KAILASH DAN Vs. STATE OF RAJASTHAN AND ORS.

JUDGEMENT

(1.) Having been found guilty of misconduct of consuming liquor in company of another constable while on duty on the night intervening 9/10-7-2004 and also having indulged in the unsavory act of paid sex with a call girl while on duty for which he was also being prosecuted in FIR No. 120/2004 registered at Police Station Banipark Jaipur inter alia for offences under Sections 6 and 7 of the Prevention of Immoral Traffic Act, 1956 (hereinafter 'the PITA Act') as also Section 294 IPC, the petitioner was removed from service vide order dated 24-5-2007. The said order was affirmed by the Appellate Authority on 11-2-2008 and review there against was dismissed vide order dated 25-2-2011. Not letting up the petitioner has now used the easy and cheap access to this court invoking its extraordinary jurisdiction under Article 226 of the Constitution of India. He seeks quashing of the aforesaid three orders whereby he has been removed from service and resultant reinstatement, of course, with all consequential benefits.

(2.) The facts of the case are that the petitioner serving as a Constable with the Rajasthan Police was charge sheeted under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeals) Rules, 1958 (hereinafter 'the Rules of 1958') on 11-10-2004 on the allegation that while on duty at the treasury in the office of District Collector Jaipur he consumed liquor in the company of another Constable Prem Prakash and had paid sex with one Meena, a call girl, in the Guard Room. It was alleged that on the aforesaid facts FIR No. 120/2004 at Police Station Banipark Jaipur had also been registered against the three persons aforesaid under Sections 6 and 7 of the PITA Act and Section 294 IPC wherein the petitioner had been arrested and sent to Judicial Custody before being bailed out. Reply of denial was filed by the petitioner. Enquiry officer was appointed. In support of the allegations in the charge sheet, the department relied on 19 witnesses and 27 documents. The defence set up by the petitioner being found to be baseless on the evidence on record, the Enquiry Officer found him guilty of all charges alleged. Enquiry report was submitted to the Disciplinary Authority. Opportunity of hearing was provided to the petitioner vide a notice under Article 311(2) of the Constitution of India. Reply to the notice under Article 311(2) of the Constitution of India was found unsatisfactory and the finding of the Enquiry Officer endorsed by the Disciplinary Authority. Punishment of removal from service was visited upon the petitioner vide order dated 24-5-2007 in view of the grave misconduct proved. The petitioner's appeal and review petition against the said order of removal from service have since been dismissed on 11-2-2008 and 25-2-2011 respectively. Hence this petition.

(3.) Mr. R.N. Mathur, Senior Advocate appearing on behalf of the petitioner has impugned the finding of misconduct and penalty in the departmental enquiry primarily on the ground that the petitioner's acquittal in the criminal case for offences under Sections 6 and 7 of the PITA Act and 294 IPC, vide judgment dated 18-6-2010 was not considered by the Reviewing Authority despite it being brought to its notice. That, Mr. R.N. Mathur submitted, vitiated the Reviewing Authority's order dated 25-2-2011 affirming the order of penalty of removal of the petitioner. It was further submitted that in any event there being commonality of facts and evidence in both the departmental enquiry and the criminal prosecution, the acquittal of the petitioner in criminal case for offences under Sections 6 and 7 of the PITA Act and Section 294 IPC by itself ought to have led to the petitioner's exoneration in the departmental enquiry without anything more. It was submitted that the Apex Court in the case of G.M. Tank v. State of Gujarat [(2006)5 SCC 446] has held that in case a criminal case founded on same facts and evidence as the purported misconduct in the departmental enquiry, the acquittal of accused in the criminal case has to necessarily impact the departmental enquiry and result in the delinquent's exoneration. Mr. R.N. Mathur emphatically submitted that the charges in the departmental enquiry against the petitioner, were on same facts as was his criminal prosecution, and in fact, in fairness the departmental enquiry ought to have been stayed during pendency of the criminal trial. That was not done and has led to the unjust situation of the petitioner suffering a removal from service on the same facts on which his criminal prosecution has failed and he stands acquitted. It was then submitted that even otherwise, the finding of misconduct on the charges framed by the Disciplinary Authority, affirmed in appeal and review is wholly perverse and not supported by any evidence. It was submitted that the witnesses of prosecution in criminal case against the petitioner having been disbelieved by the trial court, their evidence could not have had any probative worth for holding the petitioner guilty in the departmental enquiry. Mr. R.N. Mathur submitted that in the circumstances the finding of misconduct and resultant penalty of the petitioner's removal from service be quashed and set aside and he be reinstated in service.