member of disciplined and uniformed force is expected to maintain the discipline and decorum of job and lapse of such serious nature may not only be covered as the minor punishments. 27. This Court finds that the Apex Court in the case of Ramvir Singh vs. Union of India and Ors. (supra), has again reiterated the legal position that the persons, who are working in the disciplined force, need to follow the Conduct Rules in a strict sense and remaining absent from duty is a serious misconduct and as such the doctrine of proportionality in respect of serious misconduct, cannot be made applicable. 28. (supra), has again reiterated the legal position that the persons, who are working in the disciplined force, need to follow the Conduct Rules in a strict sense and remaining absent from duty is a serious misconduct and as such the doctrine of proportionality in respect of serious misconduct, cannot be made applicable. 28. This Court further finds that the Apex Court in the case of Central Industrial Security Force and Ors. vs. Abrar Ali (supra), has again laid down the parameters, where the High Court can exercise its power under Article 226 & 227 of the Constitution of India. 29. The Apex Court apart from restricting the scope with respect to interference in the disciplinary proceedings, has not left the window open to go into the proportionality of punishment unless it shocks its conscience. 30. This Court finds that in the present case looking to the nature of job, the petitioner was discharging and the allegation leveled against him, the such act has been of the serious nature of misconduct and accordingly the respondents have punished the petitioner in a most suitable manner. This Court does not find that on the anvil of quantum of punishment, the petitioner needs any indulgence. The track record of the petitioner for remaining absent in past and also his involvement in a criminal case of committing rape though, he has been acquitted later on, are the sufficient reasons for which the disciplinary authority thought it proper to pass the punishment order. 31. The present writ petition does not require any interference and the impugned orders are passed in just and proper manner. 32. Accordingly, the writ petition having no force and the same is hereby dismissed.