Rajasthan High Court - Jaipur
Smt. Darshna vs State Of Rajasthan And Ors. on 9 May, 2003
Equivalent citations: RLW2003(3)RAJ1859, 2003(3)WLC586, 2003(2)WLN641
JUDGMENT Garg, J.
1. This writ petition under Article 226 of the Constitution of India has been filed by the petitioner, who is wife of Ratan Singh, who was Constable in the Police Department and died on 12.1.2002 (hereinafter referred to as "late Constable") on 16.7.2002 against the respondents with the prayer that by an appropriate writ, order or direction, the order dated 25.1.2000. (Annex. 2) passed by the respondent No. 4 Superintendent of Police, Rajsamand by which he after holding the late Constable guilty of some of the charges in a Departmental Enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as "the CCA Rules") imposed the punishment of dismissal from service on the late Constable, but for the period from 6.3.1999 to 12.3.1999 leave without pay was sanctioned and further, the appellate order dated 6.6.2001 (Annex. 3) passed by the respondent No. 3 Dy. Inspector General of Police, Udaipur Range, Udaipur by which the appeal of the late Constable against the order Annex. 2 dated 25.1.2000 was dismissed, be quashed and set aside.
2. The case of the petitioner as put forward in this writ petition is as follows :-
The husband off the petitioner, namely, Ratan Singh was Constable in the Police Department and he died on 12.1.2002.
When late Constable was posted at Police Line, Rajsamand, a charge-sheet under Rule 16 of the CCA Rules was issued to him by the respondent No. 4 Superintendent of Police, Rajsamand through memorandum dated 12.7.1999, a copy of which is marked as Annex. 1. A perusal of the charge-sheet Annex. 1 reveals that as many as six charges were levelled against the late Constable.
A reply to the said charges was submitted by the late Constable in which he denied all the allegations levelled against him.
After conclusion of the enquiry under Rule 16 of the CCA Rules against the late Constable the respondent No. 4 Superintendent of Police, Rajsamand held the late Constable guilty of some of the charges levelled against him and imposed the punishment of dismissal from service against him, but sanctioned his leave without pay for the period from 6.3.1999 to 12.3.1999 through impugned order Annex. 2 dated 25.1.2000.
The sum and substance of the charges levelled against the late Constable and the findings recorded by the Disciplinary Authority (respondent No. 4 Superintendent of Police, Rajsamand) through impugned order Annex. 2 on each charge are as follows:-
S. No. Charges Findings of Disciplinary Authority
1.
That on 6.3.99 at about 6.45 PM, late Constable left the police line without any permission and after 6 days, on 12.3.1999 he assumed the duties.
Proved in toto
2. That no explanation for wilful absence from duties was made by late Constable before the authorities concerned.
Proved in toto
3. That in the night of 6.3.99 at about 11,00 PM, after consuming liquor at village Khatana Ki Bhagal, late Constable entered the house of one Smt. Mohini widow of late Bhanwar Lal Gurjar with criminal intention and at that time, it was alleged that he fell down on the stairs and received some injuries, on his person.
Proved in toto
4. That when late Constable had already entered the house of Smt. Mohini, he was asked not to go further by Smt. Mohini and thereupon, he asked her who is she to ask and thereafter, he tried to outrage her modesty and assaulted her by giving 2-3 slaps.
The fact that late Constable entered the house of Smt. Mohini and misbehaved with her in a drunken condition is proved, but the charge of outraging her modesty was not found proved. Thus, that charge No.4 was found partially proved against the late Constable.
5. That when Ramesh and Deva tried their best to put him out from the house of Smt. Mohini, late Constable beat Ramesh, as a result of which, Ramesh fell down and received injuries and late Constable also best Deva.
Proved in toto
6. That thereafter, some villagers came there and upon their intervention, late Constable came out from the house of Smt. Mohini and thus, by his criminal act, reputation of the Police Department stood tarnished.
Proved in toto Against the said order of dismissal, from service dated 25.1.2000 (Annex. 2) passed by the respondent No. 4 Superintendent of Police, Rajsamand, the late Constable preferred an appeal before the respondent No. 3 Dy. Inspector General of Police, Udaipur Range, Udaipur and the appellate authority (respondent No. 3 Dy. Inspector General of Police, Udaipur Range, Udaipur) through order dated 6.6.2001 (Annex. 3) dismissed the appeal of the late Constable.
The further case of the petitioner is that in respect of the same charges i.e. outraging the modesty of Smt. Mohini, a criminal case was also registered against the late Constable being No. 63/99 (FIR No. 169/99 Police Station Rajnagar) and after trial, the late Constable was acquitted of the charges for the offence under Sections 457, 323 and 354 IPC through judgment and order dated 20.11.2001 (Annex. 4) passed by the learned Chief Judicial Magistrate, Rajsamand.
Aggrieved from the said order of dismissal from service dated 25.1.2000 (Annex. 2) passed by the Disciplinary Authority (respondent No. 4 Superintendent of Police, Rajsamand) and appellate order dated 6.6.2001 (Annex. 3) passed by the Appellate Authority (respondent No. 3 Dy. Inspector General of Police, Udaipur Range, Udaipur), the petitioner, wife of late Constable, has preferred this writ petition.
In this petitioner, the following submissions have been made :-
(i) That there was no occasion for the Department to initiate departmental enquiry against late Constable when in respect of the same charges, a criminal case was pending against him and when he has been acquitted in criminal case, therefore, the findings of the Disciplinary Authority as well as the Appellate Authority are baseless and should be set aside.
(ii) That so far as the charges No. 1 and 2 pertaining to absence from duties from 6.3.1999 to 12.3.1999 are concerned, as per Rule 86(3) of the Rajasthan Service Rules, 1951 (for short "RSR"), no disciplinary action could be taken unless the Government employee remains absent from duty for a period exceeding one month and since in the present case, the late Constable remained absent from duty for only six days, therefore, the charges No. 1 and 2 cannot stand and thus, the findings of the Disciplinary Authority as well as Appellate Authority on these charges No. 1 and 2 are wholly erroneous and perverse one and should be set aside.
(iii) That apart from thus, since the main charge of outraging the modesty of Smt. Mohini was not found proved against the late Constable even in the Departmental proceedings, therefore, the punishment of dismissal from service imposed against the late Constable is disproportionate, irrational and excess, looking to the charges found proved against him.
A reply to the writ petition was filed by the respondents and it has been submitted by the respondents that the late Constable was rightly punished by the Disciplinary Authority and his appeal was also rightly dismissed by the Appellate Authority.
So far as the acquittal of the late Constable of criminal charges is concerned, it was submitted by the respondents that it is a separate and district matter and it is distinguishable from the domestic enquiry as the standard of proof and manner of leading evidence is entirely different and thus, the acquittal of the late Constable of criminal charges would not affect the disciplinary proceedings initiated against the late Constable.
Apart from this, it was further submitted by the respondents that the findings recorded by the Disciplinary Authority as well as Appellate Authority are based on correct appreciation of evidence available on record. Furthermore, the scope of judicial review by the High Court under Article 226 in respect of scrutinizing the findings of the Disciplinary Authority as well as Appellate Authority is very limited. Hence, the writ petition filed by the petitioner be dismissed.
3. I have heard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents and gone through the materials available on record.
Point No. 14. At the very outset, the argument that since the late Constable was acquitted by the learned Chief Judicial Magistrate, Rajsamand on criminal charges, therefore, departmental proceedings against the late Constable could not be continued, is to be rejected outrightly as the Hon'ble Supreme Court from time to time and in Secretary, Ministry of Home Affairs and Anr. v. Tahir All Khan Tyaqi, JT 2002 (Suppl. 1) SC 520 has taken the view that there is no prohibition for continuation of departmental proceedings alongwith the criminal proceedings and furthermore, even after acquittal in criminal proceedings, the departmental proceedings can continue since the degree of proof varies.
5. Thus, the argument that after acquittal of the late Constable on criminal charges by the learned Chief Judicial Magistrate, Rajsamand through judgment and order dated 20.11.2001, the departmental proceedings could not continue against him, is outrightly rejected.
Point No. 26. The second submission of the learned counsel for the petitioner is that so far as the charges No. 1 and 2 pertaining to absence from duties from 6.3.1999 to 12.3.1999 are concerned, as per Rule 86(3) of RSR, no disciplinary action could be taken unless the Government employee remains absent from duty for a period exceeding one month and since in the present case, the late Constable remained absent from duty for only six days, therefore, the charges No. 1 and 2 cannot stand and thus, the findings of the Disciplinary Authority as well as Appellate Authority on these charges No. 1 and 2 are wholly erroneous and perverse one and should be set aside.
7. Before proceeding further, it may be stated here that in a petition under Article 226 of the Constitution of India, the High Court does not function as a Court of appeal over the findings of disciplinary authority. But, where the finding is utterly perverse the High Court can interfere with the same.
8. II may further be stated here that in departmental proceedings, the High Court in writ jurisdiction may not normally interfere with the findings of facts unless they are found to be based either on no evidence, or that the findings are wholly perverse and/or legally untenable.
9. In the present case, so far as the charges No. 1 and 2 pertaining to absence from duties for the period from 6.3.1999 to 12.3.1999 is concerned, a perusal of Rule 86(3) of the RSR clearly reveals that disciplinary proceedings could be taken against a Government servant if he wilfully remains absent from duty for a period exceeding one month and in the present case, that period is short one and apart from this, the period of absent from duty from 6.3.1999 to 12.3.1999 has been treated as period of leave without pay and therefore, in these circumstances, the late Constable cannot be held guilty of misconduct, as held by the Hon'ble Supreme Court in State of Punjab and Ors. v. Bakshish Singh, 1999 (2) SRJ 264.
10. Thus, the charges No. 1 and 2 pertaining to absence from duties for the period from 6.3.1999 to 12.3.1999 levelled against the late Constable cannot stand and therefore, the findings of the Disciplinary Authority as well as Appellate Authority on these charges No. 1 and 2 cannot be sustained and liable to be set aside as they are wholly erroneous and perverse one.
11. There is also no dispute on the point that charge of outraging the modesty of Smt. Mohini was not found proved against the late Constable by the Disciplinary Authority.
12. So far as the findings of the Disciplinary Authority as well as Appellate Authority holding the late Constable guilty of charges No. 3, 4 partially, 5 and 6 are concerned, in my considered opinion, they are based on correct appreciation of evidence and material available on record and it cannot be said that these findings are perverse or unreasonable or irrational or based on no material and on the contrary, they are recorded after careful consideration of the evidence and material available on record.
13. Thus, no interference is called for with the findings of the Disciplinary Authority as well as Appellate Authority holding the late Constable guilty of charges No. 3, 4 partially, 5 and 6 in exercise of power under Article 226 of the Constitution of India, as they are based on correct appreciation of evidence both oral as well as documentary and there is no error of law or procedural error leading to manifest injustice or violation of principles of natural justice.
14. The point No. 2 stands decided accordingly.
Point No. 3.
15. The third submission of the learned counsel for the petitioner is that the punishment of removal from service imposed against the late Constable is disproportionate, irrational and excess, looking to the nature of charges found proved against him.
16. To appreciate the above contention, first the law laid down by the Hon'ble Supreme Court from time to time in this respect may be seen.
17. The Hon'ble Supreme Court in Indian Oil Corporation Ltd. v. Ashok Kumar Arora, AIR 1997 SC 1030 while considering the question as to whether the High Courts could in exercise of their powers of judicial review interfere with the punishment imposed by a disciplinary authority pointed out :-
"At the outset, it needs to be mentioned that the High Court in such cases of departmental enquiries and the findings recorded therein does not exercise the powers of appellate court/Authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural justice, denial of reasonable opportunity findings are based on no evidence and or the punishment is totally disproportionate to the period misconduct of an employee."
18. In State of Punish v. Surjit Singh Conductor, JT 1996 (4) SC 294 the Hon'ble Supreme Court held that imposition of punishment is within the power and discretion of the authority and Civil Courts have no jurisdiction to substitute the punishment imposed by such authority.
19. In Union of India and Ors. v. Narain Singh, 2002 (5) SCC 11 the Hon'ble Supreme Court observed that it is within the jurisdiction of the competent authority to decide what punishment is to be imposed and the question of punishment is outside the purview of the High Court's interference unless it is disproportionate to the proved misconduct as to shock the conscience of the Court.
20. Thus, it can be concluded that the jurisdiction of the High Court Under Article 226 of the Constitution of India for interference with the question of punishment awarded to employees in the departmental enquiry is very limited and interference can be made with the punishment if it is disproportionate to the proved misconduct as to shock the conscience of the Court of where the enquiry is vitiated because of non-observance of principles of natural justice or if the findings are based on no evidence.
21. In the present case, keeping in mind the above legal position and looking to the peculiar facts and circumstances of the case and the facts that the husband of the petitioner has died and in case, retiral benefits are not given to her, she would suffer, that the bad deeds done by Late Constable are gone with his passing away and after his death, a widow especially in India has to face a disastrous period and if financial crisis is not so much, then a widow can survive in Society; that the main charge of outraging the modesty of Smt. Mohini was not found proved against the late Constable, in my considered opinion, the punishment of removal from service awarded to the late Constable appears to be excessive and disproportionate to the charges found proved against him and it would be just and proper and in the interest of justice that in place of punishment of removal from service, punishment of stoppage of two annual grade increments without cumulative effect be imposed against the late Constable and to that extent, the order of punishment passed by the Disciplinary Authority and confirmed by the Appellate Authority stands modified accordingly.
For the reasons stated above, this writ petition filed by the petitioner is partly allowed in the following manner :
(1) That the late constable is exonerated of the charges No. 1 and 2 and the findings of the Disciplinary Authority (respondent No. 4 Superintendent of Police, Rajsamand) recorded through order Annex. 2 dated 25.1.2000 as well as the findings of the Appellate Authority (respondent No. 3 Dy. Inspector General of Police, Udaipur Range, Udaipur) recorded through appellate late order Annex. 3 dated 6.6.2001 holding the late Constable guilty of the charges No. 1 and 2 are set aside, but the findings of the Disciplinary Authority as well as Appellate Authority holding the late Constable guilty of the charges No. 3, 4 partially, 5 and 6 are confirmed.
(2) That the punishment of removal from service imposed upon the late Constable by the Disciplinary Authority (respondent No. 4 Superintendent of Police, Rajsamand) through order Annex. 2 dated 25.1.2000, which was confirmed by the Appellate Authority (respondent No. 3 Dy. Inspector General of Police, Udaipur Range, Udaipur) through appellate order Annex. 3 dated 6.6.2001 is set aside and in place of punishment of removal from service, the punishment of stoppage of two annual grade increments without cumulative effect is imposed against the late Constable.
(3) Thus, the order dated 25.1.2000 (Annexure-2) passed by the Disciplinary Authority (respondent No. 4 Superintendent of Police, Rajsamand) and the appellate order dated 6.6.2001 passed by the Appellate Authority (respondent No. 3 Dy. Inspector General of Police, Udaipur Range, Udaipur) stand modified accordingly to the extent indicated above.
(4) That the respondents are directed to pay to the petitioner all consequential benefits including retiral benefits, as per rules, keeping in mind the punishment which has been imposed by this Court against late Constable, within a period of three months from today.
(5) That no order as to costs.