Rajasthan High Court - Jaipur
Chandra Mohan Sharma vs State on 15 November, 2011
Author: Mn Bhandari
Bench: Mn Bhandari
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR ORDER 1. SB Civil Writ Petition No. 5637/2006 Chandra Mohan Sharma versus State of Rajasthan & ors 2. SB Civil Writ Petition No. 5243/2006 Kishan Singh versus State of Rajasthan & ors Date of Order :- 15th November, 2011 PRESENT HON'BLE MR. JUSTICE MN BHANDARI Mr Shobhit Vyas Mr Manoj Bhardwaj - for petitioners Mr BS Rajawat, Dy GC for respondents BY THE COURT:
Since on same set of facts, similar relief has been claimed, both the writ petitions have been heard together and decided by this common order.
By these writ petitions a challenge has been made to the order of dismissal pursuant to rule 19(2) of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short 'the Rules of 1958'). The enquiry against the petitioners has been dispensed with and, at the same time, order of dismissal has been passed. The departmental appeals preferred thereupon by the petitioners, have been dismissed without considering any relevant fact.
It is stated that petitioners were appointed on regular basis by the respondents and they were discharging their duties to the utmost satisfaction of the department. Respondents, initially, suspended the petitioners in contemplation of the enquiry and, thereupon, they were dismissed from service vide the impugned order dated 25.11.2005, without holding any enquiry. The allegations made against the petitioners were taken as proved based on preliminary enquiry. Perusal of the order shows a stigma against the petitioners but the aforesaid order has been passed without following principles of natural justice. It is apart from the fact that there was no material to dispense with the enquiry against the petitioners to invoke rule 19(2) of the Rules of 1958. Perusal of the order reveals that on account of so called threatening by one of the petitioners, the enquiry has been dispensed with against them followed by an order of dismissal from service. It was even without issuance of charge sheet to the petitioners. Hence, impugned order of punishment, so as the orders passed on the appeals deserve to be set aside. Learned counsel has referred various judgment of the Hon'ble Apex Court including in the case of Jaswant Singh Versus State of Punjab & ors reported in (1991) 1 SCC 362, wherein also, departmental enquiry was dispensed with based on subjective satisfaction of the authorities. It was held that a judicial review of the aforesaid decision can be made by the courts and, in absence of any independent material to justify dispensing of the enquiry, order of dismissal cannot sustain.
Further reliance has been placed on the judgment of the Hon'ble Apex Court in the case of Tarsem Singh versus State of Punjab & ors reported in (2006) 13 SCC 581, wherein, it was held that subjective satisfaction of the authorities to dispense with the enquiry must be based on objective criteria. Reasons to dispense with the enquiry must be supported by documents. Therein, preliminary enquiry was conducted against the employee without minimal requirements of principle of natural justice thus relying on such inquiry, the order of dismissal was held to be illegal.
In view of aforesaid, it is prayed that orders of dismissal so as the orders on appeal may be set aside more so when an enquiry can be dispensed with under rule 19(2) of the Rules of 1958 when charge sheet is served, however, in the present matter, even charge sheet was not served to the petitioners. Thus, rule 19(2) of the Rules of 1958 was not even available to the respondents.
Learned counsel for respondents, on the other hand, submits that looking to the gravity of misconduct, impugned order has been passed when it was not found practicable to hold enquiry against the petitioners. Petitioners deserve no sympathy looking to their conduct so as the facts came in the preliminary enquiry. One of the delinquent employee tried to terrorise the disciplinary authority, hence, it was not found to be practicable to hold enquiry. He has placed reliance on the judgment of the Hon'ble Apex Court in the case of Union of India & anr versus Tulsiram Patel & ors, reported in AIR 1985 SC 1416. Therein, the delinquent employee terrorise disciplinary authority resulting in a situation where nobody was willing to hold enquiry. The prayer is accordingly to maintain the impugned orders.
I have considered rival submissions of learned counsel for parties and perused the record of the case besides judgments cited at the Bar.
It is no doubt true that allegations against the petitioners are quite serious and, for that, a criminal case has also been registered. The fact, however, remains that as to whether departmental enquiry can be dispensed with only for the reason that allegations against the petitioners were found to be correct in the preliminary enquiry and that one of the petitioners threatened the disciplinary authority with serious consequences. It has been stated that no threatening was given to the disciplinary authority, otherwise, respondents could have shown overt act of the petitioners. If a threatening would have been given by petitioner then how respondents could conduct preliminary enquiry.
The question for my consideration is accordingly as to whether there exist material to make out a case for passing the impugned order of dismissal by invoking rule 19(2) of the Rules of 1958. No material has been placed by the respondents to prove that threatening was given by the petitioners and, in any case, if an allegation against the petitioners regarding threatening is looked into, it does not show that holding of enquiry was impracticable. The words of threatening given by one of the petitioners has been quoted by the respondents, which reads as under:-
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The respondents are unable to state that if any threatening was given by one of the petitioners then whether there was follow-up action by them creating a situation where holding of enquiry was not possible. In the present matter, even charge sheet was not issued on the petitioners thus provisions of rule 19(2) of the Rules of 1958 were not available with the respondents as it can be invoked where enquiry against the delinquent employee is not possible. That aforesaid stage comes on service of the charge sheet. Even if without issuance of the charge sheet rule 19(2) of the Rules of 1958 can be invoked there is no material to show that a serious threat was given to the disciplinary authority to make it difficult to hold enquiry.
The issue considered by the Hon'ble Apex Court in the case of Tulsiram Patel (supra) was in reference to the situation where the delinquent employee so terrorised the disciplinary authority that neither that officer not any other officer was willing to hold the enquiry.
In the present matter, when the charge sheet was not even served and enquiry officer was not appointed, question of threatening in holding the enquiry thereupon, does not arise. The provisions of rule 19(2) of the Rules of 1958 cannot be invoked casually as it takes away valuable right of the employee, who is served with serious consequences of dismissal from service without an opportunity of hearing.
In the aforesaid background, provisions of rule 19(2) of the Rules of 1958 have to be applied with due care and not in casual manner. Even if the allegation of threatening against the petitioners is looked into, it does not constitute a serious threat so as to create terror in the mind of the disciplinary authority to hold enquiry and pass impugned order thereupon. This is in the circumstance where there is no overt act of the petitioners after alleged threatening. Even the respondents have failed to indicate as to when and where such a threatening was given to the disciplinary authority. In the aforesaid background, alleged threatening by one of the petitioners remains without proof thus no case is made out to justify dispensation of the enquiry. Such a mechanism can be evolved when there exist serious threat or act of the delinquent employee making it difficult or impossible for the enquiry officer to hold enquiry. The aforesaid is only one part of the whole issue, as, otherwise, impugned order is not legally sustainable because provisions of rule 19(2) of the Rules of 1958 can be invoked when the enquiry is not possible but such an eventuality comes on service of the charge sheet, which is missing in the present matter. The case of the petitioners is supported by the judgment of the Apex Court in the case of Tarsem Singh (supra). Relevant paras of the said judgment are quoted as under :
3. The appellant herein was charge-sheeted for commission of the following misconduct:
(1) On 11-10-1997 at about 10 p.m. he along with his abovesaid accomplices entered the house of one Dara Singh s/o Madan Singh, resident of Mohalla Ram Bagh, City, Barnala and outraged the modesty of his wife by inflicting pinches on her body. They forcefully extracted rupees one hundred from Dara Singh. They threatened him of dire consequences if he made any complaint against them or deposed against them or helped in any criminal or departmental proceedings against them.
(2) Constable Tarsem Singh No. 4C/371 on 11-10-1997 in between about 10/11 p.m. along with his other two above colleagues caught hold of one Ravinder Kumar s/o Kamaleshwary Yadav r/o Bharai, District Purnia, Bihar, a migrant labourer, stuffed cloth in his mouth and had carnal intercourse with him against the law of nature. FIR No. 228 dated 13-10-1997 under Sections 377 and 34 IPC in PS Kotwali Barnala has been registered against him. This incident took place at grain market, Barnala.
(3) He along with his other two accomplices further caused threats of dire consequences to anyone deposing against him in an enquiry/investigation which has further caused a scare amongst colleagues and citizens. That in the public and administrative interest the retention of the abovesaid Constable Tarsem Singh No. 4C/371 is considered wholly undesirable.
4. On the basis of the said allegations alone and without any further material, PPS, Commandant, 4th Commando Battalion, Bahadurgarh, Patiala, on arriving at a purported satisfaction that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means, a formal departmental proceeding need not be initiated. The said authority further took into consideration report of a preliminary enquiry conducted through Mr Gurbachan Singh, DSP/Adjutant, 4th Commando Battalion, Bahadurgarh, Patiala and, on that basis opined, There seems no need of a regular departmental enquiry against Tarsem Singh No. 4C/371.
9. It is not disputed before us that in awarding the punishment of dismissal from service upon the appellant no formal enquiry was held purportedly on the ground that the same enquiry could be dispensed with, under proviso (b) appended to Clause (2) of Article 311 of the Constitution of India, which reads as under:
311. Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.(1) * * * (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges:
Provided further that this clause shall not apply
(a) * * *
(b) where the authority empowered to dismiss or remove a person or to reduce him in rank is satisfied that for some reason, to be recorded by that authority in writing, it is not reasonably practicable to hold such inquiry;
10. It is now a well-settled principle of law that a constitutional right conferred upon a delinquent cannot be dispensed with lightly or arbitrarily or out of ulterior motive or merely in order to avoid the holding of an enquiry. The learned counsel appearing on behalf of the appellant has taken us through certain documents for the purpose of showing that ultimately the police on investigation did not find any case against the appellant in respect of the purported FIR lodged against him under Section 377 IPC. However, it may not be necessary for us to go into the said question.
11. We have noticed hereinbefore that the formal enquiry was dispensed with only on the ground that the appellant could win over aggrieved people as well as witnesses from giving evidence by threatening and other means. No material has been placed or disclosed either in the said order or before us to show that subjective satisfaction arrived at by the statutory authority was based upon objective criteria. The purported reason for dispensing with the departmental proceedings is not supported by any document. It is further evident that the said order of dismissal was passed, inter alia, on the ground that there was no need for a regular departmental enquiry relying on or on the basis of a preliminary enquiry. However, if a preliminary enquiry could be conducted, we fail to see any reason as to why a formal departmental enquiry could not have been initiated against the appellant. Reliance placed upon such a preliminary enquiry without complying with the minimal requirements of the principle of natural justice is against all canons of fair play and justice. The appellate authority, as noticed hereinbefore, in its order dated 24-6-1998 jumped to the conclusion that he was guilty of grave acts of misconduct proving complete unfitness for police service and the punishment awarded to him is commensurate with the misconduct although no material therefor was available on record. It is further evident that the appellate authority also misdirected himself in passing the said order insofar as he failed to take into consideration the relevant facts and based his decision on irrelevant factors.
14. In view of the fact that no material had been placed by the respondents herein to satisfy the Court that it was necessary to dispense with a formal enquiry in terms of proviso (b) appended to Clause (2) of Article 311 of the Constitution of India, we are of the opinion that the impugned orders cannot be sustained and they are set aside accordingly. The appellant is directed to be reinstated in service. However, in view of our aforementioned findings, it would be open to the respondents to initiate a departmental enquiry against the appellant if they so desire. Payment of back wages shall abide by the result of such enquiry. Such an enquiry, if any, must be initiated as expeditiously as possible and not later than two months from the date of communication of this order.
Perusal of the paras quoted above reveals in which case enquiry can be dispensed with. Considering the facts aforesaid and also the fact that serious allegations exist against the petitioners though no charge sheet was served but charges are treated as proved in that preliminary enquiry only. In fact, petitioners should have been afforded an opportunity to defend their case. Accordingly, I am of the opinion that impugned orders cannot sustain in the eyes of law and deserve to be set aside.
The fact, however, remains that petitioners have not worked during intervening period thus are not entitled to any benefit of the intervening period and has been agreed by learned counsel for petitioners.
In view of aforesaid, both the writ petitions are allowed. Impugned orders dated 25.11.2005 at Annexure-2 and 12.6.2006 at Annexure-6 passed on the appeals are set aside. The respondents are directed to hold enquiry after service of charge sheet to the petitioners. After holding the enquiry as per rules, respondents would be at liberty to pass appropriate orders as per law. The aforesaid exercise may be undertaken and completed within a period of six months from the date of receipt of copy of this order looking to the gravity of the allegations against the petitioners.
For the intervening period, petitioners nay not be taken on duty as they were under suspension at the time of dismissal, however, if the charges are not found proved against petitioners, they would be entitled to the back wages from the date of this judgment. In case of exoneration, their services would be taken in continuity, however, if charges are found proved then petitioners would not be entitled for any benefit as aforesaid has been agreed by the learned counsel for the petitioners.
(MN BHANDARI), J.
bnsharma All corrections made in the judgment/ order have been incorporated in the judgment/ order being emailed.
(BN Sharma) PS-cum-J