KHALIL KHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This writ petition was filed by the petitioner way back in the year 1997 challenging the order of removal from service dated 31/8/1994 and the order of the appellate authority dated 25/2/1995 by which, his appeal filed against the aforesaid order was dismissed.

(2.) The factual matrix of the case is that petitioner was initially appointed as Driver Constable with the respondents and at the relevant time, he was working in the Police Line Dholpur. Petitioner on 27/1/1992 applied for leave for a period of one month which was sanctioned by the Superintendent of Police Dholpur. When petitioner sought permission of the Reserve Inspector Dholpur Police Line, Dholpur to proceed on leave, he declined permission. However, according to the petitioner, he proceeded on leave on 1/2/1992. Head Constable M.T.O. Dholpur marked absence of the petitioner in the Rojnamcha on 2/2/1992. Petitioner was served with the charge sheet on 18/5/1993 on the charges of (1) willful absence since 2/2/1992, (2) for not appearing on 12/8/1992 before the medical board at the Government Hospital Dholpur despite communication dated 22/7/1992 and (3) for remaining wilfully absent on as many as thirteen occasions. Charge sheet was served upon the petitioner along with statement of allegation on 2/6/1993. When petitioner neither submitted reply to the charge sheet nor appeared before enquiry officer-Shri Bheem Singh, Reserve Inspector of the Police Line served upon the petitioner letter dated 2/3/1994 calling explanation from him to appear before him because he himself was appointed as an enquiry officer. Petitioner while giving receipt of the letter/notice, requested for grant of time and also for supply of documents and statements recorded behind his back and opportunity of cross-examination. Although by the notice, petitioner was required to appear on 7/3/1994 in which petitioner did appear before the enquiry officer and again submitted an application for granting time to cross-examine the witnesses already examined and for that purpose also applied for supply of copies thereof and copies of the documents which the department produced before the enquiry officer. When the matter was taken up on 25/3/1994, petitioner filed another application to the same effect, on which date, he expressed his inability to appear due to illness and requested for another date. That application was submitted when the enquiry officer on 25/3/1994 completed the ex parte enquiry and submitted report to the Superintendent of Police. Superintendent of Police thereafter issued show cause notice proposing to remove him from service and calling upon him to submit representation against the enquiry report. At that stage, petitioner submitted an application to the Superintendent of Police, Dholpur on 5/8/1994 to allow him to join his duties, which was not accepted. Superintendent of Police however on 31/8/1994 passed order of penalty removing petitioner from service. Appeal filed by the petitioner against the order of penalty was dismissed vide order dated 25/2/1995. Hence, this writ petition.

(3.) Smt.Naina Saraf, learned counsel for petitioner has argued that petitioner proceeded on leave for a period of one month. He could not therefore be treated as wilfully absent right from 2/2/1992. Initially, entry was made in the Rojnamcha on 12/2/1992 showing petitioner absent from duty. The entry was absolutely vague. PW2 Pooran Chand in his statement recorded during enquiry has submitted that he has made this entry as per the order of the Reserve Inspector, who himself was appointed as enquiry officer. The other witnesses have also similarly stated that the barrack of the petitioner was searched but petitioner found absent from the duty. They further stated that the enquiry officer was biased against the petitioner and enquiry was not held in a just and proper manner. Enquiry officer was appointed without receiving reply to the charge from the petitioner. When petitioner received notice from the enquiry officer on 2/3/1994, he while giving receipt of the notice requested that he be supplied copies of statements so far recorded and also the documents so as to enable him to cross-examine them. Petitioner reiterated this request on subsequent two dates i.e. 7/3/1994 and 15/3/1994 but the enquiry officer did not supply to the petitioner copies of any statement recorded behind his back enabling him to cross examine them nor it supplied copies of the documents by the respondent department. Petitioner again made an application to the enquiry officer enabling him to appear before the enquiry officer and for fixing another date but the enquiry officer did not decide any of these applications and concluded the enquiry proceedings and submitted enquiry report on 25/3/1994 proving all the charges. Learned counsel argued that enquiry was thus held in utter violation of principles of natural justice and in breach of the procedure contained in Rule 16 of the Rules of 1958. Howsoever serious charges may be but those charges cannot be proved unless an opportunity was afforded to the petitioner to put forth his defence and cross examine the witnesses produced by the department. None of the documents submitted by the department was supplied by the enquiry officer to the petitioner. Petitioner was neither paid salary nor was paid any subsistence allowance during the enquiry proceedings. Not even a defence nominee was provided to the petitioner. His defence was thus seriously prejudiced.