Rajasthan High Court

Ramesh Chand Sharma S/O Shri ... vs State Of Rajasthan on 25 November, 2021

Bench: Mahendar Kumar Goyal

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

               S.B. Civil Writ Petition No. 11349/2021
Ramesh Chand Sharma S/o Shri Jagannath Sharma, Aged About 46
Years, R/o House No. 111, Kalidas Colony, Jhalawar District
Jhalawar.
                                                                    ----Petitioner
                                      Versus
1.      State Of Rajasthan, Through Secretary, Department Of
        Home, Govt. Of Rajasthan, Secretariat, Jaipur.
2.      Director General Of Police, Police H.q. Lalkothi, Jaipur.
3.      Superintendent Of Police, District Jhalawar (Raj.)
                                                                  ----Respondents

For Petitioner(s) : Mr. Anil Kumar Sharma For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL Order

25/11/2021

By way of this writ petition, the petitioner has assailed the

legality and validity of the charge-sheet issued to him under Rule 16

of the Rajasthan Civil Services (Classification Control & Appeal)

Rules, 1958 (for brevity, "the Rules of 1958") vide memorandum

dated 02.09.2021.

The facts in brief are that an FIR No.383/2019 dated

19.12.2019 came to be registered against the petitioner, a Head

Constable, under the provisions of Prevention of Corruption Act,

1988. Vide memo dated 02.09.2021, the petitioner has been served

upon with the charge-sheet under Rule 16 of the Rules of 1958

containing seven charges against him, which is under challenge.

Learned counsel for the petitioner contended that since the FIR

as well as charge-sheet under Rule 16 of the Rules of 1958 are based

on same set of facts, the charge-sheet deserves to be quashed and

set aside. Drawing attention of this Court towards the contents of FIR

(2 of 6) [CW-11349/2021]

and the charge-sheet especially, charge No.6, learned counsel

submitted that the same are based on same set of facts and hence,

the writ petition be allowed and the charge-sheet be quashed. He

relied upon some interim orders of this Court in cases of

Satyanarayan Malav Vs. State of Rajasthan & Ors.: S.B. Civil

Writ Petition No.9376/2021 dated 21.09.2021, Munnu Lal

Maurya Vs. Food Corporation of India & Ors.: S.B. Civil Writ

Petition No.11894/2021 dated 15.11.2021 & Narendra Singh

Vs. State of Rajasthan & Ors.: S.B. Civil Writ Petition

No.12658/2021 dated 20.11.2021, in support of his submission.

Heard the learned counsel for the petitioner and perused the

record.

The allegation in the FIR against the petitioner is that he

demanded a sum of Rs.20,000/- as illegal gratification from the

complainant Jagdish Suman for taking action in the FIR No.403/2019

lodged by the complainant and for not taking action against the

complainant and his family in the FIR lodged against them by the

other party whereas, the charges against the petitioner under Rule

16 of the Rules of 1958 pertain to dereliction in discharge of his duty.

For example, the statement of allegations qua charge No.1 says that

investigation in FIR No.389/2019 lodged by the complainant Smt.

Kanya Bai on 27.11.2019 was entrusted to the petitioner but, in

violation of the provisions of Section 161 (3) CrPC, neither her

statement was got recorded through a lady police officer nor,

videography of her statement was conducted. As per statement of

allegations qua charge No.2, despite recording a note in the daily

diary on 09.12.2019 that offences under Sections 323, 504 & 34 of

IPC were found to be established and offences under Sections 354 &

354 (k) IPC were not established during the course of investigation in

(3 of 6) [CW-11349/2021]

FIR No.398/2019, the file was not handed over to the SHO, Police

Station Khanpur for obtaining necessary permission and was kept,

without any reasons, with him only. The other charges also pertain to

similar allegations against the petitioner, i.e. of committing

dereliction in discharge of duty totally unconcerned with the

allegations in the FIR. Insofar as charge No.6 is concerned, although,

it contains averment that for obtaining illegal gratification of

Rs.20,000/- from Shri Jagdish Suman, he did not conduct any

investigation but, it also refers dereliction in discharge of duty for not

conducting any investigation in the FIR No.403/2019 from

12.12.2019 to 17.12.2019 which is quite distinct from the allegation

of bribe.

In the aforesaid circumstances, this Court is not persuaded to

quash the charge-sheet at the threshold accepting the contention of

the learned counsel that it being based on the same facts on which

FIR has been lodged against him, deserves to be quashed and set

aside.

Even otherwise also, it is settled legal proposition that the

charge-sheet cannot normally be quashed at the threshold.

The Hon'ble Suprme Court has, in the case of Union of India

& Anr. Vs. Kunisetty Satyanarayan: (2006) 12 SCC 28, held as

under:

"11. Instead of replying to the aforesaid Charge Memo, the respondent filed an OA before the Central Administrative Tribunal, Hyderabad which was disposed of vide order 15.3.2004 with the direction to the applicant to submit his reply to the Charge Memo dated 23.12.2003 and on submission of the said reply the Disciplinary Authority should consider the same. Instead of filing any reply the respondent filed a Writ Petition in the High Court which has been allowed, and hence this appeal.

12. In our opinion, the High Court was not justified in allowing the Writ Petition.

(4 of 6) [CW-11349/2021]

13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board vs. Ramdesh Kumar Singh and others JT 1995 (8) SC 331, Special Director and another vs. Mohd. Ghulam Ghouse and another AIR 2004 SC 1467, Ulagappa vs. Divisional Commissioner, Mysore and others 2001 (10) SCC 639, State of U.P. vs. Brahm Datt Sharma and another AIR 1987 SC 943 etc.

14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ lies when some right of any party is infringed. A mere show-cause notice or charge-sheet does not infringe the right of any one. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge sheet.

16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."

The Hon'ble Supreme Court has, in the case of State of Orissa

& Anr. Vs. Sangram Keshari Misara & Anr.: (2010) 3 SCC 311,

held as under:

"10. Though there appears to be some merit in the said contentions of the first respondent, it is unnecessary to examine the correctness of these contentions as normally a charge sheet is not quashed prior to the conducting of the enquiry on the ground that the facts stated in the charge are erroneous. It is well settled that the correctness or truth of the charge is the function of the

(5 of 6) [CW-11349/2021]

disciplinary authority. (vide Union of India vs. Upendra Singh - 1994 (3) SCC page 357). Therefore we reject the contention that the charge to have been quashed without reserving to the State to proceed in accordance with law."

When asked, learned counsel for the petitioner submitted that

the petitioner is yet to file reply to the charge-sheet issued to him

vide memo dated 02.09.2021. The Lordships of the Supreme Court

has, in the case of Union of India & Ors. Vs. Ashok Kacker: 1995

Suppl (1) SC 180, held as under:

"4. Admittedly, the respondent has not yet submitted his reply to the charge-sheet and the respondents rushed to the Central Administrative Tribunal merely on the information that a charge- sheet to this effect was to be issued to him. The Tribunal entertained the respondent's application at that premature stage and quashed the charge- sheet issued during the pendency of the matter before the Triubnal on a ground which even the learned counsel for the respondent made no attempt to support. The respondent has the full opportunity to reply to the charge-sheet and to raise all the points available to him including those which are now urged on his behalf by learned counsel for the respondent. In our opinion, this was not the stage at which the Tribunal ought to have entertained such an application for quashing the charge-sheet and the appropriate course for the respondent to adopt is to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon. This being the stage at which the respondent had rushed to the Tribunal, we do not consider it necessary to require the Tribunal at this stage to examine any other point which may be available to the respondent or which may have been raised by him."