Keshav Dev S/o Sh. Hargyan Singh vs State of Rajasthan

Petitioner, by way of this writ petition, has prayed to quash &

set aside the enquiry report dt.21/08/2001, punishment order

dt.17/05/2003, appellate order dt.03/11/2003 and the review

order dt.10/08/2007 thereby holding the petitioner guilty of the

charges levelled against him, dismissing him from service and

rejecting the departmental appeal as well as the review petition

affirming the order of punishment.

Brief facts, which have come on record, are that the

petitioner was appointed as a Constable in 5th Battalion of RAC. A

departmental enquiry was initiated against him under Rule 16 of

the Rajasthan Civil Services (Classification, Control & Appeal)

Rules, 1958 [hereinafter referred to as ''CCA Rules of 1958'']. The

Adjutant, 5th Battalion of RAC submitted enquiry report on

21/08/2001 and found the charges levelled against the petitioner

as proved. The allegations against the petitioner were that he had

submitted forged certificate regarding his age and it was alleged

that the actual date of birth of the petitioner ws 24/07/1970 while

the certificate mentioned the date of birth as 08/11/1976 and he

had already crossed the maximum age limit of 21 years and has

got his appointment fraudulently. In this regard, an FIR

No.514/1999 was also registered under Section 420, 467, 468,

471 IPC on 16th September, 1999 at Police Station Nadbai. The

second charge levelled against the petitioner was with regard to

the having demanded dowry from his wife, causing cruelty, giving

beating and misbehaving with her in inhuman manner. It was

alleged that he had thrown out his wife and four years'' old

daughter and had also entered into second marriage for which an

FIR No.513/1999 came to be registered against him on

21/06/1999 under Section 494, 398A IPC and charge-sheet had

also been submitted before the Court of ACJM No.1, Bharatpur

where the trial was going on . Apart from the misconduct, offence

of entering into second marriage in terms of Rule 25 of the

Rajasthan Civil Services (Conduct) Rules, 1971 was also alleged.

The enquiry officer conduct enquiry by recording evidence and

held the charges proved. On account thereof, orders were passed

of dismissing him from service.

The submission of learned counsel for the petitioner is that

the enquiry has not been conducted in a fair and proper manner.

With regard to the case registered under Section 420, 467, 468,

471 IPC, case was not found to be proved and the final report

submitted by the police had been accepted by the Court of ACJM

No.1, Bharatpur and thus, on the self same charges, the petitioner

could not have been held guilty in departmental enquiry. With

regard to the second charge, it is submitted by the learned

counsel that after holding a trial, the petitioner had been acquitted

of the offence alleged under Section 494, 498A IPC vide judgment

dt.16/07/2003. It was submitted that the enquiry was conducted

ex-parte without giving prior notice to the departmental counsel

appointed by the petitioner and no opportunity of cross-

examination was given to him.

After issuing notices of the writ petition, the respondents

submitted their reply wherein it was pointed out that the

petitioner had been rightly held guilty for Charge No.1. It was

stated that in his application form for getting appointment, in

column number 9, he had mentioned his education as Middle Pass

from Ambedkar Adarsh Vidhya Mandir, Bansikala, District

Bharatpur and in Transfer Certificate of Ambedkar Adarsh Upper

Primary School, Bansikaloa, Bharatpur, the date of birth of the

petitioner has been mentioned as 08/11/1976 and the admission

number was mentioned as 1252. On the marks-sheet of the

petitioner, Roll Number, Year and Session had not been mentioned.

It was stated that on enquiry and investigation, it was found that

the admission number 1252 was that of one Kumari Kamlesh Devi

who had studied from 11/07/1994 to 15/05/1995. Copy of the SR

Register has also been placed alongwith reply. The petitioner had

not studied in the said school namely; Ambedkar Adarsh Upper

Primary Schyool Bansikala. On the other hand, he had taken

admission on 14/08/1975 in Class I in Government Upper Primary

School, Tohila, Nadbadi, District Bharatpur and passed 8 th Class on

05/05/1984 as is evident from the SR Register of the said school

and his name is shown at No.68 in the said Register. The Transfer

Certificate was also issued by the said School wherein the date of

birth of the petitioner has been mentioned as 24/07/1970 and

thus had already crossed the age to be appointed in RAC as a

Constable. With regard to the Final Report submitted by the Police

in relation to the criminal case, it is stated that legal opinion had

been provided by the APP mentioning that there is provision

under Section 195(1) B-2 Cr.P.C. and since the FIR had been

lodged by one Yadram, who was not competent to lodge the said

criminal case, hence the Police submitted Final Report which was

accepted by the ACJM No.1, Bharatpur. It was not a case where

the Police had reached to a conclusion that the documents were

not forged and such an investigation had not been submitted by

the Police. Thus, the arguments raised by the petitioner were

misleading. It has been further stated that with regard to acquittal

in case for offence under Section 494, 498-A IPC, the petitioner

had been given the benefit of doubt which could not be a basis for

taking a decision in departmental enquiry.

Learned counsel for the respondent has argued that this

Court would be slow in substituting its own opinion to that of the

opinion arrived at by an enquiry officer in a departmental enquiry

which has been accepted by the disciplinary authority. It is pointed

out that there has been no lacunae in conducting the

departmental enquiry by the concerned enquiry officer. The

petitioner had been duly informed to appear before the enquiry

officer on 26/0-2/2001 vide letter dt.24/01/2001 which was duly

received by him on 27/01/2001. The signatures on the receipt are

available of such a notice and the petitioner willingly did not

appear on 26/02/2001 nor his defence assistant was present on

the said date and therefore, the ex-parte statement of Shri Darab

Singh was recorded. The enquiry was again posted for 14/03/2001

and notice to this effect was duly received by the petitioner

alongwith his defence assistant who chose not to appear again on

14/03/2001. The enquiry officer again fixed the date of

10/05/2001 after due notice but the petitioner did not choose to

appear nor his defence assistant appared and after the petitioner

appeared alongwith his defence counsel, the statement of witness

Deen Mohammad and thereafter the statement of witness Shri

Pritam Singh were recorded and the petitioner has marked his

signatures on both the statements. Similarly, the statement of

Chandan Singh and Ramswaroop Sharma was recorded in

presence of the petitioner and thus it cannot be said that the

petitioner was not given proper and fair opportunity to cross-

examine the witnesses. He was also given fair opportunity to

produce his defence by issuing a letter to him and it is only

thereafter that the enquiry officer has submitted his report. Thus,

the statement of the petitioner has not been accepted by counsel

for the respondents and it is submitted that the enquiry

proceedings did not call for any interference.

Faced with the submissions of the respondents, learned

counsel for the petitioner has submitted that so far as the charge

regarding bigamy is concerned, once it has not been found to be

proved, merely because the Court has mentioned of having given

benefit of doubt, would not mean that the petitioner has not been

acquitted honorably. It is submitted that the evidence, given by

the witnessed produced during the criminal trial, could not have

been interpreted differently in departmental enquiry proceedings.

The witnesses clearly deposed that there had been no second

marriage of the petitioner and the complete judgment must be

read as a whole. As regards the final report, it is submitted that

the final report submitted by the Police was on both the aspects

relating to Section 195(1) B-2 Cr.P.C. as also that no evidence was

available.

Having reflected to the submissions made by counsel for

both the parties and after scanning the record, this Court finds

that the enquiry officer has conducted the enquiry in a fair and

proper manner and after recording evidence during the course of

enquiry, he has reached to the conclusion of h9olding the

petitioner guilty of the charges levelled against him. A look at the

certificate issued also clearly shows that the petitioner has

attempted to mislead the authorities while seeking appointment.

It is the preponderance of probability of the charge that is to be

examined in the departmental proceedings and the element of

strict proof in criminal case, would not apply to the departmental

proceedings. Counsel for the petitioner has relied on the law laid

down by the Apex Court in the case of Capt. M. Paul Anthony Vs.

Bharat Gold Mines Ltd. and another: (1999) 3 SCC 679, wherein it

has been held as under:-

"There is yet another reason for discarding the whole of the case of the respondents. As pointed out earlier, the criminal case as also the departmental proceedings were based on identical set of facts, namely, "the raid conducted at the appellant''s residence and recovery of incriminating articles therefrom.'' The findings recorded by the enquiry officer, a copy of which has been placed before us, indicate that the charges framed against the appellant were sought to be proved by police officers and panch witnesses, who had raided the house of the appellant and had effected recovery. They were the only witnesses examined by the Inquiry Officer and the Inquiry Officer, relying upon their statements, came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case but the court, on a consideration of the entire evidence, came to the conclusion that no search was conducted nor was any recovery made from the residence of the appellant. The whole case of the prosecution was thrown out and the appellant was acquitted. In this situation, therefore, where the appellant is acquitted by a judicial pronouncement with the finding that the "raid and recovery" at the residence of the appellant were not proved, it would be unjust, unfair and rather oppressive to allow the findings recorded at the ex- parte departmental proceedings, to stand."

From above, it can be stated that if the same set of

witnesses have been examined in both the criminal case as well as

departmental enquiry, the conclusions cannot be different but if

the criminal case registered does not lead to trial by a competent

court and a final report is submitted, the departmental enquiry

can be continued and it can give a verdict different from the

investigation report submitted by the Police as the level of

preponderance of evidence in the departmental enquiry cannot be

considered to be the same as for the level of strict proof in a

criminal case.

Thus, in the present case, relating to charge no.1, merely

because the investigation in criminal case was closed by

submitting of final report by Police, the proceedings conducted in

departmental enquiry cannot be faulted.

Similarly, with regard to the second charge, this Court is

satisfied that the enquiry officer has rightly reached to a

conclusion regarding the allegations against the petitioner. The

disciplinary authority has discussed all the aspects of the matter

independently and has even discussed the facts relating to the

certificate and there has been a complete application of mind. The

appellate authority has also discussed the case though in a

cursory manner but in review petition, the certificates, which were

produced, have been also discussed.

In these circumstances, this Court does not find any reason

to quash and set aside the well reasoned order passed by the

disciplinary authority. Consequently, the writ petition, being devoid

of merit, is hereby dismissed.