Rajasthan High Court

Hanuman Ram S/O Shri Kishana Ram vs State Of Rajasthan on 3 October, 2023

Bench: Anoop Kumar Dhand

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        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

                 S.B. Civil Writ Petition No. 5574/2020

Hanuman Ram (Deceased) S/o Shri Kishana Ram, aged about
42 Years, R/o Village Chuee, Tehsil Degana, District Nagaur,
Rajasthan through his legal representatives:
1/1 Bhanwari Devi W/o late Hanuman Ram,
1/2 Sunil S/o late Hanuman Ram,
1/3 Anil S/o late Hanuman Ram,
all R/o Village Chuee, Tehsil Degana, District Nagaur, Rajasthan.
                                                                          ----Petitioner
                                           Versus
State Of Rajasthan, Through The Superintendent Of Police Ajmer,
District Ajmer (Raj.)
                                                                        ----Respondent

For Petitioner(s) : Mr. Tanveer Ahamad with Mr. Manish Parihar For Respondent(s) : Mr. Udit Sharma with Ms. Kinjal Surana for Mr. Rajesh Maharshi, AAG

HON'BLE MR. JUSTICE ANOOP KUMAR DHAND Order

RESERVED ON :: 05.09.2023 PRONOUNCED ON :: 03.10.2023 REPORTABLE

1. Invoking the extra ordinary jurisdiction of this Court

contained under Article 226 of the Constitution of India, instant

petition has been filed by the petitioner with the following prayer:

"1. The impugned order dated 27.02.2020 (Annex.1) dismissing the petitioner from service may kindly be declared arbitrary and illegal and accordingly be quashed and set aside and further the respondents may kindly be directed to reinstate the services of the petitioner on the post of Head Constable with all consequential benefits, in the interest of justice.

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2. Any other appropriate order, which may be found just and proper in the facts and circumstances of the case, be passed in favour of the petitioner.

3. Cost of the writ petition may be awarded in favour of the petitioner."

Submissions by the petitioner:

2. Learned counsel for the petitioner submits that without

following the provisions and without conducting any enquiry under

Rule 16/17 of the Rajasthan Civil Services (Classification, Control

and Appeal) Rules, 1958 (for short 'the Rules of 1958') the

petitioner has been removed from service. Learned counsel for the

petitioner submits that for an alleged incident which occurred on

04.02.2020 of which an audio clip stood viral on social media and

solely on the basis of said audio clip the action has been taken by

the respondent. Counsel submits that the respondent has invoked

the powers contained under Rule 19 (ii) of the Rules of 1958 but

no reasons for satisfaction have been recorded, that why it was

not reasonably practicable to follow procedure prescribed under

Rule 16, 17 and 18 of the Rules of 1958. Counsel submits that for

the same incident one Head Constable Prasann Kathath was

placed under suspension and thereafter disciplinary proceedings

were initiated against him. However, in the case of petitioner,

respondent had subjected him to discrimination and the order

impugned was passed against him. Counsel submits that while

passing the impugned order the respondent have recorded the

fact that the voice of the petitioner was tested by supplying the

audio clip to Bajrang Singh, Om Prakash and Kailash Kumar.

Counsel submits that the said Bajrang Singh was not present at

the spot when the alleged incident has occurred rather he was

undergoing some training on the fateful day and counsel submits

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that under these circumstances order impugned passed by the

respondent is not tenable and is liable to be quashed and set

aside. In support of his contentions, he has placed reliance upon

the following judgments:

1. Bhinya Ram vs. State of Rajasthan (S.B. Civil Writ Petition No.5669/2021) which has been upheld by the Division Bench of this Court in the case of State of Rajasthan and Ors. vs. Bhinya Ram (D.B. Spl. Appl. Writ No.848/2022).

2. Behari Lal Gupta vs. State of Rajasthan and Ors. (S.B. Civil Writ Petition No.1084/1996) reported in 2002 (1) WLC

752.

3. Badri Ram vs. State of Rajasthan and Ors. (S.B. Civil Writ Petition No.14681/2019).

3. Counsel submits that a discretion can not be exercised in an

arbitrary manner, when the respondent has exercised their

discretion for holding an enquiry against similarly situated person

Prasann Kathath then it was necessary for the respondent to

follow the same process in the case of the petitioner also. In

support of this contention, he has placed reliance upon the

judgment passed by this Court in the case of Surendra Kumar

Sharma vs. State of Rajasthan and Ors. (SB Civil Writ

Petition No.13280/2019). Counsel submits that under these

circumstances interference of this Court is warranted.

Submissions by the respondent:

4. Per contra, learned counsel for the respondent opposed the

arguments raised by the counsel for the petitioner and submitted

that the petitioner was found demanding lakhs of rupees for

releasing the vehicle carrying liquor and doda post. Counsel

submits that the aforesaid incident was recorded in an audio clip

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and the same stood viral on social media which has tarnished the

image of the entire Police Department in the entire State of

Rajasthan. Counsel submits that the voice of the petitioner was

proved by three persons namely Kailash Kumar, Bajrang Singh and

Om Prakash by verifying the fact that the voice containing in the

audio clip belonged to the petitioner. Counsel submits that under

these circumstances the decision was taken by the respondent to

invoke the provisions contained under Rule 19 (ii) of the Rules of

1958. Counsel submits that the case of Prasann Kathath is

distinguishable with the case of the petitioner as no voice of the

said Prasann Kathath was recorded. Counsel further submits that

negative equity cannot be claimed as a matter of right. Counsel

submits that invoking the provisions contained under Rule 19 (ii)

of the Rules of 1958, a just and cogent order was passed by the

authorities vide impugned order dated 27.02.2020 which needs no

interference of this Court. In support of his contentions, he has

placed reliance upon the following judgments:

1. Union of India and Anr. vs. Tulsiram Patel reported in 1985 (3) SCC 398.

2. Jaswant Singh Vs. State of Punjab and Ors reported in 1991(1) SCC 362.

3. Ved Mitter Gill vs. Union Territory Administration, Chandigarh and Ors reported in 2015 (8) SCC 86.

4. State of Uttar Pradesh and Ors vs. Rajit Singh (Civil Appeal No.2049/2022) reported in AIR 2022 SC 1551.

5. Counsel submits that in view of the submissions made herein

above, the petitioner is not entitled to get any relief and the

instant petition is liable to be dismissed.

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Analysis and Reasoning:

6. Heard and considered the submissions made at the Bar and

perused the material available on the record.

7. The legal issue involved in this petition is 'whether powers

contained under Rule 19 (ii) of Rules, 1958 could have been

invoked in hurry by the Disciplinary Authority for summary

dismissal of the deceased petitioner for want of reasons for

dispensing with enquiry?'

8. As per the version of respondent, the petitioner was posted

as Head Constable at Police Check Post Jhadwasa, Police Station

Nasirabad Sadar District Ajmer. While checking vehicles at the

above check post on 04.02.2020 a vehicle carrying liquor and

'Doda Post' was stopped and lakhs of rupees were demanded by

the petitioner for release of this vehicle. The audio clip of this

incident stood viral on the social media and thereafter, a report

was given by the Station House Officer (for short, 'SHO')

Nasirabad (Ajmer) that voice of the petitioner in the said audio clip

was recognized and verified by (i) Kailash Kumar, Sub Inspector,

(ii) Om Prakash, Constable and (iii) Bajrang Singh, Constable.

After perusing the above report, the matter was taken seriously by

the Superintendent of Police, Ajmer and services of the petitioner

were terminated vide impugned order dated 27.02.2020 by

resorting to the provisions of Rule 19 (ii) of the Rules of 1958,

dispensing with the enquiry. It was observed that conducting a

regular enquiry in this case was not reasonably practicable and it

was found that it was a fit case to proceed against the petitioner

under Rule 19 (ii) of the Rules, 1958.

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9. At the same time, the other Head Constable Prasann Kathath

was also found involved in the aforesaid incident dated

04.02.2020 but in his case, he was placed under suspension and

departmental proceedings were initiated against him vide order

dated 27.02.2020.

10. Now this Court has to examine that whether in the instant

case the respondent was correct in dispensing with the enquiry

and he was correct in removing the petitioner in exercise of his

power under Rule 19 (ii) of the Rules, 1958?

11. Rule 19 of the Rules of 1958 deals with special procedure for

removal of a Government Servant by exempting the enquiry

contained under Rule 16, 17 and 18 where the Disciplinary

Authority is satisfied by recording the reasons in writing that it is

not reasonably practicable to follow the procedure prescribed

under the said rule.

12. The above sub rule makes it clear that it is incumbent on the

authority to record its satisfaction in writing the reason as to why

it would not be reasonably practicable to hold such enquiry where

the authority is empowered to dismiss a person. The word

"....................reasonably practicable to hold............................." means

that it is not practicable to hold the enquiry based on certain

factual circumstances which are inalienable to the case which is

before the Disciplinary Authority. The word "reasonably" further

indicates that it is not a case of total impracticability but that

holding of an enquiry is not practicable after taking a reasonable

view of the relevant factual situation. What however is non-

negotiable is that the Disciplinary Authority must state its reason

in writing for dispensing with a disciplinary enquiry which would

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have an indelible impact on the person who is removed, dismissed

from service or reduced in rank without an enquiry. The reasons

recorded must reflect the attending circumstances which would

make it reasonably impracticable for the authority to hold the

enquiry before imposing the penalty.

13. The exception slips in where it is impracticable to hold the

enquiry and the onus is on the authority to record its satisfaction

in writing as to the reason for the impracticability. The underlying

presumption in Rule 19 is that dismissal, removal of a person

employed in a State service is not to be taken lightly or done

without following due process. The threshold to prove dispensation

of due process and compliance with the principles of natural

justice is high in all matters but particularly heightened in Rule 19

(ii) of the Rules of 1958. In essence, the constitutional obligation

of recording reasons for departing from the norm must strictly be

conformed with. Invocation of the power without bowing down to

the constitutional mandate would render the order of penalty void.

The same has been held by the Hon'ble Apex Court in the case of

Union of India vs. Tulsiram Patel, (1985) 3 SCC 398.

14. While passing the impugned order, the respondent was of the

view that the Disciplinary Authority was competent to dismiss the

petitioner from service by invoking Rule 19 (ii) and that it was not

"reasonably practicable" to hold an enquiry. There is no

independent finding about whether the Disciplinary Authority

rightly invoked Rule 19 (ii) and whether the reason for invoking

the power was recorded in writing justifying the satisfaction on the

part of the authority to dispense with the enquiry.

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15. The importance of recording the reasons for dispensing with

the enquiry while removing the person from service has been

discussed by the Hon'ble Apex Court in the case of Reena Rani

Vs. State of Haryana reported in 2012 (10) SCC 215 and it has

been held in para 7 as under:

"7. In the order of dismissal, the Superintendent of Police has not disclosed any reason as to why it was not reasonably practicable to hold regular departmental enquiry. The learned Additional Advocate General fairly stated that the order of dismissal does not contain the reasons as to why it was not reasonably practicable to hold regular departmental enquiry against the Appellant. He also admitted that no other record has been made available to him which would have revealed that the Superintendent of Police had recorded reasons for forming an opinion that it was not reasonably practicable to hold regular departmental enquiry for proving the particular charge(s) against the Appellant."

16. The Hon'ble Apex Court in the case of Sudesh Kumar Vs.

State of Haryana and ors. reported in (2005) 11 SCC 525 has

held that it is now established principle of law that an enquiry

under Article 311 (2) of the Constitution of India is a rule and

dispensing with the enquiry is an exception. The Authority

dispensing with the enquiry under Article 311 (2) (b) must satisfy

itself by reasons which are to be recorded that it is not reasonably

practicable to hold an enquiry.

17. While dealing with the issue of recording the reasons before

passing the order of removal from service under Rule 19 (ii) of the

Rules of 1958, the Coordinate Bench of this Court has held in the

case of Bhinya Ram Vs. State of Rajasthan and Ors.:

S.B.Civil Writ Petition No.5669/2021 as under:

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"In the case of Banwari Lal (supra), again a case of sub- Inspector and Constables, this Court, even in a case where some reasons were indicated, came to the conclusion that same were not founded on valid reasons permissible under law, set aside the order of punishment.

So far as the judgment in the case of Tulsiram Patel (supra) is concerned, the same has upheld the validity of the provisions providing for dispensing with the inquiry, however, the said judgment nowhere provides that requirement of recording of satisfaction in writing can be given a go-bye.

In the present case, as noticed hereinbefore, there is no reason worth the name indicated for dispensing with the inquiry and, therefore, in view of express provisions of law and various judgments of Hon'ble Supreme Court and this Court, the order impugned passed by the respondents cannot be sustained.

Consequently, the writ petitions filed by the petitioners are allowed. The orders impugned dated 1/3/2021 passed by the disciplinary authority in both the writ petitions and order passed by the appellate authority dated 12/10/2021 in SBCWP No.16751/2021 are quashed and set aside. The petitioners are held entitled to reinstatement with all consequential benefits. However, it would be open for the respondents to initiate departmental inquiry against the petitioners, if they so desire. The payment of back wages shall abide by the result of such inquiry. Such an inquiry, if any, must be initiated as expeditiously as possible."

18. The aforesaid order passed in the case of Bhinya Ram

(supra) was challenged by the State before the Division Bench by

way of filing D.B. Special Appeal Writ No.848/2022 and the same

was dismissed on 05.04.2023 by the Court by holding as under:

"Learned counsel for the State would argue that the invocation of power under Rule 19(ii) of the Rajasthan Civil Service (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as 'the CCA Rules') by the disciplinary authority is perfectly in accordance with the law. Referring to the contents of the show cause notice and the preliminary enquiry report on the basis of which, decision was taken to dispense with the services, it is vehemently contended before us that the order of the disciplinary authority passed on 01.03.2021 and also the order passed by the appellate authority on

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10.10.2021 clearly reveal on a comprehensive view, that there did exist reasons why the authority found that it is not reasonably practicable to follow the procedure prescribed in the Rules.

We have gone through the order passed by the learned Single Judge.

Keeping in view the requirement of Rule 19(ii) of the CCA Rules that the disciplinary authority is satisfied for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the rules, special procedure may be followed, learned Single Judge has examined not only the impugned order dated 01.03.2021 but also the relevant files of administrative side produced before the Court.

On a literal reading of the order dated 01.03.2021, we are of the clear view that this order, by no stretch of imagination, fulfills the legal requirement of arriving at satisfaction for reasons to be recorded in writing that it is not reasonably practicable to follow the procedure prescribed in the Rules. It merely contains a conclusion bereft of any material constituting reasons as mandated under the law.

Learned Single Judge has also looked into administrative files and has recorded a finding that there is no material available on record and rather not a word has been indicated qua the reasons of dispensing with the enquiry. Keeping in view the law laid down by Hon'ble the Supreme Court in the cases of Sudesh Kumar, Tarsem Singh and Reena Rani, a conclusion has been arrived at that the decision to dispense with enquiry is in clear contravention of the provisions contained in Rule 19(ii) of the CCA Rules.

In view of the above consideration by the learned Single Judge, we find no scope of interference against the impugned orders passed by the learned Single Judge.

Therefore, the appeals are without any substance and are dismissed."

19. The sole reason for passing the impugned order is that the

audio clip containing the voice of the petitioner demanding lakhs

of rupees for releasing the liquor/doda post vehicle stood viral on

social media and the voice of the petitioner was recognized and

verified by three police officials.

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20. Now the question which comes before this Court for its

consideration is that 'whether the audio clip was authentic and

there was no element of the same being tampered or altered.?' If

the authorities had made the exercise of first finding the

truthfulness or authenticity of the audio clip, there would be no

argument based thereon with regard to the allegations depicted in

the said audio clip being true. The audio clip would come within

the words and expressions used for "document" under Section 3 of

Indian Evidence Act, 1872 (for short, 'Evidence Act') and the

evidentiary value of the audio clip shall have to be examined

similarly as a document is examined. It is well known principle of

law that documents would provide far better evidence than the

oral evidence provided the authenticity of documents is beyond

question. If, therefore, there is a doubt with regard to

genuineness of a document, the same would have no evidentiary

value, unless corroborated.

21. In the instant case, the respondent has used two different

yardsticks to deal with the situation which arose on 04.02.2020.

For the incident which occurred on 04.02.2020, the respondent

has removed the petitioner without holding any enquiry while in

the case of similarly placed person Prasann Kathath, he was

placed under suspension and domestic enquiry was initiated

against him. Both orders in this regard were passed by the

Superintendent of Police, Ajmer on the same day i.e. 27.02.2020.

Time and again it has been held by the Hon'ble Apex Court to

ensure parity among co-delinquents. While dealing with this issue

of parity between co-delinquents, Hon'ble Apex Court in the case

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of Rajendra Yadav Vs. State of Madhya Pradesh and ors.

reported in (2013) 3 SCC 73 has held in para 9 to 12 as under:

"9. The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences.

10. The principle stated above is seen applied in few judgments of this Court. The earliest one is Director General of Police and Ors. v. G. Dasayan (1998) 2 SCC 407, wherein one Dasayan, a Police Constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The Disciplinary Authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on Head Constable. This Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co- delinquents. This Court held that it may, otherwise, violate Article 14 of the Constitution of India.

11. In Shaileshkumar Harshadbhai Shah case (supra), the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, this Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.

12. We are of the view the principle laid down in the above mentioned judgments also would apply to the facts of the present case. We have already indicated that the action of the Disciplinary Authority imposing a comparatively lighter punishment to the co-

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delinquent Arjun Pathak and at the same time, harsher punishment to the Appellant cannot be permitted in law, since they were all involved in the same incident. Consequently, we are inclined to allow the appeal by setting aside the punishment of dismissal from service imposed on the Appellant and order that he be reinstated in service forthwith. Appellant is, therefore, to be re-instated from the date on which Arjun Pathak was re-instated and be given all consequent benefits as was given to Arjun Pathak. Ordered accordingly. However, there will be no order as to costs."

22. The respondent has caused discrimination in the case of

petitioner and co-delinquent Prasann Kathath and without

recording the reasons the order impugned was passed against the

petitioner.

23. In a given set of circumstances, availability of overwhelming

evidence may be one of grounds to dispense with the enquiry, but

in no case, it can be sole ground. In the present case also, at the

most, availability of the evidence, which was overwhelming

according to the respondent, but disputed by the petitioner, is also

one of the grounds for dispensing with the enquiry. A presumption

has been drawn by the respondent about demand of money by the

petitioner on the basis of the said audio clip without there being

any evidence of its veracity and admissibility or without there

being any corroborative evidence.

24. Without holding any enquiry and procedure contained under

Rule 16, 17 and 18 of the Rules of 1958, the petitioner has been

removed from service by the respondent in exercise of its powers

contained under Rule 19 (ii) of the Rules of 1958. The disputed

question of fact that whether the audio clip was containing voice

of the petitioner or not, could have been proved or disproved after

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conducting enquiry against him and the respondent should have

conducted enquiry against the petitioner to find out the truth.

25. Hence, it is clear that no worthy reasons have been recorded

by the respondent for dispensing with the enquiry against the

petitioner and therefore, in view of express provisions of law and

various judgments of the Hon'ble Supreme Court and this Court,

the impugned order passed by the respondent cannot be

sustained and the same is liable to be quashed and set aside.

26. It is worthy to note here that impact of setting aside such

order would give the liberty to the respondent to initiate the

departmental enquiry against the petitioner like the co-delinquent

Prasann Kathath, if they so desire but since the petitioner has

expired during pendency of this petition and his legal

representatives have been taken on record, hence, under these

circumstances no departmental enquiry can be held against a

dead person. The Hon'ble Apex Court in the case of Basudeo

Tiwari vs. Sido Kanhu University and Ors. reported in 1998

(8) SCC 194 dealt with such situation in para 13 and 14 as under:

"13. Admittedly in this case notice has not been given to the appellant before holding that his appointment is irregular or unauthorised and ordering termination of his service. Hence the impugned order terminating the services of the appellant cannot be sustained.

14. The appellant has since demised during the pendency of these proceedings, no further direction either as to further inquiry or reinstatement can be given. We declare that the termination of the appellant by the respondent as per the notification referred to by us is invalid. Consequently, it would be deemed that the appellant had died in harness. Needless to say that the appellant would become entitled to the payment of arrears of salary from the date of termination of his services upto the date of his death on the basis of last pay drawn by him. Let Respondent take action within a period of three months from today to work out the arrears due to the appellant from the date of his

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termination till his death and pay the same to his legal representatives."

Conclusion:

27. Consequently, the writ petition stands allowed and the

impugned order dated 27.02.2020 is quashed and set aside.

28. Since the petitioner has demised during the pendency of this

petition, no further direction either as to further enquiry or

reinstatement can be given. This Court declares the removal order

of the petitioner as invalid. Consequently, it would be deemed that

the petitioner had died in harness. Needless to say that the

petitioner would become entitled to the payment of arrears of

salary from the date of termination of his services up to date of

his death, on the basis of last pay drawn by him.

29. The respondent is directed to pay the arrears of the salary

of the petitioner from the date of his termination till death and pay

all the terminal benefits to his legal representatives.