Rajasthan High Court - Jaipur
Surendra Kumar Sharma S/O Sh. Shyam Lal ... vs State Of Rajasthan on 25 August, 2020
Author: Ashok Kumar Gaur
Bench: Ashok Kumar Gaur
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 13280/2019
Surendra Kumar Sharma S/o Sh. Shyam Lal Sharma, Aged
About 53 Years, Presently Posted As Circle Officer Itawa, Distt.
Kota (Rural) (Raj.)
----Petitioner
Versus
1. State Of Rajasthan, Through Principle Secretary,
Department Of Personnel, Government Of Rajasthan,
Jaipur.
2. The Director General Of Police, Rajasthan, Lal Kothi, Tonk
Road, Jaipur.
3. Joint Secretary (Admn), Department Of Personnel, Govt.
Of Rajasthan, Jaipur
----Respondents
For Petitioner(s) : Mr.Madhav Mitra with Mr.Sumer
Sharma, Advocates.
For Respondent(s) : Dr.Vibhuti Bhushan Sharma,
Additional Advocate General.
HON'BLE MR. JUSTICE ASHOK KUMAR GAUR
Judgment
Judgment Reserved on : 5th August, 2020
REPORTABLE
Date of Pronouncement : 25th August, 2020
By the Court:
The present writ petition has been filed by the petitioner challenging penalty order dated 12.02.2018 and order dated 12.07.2019 passed by the Appellate Authority rejecting the departmental appeal of the petitioner.
2. The brief facts of the case are that the petitioner while working as Deputy Superintendent of Police at Sikar was in receipt of chargesheet under Rule 17 of the Rajasthan Civil Services (Downloaded on 25/08/2020 at 09:12:19 PM) (2 of 13) [CW-13280/2019] (Classification, Control & Appeal) Rules, 1958 (in short "CCA Rules"). The chargesheet was accompanied with memo of allegations and as many as three charges were levelled against the petitioner. The charge No.1 was in respect of not registering an FIR on 30.03.2017 in respect of an incident which had taken place at Sheetala Chowk, Sikar with one Mohd.Nadeem. The charge No.2 was in respect of not disclosing complete facts of the alleged incident while giving statement in the preliminary enquiry, as the petitioner was made aware on telephone in respect of the statement recorded on parcha bayan of the injured Mohd.Nadeem and as such the petitioner shown dereliction of duty. The charge No.3 was in respect of the negligence shown by the petitioner in discharge of duty which resulted into newspaper publication, which lowered down the image of the Police in general public.
3. This Court deems it proper to quote the charges levelled against the petitioner in the chargesheet, which read as under:-
"vkjksila[;k 1 %& vkidks fnukad 30-03-2017 dks lk;adky "khryk pkSd ij Jh eksgEen unhe ds lkFk gqbZ ekjihV dh ?kfVr ?kVukØe dh lewph tkudkjh gksus ds mijkUr Hkh ?kVukØe dh ifjf.kfr dks utj vUnkt djrs gq, ?kVuk ds rqjUr ckn dksbZ vfHk;ksx ntZ ugha djok;k x;k] tSlk fd vfHkdFkukas ds fooj.k la[;k 1 esa vafdr gSA vkjksi la[;k 2 %& vki }kjk mDr ?kVukØe dh lwpuk ij Jh gjh"k dqekj dkfu0 1135 dks et:c eksgEen unhe ds ipkZ c;ku ys[kc) djus gsrq ,l- ds- vLirky lhdj Hkstk x;k ftlds }kjk et:c ds ipkZ c;ku ys[kc) fd;s tkdj vkidks tfj;s nwjHkk'k okrkZ dj voxr djk;k x;kA blds mijkUr Hkh vkius izkFkfed tkap esa vius c;ku esa ?kVuk dh tkudkjh ugha gksuk crkdj vius d`R; ds izfr foeq[krk dk d`R; fd;k gS] tSlk fd vfHkdFkuksa ds fooj.k la[;k 2 esa vafdr gSA vkjksi la[;k 3 %& vkids bl ykijokgh iw.kZ d`R; ds ifj.kke Lo:i xEHkhj ?kVuk ?kfVr gqbZ ftldk fofHkUu izeq[k lekpkj i=ksa esa lekpkj izdk"ku gqvk ftlls vketu esa iqfyl dh Nfo /kwfey gqbZ] tSlk fd vfHkdFkuksa ds fooj.k la[;k 3 esa vafdr gSA (Downloaded on 25/08/2020 at 09:12:19 PM) (3 of 13) [CW-13280/2019] vkidk mDr d`R; xEHkhj ykijokgh] jktdk;Z ds izfr mnklhurk] drZO; foeq[krk ,oa iqfyl foHkkx dh Nfo /kwfey djus dk ifjpk;d gS] tks foHkkxh; fue;kuqlkj n.Muh; gSA"
4. The petitioner after receipt of the aforesaid chargesheet filed his reply and denied all the three charges levelled against him. The petitioner had specifically pleaded in reply to the chargesheet that he was assigned duty as In-Charge of the festival - Gangaur ki Sawaari at Sikar and the petitioner was discharging his duties in maintaining law and order in the said festival. The petitioner had pleaded that he had received information on telephone at around 8:30 PM and the Station House Officer concerned - Sunil Kumar was also in the Gangaur Mela duty, as such, the Constable who was posted - Harish, was immediately instructed to go on the site and record the statement of the injured. The petitioner pleaded that there was no information with respect to communal riots between two communities and as per the information received from the Constable Harish, there was no serious injury which was received by the injured. The petitioner submitted before the Disciplinary Authority that the alleged incident which had occurred was not due to any lapse on the part of the authorities in not registering the FIR.
5. The petitioner had specifically pleaded in respect of charge No.2 that he had not given any incorrect or false statement in the preliminary enquiry and he had denied the absence of his knowledge in respect of communal riots and as such there was no intention to conceal anything or misguide the authorities, while giving statement in the preliminary enquiry. (Downloaded on 25/08/2020 at 09:12:19 PM)
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6. The petitioner submitted that as far as newspaper reporting was concerned, he had taken all the steps to reach on the site and averted big mishappening by talking to both the communities. The petitioner also specifically submitted that he had not done any act which could lower down the image of the Police and if the Press, in an irresponsible manner exaggerated the incident, the petitioner was not to be held liable for the same.
7. The petitioner has pleaded in the writ petition that after receipt of the chargesheet, the Disciplinary Authority vide its order dated 12.02.2018, found the petitioner guilty of all the three charges and imposed penalty of "censure".
8. The petitioner feeling aggrieved against the penalty order preferred an appeal under Rule 23 of the CCA Rules before the Appellate Authority and his appeal has also been dismissed by the Appellate Authority vide its order dated 12.07.2019.
9. The petitioner in the petition has raised several grounds. The following grounds can be enumerated, challenging the legality of the impugned penalty order and the appellate order:-
(a) The charges levelled against the petitioner were based on surmises and conjectures and the order passed by the Disciplinary Authority was based on the evidence recorded behind the back of the petitioner.
(b) The Departmental Enquiry initiated against the other co-delinquent recorded the finding that the petitioner had no role in the entire incident of dereliction of duty. (Downloaded on 25/08/2020 at 09:12:19 PM)
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(c) There was no evidence to prove the charge that delay or non-registration of FIR, immediately after recording parcha bayan, was resultant cause of communal tension.
(d) The Departmental Authority did not apply its mind and recorded a mechanical finding without finding petitioner's specific role in the entire incident.
(e) The other co-delinquent - Sunil Kumar and Jitendra Kumar, Assistant Sub-Inspector, who were also issued chargesheet leveling similar allegations, have not been visited with any penalty and the petitioner has been discriminated. The Appellate Authority did not decide the appeal of the petitioner in proper manner and the same was made dependent upon the preliminary enquiry and the statements recorded behind the back of the petitioner.
10. Mr.Madhav Mitra, while arguing the case of the petitioner, urged only one ground to be considered by this Court relating to parity of punishment and discrimination meted out to the petitioner in respect of the allegations levelled against him and the other co-delinquent.
11. The respondents have filed reply to the writ petition. The respondents have submitted that the charges against the petitioner were proved. The respondents have taken a plea that the petitioner has only been visited with minor penalty of censure and the petitioner had failed to discharge his duties in disciplined force and his acts resulted into dereliction of duty and caused communal tension in the city of Sikar at the relevant time. The (Downloaded on 25/08/2020 at 09:12:19 PM) (6 of 13) [CW-13280/2019] respondents have also pleaded that scope of interference in disciplinary proceedings is very limited before this Court and this Court may not re-appreciate the evidence and go into adequacy & reliability of evidence.
12. Counsel for the petitioner has referred to the documents which have been filed before this Court - report of preliminary enquiry and orders passed in the disciplinary proceedings in respect of other co-delinquent employees namely Sunil Kumar and Jitendra Kumar, ASIs.
13. Counsel for the petitioner submitted that the preliminary enquiry before issuance of chargesheet was conducted for the alleged incident and the Enquiry Officer had found all the delinquent involved in the incident to be negligent. The operative portion of the preliminary enquiry is reproduced hereunder:-
"bl izdkj tkap ls i=koyh ij vfHk;ksx la[;k 187@17 iqfyl Fkkuk dksrokyh lhdj dks ntZ djus o`Rrkf/kdkjh o`Rr lhdj "kgj Jh lqjsUnz "kekZ] l0m0fu0 Jh ftrsUnz flag iqfyl Fkkuk dksrokyh ftyk lhdj gky vLFkkbZ iqfyl pkSdh izHkkjh /kjek.kk] ,lds vLirky iqfyl pkSdh izHkkjh Jh lqfuy dqekj l0m0fu0 dh ykijokgh ikbZ xbZ gSA"
14. Counsel for the petitioner has also referred to the order dated 28.10.2017 passed in respect of the other co-delinquent Sunil Kumar, ASIs. The decision of exoneration of the co- delinquent Sunil Kumar is quoted hereunder:-
"esjs}kjk vipkjh vf/kdkjh dh foHkkxh; tkWp i=koyh ,oa mlds }kjk izLrqr Li'Vhdj.k dk voyksdu o euu fd;k x;kA mifLFkr vipkjh vf/kdkjh dks lquk x;kA ipkZ c;ku ysus ds laca/k esa dh xbZ dk;Zokgh o`Rrkf/kdkjh o`Rr lhdj "kgj ds funZs"kkuqlkj dh xbZ o vipkjh vf/kdkjh }kjk dh xbZ dk;Zokgh Hkh rRle; dh dkuwu O;oLFkk dh fLFkfr ds vuqlkj vipkjh vf/kdkjh dks izkIr funsZ"kkuqlkj dh xbZ ftlesa vipkjh vf/kdkjh dh dksbZ cn~;kfUr mtkxj ugha gks jgh gSA tkWp vf/kdkjh }kjk Hkh vipkjh vf/kdkjh }kjk dh xbZ dk;Zokgh dks ln~HkkoukiwoZd fd;k tkuk ekuk gSA vipkjh vf/kdkjh dk lsokdky Hkh csnkx jgk gSA vr% mDr leLr rF;ksa dh (Downloaded on 25/08/2020 at 09:12:19 PM) (7 of 13) [CW-13280/2019] foospuk ds vk/kkj ij vipkjh vf/kdkjh dks ml ij yxk;s x;s vkjksiksa ls nks'keqDr fd;k tkrk gSA"
15. Counsel also referred to the order dated 28.10.2017 passed in respect of the other co-delinquent Jitendra Kumar, ASIs exonerating him and the same is reproduced hereunder:-
"esjs }kjk vipkjh vf/kdkjh dks foHkkxh; tkWp i=koyh ,oa mlds }kjk izLrqr Li'Vhdkj.k dk voyksdu o euu fd;k x;kA mifLFkr vipkjh vf/kdkjh dks lquk x;kA vipkjh vf/kdkjh ?kVuk ds fnu dkuwu O;oLFkk M~;wVh esa mifLFkr jgs o vU; tks Hkh dk;Zokgh dh og o`Rrkf/kdkjh o`Rr lhdj "kgj ds funsZ"kkuqlkj dh xbZA ftlesa vipkjh vf/kdkjh dh dksbZ cn~;kfUr mtkxj ugha gks jgh gSA vipkjh vf/kdkjh dk lsokdky Hkh csnkx jgk gSA vr% mijksDr rF;ksa ds e/;utj vipkjh vf/kdkjh dks ml ij yxk;s x;s vkjksiksa ls nks'keqDr fd;k tkrk gSA"
16. Counsel on the strength of the said orders submitted that if the allegation was in respect of dereliction of duty by all the delinquent employees, the respondents could not have imposed penalty of censure on the petitioner alone. Counsel also submitted that penalty of censure is not an innocuous order and in fact it affects service career of the petitioner and he will suffer not only in respect of future promotion avenues but also the stigma attached to his service career.
17. Counsel for the petitioner has placed reliance on the following judgments:-
(i) State of Uttar Pradesh & Ors. Vs. Rajpal Singh reported in (2010) 5 SCC 783.
(ii) Judgment dated 22.02.2018 passed by this Court in S.B.Civil Writ Petition No.293/2017 [Bansi Lal Swami Vs. State of Rajasthan & Ors.]
(iii) Man Singh Vs. State of Haryana reported in (2008) 12 SCC 331.
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(iv) Maharaj Prasad Agarwal Vs. State of Rajasthan
reported in RLW 2002(1) Raj. 513.
18. Per contra, Dr.Vibhuti Bhushan Sharma, Additional Advocate General submitted that the petitioner cannot be given same treatment, as has been given to the other co-delinquent. Learned AAG submitted that each delinquent had a separate role to play and their official duties were also different. Counsel submitted that the petitioner is guilty of serious charges, as he failed to register the FIR or did not issue orders to the competent person to register the FIR in spite of knowledge of communal tension between two communities. Counsel further submitted that though not admitting but assuming that the petitioner was not directly responsible for registration of FIR, as he was not the SHO, at least he is guilty of supervisory negligence and as such, the authorities have rightly come to the conclusion that the petitioner has committed dereliction of duty.
19. I have heard counsel for the parties and with their assistance perused the material available on record.
20. This Court on careful reading of the charges levelled against the petitioner finds that main allegation against the petitioner is in respect of not registering immediate FIR for the alleged incident of 30.03.2017. The ancillary charge levelled against the petitioner is of not giving complete facts of the incident during preliminary enquiry conducted against him and other co-delinquent and further lowering down the image of Police in general public. (Downloaded on 25/08/2020 at 09:12:19 PM)
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21. This Court finds that in the preliminary enquiry, which was conducted against the petitioner and other co-delinquent namely Sunil Kumar and Jitendra Kumar, ASIs, all were found negligent in respect of not registering a criminal case at Police Station Kotwali, Sikar. The report of preliminary enquiry which has already been quoted in earlier part of this judgment, clearly found that all the three persons were responsible and negligent in discharge of their duties.
22. This Court finds from the order dated 28.10.2017 in respect of other co-delinquent Sunil Kumar, where Disciplinary Authority has recorded a finding that whatever action was taken by the delinquent (Sunil Kumar) that was as per the direction given by the present petitioner and the law and order situation was dealt with as per the directions given by his superior - the petitioner and there was no malafide intention on the part of the co-
delinquent - Sunil in discharge of his duties and he was exonerated.
23. The said order has not only exonerated the co-delinquent but has also given a finding that the petitioner while acting as a Circle Officer of Sikar City had taken steps and given direction to his subordinates to act promptly.
24. This Court further finds from perusal of the order dated 28.10.2017 passed in respect of other co-delinquent Jitendra Kumar, ASIs by the Disciplinary Authority where the Disciplinary Authority has recorded a finding that discharge of duty and maintaining law & order, was as per the instructions of the Circle (Downloaded on 25/08/2020 at 09:12:19 PM) (10 of 13) [CW-13280/2019] Officer, Sikar-the petitioner and there was no malafide intention of the co-delinquent Jitendra Kumar, ASIs in discharge of his duties and as such he was also exonerated.
25. This Court, on going through order of the Disciplinary Authority against the petitioner, finds that the Disciplinary Authority has recorded a finding that after recording the statement of the injured in the alleged incident which took place on 30.03.2017 had the FIR been lodged immediately, the communal tension/incidents of 30.03.2017 and 31.03.2017 could have been avoided.
26. This Court finds that once the preliminary enquiry itself had implicated all the three co-delinquent, in discharge of duties in a negligent manner, the finding recorded by the Disciplinary Authority against the present petitioner suffers from arbitrariness and non-application of mind. The exoneration of two delinquent in respect of same allegation and punishing the petitioner also makes out a case of discrimination.
27. This Court finds that the Apex Court in the case of Rajendra Yadav Vs. State of Madhya Pradesh & Ors. reported in (2013) 3 SCC 73 has held that doctrine of equality applies to all who are equally placed even among the persons who are found guilty. The persons who have been found guilty can also claim equality of treatment and if they can establish discrimination while imposing the punishment, where all of them are involved in the same incident, parity in respect of co-delinquent has to be (Downloaded on 25/08/2020 at 09:12:19 PM) (11 of 13) [CW-13280/2019] maintained while the punishment is being imposed. Para 9 & 10 of the judgment is reproduced hereunder:-
"9. The doctrine of equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The disciplinary authority cannot impose punishment which is disproportionate i.e. lesser punishment for serious offences and stringent punishment for lesser offences.
10. The principle stated above is seen applied in a few judgments of this Court. The earliest one is DG of Police v. G.Dasayan [(1998) 2 SCC 407] wherein one Dasayan, a police constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The disciplinary authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on the Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co- delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India."
28. This Court on two occasions considered the doctrine of equality in respect of the punishment order which is passed against the delinquent i.e. in the case of Ram Prasad Sharma Vs. State of Rajasthan [S.B.Civil Writ Petition No.4785/2001 decided on 23.01.2018 and in the case of Niranjan Lal Vs. State of Rajasthan & Ors. [S.B.Civil Writ Petition No.12641/2009] decided on 30.01.2018.
29. This Court finds that charges levelled against the petitioner and other co-delinquent namely Sunil Kumar and Jitendra Kumar, ASIs are identical and there is no iota of evidence making out (Downloaded on 25/08/2020 at 09:12:19 PM) (12 of 13) [CW-13280/2019] difference between the charges levelled against the petitioner and co-delinquent.
30. This Court further finds that the duty assigned to the petitioner was of Circle Officer, Sikar City on 30.03.2017 and co- delinquent namely Sunil Kumar, ASI was In-charge of the Police Chowki Kalyan Hospital under Police Station Kotwali, Sikar and the other co-delinquent namely Jitendra Kumar, ASI was the In-charge of Temporary Police Chowki Dharmana, Sikar. This Court finds that if the In-charge of Police Chowkis have been exonerated, as such there was no justification to hold the petitioner guilty of the allegations levelled against him of dereliction of duty, etc.
31. This Court finds little substance in the submission of learned Additional Advocate General that the petitioner is responsible for his individual act. The allegations against all the delinquent employees are similar and the respondents could not have adopted different yardsticks in imposing penalty on the petitioner.
32. The submission of learned Additional Advocate General that this Court may not appreciate the evidence and substitute its finding, suffice it to say that if the order is per se arbitrary, discriminatory and passed without application of mind, this Court does not have any option except to interfere in such kind of orders and to quash them.
33. Accordingly, this Court finds that the impugned penalty order and the appellate order are legally not sustainable and deserve to be set aside.
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34. Consequently, the present petition is allowed and the penalty order dated 12.02.2018 and the order dated 12.07.2019 passed by the Appellate Authority rejecting the departmental appeal of the petitioner are set aside. The petitioner will be entitled for all consequential benefits on account of setting aside the penalty order and the order passed by the Appellate Authority. No costs.
(ASHOK KUMAR GAUR),J Solanki DS, PS (Downloaded on 25/08/2020 at 09:12:19 PM) Powered by TCPDF (www.tcpdf.org)