IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. CIVIL WRIT PETITION NO.4436/1997 Bhanwar Singh vs. State & Ors. Date of order : 23/3/2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Pradeep Singh for the petitioner. Shri M.F. Beg, Additional Government Counsel for the respondents. ******
REPORTABLE
This writ petition has been filed by the petitioner challenging the order of his dismissal dated 9.8.1996 passed by the Superintendent of Police, Ajmer and the order dismissing his appeal dated 3.12.1996. The charge against the petitioner was that while he was posted as Constable Driver with M.T. Branch of Police in Ajmer, he in the night intervening 23rd and 24th March, 1995 consumed the liquor at the residence of Daulat Singh and had about 12.00 AM unauthorisedly entered the house of Hukam Singh. Thereupon, Hukam Singh and his wife raised hue and cry. He was taken to Police Station, Civil Lines, Ajmer and Hukam Singh lodged against him FIR No.60/95 for offence under Section 457, 354, 504 read with Section 34 IPC. His such conduct, was unbecoming of a member of Police service and an employee of police department, earned bad name to the Police Department and it was punishable as misconduct under relevant government rules.
Shri Pradeep Singh, learned counsel for the petitioner has argued that in so far as criminal case against the petitioner is concerned, he was acquitted in that case by order of the Court of Additional Judicial Magistrate No.2, Ajmer dated 1.8.1996 and the same charges were there in the disciplinary enquiry. The petitioner could not be therefore penalised. In support of his arguments, learned counsel relied on the judgement of Supreme Court in Sulekh Chand and Salek Chand vs. Commissioner of Police & Ors.-1994 Supp (3) SCC 674. Learned counsel argued that mere taking of liquor when the petitioner was not on duty, cannot be said to be such a grave misconduct as to warrant his dismissal from service. The petitioner is having unblemished service record of 16 years and was awarded commendation certificates as many as five times, which are enclosed as Annexures-1 to 6 with the writ petition. Learned counsel submitted that even the evidence that has been discussed by the enquiry officer in his report was that none of the witnesses supported the allegation against the petitioner that he misbehaved with or tried to outrage the modesty of, the wife of Hukam Singh. The evidence that has come on record and that has been believed by the disciplinary authority and appellate authority is that the petitioner under the influence of the liquor knocked the main door of residence of Hukam Singh and they thereupon woke up and raised hue and cry. None of the witnesses supported the allegation, which is why the criminal court also acquitted him. Learned counsel submitted that even if the petitioner as a Constable was found under the influence of liquor, that itself would not be a offence because no prohibition was there in the State on consumption of liquor.
Shri Pradeep Singh, learned counsel in support of his arguments relied on the judgements of Punjab and Haryana High Court in Rattan Lal vs. State of Haryana-1983 (2) SLR 159 and Sukhdev Singh vs. State of Haryana-1983 (2) SLR 645. Learned counsel also relied on the judgement in Samrath Lal vs. UOI & Anr.-1990 (1) WLN 426 and argued that the disciplinary authority and the appellant authority in the present case have held that misconduct of the petitioner was involving moral turpitude whereas this Court in Samrath Lal, supra held that mere taking liquor does not involve moral turpitude. The disciplinary authority acted wholly arbitrarily in awarding extreme penalty of dismissal inasmuch as the appellant authority has committed same mistake by mechanically upholding that order without application of mind and without complying with the requirement of Rule 30 of the Rajasthan Civil Services (Classification Control and Appeal) Rules, 1958 which inter alia provides that the appellate authority while considering the appeal has to examine; (a) whether the procedure prescribed in the Rules has been complied with and if not such non compliance has resulted in violation of any provisions of Constitution or in failure of justice; (b) whether the facts on which the order was passed has been established; (c) whether the facts established afford sufficient justification for making an order; and (d) whether the penalty imposed is excessive, adequate or inadequate and all this was to be done after providing personal hearing to the petitioner to explain his case, if he wanted so. Learned counsel submitted that apart from the fact that order passed by the appellate authority being non-speaking order, the appellate authority has not at all applied its mind as to the question whether or not gravity of the misconduct was such as would justify the only penalty of removal or dismissal of service and not any other major penalty. Learned counsel submitted that the penalty of dismissal could be awarded only if any grave misconduct was proved on the part of the petitioner. In case, the petitioner has been acquitted of the charges which are substantially the same, based on the same evidence, he could not be punished in departmental proceedings, therefore, the impugned orders are liable to be quashed and set aside.
Shri M.F. Beg, learned Additional Government Counsel opposed the writ petition and submitted that the charges in the disciplinary enquiry were different than the charges in the criminal trial. While in criminal trial, petitioner was charged for the offence under Section 457, 354, 504 read with Section 34 IPC, whereas in disciplinary enquiry, the allegation against him was that his conduct in abusing and misbehaving with Hukam Singh and his wife was unbecoming of a member of police force, which earned bad name to the police department. Learned counsel submitted that this was a serious misconduct in terms of Rajasthan Civil Services (Conduct) Rules, 1971. It was argued that the penalty of dismissal in the circumstances was just and proper. Mere acquittal of the petitioner in criminal trial would not mean that the charge against him in so far as consuming liquor, entering the house of Hukam Singh and abusing him and his wife is concerned, that charge was proved by evidence of not only those two, but also the other neighbours such as Shankar Lal, PW-2, Laxman, PW-3 and Bhoor Singh, PW-4. Both the police officials Panna Lal, PW-5 and Prahlad Rai Meena, PW-7 have also supported the charges. It was therefore prayed that the writ petition be dismissed.
Upon hearing the learned counsel for the parties and perusing the material on record, I find that neither Hukam Singh, nor his wife, nor any other witnesses which have been produced before the enquiry officer supported the allegation of misbehaviour with Rashmi, wife of Hukam Singh by the petitioner. Even PW-6 Rashmi herself did not support such an allegation. The criminal case resulted in acquittal of the petitioner in so far as charge under Section 457, 354 and 504 are concerned. It has been believed by the disciplinary authority and the appellate authority on the basis of evidence that has come on record, that the petitioner under the influence of liquor was found knocking the outside gate of the resident of Hukam Singh, as a result of which, Hukam Singh and his wife Rashmi woke up and when they found petitioner standing there and abusing them, they raised hue and cry and this led to the situation in which the other neighbours also assembled there. But, at the same time, the evidence that has been produced, clearly show that the version of the petitioner that no misconduct whatsoever was committed by him, cannot be accepted. The charges in the disciplinary enquiry were entirely different than the one for which the petitioner was subjected to trial in the criminal case. His acquittal in the criminal trial by itself would not be a reason for not holding the petitioner guilty of those charges despite availability of evidence. Rule 4 of the Conduct Rules, 1971 provides that any government servant who behaves in public in a disorderly manner unbecoming of his position as a government servant, would be guilty of such misconduct. I am not inclined to uphold the argument that the petitioner was held guilty of mere consumption of liquor and, therefore, this would not be a misconduct because besides the fact of consuming liquor, the petitioner was also found to be misbehaving and abusing the private citizens and this indeed was a misconduct on his part and unbecoming of a member of disciplined force like the police. At the same time, however, I find that such an extreme penalty like dismissal from service indeed shocks conscious of the court, where the petitioner who was awarded as many as five commendation certificates and otherwise has an unblemished service record of 16 years was dismissed from service on a charge like this. The appellate authority was indeed under an obligation to bestow his specific consideration on this aspect of the matter with reference to Rule 30(2)(d) of the CCA Rules which required him to examine whether or not the penalty imposed is excessive, adequate or inadequate. Here now that so much of material has been placed before this Court, which has been examined and the Court has been persuaded to hold that penalty of dismissal/removal is indeed excessive penalty and that dismissal/removal or compulsory retirement would indeed be excessive penalty, given the kind of misconduct proved and keeping in view the fact that on the charges of committing offence under Section 457, 354, 504 read with Section 34 IPC, the petitioner has been acquitted. One way of dealing with this situation, would be to remand the matter either to the disciplinary authority or to the appellate authority, but considering the fact that this matter has remained pending before this Court since 1997, this Court is of the view that the petitioner be awarded any other befitting penalty. In order to do complete justice between the parties, this writ petition is allowed with the following directions:
i)that the impugned order of dismissal of the petitioner from service dated 9.8.96 is set aside and also the order of dismissal of appeal dated 3.12.96 is set aside. The penalty of dismissal is modified to stoppage of three grade increments with cumulative effect;
ii) that the petitioner shall not be entitled to any monetary benefits for the intervening period, in that, he shall get only notional benefits for the intervening period. However, he shall be deemed to have continued in service for all other benefits including pay fixation, revision of pay scale, grant of increments and if any consequential promotion granted to any of his juniors in the meantime.
Compliance of the judgement be made within a period of three months from the date its copy is produced before the respondents.
(MOHAMMAD RAFIQ), J.
RS/