State Of Raj And Ors vs Bhupendra Singh
2021 Latest Caselaw 844 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

      D.B. Civil Special Appeal (Writ) No. 1695/2008
                                        In
            S.B. Civil Writ Petition No.5651/1994

1.    The    State      Of     Rajasthan          Through         The   Secretary,
      Cooperative Department, Secretariat, Jaipur.
2.    Dy.    Secretary,         Department             Of        Personnel,    K-Iii,
      Government Of Rajasthan, Secretariat, Jaipur.
3.    Registrar,     Cooperative           Societies,        Rajasthan,       Nehru
      Sahakar Bhawan, Bhawani Singh Road, Jaipur.
                                                                   ----Appellants
                                    Versus


Bhupendra Singh S/o Shri Bhagwan Singh, Plot No. 35-36, Vivek
Nagar, Station Road, Jaipur
                                                                  ----Respondent

Connected With D.B. Civil Special Appeal (Writ) No. 14/2009 In S.B. Civil Writ Petition No.5752/1994

1. State Of Rajasthan Through The Secretary, Cooperative Department, Secretariat, Jaipur.

2. Dy. Secretary, Department Of Personnel, K-Iii, Government Of Rajasthan, Secretariat, Jaipur.

3. Registrar, Cooperative Societies, Rajasthan, Nehru Sahakar Bhawan, Bhawani Singh Road, Jaipur.

----Appellants Versus

Bhupendra Singh S/o Shri Bhagwan Singh, Plot No. 35-36, Vivek Nagar, Station Road, Jaipur

----Respondent D.B. Civil Special Appeal (Writ) No. 15/2009 In S.B. Civil Writ Petition No.846/1995

(2 of 8) [SAW-1695/2008]

1. State Of Rajasthan Through The Secretary, Cooperative Department, Secretariat, Jaipur.

2. Dy. Secretary, Department Of Personnel, K-Iii, Government Of Rajasthan, Secretariat, Jaipur.

3. Registrar, Cooperative Societies, Rajasthan, Nehru Sahakar Bhawan, Bhawani Singh Road, Jaipur.

----Appellants Versus

Bhupendra Singh S/o Shri Bhagwan Singh, Plot No. 35-36, Vivek Nagar, Station Road, Jaipur

----Respondent D.B. Special Appeal Writ No. 24/2009 In S.B. Civil Writ Petition No.6486/1993

Bhoopendra Singh Son Of Shri Bhagwan Singh, Plot No. 35-36, Vivek Nagar, Near Sindhi Camp Bus-Stand, Near Vikram Hotel, Jaipur

----Appellant Versus

The State Of Rajasthan Through The Secretary To The Government, D.o.p., Government Of Rajasthan, Jaipur.

----Respondent D.B. Civil Special Appeal (Writ) No. 65/2009 In S.B. Civil Writ Petition No.6486/1993

The State Of Rajasthan Through The Secretary To The Government, D.o.p., Government Of Rajasthan, Jaipur.

----Appellant Versus

Bhupendra Singh Son Of Shri Bhagwan Singh, Plot No. 34-35, Hathi Baboo Ka Bagh, Near Vikram Hotel, Jaipur.

                                                                    ----Respondent



                                            (3 of 8)                    [SAW-1695/2008]



For Appellant(s)            :     Mr. Satyendra Singh Raghav Advocate
                                  with Mr. Ajay Singh Rajawat Advocate
For Respondent(s)           :     Mr. Dev Krishna Purohit Advocate on
                                  behalf of Mr. Prem Kishan Sharma
                                  Advocate through Video
                                  Conferencing.



                    HON'BLE MRS. JUSTICE SABINA
            HON'BLE MR. JUSTICE MANOJ KUMAR VYAS

                                   Judgment

28/01/2021

Vide this judgment above mentioned appeals would be

disposed of as they have arisen out of common order dated

22.02.2008 passed by the learned Single Judge.

Learned State counsel has submitted that the order passed

by the learned Single Judge was liable to be set aside.

Respondent-Bhupendra Singh had been dismissed from service

after following due process of law. Departmental enquiry was held

against respondent-Bhupendra Singh and charges levelled against

him were duly established. Hence, the order of dismissal/removal

passed by the appellant-State was liable to be upheld.

Learned counsel for respondent-Bhupendra Singh, on the

other hand, has opposed the appeals.

Respondent-Bhupendra Singh was working as Assistant

Registrar with the appellant-State and was placed under

suspension vide order dated 04.10.1979. Respondent-Bhupendra

Singh approached this Court by way of S.B. Civil Writ Petition

No.590/1983. Respondent-Bhupendra Singh was reinstated in

service on 20.07.1985 in pursuance to order dated 22.02.1985.

Respondent-Bhupendra            Singh       filed     S.B.     Civil   Writ     Petition



                                             (4 of 8)                   [SAW-1695/2008]

No.793/1986 challenging removal order dated 25.09.1985. The

writ petition was allowed and removal order was quashed by

granting liberty to the appellant-State to proceed further in

accordance with law after supplying copy of the enquiry report and

opinion of the Rajasthan Public Service Commission (RPSC) to

respondent-Bhupendra Singh. Respondent-Bhupendra Singh was

reinstated in service on 07.04.1992 and was simultaneously

placed under deemed suspension with effect from 25.09.1985.

The said order was challenged by respondent-Bhupendra Singh by

filing S.B. Civil Writ Petition No.5651/1994.

After supplying copy of the enquiry report to respondent-

Bhupendra Singh and permitting him to file his reply and after

affording him personal hearing, removal order dated 28.09.1993

was passed by the appellant-State against respondent-Bhupendra

Singh. Respondent-Bhupendra Singh has challenged the removal

order by way of S.B. Civil Writ Petition No.6486/1993.

Respondent-Bhupendra Singh had also filed two writ

petitions i.e. S.B. Civil Writ Petition No.5752/1994 and 846/1995

claiming promotion to the post of Deputy Registrar relating to

vacancy which had arisen in the year 1979-80 and 1980-81. Vide

the impugned order, learned Single Judge allowed the writ petition

filed by respondent-Bhupendra Singh challenging his removal

order and the order dated 28.09.1993 was set aside.

Consequently, S.B. Civil Writ Petition No.5651/1994 was allowed.

So far as S.B. Civil Writ Petitions No.5752/1994 and

846/1995 are concerned, the said petitions were partly allowed

and appellant-State were directed to re-consider the case of

respondent-Bhupendra Singh for promotion to the post of Deputy

Registrar against the vacancy for year 1979-80 and 1980-81.

(5 of 8) [SAW-1695/2008]

Hence, four appeals have been filed by the appellant-State.

D.B. Special Appeal (Writ) No.24/2009 has been filed by

respondent-Bhupendra Singh claiming costs.

Learned Single Judge while considering the findings of the

Enquiry Judge vis-à-vis charges levelled against respondent-

Bhupendra Singh has observed as under:-

"SBCWP No.6846/1993 - Out of the 12 charges, only five charges including the sub charges were found to be partially proved against the petitioner by the Enquiry Officer but from the position of law, more particularly of not to alter the charge or action beyond the scope of the charge some of the charges like Charge No.1 Part (Ka) relating to temporary embezzlement is illegal as the temporary embezzlement was not proved but despite that, the petitioner has been found guilty of not acting in a justified manner and as per the rules. Similarly, other charge 1 (Kha) of receipt of Rs.4,000/- from Smt. Ganga Bai on 14.6.1977 as security and though he made an entry of return of the amount to her on 21.7.77 but actually did not pay this amount to her. In respect of the same charge enquiry was conducted by the Department and the Additional Registrar (Appeals) exonerated the petitioner vide order dated 20.11.1991 but despite that, finding on the charge has been given against the petitioner. As regards, other charge 1-Ga of embezzlement of Rs.9,025/- of the sale of the shops, the same appellate authority has exonerated the petitioner. Moreover, though the Enquiry Officer himself did not find the petitioner guilty of the said charge of embezzlement but found sale of those shops as irregular which was not the charge. Other charge No.2 (Ka) regarding his demotion and not handing over the charge is contrary to the record as the Tribunal stayed the oder dated 5.5.97 on 13.5.1977 but still the petitioner has been held guilty.

(6 of 8) [SAW-1695/2008]

Charge No.2 (Kha) is with regard to the competence of the petitioner for selling the shop on lower price. The Enquiry Officer has given finding that no loss is proved but still the charge has been found proved. Findings on Charge No.3 (Ka), 3(Ga), 3(Gha), 4(Ga) are either perverse, self contradictory or vague. Therefore, the findings of the Enquiry Officer are liable to be set aside being based on either no evidence or contrary to the record as detailed out here-in-above. The Disciplinary Authority has committed an error in not considering the said findings as per the objection raised by the petitioner and there is a simple reference of the representation but no discussion on the representation as well as during the course of hearing has been made. Thus, the removal order based on the same cannot be said to be a reasoned order and the same is a mechanical order as there is no difference between the first removal order and the subsequent removal order which is not only contrary to the earlier High Court order dated 18.12.1991 but the same is violative of the principles of natural justice also."

During the course of arguments, learned State counsel has

failed to controvert the factual aspect of the observations made by

the learned Single Judge vis-à-vis the enquiry report.

Learned Single Judge rightly held that the findings of the

Enquiry Officer were perverse and, rather, it was a case of no

evidence. The charges had been held to be proved against

respondent-Bhupendra Singh, although, so far as charge No.1

(Kha) and Charge No.1 (Ga) are concerned, respondent-

Bhupendra Singh had been exonerated by the Appellate Authority.

So far as charge No.2 (Kha) is concerned, the Enquiry Officer gave

a finding that no loss regarding sale of shops was established, yet

held that the charge was proved against respondent-Bhupendra

Singh. So far as Charge No.2 (Ka) is concerned, the order dated

(7 of 8) [SAW-1695/2008]

05.05.1997 had been stayed by the Tribunal, yet respondent-

Bhupendra Singh was held guilty of the said charge. So far as

charge No.1 Part (Ka) is concerned, the temporary embezzlement

was not established, yet respondent-Bhupendra Singh was held

guilty.

It is well settled preposition of law that courts will not act as

an Appellate Court and re-assess the evidence led in domestic

enquiry, nor interfere on the ground that another view was

possible on the material on record. If the enquiry has been fairly

and properly held and findings are based on evidence, the

question of adequacy of evidence or reliable nature of the

evidence will be no ground for interfering with the finding in

departmental enquiry. However, when the finding of fact recorded

in departmental enquiry is based on no evidence or where it is

clearly perverse then it will invite the intervention of the court.

In the present case, learned Single Judge rightly held that

enquiry proceedings were vitiated as they were based on no

evidence and were perverse. In the facts and circumstances of the

present case, the removal order dated 28.09.1993 was rightly set

aside by the learned Single Judge. Consequently, writ petition

challenging order of deemed suspension dated 07.04.1992 was

also liable to be allowed. Since, the removal order had been set

aside and it was noticed by the learned Single Judge that adverse

entries of the annual performance appraisal reports (APARs) of the

years 1975-76, 1976-77, 1977-78 and 1978-79 had been

expunged or quashed, then respondent-Bhupendra Singh was

liable to be considered for promotion to the post of Deputy

Registrar against the vacancy for year 1979-80 and 1980-81.

(8 of 8) [SAW-1695/2008]

Thus, D.B. Civil Special Appeal (Writ) Nos. 1695/2008,

14/2009, 15/2009 and 65/2009 filed by the appellant-State are

without any merit and are accordingly dismissed.

So far as D.B. Civil Special Appeal (Writ) No.24/2009 filed by

respondent-Bhupendra Singh claiming costs is concerned, we are

of the opinion that the same deserves to be dismissed and is

accordingly dismissed.

                                   (MANOJ KUMAR VYAS),J                                                 (SABINA),J

                                   Sanjay Kumawat-55-59









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