MANOJ KUMAR Vs. STATE OF RAJASTHAN AND ORS.

JUDGEMENT

(1.) This writ petition has been filed by the petitioner Manoj Kumar challenging the order dated 25.04.2008 passed in disciplinary proceedings whereby he was dismissed from service and also challenging the order dated 29.08.2008 by which appeal filed by the petitioner was rejected by the appellate authority and order dated 29.07.2011 by which his review petition was rejected by the reviewing authority. Prayer has also been made for quashing the charge sheet dated 09.05.2007. The petitioner was initially appointed on the post of Constable with Belt No. 1541. He joined his duties on 10.02.1992. A Challan was filed against him in the Court of Additional Chief Judicial Magistrate No. 3, Jaipur for offence under Sections 420, 467, 468, 471and 120 IPC. On the basis of aforesaid challan, a charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the Rules of 1958') containing nine charges was also served upon him.

(2.) Learned counsel for the petitioner has submitted that the basis of the charge sheet in the disciplinary proceedings was the criminal case registered against the petitioner vide FIR No. 182/2005 in relation to one Plot No. 47, Green Town, Benar Road, Jhotwara by none other than Shri Vinod Kumar, brother-in-law of the petitioner alleging that the petitioner has taken original papers of said plot and thereafter allegedly forged sale deed and on that basis, took the electricity connection in his name. Learned counsel for the petitioner has submitted that it was nothing but result of misunderstanding between close relatives. The petitioner requested the respondent-disciplinary authority to drop the proceedings in the departmental enquiry till the disposal of the criminal case. His prayer was accepted and disciplinary proceedings were kept in abeyance till the decision of the criminal case. Since the dispute was result of misunderstanding, the matter was compromised between the parties and on that basis an application for compounding of offence under Section 420 IPC was filed before the Trial Court which was accepted vide order dated 16.03.2007. The petitioner filed another application for compounding the entire case for offence under Section 467, 468 and 471 IPC but the same was dismissed on the ground that the offences were not compoundable under Section 320 Cr.P.C. The petitioner then filed S.B. Criminal Misc. Petition No. 724/2007 before this Court. This Court quashed the proceedings in the aforesaid criminal case pending before the trial Court. The petitioner on that basis requested the authorities to drop the disciplinary proceeding because it was based on same set of facts and evidence and also the matter had been compromised between the parties. Instead of dropping the proceedings, the disciplinary authority appointed enquiry officer.

(3.) Learned Counsel for the petitioner argued that the enquiry officer did not take note of entire facts and circumstances of the case and ignored the material evidence. He on the basis of mere oral evidence of the witnesses held Charge No. 1, 2 and 3 proved whereas those very witnesses were witnesses in the criminal case and this fact was not considered by the Enquiry Officer. He also failed to consider petitioner's alleged absence for 44 days in the right perspective. The petitioner submitted complete information about his illness through telegram to the officer. Even then Charge No. 4, 5 and 6 have been held to be proved. Finding on Charge No. 7 was wholly erroneous because the charge was itself illegal. This charge is about the absence of the petitioner on earlier occasions which had already been condoned by granting of leave that was due. Charge No. 8 and 9 were also illegally held to be proved. Learned counsel for the petitioner therefore submitted that impugned orders are liable to be quashed and set aside. It is argued that despite repeated requests of the petitioner documents were not supplied to the petitioner and he could not submit detailed reply to the charge sheet. Charge No. 1, 2 and 3 could not have been held proved against the petitioner because the charge regarding alleged sale deed forged by the petitioner was not proved in the criminal trial inasmuch as such charge can be proved only when FSL report was called for. When the matter was compromised, there was no question for the Enquiry Officer to hold the same proved. Findings of the Disciplinary authority on that aspect are also vitiated. With regard to Charge No. 4, 5 and 6 in respect of alleged absence of 44 days, the petitioner submitted telegram dated 16.11.2005 and the disciplinary authority wrongly held the charge to be proved. The disciplinary authority was required to have examined this aspect with a view to recording finding whether the absence of the petitioner was willful or not. The Disciplinary authority failed to appreciate that enquiry officer did not provide opportunity to the petitioner to cross examine the witnesses of the department and he was asked to remain present and just to sit from morning to evening and he was asked to sign blank papers. The petitioner was never supplied copy of statements. He being mere a constable could not muster enough courage to contradict the enquiry officer. Procedure followed by the Enquiry Officer was violative of provisions of Rule 16 of the Rules of 1958 and principle of natural justice. Enquiry report submitted by the enquiry officer is faulty inasmuch as he has not recorded correct findings. Learned counsel for the petitioner submitted that once the criminal charges were not proved, then only charge of willful absence for 44 days could not form basis for awarding a major penalty of dismissal from service. Learned counsel for the petitioner in support of his arguments relied upon the decision of this Court in the cases of Mohd. Shafi Through L/R vs. State & Ors., 2012 1 WLC(Raj) 527 ; Khawaju Khan vs. The State of Rajasthan & Ors., 2007 4 WLC(Raj) 252 and Ramji Lal vs. State of Rajasthan & Ors.,2012 2 WLC(Raj) 144 .