State Of Rajasthan vs Bhura Ram
2022 Latest Caselaw 3234 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR D.B. Spl. Appl. Writ No. 379/2021

1. State Of Rajasthan, Through The Secretary Home Department, Rajasthan, Jaipur.

2. The Director General Of Police, Rajasthan, Jaipur.

3. Superintendent Of Police, Rajsamand.

4. Dy. Superintendent Of Police, Circle Rajsamand.

----Appellants Versus Bhura Ram S/o Shri Ram Lal, Resident Of Village Sediya Post Sarnau Tehsil Sanchore District Jalore.

----Respondent

For Appellant(s) : Mr. Manish Vyas, AAG with Mr. Kailash Choudhary.

HON'BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON'BLE MS. JUSTICE REKHA BORANA

Order

03/03/2022

This appeal is filed by the State to challenge the judgment of

the learned Single Judge dated 20.04.2018 passed in S.B. Civil

Writ Petition No.2601/2008.

The respondent original petitioner was selected as Constable

in Rajasthan police and was posted as Police Constable in

Rajsamand district under order dated 11.04.2006. While in

service, the petitioner applied for four days leave on 02.01.2008.

With sanctioned leave, he went to Dungarpur on 06.01.2008 with

his nephew who wanted to appear in written examination for the

post of Police Constable to be held at Dungarpur on 06.01.2008.

On that date, an FIR was filed against the petitioner at Kotwali

Police Station for offences punishable under Sections 447 and 379

(2 of 5) [SAW-379/2021]

IPC and Section 6 of the Rajasthan Public Examination Act, 1992.

He was arrested and remained in custody till 17.01.2008 when he

was released on bail. He was placed under deemed suspension

and a departmental charge-sheet was issued on 24.01.2008.

Subsequently, suspension order was revoked on 05.03.2008 and

an inquiry officer was appointed to conduct departmental inquiry.

The inquiry officer issued a notice asking the petitioner to remain

present on 03.04.2008. When the departmental proceedings

were thus going on, the authority passed order dated 11.04.2008

discharging the petitioner from service on completion of probation

period. This order the petitioner had challenged in the writ

petition.

The learned Single Judge referred to the contents of the

impugned order of discharge and discussed the applicable law at a

considerable length and allowed the writ petition by quashing the

order, directing the department to reinstate the petitioner in

service, which reinstatement would be subject to the outcome of

the departmental inquiry which was already instituted against him.

While giving liberty to the department to proceed further with

such inquiry, it was provided that if the department chooses not

to go ahead with the inquiry, the petitioner will be entitled to all

consequential service benefits. The period during which the

petitioner has not discharged service, he would only receive the

notional benefits. The concluding portion of the judgment reads

as under:

"37. In light of the aforesaid observations, the present writ petition is allowed, to the extent of quashing and setting aside the impugned order dated 11.04.2008 (Annexure-11). The respondents are directed to reinstate the petitioner back in service forthwith. However, the fate of the petitioner's service would be subject to the

(3 of 5) [SAW-379/2021]

respondents deciding to complete the departmental enquiry initiated against the petitioner vide charge- sheet dated 24.01.2008 (Annexure-4 of the writ petition). However, the respondents shall be at liberty to proceed with the proceedings in consequence of the said charge-sheet and reach to a logical conclusion, if they so deemed it appropriate. In such an eventuality, the future of the petitioner in service shall depend upon the outcome of the departmental enquiry under Rule 16 of the CCA Rules, as already initiated by the respondents. However, if the respondents choose not to go ahead with the said enquiry, then the petitioner shall be entitled for all consequential service benefits. However, it is made clear that the petitioner shall be entitled for notional benefits, for the period he has not served the respondents."

The State has challenged this judgment in this appeal. Apart

from the appeal being filed after expiry of period of limitation, the

proceedings remained under several defects which were not

removed despite several opportunities being granted as can be

seen from the order-sheets. Eventually, therefore, the appeal

was placed for preliminary hearing for the first time on

31.01.2022 when notice for condonation of delay application was

issued. Even with respect to the said order, the registry has made

the remark that the defects are not removed. It can thus be

seen that the department has exhibited total lack of seriousness in

pursuing this appeal. It would therefore be futile to delay the

proceedings further by requiring the department to serve the

notice of delay condonation application on the respondent,

particularly when we find that the learned Single Judge has passed

the judgment, which is unexceptionable.

We may recall the petitioner was involved in a criminal case

while he was on sanctioned leave. The department had also

issued a charge-sheet to inquire into the incident of alleged

misconduct. After appointing inquiry officer, who also issued

(4 of 5) [SAW-379/2021]

notice to the petitioner, his service came to be discharged on the

ground that he was involved in a serious criminal case. It is clear

from the series of judgments of the Supreme Court, reference to

many of which has been made by the learned Single Judge in the

impugned judgment that a government servant, who is not

confirmed and who is under probation, can be discharged by an

order of termination simplicitor, if the authority finds that his

performance during the period of probation does not warrant his

confirmation. However, any order of termination, which is

stigmatic, can be passed only after following the principles of

natural justice in terms of Article 311(2) of the Constitution and

the service rules applicable. In other words, no order of

termination of a Government employee can be passed without

holding a departmental inquiry during which the charges levelled

against him are communicated to him and he has been given an

opportunity to defend himself of those charges, if the order of

termination attaches any stigma on the government servant

concerned.

In the present case, the discharge order recorded that the

petitioner had committed serious misconduct ( xaHkhj nqjkpj.k ik;k x;k) and on account of which, the police department was

maligned. His service was, therefore, terminated for having

committed serious misconduct as well as finding that his service

during probation was not satisfactory. Since the department has

based its action on the petitioner having committed a serious

misconduct, the order of termination cannot be seen to be a

simplicitor termination of service, but was stigmatic in nature.

The learned Single Judge therefore correctly set aside the order.

While doing so, the department has been granted liberty to

(5 of 5) [SAW-379/2021]

continue with the departmental inquiry which was originally

instituted. The question of regularizing the petitioner's service

would depend upon the outcome of the departmental inquiry if the

department chooses to pursue the same. In any case, the period

during which the petitioner had not discharged active duty would

not qualify for the benefits other than notional benefits. The

directions issued by the learned Single Judge thus call for no

interference. By now even the criminal case may be over. What

would be the effect of the outcome of the criminal case cannot be

foreseen by us but must be left for the department to judge.

Under the circumstances, we find no merit in this appeal.

However, the department is granted time upto 30 th June, 2022 to

decide whether it wishes to continue with the departmental inquiry

as per the liberty granted by the learned Single Judge. If the

department wishes to do so, it shall communicate its decision to

the petitioner within such time. If no such decision is taken and

communicated to the petitioner within the time permitted, it would

be presumed that the department has dropped the inquiry.

The appeal stands disposed of accordingly.

                                   (REKHA BORANA),J                                           (AKIL KURESHI),CJ
                                    10-a.asopa/-









Powered by TCPDF (www.tcpdf.org)