Bhanwar Singh vs Union Of India
2021 Latest Caselaw 18029 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

S.B. Civil Writ Petition No. 6368/2019

Bhanwar Singh through the Legal Representatives :-

1. Manohar Kanwar W/o Lt. Shree Bhanwar Singh, Aged About 61 Years, Resident Of Barwali Via Makrana, Tehsil Makrana, District Nagaur.

2. Jitendra Singh S/o Lt. Shree Bhanwar Singh, Resident Of Barwali Via Makrana, Tehsil Makrana, District Nagaur.

----Petitioners Versus

1. Union Of India, Through The Secretary, Ministry Of Home Affairs, Govt. Of India, Saket, New Delhi - 110017.

2. The Dy. Inspector General (North Zone-I), Central Industrial Security Forces, Cisf Campus, Nz Hqrs, Saket, New Delhi- 110017.

3. The Group Commandant, Central Industrial Security Forces (Cisf), Group Headquarters, Saket, New Delhi - 110017.

4. The Group Commandant, Central Industrial Security Forces (Cisf), Group Headquarters, Ahmadabad (Gujarat).

                                                                ----Respondents


For Petitioner(s)        :     Mr. R.S. Saluja



            HON'BLE MR. JUSTICE VIJAY BISHNOI

                         Judgment / Order

01/12/2021


     Heard.

Brief facts of the case are that husband of the

petitioner No.1 - late Bhanwar Singh was working as a

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Constable in the Central Industrial Security Force, Zawar

Mines, Udaipur. A memorandum accompanied with the

charge-sheet dated 1.3.1990 was served upon Bhanwar

Singh levelling charges of misconduct. In response to the

said memorandum accompanied with the charge-sheet,

Bhanwar Singh has submitted his explanation denying

the allegations levelled in the charge-sheet dated

1.3.1990. The Disciplinary Authority while dissatisfying by

the explanation given by Bhanwar Singh has appointed

an Enquiry Officer, who submitted his report in the month

of November, 1990 holding Bhanwar Singh guilty of the

charges of misconduct and the Disciplinary Authority

agreed with the findings arrived at by the Enquiry Officer

has passed a final order dated 4.4.1991 imposing the

punishment of dismissal from service with immediate

effect.

Aggrieved with the order dated 4.4.1991 passed by

the Disciplinary Authority, Bhanwar Singh has filed an

appeal before the Appellate Authority, which came to be

rejected in November, 1991 and, thereafter, final order

with modification pertaining to period of suspension was

passed on 28.5.1991.

Being aggrieved with the order passed by the

Disciplinary Authority as well as the order passed by the

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Appellate Authority, Bhanwar Singh preferred SBCWP

No.2159/1992 before this Court, which came to be

dismissed by the learned Single Judge on 10.4.2006.

Thereafter, Bhanwar Singh preferred DB Special Appeal

Writ No.515/2006 and the Division Bench of this Court

vide judgment dated 25.11.2016 has allowed the

aforesaid appeal and set aside the order dated 10.4.2006

passed by the learned Single Judge as well as the order

passed by the Appellate Authority and remanded the

matter back to the Appellate Authority to decide the

appeal afresh by adhering the procedure given under

Rule 47 of the Central Industrial Security Force Rules,

1969 (for short 'the Rules of 1969') with a direction that

the Appellate Authority shall provide an opportunity of

personal hearing to Bhanwar Singh, if demanded and

thereafter shall pass a speaking and reasoned order after

completing the entire exercise expeditiously as far as

possible within a period of six months from the date of

passing of the judgment dated 25.11.2016.

In terms of the judgment dated 25.11.2016 passed

by the Division Bench of this Court, Bhanwar Singh has

submitted a representation (Annex.2) dated 6.12.2016

requesting the respondent No.2 to decide the appeal

afresh keeping in view the observations made by the

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Division Bench of this Court vide judgment dated

25.11.2016. As per the death certificate (Annex.1),

Bhanwar Singh died on 21.12.2016 and, thereafter, the

petitioner No.1 has submitted a further representation

(Annex.11) dated 3/5.1.2017 to the respondent No.2

requesting him to decide the appeal filed by Late Shri

Bhanwar Singh keeping in view the observations made by

the Division Bench vide judgment dated 25.11.2016. In

both the representations dated 6.12.2016 filed by late

Bhanwar Singh and 3/5.1.2017 filed by the petitioner

No.1, demand of personal hearing has not been made.

Pursuant to the directions given by the Division

Bench vide judgment dated 25.11.2016. The respondent

No.2 has decided the appeal afresh vide impugned order

dated 1.3.2017 (Annex.12) and rejected the appeal

preferred on behalf of Late Bhanwar Singh. Being

aggrieved with the same, the petitioners have preferred

the instant writ petition.

Learned counsel for the petitioners has argued that

the Appellate Authority has failed to take into

consideration the fact that the Enquiry Officer has

proceeded ex parte against the petitioners on the ground

that the prosecution witnesses were not present. It is

further argued that an enquiry against a delinquent

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cannot be proceeded ex parte solely for the reason that

the prosecution witnesses are not present. It is submitted

that when a delinquent is present in the disciplinary

enquiry and the prosecution witnesses are not present,

then, there is no reason for the Enquiry Officer to conduct

ex parte proceedings. Learned counsel for the petitioners,

therefore, has submitted that the orders passed by the

Disciplinary Authority as well as the Appellate Authority

after afresh adjudication of the appeal filed on behalf of

late Bhanwar Singh are liable to be set aside and the

respondents may be directed to treat late Bhanwar Singh

in service till the date of his death with a further direction

to the respondents to pay all the consequential benefits

and family pension to the wife of late Bhanwar Singh.

No other argument has been advanced by learned

counsel for the petitioners.

Having heard learned counsel for the petitioners and

after going through the material available on record, I do

not find any merit in the argument advanced by learned

counsel for the petitioners that the Disciplinary Authority

as well as the Appellate Authority have failed to take into

consideration that the action of the Enquiry Officer to

proceed ex parte against late Bhanwar Singh was illegal

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because the prosecution witnesses were not present on

the appointed day to give their evidence.

I have also gone through the contents of the appeal

filed by late Bhanwar Singh before the Appellate

Authority and from perusal of the appeal, it is clear that

no such ground regarding action of the Enquiry Officer

proceeding ex parte against him has been taken and as

such, there was no occasion for the Appellate Authority to

deal with the said contention. Otherwise also, I have

gone through the enquiry report (Annex.13) placed on

record by the petitioner No.1 along with the additional

affidavit filed on 11.8.2019. In the aforesaid enquiry

report, it is clearly mentioned that on 31.8.1990, notice

was issued to the delinquent as well as the PWs fixing the

date of enquiry on 6.9.1990, but the enquiry could not be

conducted on the said date as the delinquent and none of

the PWs have attended the enquiry. On 11.9.1990, two

PWs have attended the enquiry and their statements

were recorded, however, statements of the other PWs

were recorded on the subsequent dates, but the

delinquent never turned up, hence, ex parte enquiry is

started against him.

From the above facts, it is clear that the Enquiry

Officer has not proceeded ex parte against late Bhanwar

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Singh due to non appearance of PWs but has proceeded

ex parte against him as he himself has not attended the

enquiry.

Learned counsel for the petitioners, during the

course of arguments, has not challenged the impugned

order of the Appellate Authority on the ground that the

Appellate Authority has not adhered the procedure given

under Rule 47 of the Rules of 1969 as directed by the

Division Bench of this Court vide judgment dated

25.11.2016.

In such circumstances, I do not find any merit in this

writ petition and the same is hereby dismissed.

(VIJAY BISHNOI),J

6 - ms rathore

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