Lalit Kumar Sharma vs State of Rajasthan and Others

Veerender Singh Siradhana, J.—The dispute in the above noted two writ applications is between the same parties, and therefore, both the writ applications were taken up for adjudication at the request of the counsel for the parties, by this common judgment and order.

In S.B. Civil Writ Petition Number 3543 of 1998, the petitioner has prayed for an appropriate writ, order or direction for regularization of his services on the post of Computer Operator, from the date he acquired the qualification of Graduation i.e. 13th September, 1990, or in the alternative from the date the Rules of 1992 came into force.

During the pendency of the writ proceedings, the petitioner was proceeded with departmental proceedings under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as the ''Rules of 1958'', for short), resulting into termination of the services of the petitioner vide order dated 16th February, 2002, which has been made subject matter of challenge in S.B. Civil Writ Petition Number 2427 of 2002.

Since the result of S.B. Civil Writ Petition Number 2457 of 2004, would decide the fate of earlier writ proceedings for regularization, the same has been taken up for adjudication first on the request of the counsel for the petitioner.

Briefly, the indispensable material facts necessary for appreciation of the controversy raised in the instant writ application needs to be first noticed. The petitioner successfully instituted writ proceedings claiming salary in the pay scale for the post of Computer Operator and was further allowed to continue as Computer Operator till regularly selected person is appointed. The prayer was granted by a Coordinate Bench of this Court on 11th September, 1991. Intra-Court Appeal was unsuccessfully preferred by the State of Rajasthan as D.B. Special Appeal (Writ) Number 550 of 1991 (State of Rajasthan Versus Lalit Kumar Sharma), and the same was dismissed on 29th October, 1993. The petitioner, thereafter, instituted S.B. Civil Writ Petition Number 3543 of 1998, for regularization of his services on the post of Computer Operator. In the meanwhile, on 14th May, 1999, an FIR Number 268/1991 was registered at Police Station Kotwali, Bharatpur, for offence under Section 366 and 376 of the Indian Penal Code (for short ''IPC'') against the petitioner. The petitioner was arrested by the Governmental Enforcement Agency, in the crime aforesaid, on 31st May, 1999. Thereafter, the petitioner was placed under suspension vide order dated 25th June, 1999, invoking the provisions of Rule 13 of the Rules of 1958, for he remained police custody for more than 48 hours. It is pleaded case of the petitioner that he was in judicial custody upto 11th August, 1999; and reported for duty before the District Informatics Officer, Bharatpur, on 13th August, 1999, but was directed to report before the Collector, Bharatpur, and therefore, he submitted his joining report before the Collector, Bharatpur on 16th August, 1999, detailing out the fact of his custody and release on bail. The petitioner also claimed suspension allowance as well as other payments due. On 8th October, 1999, the petitioner was served with a charge sheet under Rule 16 of the Rules of 1958. On conclusion of the enquiry proceedings, the petitioner was inflicted with the penalty of removal from service vide impugned order dated 20th February, 2002, which was confirmed on appeal vide order dated 23rd September, 2002.

The charge sheet served was returned back by the petitioner as the charge sheet did not mention the correct designation/description of his post as per the directions of the High Court vide order dated 11th September, 1991. The charge sheet contained two charges; one for his arrest in connection with FIR Number 268/1991 for offence under Section 366 and 376 IPC and, second for the petitioner remained willfully absent from duty with effect from 3rd May, 1999 to 30th May, 1999, as well as for having remained in judicial custody from 31st May, 1999, and thus, was guilty of willful absence from duty and also for his involvement in a criminal case and further, for having concealed the fact of police and judicial custody. The Additional District Magistrate (City), Bharatpur was appointed as Enquiry Officer on 21st March, 2000. According to the petitioner, the Enquiry Officer vide communication dated 3rd June, 2000, summoned the petitioner to appear before him on 29th June, 2000. However, since the summon indicated his post as Class-IV, he returned the same with a note on it to the effect that he may be served with the summon mentioning correct designation of his post to enable him to put in his appearance on the stipulated date i.e. 29th June, 2000. The Enquiry Officer proceeded ex-parte without summoning the petitioner again with the alleged correct designation of his post and completed the enquiry. The enquiry report was submitted on 3rd October, 2001, to the Collector, Bharatpur and a copy of the same was dispatched to the petitioner. However, the enquiry report, according to the petitioner, also indicated wrong designation/description of the post of the petitioner, and therefore, the petitioner received the same under protest. The reply to the enquiry report was submitted by the petitioner, mentioning the fact of information furnished by him through an application for half day casual leave on 3rd May, 1999, which was sent under Postal Certificate (UPC) to the District Informatics Officer, NIC, Collectorate, Bharatpur, which was not responded. Explaining the accusation for offence under Section 366 and 376 IPC, the petitioner stated that the girl was major aged about 23 years and willfully moved with him. The allegations of sexual harassment and offence under Section 376 IPC were sought to be negatived with the help of the affidavit of the prosecutrix and negative Forensic Science Laboratory report and further, detailing out the fact of the pendency of the prosecution before the Court of Additional District Judge (Fast Track) No. 2, Bharatpur. The petitioner undertook to inform the result of adjudication on the prosecution to the departmental authorities so soon the same concluded. A copy of the judgment dated 11th December, 2001, has been placed on record wherein the petitioner has been acquitted of the criminal charges, which attained finality.

Learned counsel relying upon the pleaded the facts and grounds mentioned in the memo of the writ application, vehemently argued that the impugned action of the respondents in terminating the appointment of the petitioner is illegal, contrary to the facts of the case, without application of mind and suffers with manifest error. Learned counsel would further submit that the impugned order of termination has been passed without affording an opportunity of hearing, as would be evident from the materials available on record as well as from the fact that the Enquiry Officer proceeded ex-parte. Since the charge sheet was not properly served on the petitioner, indicating his correct designation/description of post, the service of notice/summon cannot be treated as proper service. Moreover, the Enquiry Officer committed the same mistake while calling upon the petitioner to participate in the enquiry proceedings indicating wrong designation/description of the post of the petitioner and the notice was returned back by the petitioner with the noting to serve it again mentioning the correct post of the petitioner, but the Enquiry Officer failed to do so and proceeded ex-parte with malafide intention. According to the counsel for the petitioner, the disciplinary authority totally lost sight of the fact that the charge sheet was wrongly served on the petitioner and thus, there was no occasion for the Inquiry Officer to proceed ex-parte. Therefore, the enquiry proceedings have been conducted behind the back of the petitioner even without affording any opportunity of hearing, which is against the settled principles of natural justice. Furthermore, the competent court of law acquitted the petitioner of the charges for offence under Section 366 and 376 IPC, as would be reflected from the judgment and order dated 11th December, 2002. Hence, the findings of guilt on the charges cannot be sustained against the petitioner. The petitioner was proceeded with in the enquiry proceedings on the same set of facts and charges on which the petitioner was arrested in the crime, prosecuted and was acquitted. In the face of the acquittal of the petitioner, charge number 1 is not sustainable in the eye of law. The petitioner submitted an application for casual leave for half day and thereafter, sent an application for extension of time of leave. Therefore, his absence as described under charge number 2, owning to his police and judicial custody, cannot be termed as willful absence from duty. In the facts and circumstances of the case, the petitioner had valid reason for not attending the duty. The fact of police and judicial custody of the petitioner was very much in the knowledge of the respondents since he was placed under suspension vide order dated 25th June, 1999. The petitioner reported for duty soon after his release on bail from the custody. In the alternative, the learned counsel argued that penalty of removal from service, imposed by the Disciplinary Authority, is disproportionate to the nature of misconduct and the charges levelled against the petitioner for the reason that even if, the charge for willful absence, although not admitted, is sustained, the penalty imposed is excessive in view of the explanation furnished by the petitioner

The learned counsel, in order to reinforce her arguments, placed reliance on the opinion of the Hon''ble Supreme Court in the case of Shri Bhagwan Lal Arya Vs. Commissioner of Police Delhi and Others, AIR 2004 SC 2131 : (2004) 2 CTC 301 : (2004) 101 FLR 193 : (2004) 3 JT 384 : (2004) 3 SCALE 356 : (2004) 4 SCC 560 : (2004) SCC(L&S) 661 : (2004) 3 SCR 1 : (2004) 2 SLJ 460 : (2004) AIRSCW 2288 : (2004) 2 Supreme 677 , and Capt. M. Paul Anthony Vs. Bharat Gold Mines Ltd. and Another, AIR 1999 SC 1416 : (1999) 2 CTC 579 : (1999) 82 FLR 627 : (1999) 2 JT 456 : (1999) 1 LLJ 1094 : (1999) 2 SCALE 363 : (1999) 3 SCC 679 : (1999) SCC(L&S) 810 : (1999) 2 SCR 257 : (1999) AIRSCW 1098 : (1999) 3 Supreme 376 .

Per contra, learned counsel appearing on behalf of the State-respondents, reiterating the pleaded stand in the counter affidavit and supporting the impugned action of the respondents in terminating the employment of the petitioner for willful absence from duty and his involvement in the crime for heinous offence, argued that there is no element of any illegality in the action of the State-respondents. Learned counsel would further submit that the petitioner was accorded temporary appointment on the post of Class-IV employee on 29th July, 1995, and was confirmed vide order dated 21st September, 1999.

The petitioner sought permission to write the examination of B. Com. Final in 1989-90, though the permission was declined, yet the petitioner appeared in the final examination as a private candidate. Be that as it may, in compliance of the order passed by the High Court, the petitioner was fixed in the pay scale of Rs. 1400-2600 vide order dated 3rd July, 1991.

The petitioner willfully and voluntarily remained absent at the initial stage from 3rd May, 1999 to 30th May, 1999 and thereafter, remained in judicial custody with effect from 31st march, 1999 until he was released on bail. The petitioner was proceeded with the departmental enquiry under Rule 16 of the Rules of 1958. The petitioner participated in the enquiry proceedings and had also put forth his defence. The petitioner being aware of the enquiry proceeding, as would be evident from the noting made on the charge sheet by the petitioner himself stating his designation of the post as incorrect, yet not participating in the enquiry proceedings speaks volume about the conduct of the petitioner.

Admittedly, the petitioner was summoned by the Enquiry Officer, as would be reflected from the pleadings and materials available on record, but did not participate in the enquiry proceedings for the reasons best known to him. However, the petitioner did participate subsequently in the enquiry proceedings when he was called upon for personal hearing and submitted his defence. Reply to the enquiry report was also submitted by the petitioner, which was duly considered by the Disciplinary Authority as well as by the Appellate Authority while confirming the penalty imposed by the Disciplinary Authority. Thus, the plea of violation of principles of natural justice and for not affording an opportunity of hearing, are absolutely contrary to the pleaded facts and materials available on record.

Learned counsel vehemently argued that the scope of judicial review in disciplinary matter or punishment, cannot be equated with an appellate jurisdiction and therefore, the averments made and arguments advanced are devoid of any substance. The enquiry proceedings were conducted strictly in compliance with the rules and procedures provided under Rule 16 of the Rules of 1958. The petitioner was accorded ample opportunity of hearing and to participate in the enquiry proceedings. What punishment would meet the ends of justice, is a matter which lies in exclusive domain and jurisdiction of the competent authority; hence, the writ petitions deserve to be dismissed.

I have heard the learned counsel for the parties and with their assistance, perused the materials available on record as well as gave my thoughtful consideration to the rival submissions made at the Bar.

The fact that the petitioner was absent from duty with effect from 3rd May, 1999, and continued as such upto 30th May, 1999, is not in dispute. After his arrest on 31st May, 1999, the petitioner continued in police and judicial custody until he was released on bail on 11th August, 1999. He reported for duty on 16th August, 1999, in the office of the Collector, Bharatpur. The fact of addressing an application for casual leave for half day on 3rd May, 1999, is a fact, which could not be sustained by the petitioner during the course of enquiry proceedings. The petitioner was served with a charge sheet for his arrest in connection with FIR No. 268/1991 for offence under Section 366 and 376 IPC and for willful absence from duty with effect from 3rd May, 1999. The petitioner was placed under suspension of 25th June, 1999.

Enquiry proceedings initiated against the petitioner appointing the Additional District Magistrate (City), Bharatpur, as Enquiry Officer vide order dated 21st March, 2000, who summoned the petitioner for appearance and participation in the enquiry proceedings vide order dated 3rd June, 2000, fixing the date as 29th June, 2000, is also not in dispute.

The petitioner himself made a note on the order summoning him to participate in the enquiry proceedings. In response to the order dated 3rd June, 2000, he appeared before the Enquiry Officer on 29th June, 2000. The petitioner being very well aware of initiation of the enquiry proceedings under Rule 16 of the Rules of 1958 as well as of the notice calling upon to participate in the enquiry proceedings vide order/summon dated 3rd June, 2000, is also an admitted fact.

The fact that the petitioner did not participate in the enquiry proceedings since the summon was addressed to him with incorrect designation/description with reference to his post, is only a pretext and cannot be construed to be a sufficient reason to treat the service of notice/summon as no service. Furthermore, the petitioner was again called upon for personal hearing by the summon allegedly with wrong designation/prescription with reference to his post, and the petitioner did participate in the enquiry proceedings. The petitioner also submitted his reply to the enquiry report. Thus, the petitioner was accorded ample opportunity to participate in the enquiry proceedings and to put forth his defence, if any. There is no violation of any of the principles of natural justice.

It needs no reiteration that in the disciplinary matters or punishments, the Courts or Tribunals cannot sit as an appellate authority while interfering with the finding of the Enquiry Officer or the competent authority where they are not arbitrary or utterly perverse and law in this reference is no more res-integra in view of opinion of the Hon''ble Supreme Court in the case of Union of India (UOI) v. Parma Nand: (1982) 2 SCC 177.

In the case of Union of India (UOI) Vs. Sardar Bahadur, (1972) LabIC 627 : (1972) 1 LLJ 1 : (1972) 4 SCC 618 : (1972) 2 SCR 218 : (1972) 4 UJ 126 ; a larger bench of the Hon''ble Supreme Court held thus:--

"A disciplinary preceding is not a criminal trial. The standard proof required is that of preponderance of probability and not proof beyond reasonable doubt. If the inference that Nand Kumar was a person likely to have official dealings with the respondent was one which reasonable person would draw from the proved facts of the case, the High Court cannot sit as a court of appeal over a decision based on it. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court."

Ms. Mangeet Kaur, learned counsel appearing on behalf of the petitioner has emphatically placed reliance on the opinion of the Hon''ble Supreme Court in the case of Capt. M. Paul Anthony (supra) and argued that in the face of acquittal of the petitioner in the criminal case, charge sheet could not be sustained. At this juncture, it will be relevant to note that the petitioner being a government employee was found involved in a heinous crime. Moreover, during the course of enquiry proceedings, the Enquiry Officer examined three witnesses in support of the departmental proceedings. Shri Ram Mohan Sharma son of Shri Puran Chand Shama, father of the prosecutrix specifically deposed that the petitioner enticed his daughter and eloped with her leading to registration of FIR No. 268/1991 for offence under Section 366 and 376 IPC, on 14.5.1999 at 6.05 p.m. The incident was reported to be of 3rd May, 1999 when his daughter had gone missing while she had gone to write the examination of Bachelor of Arts at M.S.J. College, Bharatpur. The witness further deposed that the petitioner was arrested on 31st May, 1999 at 2.20 p.m. and remained in judicial custody upto 10th August, 1999.

Shri Ashok Sharma, another witness deposed that the petitioner left the office submitting an application for half day leave on 3rd May, 1999 and thereafter, reported only on 13th August, 1999. Shri Ashok Sharma specifically deposed that no application for extension of leave or sanction of leave was received in the office. Further, the fact of absence from duty, of the petitioner, was reported to the higher authorities by Shri Ashok Sharma.

Shri Amar Singh, C.I., who appeared as a witness before the Enquiry Officer corroborated the fact of registration of the FIR by Shri Ram Mohan and also deposed about the factual status vide dispatch number 5890 dated 18th June, 1999, addressed to the Superintendent of Police, Bharatpur and a copy of the same was also submitted in the office of the District Magistrate, Bharatpur, which was marked as Ex. 4, bearing his signatures.

The Enquiry Officer relied upon the evidence of the witnesses who appeared from the side of the department and in the light of the materials available on record concluded that the charges levelled against the petitioner, were proved and returned a finding of guilt of both the charges vide enquiry report dated 3rd October, 2001.

In the case of Shri Bhagwan Lal Arya (supra), the Hon''ble Supreme Court applied the doctrine of proportionality, in the similar facts of that case for the appellant therein (Bhagwan Lal Arya), was recruited as a Constable in Delhi Police, fell down in the Parade ground while undergoing prescribed training and was sent to Police dispensary as ordered by the Chief Drill Inspector of the Parade. His condition did not improve, and therefore, his relative took him to his home town in Gwalior where he remained under treatment of government doctor and sent applications for leave on medical grounds supported with the medical certificates from competent medical authorities in accordance with the leave rules. Leave was sanctioned by the competent authority without pay for the period his illness with effect from 7th October, 1994 to 14th December, 1994, and therefore, the notice of termination of service on 15th November, 1994, with effect from the date of expiry of one month from the date of notice was assailed as illegal and arbitrary. Thus, it is apparent on the face of record that the facts of the case referred to and relied upon are entirely different from the one at hand.

In the case of Capt. M. Paul Anthony (supra), the Hon''ble Supreme Court discarded the whole case of the respondents since the criminal case as also the departmental proceedings were based on identical facts i.e. ''the raid conducted at the appellant''s residence and recovery of incriminating articles therefrom''. In the criminal case, the Court, on consideration of the entire evidence, concluded that no search was conducted nor any recovery was made from the residence of the appellant therein and the whole case of the prosecution was thrown out and the appellant was acquitted. Moreover, the findings recorded at the ex-parte departmental proceedings were held to be unsustainable.

In the instant case at hand, the petitioner was afforded ample opportunity to defend his case. Further, a bare perusal of the order of the acquittal recorded by the Court in the criminal case vide judgment and order dated 11th December, 2011, for offence under Section 366 and 376 IPC would reveal that since the prosecution failed to prove the offence beyond the reasonable doubt. The meaning of the expression of ''honorable acquittal'' was extensively discussed by the Hon''ble Supreme Court in the case of The Deputy Inspector General of Police and Another Vs. S. Samuthiram, AIR 2013 SC 14 : (2013) 1 CTC 931 : (2013) 136 FLR 99 : (2013) LabIC 446 : (2013) 1 RCR(Criminal) 329 : (2012) 11 SCALE 420 : (2013) 1 SCC 598 ; wherein the Hon''ble Supreme Court referring to earlier opinion in the case of The Management of Reserve Bank of India, New Delhi Vs. Bhopal Singh Panchal, AIR 1994 SC 552 : (1994) 1 BC 379 : (1994) 68 FLR 22 : (1993) 6 JT 266 : (1994) LabIC 80 : (1994) 1 LLJ 642 : (1993) 4 SCALE 360 : (1994) 1 SCC 541 : (1993) 3 SCR 586 Supp : (1994) 1 SLJ 147 : (1994) 1 UJ 53 ; held that mere acquittal does not entitle for an employee for reinstatement in service, the acquittal has to be honorable.

The opinion of the Hon''ble Supreme Court as referred to and relied upon by the learned counsel for the petitioner in the case of Capt. M. Paul Anthony, fell for consideration before the Hon''ble Supreme Court in the case of G.M. Tank Vs. State of Gujarat and Another, AIR 2006 SC 2129 : (2006) 3 CTC 494 : (2006) 11 JT 36 : (2006) 3 LLJ 1075 : (2006) 5 SCALE 582 : (2006) 5 SCC 446 : (2006) SCC(L&S) 1121 : (2006) 3 SCR 253 Supp : (2006) 3 SLJ 312 : (2006) AIRSCW 2709 : (2006) 4 Supreme 740 , wherein the Hon''ble Supreme Court under Paragraph 20, 30 and 31, observed as under:--

"20. Likewise, the criminal proceedings were initiated against the appellant for the alleged charges punishable under the provisions of P.C. Act on the same set of facts and evidence. It was submitted that the departmental proceedings and the criminal case are based on identical and similar (verbatim) set of facts and evidence. The appellant has been honorably acquitted by the competent Court on the same set of facts, evidence and witness and, therefore, the dismissal order based on same set of facts and evidence on the departmental side is liable to be set aside in the interest of justice.

The judgments relied on by the learned Counsel appearing for the respondents are not distinguishable on facts and on law. In this case, the departmental proceedings and the criminal case are based on identical and similar set of facts and the charge in a Departmental case against the appellant and the charge before the Criminal Court are one and the same. It is true that the nature of charge in the departmental proceedings and in the criminal case is grave. The nature of the case launched against the appellant on the basis of evidence and material collected against him during enquiry and investigation and as reflected in the charge sheet, factors mentioned are one and the same. In other words, charges, evidence, witnesses and circumstances are one and the same. In the present case, criminal and departmental proceedings have already noticed or granted on the same set of facts namely, raid conducted at the appellant''s residence, recovery of articles therefrom. The Investigating Officer, Mr. V.B. Raval and other departmental witnesses were the only witnesses examined by the Enquiry Officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by his judicial pronouncement with the finding that the charge has not been proved. It is also to be noticed the judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.

In our opinion, such facts and evidence in the department as well as criminal proceedings were the same without there being any iota of difference, the appellant should succeed. The distinction which is usually proved between the departmental and criminal proceedings on the basis of the approach and burden of proof would not be applicable in the instant case. Though finding recorded in the domestic enquiry was found to be valid by the Courts below, when there was an honourable acquittal of the employee during the pendency of the proceedings challenging the dismissal, the same requires to be taken note of and the decision in Paul Anthony''s case (supra) will apply. We, therefore, hold that the appeal filed by the appellant deserves to be allowed."

In the instant case at hand, the petitioner himself submitted an application for casual leave for half day, and thereafter, sent an application for extension of time for leave. Indisputably, the petitioner was absent from duty with effect from 3rd May, 1999, and continued as such upto 30th May, 1999. After his arrest on 31st May, 1999, the petitioner continued in the judicial custody until he was released on bail on 11th August, 1999, and reported for duty on 16h August, 1999, in the office of the Collector, Bharatpur. The petitioner was served with a charge sheet for his arrest in connection with FIR No. 268/1991, for offence under Section 366 and 376 IPC and willful absence from duty with effect from 3rd May, 1999. The Enquiry Officer summoned the petitioner for appearance and participation in the inquiry proceedings, as would be reflected from the materials available on record. The petitioner participated in the enquiry proceedings on 29th of June, 2000; and thus, was aware of the proceedings under Section 16 of the Rules of 1958. Therefore, it is apparent on the face of record that the charge of willful absence from duty was not the subject matter of the criminal trial. Hence, the opinion of the Hon''ble Supreme Court as referred to and relied upon by the petitioner in the case of Capt. M. Paul Anthony (supra), is of no help to the petitioner.

For the reasons and discussions herein above, the writ petitions are devoid of any substance and lack in merit, and therefore, deserve to be dismissed.

Ordered accordingly.

In view of the final adjudication on the writ applications, the stay applications stand closed.

However, in the facts and circumstances of the case, there shall be no order as to costs.