Rajasthan High Court

Sanjay Singh S/O Shri Omveer Singh vs State Of Rajasthan on 21 January, 2022

Bench: Mahendar Kumar Goyal

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 853/2022

Sanjay Singh S/o Shri Omveer Singh, Aged About 39 Years,
Resident Of Village And Post Tuhiya, Tehsil And Distt. Bharatpur
(Rajasthan).
                                                                    ----Petitioner
                                    Versus
1.     State Of Rajasthan, Through Principal Secretary, Home
       Department,       Government            Of     Rajasthan,      Secretariat,
       Jaipur.
2.     Director General Of Police, Government Of Rajasthan
       Police Headquarter, Lal Kothi Jaipur.
3.     Superintendent         Of      Police,       State        Special   Branch
       (Intelligence), Police Headquarter, Jaipur.
                                                                 ----Respondents

For Petitioner(s) : Mr. Sandeep Saxena through VC For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

21/01/2022

This writ petition is filed for quashing the proceedings

pursuant to the letter dated 06.12.2021 as also the charge-sheet

dated 24.03.2020 with further prayer to restrain the respondents

from initiating any enquiry against the petitioner pursuant to the

charge-sheet dated 24.03.2020,

The facts in brief, as emerge from the writ petition, are that

when the petitioner was posted as Constable in CID (I.B.) in

Bharatpur Zone, a criminal case was registered against him under

Section 7 of the Prevention of Corruption (Amendment) Act, 2018

and Section 384 IPC. After conducting a preliminary enquiry, he

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was served upon with a charge-sheet dated 24.03.2020 under

Rule 16 of the Rajasthan Civil Services (Classification, Control and

Appeal) Rules, 1958 (for brevity "the Rules of 1958") containing

two charges. The Enquiry Officer after conducting the enquiry,

vide report dated 15.11.2021 found both the charges to be

proved. Vide letter dated 06.12.2021, the petitioner was supplied

with a copy of the enquiry report and was requested to submit his

written explanation, if any, within fifteen days.

Learned counsel for the petitioner contended that since the

charge-sheet dated 24.03.2020 and the FIR lodged against him

are based on the same set of facts, the charge-sheet deserves to

be quashed. He further submitted that the show cause notice

dated 06.12.2021 reflects predetermined mind of the disciplinary

authority to punish him as it records his satisfaction with the

conclusion drawn by the Enquiry Officer. He, therefore, prayed

that the writ petition be allowed. Learned counsel relied upon

judgment of this Court dated 05.04.2019 in case of Jagveer

Singh versus Union of India & Ors., SB Civil Writ Petition

No.11459/2009 as also an interim order dated 20.11.2011 of

this Court in SB Civil Writ Petition No.12658/2021, Narendra

Singh versus State of Rajasthan & Ors., in support of his

submissions.

Heard learned counsel and perused the record.

The petitioner was served upon with a charge-sheet under

Rule 16 of the Rules of 1958 vide memorandum dated

24.03.2020. Vide order dated 02.09.2020, Enquiry Officer was

appointed. A perusal of the record reveals that vide letter dated

even, the petitioner was requested to nominate his defence

nominee whereupon, vide his letter dated 10.10.2020, the

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petitioner requested for appointment of Mr. Madan Pal Singh, Sub-

Inspector (Retd.) as his defence nominee. Thereafter, he

participated in the enquiry till its conclusion by the Enquiry Officer

without any murmur of protest. Although, in para 10 of the writ

petition, it has been averred that the petitioner submitted an

application to stay the proceedings as the charges mentioned in

the charge-sheet were same as mentioned in the FIR; but, neither

a copy of any such application has been placed on record nor, it is

mentioned as to when and to whom such application was moved.

Even otherwise also, the material on record does not reveal that

before participating in the departmental enquiry, the petitioner

raised any such objection as to its maintainability; rather, his

written arguments dated 03.11.2021 submitted under Rule 16(7)

of the Rules of 1958, reveal that after conclusion of the enquiry,

his objection was that departmental enquiry was hit by provisions

contained in Article 20 (2) of the Constitution of India and not as

contended herein.

Thus, this Court is satisfied that the petitioner participated in

the departmental enquiry initiated vide charge-sheet dated

24.03.2020 without raising any objection as to its maintainability

qua pendency of a criminal case based on similar allegations and

hence, it is too late for him to assail the charge-sheet after

conclusion of the enquiry by the Enquiry Officer after issuance of a

show cause notice by the disciplinary authority. The petitioner is

at liberty to raise all his objections/submissions against the

enquiry report including maintainability of the charge-sheet and

the disciplinary authority is enjoined upon to consider all such

objections/submissions made by the petitioner including his

objection as to maintainability/continuation of the departmental

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proceedings on the premise that he is facing a criminal case on

the same set of allegations.

Since, the disciplinary authority is yet to take a decision in

the matter, this Court does not deem it just and proper to enter

into merits of the case especially when the petitioner participated

in the disciplinary proceedings without raising any objection as to

its maintainability at the appropriate stage.

This Court has, in case of Mohan Lal Khatu versus UTI

Asset Management Company Limited & Ors.,

MANU/RH/1839/2019, held vide its order dated 28.08.2019 as

under:-

"18. Admittedly, in the present case the petitioner participated in the disciplinary proceedings before the inquiry officer who submitted his report which was supplied to the petitioner and the petitioner responded to the same and, thereafter, an opportunity has been provided to the petitioner to make a representation on the proposed penalty to be imposed on him.

26. So far as the feeble attempt made by learned counsel for the petitioner questioning the validity of the charge-sheet is concerned, the stage of such challenge is already over, inasmuch as, the inquiry based on the charges has already been held and inquiry report already submitted. The issues sought to be raised by the petitioner were / are open for the petitioner to be raised before the authorities / appellate authority, the same cannot be made subject matter of the present writ petition."

(5 of 8) [CW-853/2022]

A Division Bench of Hon'ble High Court of Karnataka has,

vide its order dated 09.12.2015 in case of V. Narayana versus

The Karnataka Power Transmission Corporation Limited &

Ors., MANU/KA/4670/2015, held as under:-

"15. In the present case admittedly, the petitioner has participated in the enquiry proceedings and he has not raised any finger in the enquiry proceedings and ultimately, the enquiry report is submitted holding that the charges are proved. The report was accepted by the Upalokayukta and a recommendation was made to the Disciplinary Authority. Now the Disciplinary Authority has issued a final notice and ultimately, it is for the Disciplinary Authority to take a decision in accordance with law. Therefore, in the facts and circumstances of the present case, the facts of the judgment relied upon by the learned Senior Counsel for appellant has no application to the present case. Therefore, the writ petition is not maintainable. Accordingly the writ petition is liable to be dismissed."

The Hon'ble High Court of Calcutta has, vide its order dated

25.11.2020 in case of Abhishek Mukherjee versus the Board

of Trustees & Ors., MANU/WB/0742/2020, held as under:-

"29. Moreover, the respondents are justified in arguing that a fact-finding exercise is best left with the enquiry officer or the disciplinary committee looking into the matter and is not appropriate for the writ court to delve into. The petitioner, in the present case, has participated full-fledged by replying to the show-cause notice and a hearing date has

(6 of 8) [CW-853/2022]

been given for the petitioner to ventilate all his objections to the enquiry and allegations from which the same arises. As such, it would be rather premature, as also held by a co-

ordinate bench in Arup Basu Chowdhury (supra), to decide a challenge to the enquiry report without waiting for the disciplinary authority to assess the grounds that may be urged against the findings rendered against the petitioner."

The judgment/order relied upon by the petitioner are of no

help to him.

In case of Jagveer Singh (supra), this court stayed the

proceedings in the departmental enquiry in view of the pendency

of criminal trial with similar allegations as contained in the charge-

sheet with the observation that if the criminal case is not

concluded within one year, departmental enquiry would proceed.

However, in the present case, as already observed, the Enquiry

Officer has already submitted his report and the disciplinary

authority is to take a final call in the matter. Therefore, the

judgment is of no help to the petitioner.

The order dated 20.11.2011 in case of Narendra Singh

(supra), being an interim order, is also of no assistance to him.

The upshot of the aforesaid analysis is that first contention of

the learned counsel does not merit acceptance.

So far as second contention of the learned counsel is

concerned, although, the show cause notice dated 06.12.2021

reflects a prima-facie observation of the disciplinary authority as

to his agreement, he agreed with the conclusion grown therein

but, it is a prima-facie satisfaction only and this Court is not

satisfied that he would sit with a close or predetermined mind

(7 of 8) [CW-853/2022]

while considering the representation to be filed by the petitioner to

the show cause notice as the learned counsel for the petitioner

has informed that he has already moved an application seeking

extension of time for submitting his response. The disciplinary

authority is obliged to consider the material on record including

the explanation/representation submitted by the delinquent

against the enquiry report before taking a final decision in the

matter.

A Division Bench of Hon'ble High Court of Madhya Pradesh

has, vide its order dated 22.03.2011 in case of Subhash

Chandra Mukherjee versus Chairman,

Manu/MP/0508/2011, held as under:-

"4. It is submitted that the disciplinary authority before going through the defence and the show cause had made up his mind to accept the enquiry report. He further submitted that the appellant sought several documents mentioned in Annexure P/9, out of which only 9 documents were supplied. On a query-being asked as to what prejudice has been caused to the petitioner/ appellant, he referred to the Banks instructions nos. 35, 36 and 37 copies of which, it is alleged, were not given to the petitioner in spite of repeated requests.

5. We are not impressed by the submissions of the appellant's counsel for the reason that apparently the observation of the Disciplinary authority that he is in agreement with the findings of the Enquiry Authority, was not a final opinion expressed by him but only indicated that he was prima facie, satisfied with the report and therefore, called upon the

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appellant to show cause. Thus, the observation of the respondents cannot be held to be a final opinion and it was always open to the disciplinary authority to change his view after going through the show cause filed by the appellant. We do not find any merits in this submission."

However to obviate any apprehension in the mind of the

petitioner and in the interest of justice, this Court directs the

disciplinary authority to consider objectively the entire material on

record including the representation/explanation, if any, furnished

by the petitioner against the enquiry report before taking a final

decision in the matter without being influenced by his observation

in the show cause notice dated 06.12.2021.