STATE OF RAJASTHAN Vs. SARDARA RAM

JUDGEMENT

(1.) THIS Division Bench Civil Special Appeal is preferred by the State of Rajasthan and another against the judgment of the learned Single Judge dated May 9, 1969 by which the writ petition filed by the respondent petitioner Sardara Ram was allowed and the appellants were directed not to proceed with the enquiry which was deem to have been instituted against the respondent under rule 170 of the Rajasthan Service Rules (hereinafter referred to as 'the Rules') with no order as to costs.

(2.) THE facts briefly stated are these-that respondent filed a writ petition under Art. 226 of the Constitution with the allegations that in September, 1958, the respondent Sardara Ram was posted as Circle Inspector of Police at Tijara in District Alwar. At that time Shri Raghunath Singh was Superintendent of Police District Alwar and Shri Hanuman Sharma was the Deputy Inspector General of Police of that Range. Some dues were outstanding against Shri Hanuman Sharma for which the respondent served him with a registered notice demanding payment thereof. Soon after Departmental-Enquiry was commenced against the respondent with the allegation that he had spoiled investigation of a criminal case. Shri Hanuman Sharma was annoyed because of the registered notice served on him by the respondent and therefore he suspended the latter vide his order dated December 3, 1958. THE Departmental Enquiry was conducted by Shri Raghunath Singh Superintendent of Police who submitted his report to the Inspector Genera! of Police. Shri Hanuman Sharma who forwarded the papers to the Inspector General of Police with the recommendation that action should be taken against the respondent. THE respondent took an objection before the Inspector General of Police that he was not given a hearing in the Departmental Proceedings. This plea of the respondent was accepted by the Inspector General of Police and the Departmental Enquiry was remanded to the Enquiry Officer with the direction that reasonable opportunity of hearing may be given to the respondent. THE respondent then made representations to the Chief Secretary, the Home Secretary, and the Inspector General of Police of Rajasthan that Shri Hanuman Sharma and Shri Raghunath Singh had a bias against the respondent and therefore they should not be allowed to conduct the enquiry. No. action was taken on these representations. THEre respondent therefore filed writ petition No. 231 of 1959 with the prayer that Shri Hanuman Sharma and Shri Raghunath Singh be restrained from making any enquiry against him. THE respondent also made a stay application in that writ petition which came up for hearing before the court on November 21, 1958. THE Government Advocate, during the hearing of the stay application, gave an undertaking that the enquiry would not be conducted by the aforesaid two officers. THE writ petition, therefore, was dismissed as withdrawn, THE Inspector General of Police inspite of that undertaking given by the Government Advocate, passed, orders for removal of the respondent from the service on the basis of the enquiry conducted by Shri Raghunath Singh whose findings were endorsed by Shri Hanuman Sharma. THE respondent preferred an appeal to the Government against the said order and the Government, after consulting the Public Service Commission, came to the conclusion vide its order dated September 11,1962, that the Inspector General of Police was not justified in directing removal of the respondent from service on the basis of enquiry made by Sari Raghunath Singh and therefore set aside the order of the Inspector General of Police dated 25th Feb. , 1961 removing the respondent from service and ordered a fresh enquiry with the direction that Inspector General of Police himself would make the enquiry. THE Government also directed the Inspector General of Police to reinstate the respondent with immediate effect. THE respondent then made several representations to the Inspector General of Police for expeditious completion of the enquiry with no result. He therefore filed Civil Writ Application No. 1609 of ]964 with a prayer that the Inspector Genera! of Police be directed to complete the Departmental Enquiry against him. This court by its Division Bench decision dated January 27, 1966 accepted the writ petition of the respondent and issued a mandate that Inspector General of Police would complete the enquiry against the respondent within 4 months from the date of the judgment. However, Shri Gordhan Sharma, the then Inspector General of Police did not commence the enquiry till his retirement on 26th March, 1966. His successor Shri Hanuman Sharma also did not start the enquiry even after the period of 4 months fixed by the court by its order dated January 27, 1966 for completing the enquiry. Meanwhile, the respondent was served with a notice on March 22, 1966 for compulsory retirement from service after the expiry of 3 months from the date of the service of the notice and the respondent was compulsorily retired. THE Government took some time to consider whether after the retirement of the respondent the Departmental Enquiry should be continued or not. THE Government was of the opinion that the enquiry must be continued under rule 170 of the Rules against the respondent by Additional Inspector General of Police Shri Sultan Singh. A letter dated October 25, 1966 to this effect was sent to the Government. THE respondent again filed writ petition No. 749 of 1966 challenging his compulsory retirement and continuance of the Departmental Enquiry. THE respondent also filed an application for interim stay order on which after hearing both the parties, order dated December 6, 1966 was passed by the court and the Government was restrained from continuing Departmental Proceedings under rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules but the Government was permitted to continue the enquiry under rule 170 of the Rules. THE Additional Inspector General of Police under this order continued the enquiry against the respondent under rule 170 of the Rules and submitted report to the Government on September 30, 1967. An objection was taken in said writ petition No 747 of 1966 by the appellants that the respondent could not challenge by one writ petition two order, one relating to his compulsory retirement and other about the continuation of disciplinary proceedings. THE respondent thereupon sought permission from the court on October 9, 1967 to withdraw the writ petition No. 749 of 1966 with liberty to file one or more writ petitions regarding the reliefs claimed by him in that writ petition. So the Writ Petition No. 479 of 1966 was dismissed with permission to the respondent to file fresh writ petition. THEreafter the respondent filed the present writ petition which was accepted by the learned Single Judge of this Hon'ble Court and against which is this present appeal. THE main grounds taken in the writ petition were that a mandate given by this court to finish enquiry within a period of 4 months by its order dated January 27, 1966 was peremptory in nature and after the expiry of the said period specified in the mandate, the Inspector General of Police could not carry the enquiry upto 27th May, 1966 and that the enquiry under rule 170 of the Rules was not maintainable. THE writ petition was opposed by the appellants. THEy submitted a reply to the writ petition that the Inspector General of Police had commenced the enquiry in pursuance of the order of this Hon'ble Court but could not complete it within a period of 4 months as the respondent himself was responsible for not getting the enquiry completed. If for reasons beyond the control of the appellants, the enquiry could not be completed within the time prescribed by the court, it was not vitiated as the same was conducted under Statutory rules. THE appellants did not cease to have jurisdiction to continue the enquiry after the stipulated period of 4 months. THE enquiry could not be finished as the respondent did not co-operate with the Enquiry Officer for completing the Departmental Enquiry. THE proviso to clause (a) of rules 170 of the Rules was enacted for the continuance of such enquiry even after the retirement of a Government Official and prohibition contained in proviso to clause (b) (ii) of rule 170 of the Rules did not apply to its continuance.

(3.) WE have considered the rival contentions carefully and in our opinion the contention advanced by the learned counsel for the appellant must prevail. Rule 170 of the rules reads as follows - "the Governor further reserves to himself the right of withholding or withdrawing a pension of any part of it, whether permanently or for a specified period of and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government, if in a departmental or judicial proceeding, the Persian is found guilty of grave mis-conduct or negligence during the period of his service including service rendered upon re-employment after retirement: - (a) Provided that such departmental proceeding, if instituted while the officer was in service, whether before his retirement or during his reemployment, shall after the final retirement of the officer, be deemed to be a proceeding under this rule and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued in service; (b) Such Departmental proceeding if not instituted while the officer was in service, whether before his retirement or during his re-employment, (i) shall not be instituted save with the sanction of the Governor; (ii) shall not be in respect or any event which took place more than 4 years before such institution; and (iii) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order of dismissal from service could be made in relation to the officer during his service; (c) No such judicial proceedings, if not instituted while the officer was in service, whether before his retirement or during his re-employment, shall be instituted in respect of a cause of action which arose or an event which took place more than 4 years before such institution; and (d) The Rajasthan Public Service Commission shall be consulted before final orders are passed. "