Rajasthan High Court - Jaipur
State Of Raj And Ors vs Manoj Kumar on 23 July, 2018
Bench: Chief Justice, G R Moolchandani
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Special Appeal Writ No.253/2015
1. The State of Rajasthan through the Inspector General of
Police, Department of Police, Police Headquarter, Jaipur
City, Jaipur
2. The Inspector General of Police, Jaipur Range (First),
Department of Police, Police Headquarter, Jaipur City,
Jaipur
3. The Superintendent of Police (Headquarter), Jaipur City,
Jaipur
----Appellants
Versus
Manoj Kumar S/o Shri Subhash Chand Kulhar, Village Dev Road,
Tehsil Chirawa Police Station, Pilani District Jhunjhunu
----Respondent
For Appellants : Mr.G.S. Gill AAG with
Ms.Vandana Sharma, Dy.GC
For Respondent : Mr.Abhisar Bhanu
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE G R MOOLCHANDANI
Judgment
Judgment reserved on : 18/07/2018
Judgment pronounced on : 23/07/2018
1. The respondent was working as a Constable under the State of Rajasthan. His brother-in-law named Vinod Kumar filed a complaint under Section 156(3) Cr.P.C. pursuant to which FIR No.182/2005 P.S. Jhotwara for offences punishable under Sections 420/467/468/471 IPC was registered.
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2. In his complaint, Vinod Kumar stated that he was the owner of Plot No.47, Green Town, Jhotwara. He gave the original papers to the respondent to obtain an electricity connection but on the basis of a forged sale-deed the respondent managed to obtain an electricity connection in his name. The respondent was arrested and sent to judicial custody. On being released on bail he joined duty and claimed he being ill to justify his absence.
3. Taking cognizance of the FIR and respondent being in judicial custody the department issued a charge-sheet to the respondent on 09/05/2007 to initiate the major penalty proceedings. The charge-sheet reads as under:-
"(1) In order to grab plot No.47, Green Town, Jhotwara of Shri Vinod Kumar, Son of Shri Dharampal Singh you prepared a forged sale deed in your name.
(2) You by producing the forged sale deed before the Electricity Department got one electricity connection in your name.
(3) Against you one criminal case bearing No.182/05 under Section 420, 467, 468, 471 I.P.C. has been lodged at Police Station Jhotwara, in which after investigation challan through charge Sheet No.400 dated 23.12.2005 has been filed before Court of ACJM No.3.
(4) On 6.11.2005 you went from Police Line Jaipur City. Instead of giving attendance you remained willfully absent. You after remaining willfully absent for 44 days you appeared on 23.12.2005 at Police Line, Jaipur City.
(5) You are arrested and sent for judicial custody under Criminal Case bearing No.182/2005 under Section 420, 467, 468, 471 I.P.C. but this fact was concealed by you and in your joining report you mentioned regarding illness. This act of yours is in violation of Rule 4 of Rajasthan Civil Services (Conduct) Rules, 1971.
(6) You never informed to your officer during your willful absence period and never tried to get your leaves sanctioned.
(3 of 14) [SAW-253/2015] (7) On perusal of your previous service record you in your small service tenure remained willfully absent for 20 times, which were regularized by sanctioning leaves, but you did not improve your behavior.
(8) In order to get unwanted benefit you produced forged evidence before enquiry officer during departmental enquiry against you under Rule 16 of C.C.A. (9) For producing forged evidence one Criminal Case No.137/2003 under Section 419, 205, 120-B of I.P.C.
was lodged at Police Station Banipark and was filed in the Court of A.C.J.M. No.17 through Charge Sheet No.98/2003."
4. Along with the charge-sheet names of 15 witnesses proposed to be examined to prove the charges was enclosed and a list of 36 documents which were intended to be proved were also listed. The 15 witnesses examined and 36 documents proved during the enquiry are as under:-
"LIST OF WITNESSES
1.Shri Vinod Kumar S/o Shri Dharampal Singh R/o Plot No.20, Deep Vihar Banad Road, Jaipur. PW5
2.Shri Mohan Lal S/o Shri Ghasi Ram R/o Mukesh Marble Kedia, in front of Kedia Palace, Murlipura, Jaipur PW4
3.Shri Kishan Lal S/o Shri Misaram, R/o Plot No.15, Arun Vihar, Niwaru Road, Jaipur PW8
4.Shri Banwari Lal S/o Shri Baluram, R/o Plot No.104, I.S. Nagar, Murlipura, Jaipur PW2
5.Shri Madan Singh S/o Shri Hari Singh S.I. P.S. Jhotwara PW7
6.Shri Goverdhan Lal Constable No.2742 P.S. Jhotwara PW6
7.Shri Rameshwar Singh, Sub Inspector PS Ashok Nagar PW9
8.Smt.Shalini Saxena RPS C.O. Jhotwara, Jaipur City PW12 (4 of 14) [SAW-253/2015]
9.Shri Phool Chand Head Constable No.2263 Police Line, Jaipur City PW3
10. Shri Ramchandra Head Constable No.1770, Police Line, Jaipur City PW1
11. Shri Mohan Singh Reserved Inspector (Admn.) Police Line, Jaipur City, PW13
12. Shri Mahendra Singh Lower Division Clerk Office Superintendent of Police (HQ) Jaipur City PW10
13. Shri Ramniwas Sub Inspector P.S. Banipark, Jaipur PW11
14. Shri Naveen Tyagi PW14
15. Shri Mahipal Singh, Additional Superintendent of Police (HQ), Jaipur City PW15 LIST OF DOCUMENTS
1.Preliminary Enquiry Report Exh.P.34
2.Statements of Shri Vinod Kumar, Mohan Lal, Banwari Lal, Kishan Lal, Madan Singh, Goverdhan Lal, Rameshwar Singh, Exh.P.5, Exh.P.4, Exh.P.2, Exh.P.16, Exh.P.7, Exh.P.6, Exh.P.18
3.FIR No.182 dated 12-4-2005 PS Jhotwara Exh.P.8
4.Charge Sheet No.400 dated 23-12-05 PS Jhotwara Exh.P.17
5.Photocopy of Patta, Affidavit, Receipt No.1034, Site Plan Exh.P.9, Exh.P.10, Exh.P.11
6.Letter No.6438 dated 8-8-08 Exh.P.36
7.Certified photocopy of agreement dated 30-1-2002 Exh.P.12
8.Certified copy of Seizure Memo dated 19-11-05
9.F.S.L. Report
10.Letter of SHO PS Jhotwara dated 7-12-05 Exh.P.13
11.Letter No.21124-25 dated 15-12-05 Exh.P.14
12.Entry of application Exh.P.3 (5 of 14) [SAW-253/2015]
13.Copy of Rapat No.77 dated 6-11-05 and Rapat No.197 dated 20-12-05, Rojnamcha Police Line, Jaipur City Exh.P.1
14.Telegram dated 16-11-2005 Exh.P.19
15.Letter No.1851 dated 30-12-2005 Exh.P.20
16.Previous absence particulars Exh.P.33
17.FIR No.137/2003 dated 11/10/03 PS Banipark Exh.P.23
18.Charge Sheet No.98/2003 PS Bani Park, Jaipur for offence u/Ss.419, 205, 120B IPC Exh.P.24
19.Statements of Shri Mahipal Singh, Ghanshyam Singh, Pradeep Kumar, Rampratap, Choteylal, Sube Singh, Brija Devi and Ramveer.
Exh.P.25, Exh.P.26, Exh.P.27, Exh.P.28, Exh.P.29, Exh.P.30, Exh.P.31 and Exh.P.32.
Superintendent of Police (Headquarter), Jaipur City"
5. On receipt of the charge-sheet, on 19/05/2007 the respondent prayed that the relied upon documents be supplied to him. The documents were not supplied. The respondent filed a reply stating that there was some misunderstanding between him and his brother-in-law. He prayed that the disciplinary enquiry be dropped till disposal of the criminal case.
6. In the meanwhile the respondent settled the dispute with his brother-in-law by agreeing to forego the claim to the plot and moved an application for the criminal proceedings against initiated against him to be quashed. Since the offence punishable under Section 420 IPC was compoundable, the learned trial Judge compounded the said offence vide order dated 16/03/2007 and qua the rest the respondent moved this Court for quashing of the FIR. Noting that the original documents have been lost and for said reason the FSL Report containing the disputed signatures of (6 of 14) [SAW-253/2015] the complaint was not available; noting that it was a dispute between brother-in-laws, vide judgment dated 24/07/2007 the FIR was quashed.
7. The departmental enquiry proceeded. At the departmental enquiry 15 witnesses named in the list of witnesses along with the charge-sheet were examined and 36 documents relied upon were exhibited by the witnesses.
8. Ram Chandra Singh S/o late Shri Rawat Singh appeared as PW1. He deposed that on 20/12/2005 he was the duty officer and at 8.15 p.m. Manoj Kumar lodged the first information report Ex.1. The witness was not cross-examined.
9. Banwari Lal appeared as PW2. He deposed that he was engaged in the business of constructing houses. Three years ago his relative Mohan Lal sold the plot in question to Vinod Kumar. He witnessed the sale-deed. He was told by one Nand Lal that Manoj Kumar had instituted some proceedings against the respondent on the allegation that the respondent had prepared some forged documents. His statement was recorded during a preliminary enquiry which is Ex.2. The witness was not cross-examined.
10. Phool Chand appeared as PW3. He deposed that on 06/11/2005 his duty was to prepare the rojnamcha from 8.00 a.m. to 2.00 p.m. Manoj Kumar made the entry Ex.3 while leaving the police station. The witness was not cross-examined.
11. Mohan Lal appeared as PW4. He said that he sold the plot to Vinod Kumar. The respondent prepared forged documents to record that he was the owner of the plot. During investigation he had seen the forged documents. His statement recorded during (7 of 14) [SAW-253/2015] preliminary enquiry was Ex.4. The witness was not cross- examined.
12. Complainant Vinod Kumar appeared as PW5 and deposed that he purchased the plot from Mohan Lal. He gave the original papers to the respondent who offered to get the electricity connection in his name. The respondent refused to hand over titled documents to him and claimed that he was the owner of the plot for which he had to lodge criminal proceedings against the respondent. During preliminary enquiry his statement Ex.5 was recorded. The witness was not cross-examined.
13. Gordhan Lal appeared as PW6 and stated that he was working in the police department and that the original documents seized during police investigation were kept in a sealed envelope. The witness was not cross-examined.
14. Madan Singh appeared as PW7 and stated that he was working in the concerned police station when the FIR was registered. Photocopy of the sale-deed relied upon by the respondent during investigation was Ex.12. The witness was not cross-examined.
15. Kishan Lal appeared as PW8 and stated that he was in the business of property. ASI Madan Singh asked him at PS Jhotwara whether plot transaction between Vinod Kumar and Manoj Kumar took place in his presence. He denied. That one Nandlal brought the agreement and asked him to put the signature on the agreement which related to sale of plot. He appeared in the police station upon being called by ASI Madan Singh. Previously, Circle Officer Jhotwara, Jaipur City took his statement, which is Ex.16. The witness was not cross-examined.
(8 of 14) [SAW-253/2015]
16. Rameshwar Singh appeared as PW9 and stated that in 2005 he was posted at PS Jhotwara. He put the his signatures on Charge-sheet No.400/05 of Case No.182/05, which is Exh.17. The witness was not cross examined.
17. Mahendra Singh appeared as PW10 and stated that Exh.19 to 22 were not prepared by him and the witness was not cross-examined.
18. Ramniwas appeared as PW11 and stated that in the year 2003 he was posted at PS Banipark and the SHO handed over case No.137/2003 to him for investigation. During investigation, statements of Mahipal Singh, Additional Superintendent of Police, Ghanshyam Singh Head Constable, Pradeep Kumar, Rampratap, Choteylal, Sube Singh, Brijadevi and Ramveer were recorded. Supplementary statements of witnesses Ghanshyam Singh and Pradeep Kumar were recorded, which are Exh.25 to 34. The FIR No.137/2003 is Exh.23 and Charge Sheet No.98/2003 is Exh.24.
19. Smt.Shalini Saxena appeared as PW12 and stated that at the relevant time in the year 2006 she was posted as Circle Officer Jhotwara. She conducted the preliminary enquiry against Constable Manoj Kumar 1541 and forwarded the same vide letter No.4857-58 dated 1/7/2006 to the Superintendent of Police Headquarter, Jaipur City, Jaipur and copy thereof was forwarded to the SP Jaipur City South which is Ex.34. During investigation, statements of Vinod Kumar, Mohanlal, Banwarilal, Kishanlal, Madan Singh, Goverdhan Lal and Rameshwar Singh were recorded, which are Exh.5, Exh.4, Exh.2, Exh.16, Exh.15, Exh.6 and Exh.18, respectively. The witness was not cross-examined.
(9 of 14) [SAW-253/2015]
20. Mohan Singh appeared as PW13 and stated that at the relevant time in 2004 he was Reserved Police Inspector (Admn.) Police Line), Jaipur City, Jaipur and on 6/11/2005 5 CL and 2 GH were sanctioned to Manoj Kumar Constable 1541 as he remained absent on several occasions. The leave application of Constable Manoj Kumar which he submitted to SP is Exh.22 and his explanation was called on 29/12/2005, which is Ex.33. The witness was not cross-examined.
21. Naveen Tyagi appeared as PW14 and stated that Manoj Kumar 1541 joined the duty on 6/11/2005 after remaining on leave for 44 days and the chart regarding his presence and absence was prepared by him, which is Exh.21. Constable Manoj Kumar 1541 submitted his joining report on 20/12/2005 recording he being ill and submitted telegram which was stated to be received in the office on 16/11/2005, which are Exh.22 & 19, respectively. Manoj Kumar never submitted application seeking leave of 44 days nor submitted any medical certificate regarding his illness. The witness was not cross-examined.
22. Mahipal Singh appeared as PW15 and stated that he conducted the departmental enquiry against Constable Manoj Kumar under Rules 16/18 of the CCA Rules. During enquiry it was found that Manoj Kumar got recorded the statements of another lady at PS Pilani, District Jhunjhunu on 21/08/2003 instead of Smt.Brija Devi W/o Shri Banwarilal, R/o Dev Road. On complaint being received, the preliminary investigation was conducted by ASI Ramveer Singh. FIR No.137/2003 dated 11/10/2003 for offence u/Ss.419, 205 and 120B IPC was got registered at PS (10 of 14) [SAW-253/2015] Banipark. And after investigation charge sheet Exh.24 was filed. The witness was not cross-examined.
23. Based on the evidence the enquiry officer submitted a report opining that the charges were proved. Supplying the enquiry report to the respondent and considering reply filed by him the disciplinary authority dismissed him from service vide order dated 25/04/2008 against which appeal filed was rejected on 29/08/2008. Review petition was dismissed on 29/07/2011. The respondent proceeded to this Court and filed a writ petition which has been allowed by the learned Single Judge vide impugned order dated 23/09/2014.
24. The learned Single Judge has held that Charges No.1, 2 & 3 related to the complaint made by Vinod Kumar, brother-in-law of the respondent in which a settlement took place and the criminal proceedings were initiated. The learned Single Judge has held that the finding pertaining to said charges are nothing but an enumeration of the names of the witnesses and the documents in the enquiry report. The learned Single Judge has held that if the complainant compromised the matter his statement in law cannot be taken as proof of the charges. Regarding Charge No.7 the learned Single Judge has held that it related to absence in the past. The absence was regularised as per the leave rule. The learned Single Judge thereafter has held that Charges No.8 and 9 have been held not to be proved. Charges No.4, 5 and 6 have been treated to be broadly overlapping and relatable to the charge of 44 days unauthorised absence. The learned Single Judge has thereafter referred to case law that where absence is later on condoned under the leave rules the misdemeanor does not stand.
(11 of 14) [SAW-253/2015] The writ petition was allowed and the penalty levied has been quashed.
25. Suffice it to state that the respondent was not acquitted at a criminal trial after the prosecution led evidence. The acquittal was the result of a compromise qua the offence punishable under Section 420 IPC and regarding the offence punishable under Section 468/471 IPC on account of the fact that the sale-deed produced by the respondent which was sent for hand writing expert opinion got lost at the FSL Laboratory.
26. A perusal of the charge-sheet, would show that the first three charges are actually statements bifurcating into different charges relatable to the same wrong. The charge alleged is that in order to grab plot No.47, Green Town, Jhotwara of Shri Vinod Kumar, Son of Shri Dharampal Singh respondent prepared a forged sale deed in his name.
27. This therefore would be treated by us as the first charge.
28. The 2nd charge would be the Charge No.4 which was framed and the Charge No.3 would be the Charge Nos.5 and 6 for the reason they are composite. The 4 th charge would be the charge of previous habitual absence and qua this we may only say that though listed as a charge, in law it is not a charge, but information to the respondent that if the charge of unauthorised absence of 44 days was proved the department would look into the previous record. The next two charges would be as laid in the charge-sheet.
29. We have perused the enquiry report. The enquiry report notices the testimony of 15 witnesses and the 36 (12 of 14) [SAW-253/2015] documents which have been exhibited. Briefly referring to the testimony of PW1, PW2, PW4, PW5 and PW7 the finding returned is that Charges No.1, 2 and 3 are proved.
30. It is true that there is no elaborate discussion, but being an enquiry report it is not expected that the report would akin to a judgment.
31. The testimony of PW1 establishes that Manoj Kumar lodged the first information report Exh.1 in which he alleged that the respondent being his brother-in-law volunteered to obtain electricity connection for the plot which he had purchased. He gave the sale-deed to the respondent. He later on learnt that on the basis of a forged sale-deed the respondent had obtained the electricity connection in his name. Mohan Lal PW4 deposed that he sold the plot to Vinod. Vinod appearing as PW5 deposed that he purchased the plot from Mohan and gave original papers to the respondent to get the electricity connection in his name. Later on, the respondent refused to hand over title documents to him and claimed to be the owner. He had lodged a complaint and his statement Exh.5 was recorded during the preliminary enquiry. Banwari Lal PW2 corroborated the testimony of Mohan Lal. So did PW8.
32. We may not note further evidence on this issue in the form of FIR being registered, statements of witnesses being recorded during investigation for the reason the testimony of the aforesaid witnesses establishes the fact that the respondent took the sale-deed from his brother-in-law on the assurance that he would obtain an electricity connection for the plot in the name of his brother-in-law. He refused to hand over the sale-deed to his (13 of 14) [SAW-253/2015] brother-in-law. He obtained an electricity connection in his name. He relied upon a sale-deed which was seized and sent to FSL but unfortunately the original document got lost. The fact of the matter remains that there is enough evidence to establish that the respondent claimed to be the owner of the plot on the strength of some documents and claimed title adverse to Vinod Kumar (his brother-in-law) and ultimately settled the dispute with his brother- in-law; accepting the title of his brother-in-law.
33. Being a member of the police the conduct of the respondent justifies penalty of dismissal being inflicted upon him. Thus, the first three charges, which in fact are only one charge being proved is sufficient for the penalty to be inflicted. As regards the charge of willful absence, this was the result of the respondent being arrested and sent to judicial custody. But the graverman of the charge is that while reporting for duty the respondent hide the said fact and attempted to pass of the absence as the result of illness. This is proved by the testimony of PW14 and the documents exhibited by him. The charge is established. Regarding the charge of producing forged evidence, learned counsel for the appellant conceded that there was no tangible evidence and thus, Charge No.9 cannot be sustained.
34. From the charge-sheet, it is apparent that the real charge against the respondent was to create documents adverse to the title of his brother-in-law, who in good-will handed over his title deed to the respondent for obtaining an electricity connection. The respondent tried to gobble the plot of his brother-in-law. He failed in his endeavour, when the bluff was called off. He (14 of 14) [SAW-253/2015] was arrested. He compromised the dispute with his brother-in-law and acknowledged the title of his brother-in-law.
35. This is a serious charge justifying dismissal from service.
36. The appeal is allowed. The impugned judgment dated 23/09/2014 is set-aside. The writ petition filed by the respondent is dismissed.
(G R MOOLCHANDANI), J. (PRADEEP NANDRAJOG), CJ. Anil Goyal-PS Powered by TCPDF (www.tcpdf.org)