Const. Mukesh Chand vs Lt. Governor Of Rajasthan & Ors
2012 Latest Caselaw 4799 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                         Judgment delivered on: August 16, 2012

+                         WP (C) No.2715/1999


       CONST. MUKESH CHAND                  ..... Petitioner
                Represented by: Ms.Latika Chaudhry,
                                Advocate

                      Versus

       LT. GOVERNOR OF RAJASTHAN & ORS       ..... Respondents
                Represented by: Mr.Sushil Kumar Dubey,
                                Advocate for Ms.Sonia Mathur,
                                Advocate
        CORAM:
        HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
        HON'BLE MR. JUSTICE MANMOHAN SINGH

MANMOHAN SINGH, J. (Oral)

1. The petitioner seeks to challenge punishment order dated 23rd June, 1997 passed by the Commandant, 8th Battalion, Rajasthan, respondent No.3 herein, the appellate order dated 20th November, 1997 passed by the Deputy Inspector General of Police, respondent No.2 herein and order dated 6th May, 1998 passed by the Governor of Rajasthan, respondent No.1 herein.

2. The petitioner was working as a constable with the Rajasthan Armed Constabulary at the relevant point of time in July, 1996 he was posted in Delhi for duty at the Delhi High Court building.

3. Because of loss 9 MM pistol, body No.369641, from Kot a Coy, the petitioner and four others were suspended pending enquiry into the matter. On 13th August, 1996 charge sheet was served upon the petitioner alleging three charges which read as under:

"1. On 18.7.1996 while he was present at Cot of A Company for weapon cleaning purpose, he fell out of the line and stood near the Cot of E Company. This act amounts to breach of indiscipline.

2. He remained absent from duty at Delhi High Court Building from 17.7.1996 to 20.7.1996 without any permission and remained wandering with some unknown strangers for 4-5 hours leaving his duty which amounts to indiscipline and misconduct.

3. He kept wandering with some unknown stranger leaving his duty at Delhi High Court Building from 17.7.1996 to 20.7.1996 and on being asked by the senior officer he did not provide for any information about the man to his officer. This act amounts to misconduct."

4. The petitioner denied the charges by filing of reply dated 29th August, 1996 and a joint departmental enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules against five persons was initiated on 28 th October, 1996 even though the charges against all the persons were different. Sh. N.L. Paswan, Assitant Commandant, „D‟ Company was appointed as Enquiry Officer and Assistant Commandant, „A‟ Company and Quarter Master of 8th Battalion was appointed as Presenting Officer.

5. The petitioner on 8th October, 1996 filed an application under Rule 16(5) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules for appointment of Sh.Fateh Singh, Inspector (retired), Delhi Police, as his defence assistant. The said prayer of the petitioner was rejected by letter dated 21 st October, 1996 informing the petitioner that Sh.Fateh Singh, retired Inspector, Delhi Police, cannot be appointed defence

assistant in the departmental enquiry being conducted against him.

6. Another application dated 2nd November, 1996 was submitted by the petitioner to the respondent for nominating Sh.Raghuvir Singh, P.C. 6th Battalion, RAC Dholpur, Rajasthan, as defence assistant was also not accepted by the Disciplinary Authority. The services of some other government official was also rejected by the authority.

7. The petitioner on 23rd December, 1996 gave his consent to proceed with the matter without a defence assistant. The report of the Inquiry Officer was supplied to the petitioner on 19th April, 1997 who had examined all the charged officers including the petitioner.

8. On 3rd May, 1997 show cause notice proposing to impose punishment of removal from service was served upon the petitioner. The petitioner submitted his reply challenging the show cause notice.

9. The petitioner was awarded on 23rd June, 1997 the punishment of stoppage of one annual future increment with cumulative effect and suspension period from 27th July, 1996 to date was treated as period spent on duty for all purposes.

10. On 17th November, 1997 an appeal was filed by the petitioner under Rule 23 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules against the said order, which was rejected on 20th November, 1997. The review application filed by the petitioner under Rule 34 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules on 27th January, 1998 was rejected by the Governor on 6th May, 1998 upholding the orders passed by the Disciplinary Authority.

11. We have heard the learned counsel for both the parties. We have also examined the record. It appears from the material placed on record that the petitioner was not allowed to have the defence assistant of his choice under Rule 16B of the Rajasthan Civil Services (Classification, Control and Appeal) Rules despite of letters issued by the petitioner on 8th October, 1996 and 2nd November, 1996. The Inquiry Officer rejected the request made by the petitioner by observing that Sh.Fateh Singh cannot be appointed as the Defence Assistant in the departmental enquiry and in the second request dated 9th October, 1996 it was informed by the Commandant that the petitioner cannot be permitted to leave the station for appointment of Defence Assistant in the department enquiry. In view of above admitted position, it appears to us that the enquiry conducted in the matter is in violation of principle of natural justice.

12. At least second request of the petitioner dated 9 th October, 1996 ought to have been allowed and he should have been permitted to leave the station so that he could arrange an official to defend himself. The Inquiry Officer still turned down the request of the petitioner. Thereafter, the petitioner named an officer of the Rajasthan Government as his Defence Assistant but the same was also rejected on the ground that his consent was not enclosed with the application despite of the fact that the petitioner‟s two earlier applications were rejected by the Inquiry Officer.

13. The second submission of the petitioner is that the charges were vague and no joint enquiry could have been held as the allegations against the petitioner were totally different from those alleged against other charged officers. The evidence against the other charged officers could not have

been used against the petitioner. After having gone through relevant record we totally agree with the submission of the learned counsel for the petitioner as apparently in the matter the joint enquiry was conducted against the petitioner and other charged officers and allegations against the petitioner were different. The petitioner has not been given any opportunity to defend himself in the matter. The request of the petitioner was rejected without assigning any reason. The charges framed against the petitioner are vague. If the petitioner fell out of line and stood near the Kot of E Coy., it could not have been construed as misconduct as mentioned in charge No.1.

14. With regard to charge No.2 is concerned, the same is also vague as admittedly the petitioner was on duty in Delhi High Court building from 17th July, 1996 to 20th July, 1996. The allegation against him that he absented himself from the duty without permission who was noticed wandering with stranger for 4-5 hours. The evidence on record is a statement of PW-5 Sh.Sureshchand, Subedar, who submitted that the petitioner was on duty with him in the High Court on 19th and 20th July, 1996 and during his duty neither he saw him going out leaving the duty nor anybody reported to him that the petitioner was absent. The charge against the petitioner was of absence from 17th July, 1996 to 20th July, 1996 whereas there is nothing on record to show that the petitioner was absent during this period. Otherwise, he would have been marked absent and he could not have been present on 19th July, 1996 when the weapon cleaning exercise was taken up. The only witness in the list of witnesses against the petitioner was PW-13 Ram Kumar who deposed that the petitioner had performed his duty at the assigned time. He had not stated against the petitioner

on the question of absence or otherwise he did not report the matter about the petitioner‟s absence from the duty to any of the senior officer.

15. The third charge is held not to have been proved.

16. In view of the above facts and circumstances, it is clear that the enquiry has not been conducted as per Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules. A joint enquiry can be conducted only if the charges against the charged officers are the same. If the charges are different, separate enquiry is to be conducted. The enquiry was in violation of Rule 16(5) of the Rajasthan Civil Services (Classification, Control and Appeal) Rules.

17. The present writ petition is allowed. The findings of the Inquiry Officer are quashed. Punishment order dated 23 rd June, Appellate Authority‟s 20th November, 1997 and order dated 6th May, 1998 passed in review are also set aside.

18. Under the above said circumstances, the petitioner is entitled to all the consequential benefits including pay and allowances, seniority etc.

19. No costs.

(MANMOHAN SINGH) JUDGE

(PRADEEP NANDRAJOG) JUDGE

AUGUST 16, 2012/jk