Allowed

Umesh Dutta v. Governor through Secretary

Rajasthan HC1 Aug 2017CW/1129/2000

Case brief

AI extract

What is this about?

In a writ petition, the High Court quashed dismissal orders against a police constable held absent for 395 days. The Court found the enquiry vitiated due to denial of cross-examination and held findings perverse as there was no evidence of absence despite regular salary. Relief granted with 50% back wages.

What did the court decide?

Quashed of dismissal, appellate and review orders; Reinstatement of petitioner; 50% notional back wages and service benefits.

Umesh Dutta Vs Governor through Secretary — Pension and Retirement Benefits | Rajasthan HC (2017)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writ Petition No. 1129 / 2000

¶3

Umesh Datta Sharma S/o Shri Sachhidanand Sharma ExConstable No. 2643 posted at the relevant time in Rajasthan Police Line, Jaipur City Jaipur, R/o Village Vatika, District Jaipur.

¶4

----Petitioner

¶5

Versus

¶6

The State of Rajasthan through Secretary to the Home Department Rajasthan Jaipur.

¶7

The Dy. Inspector General Of Police, Rajasthan Jaipur.

¶8

The Supdt. Of Police, Jaipur City Jaipur

¶9

----Respondents

¶10

For Petitioner(s) : Mr. Amit Kumar Jain

¶11

For Respondent(s) : Dr. A.S. Khangarot, AGC

¶12

HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA

¶13

Judgment

¶14

01/08/2017

¶15

This petition has been preferred by the petitioner challenging the order of dismissal dated 05.08.1992 and the appellate order dated 26.02.1993 as well as the order passed in review dated 06.03.1995 whereby the petitioner was held to be guilty of having remained absent form duty for a period of 395 days.

¶16

The brief facts which are culled out from the petition are that the petitioner was appointed as a Constable on 09.10.1969. He was served with a charge sheet on 07.02.1992 wherein four charges were levelled against him stating therein that he was posted as ‘Cycle Sawar’ at the residence of the Director General of Police. Despite directions issued to him on 21.03.1990, he remained continuously absent and reported back on duty on

¶17

(2 of 8)

¶18

[CW-1129/2000]

¶19

10.04.1991 on his own will. He did not give any information about remaining on leave and he remained continuously absent from duty. It was further charged that he wrongfully withdrew salary from April, 1990 till May, 1991 and kept his Higher Officers under misrepresentation. Enquiry Officer was appointed to conduct the enquiry, who recorded evidence of 14 witnesses as well as 15 exhibits were produced and thereafter, copy of the enquiry report was sent to the petitioner and the petitioner was punished vide order dated 05.08.1992 with dismissal from service.

¶20

Contention of the learned counsel for the petitioner is that the petitioner bearing belt No.4643 had been directed to report at residence of the then DG vide order dated 21.03.1990 and as per the reply filed by him, he had remained there continuously on duty for the period from 21.03.1990 upto 10.04.1991 where after he was directed to report back to the Police Lines and he rejoined his duties at the Police Lines on 10.04.1991. It is his case that his attendance was being marked and also that he had on the basis of attendance received monthly salary from the respondents regularly. Neither there was occasion for the petitioner to be treated as absent from duty nor there is any documentary proof or ocular evidence to show that the petitioner had remained absent from duty for such a long period of 395 days. If the petitioner had remained absent from duty, it would not have gone unnoticed, there would have definitely some action taken during the intervening period. It is his submission that none of the witnesses have specifically accepted that the petitioner was absent from duty. On the other hand, there is an admission that the petitioner

¶21

(3 of 8)

¶22

[CW-1129/2000]

¶23

had received his salary after marking his attendance. It is not the case where there is any evidence against him, but merely on surmises and conjectures, the petitioner has been held guilty for all the charges levelled in the alleged charge sheet.

¶24

Learned counsel has also pointed out defects in the enquiry conducted by the respondents. It is stated that while the charge sheet was issued to the petitioner, neither the statement of allegations nor the list of witnesses were enclosed. It is further submitted that the petitioner had asked for assistance during enquiry and one ASI i.e. Pep Singh was appointed as Assisting Officer, but on account of such Pep Singh having fallen ill, the petitioner had made a request for appointing another Assisting Officer, which was turned down by the Enquiry Officer and no Assisting Officer was made available to help the petitioner to defense his case properly.

¶25

Learned counsel also points out that no cross-examination was allowed by the Enquiry Officer and the defence of the petitioner was not taken up properly. The enquiry was thus vitiated in law and could not have been relied upon by the Disciplinary Authority. Learned counsel further submits that the submissions raised by him relating to the enquiry report were turned down. Allegations have already been levelled by the petitioner relating to the Head Moharir Shri Hanuman Singh, who declared him absent from duty without any reason or rhyme. In appeal, the Appellate Authority while quoting the submission raised by the petitioner and the fact that in the attendance registrar, the attendance of the petitioner is clearly revealed, has

¶26

(4 of 8)

¶27

[CW-1129/2000]

¶28

given a blind eye to such facts and the Appellate Authority did not give any evidence relating to the statements raised by the petitioner.

¶29

In the circumstances, the learned counsel submits that the petitioner has been subjected to injustice and the enquiry cannot be said to be fair and proper and therefore, the same suffers from malice in law as well as on facts.

¶30

In support of his statements, learned counsel relies on AIR 2015 SC 598: Chhel Singh Vs. M.G.B. Gramin Bank, Pali & Ors., WLC 2008(3) 175: Devi Singh Vs. State of Raj. & Ors., AIR 1972 SC 2178: C.L. Subramaniam Vs. The Collector of Customs, Cochin and (2016) 6 SCC303: Delhi Police, through Commissioner of Police and Ors. Vs. Sat Narayan Kaushik.

¶31

Per contra, learned counsel for the respondents submits that the order does not call for any interference as the petitioner was given full opportunity of hearing by the Enquiry Officer, which he did not avail. If his Assisting Officer was unwell, he could have been himself cross-examined the witnesses. With regard to absence, learned counsel expresses his unability in view of the record being not available presently with him. However, he supports the punishment order and has taken this Court to the reply filed by the department. It is submitted that once the charges were proved by the Enquiry Officer and Disciplinary Authority had already examined the matter, the Appellate Authority having been satisfied with the orders passed by the Disciplinary Authority, was not required to pass a detailed order

¶32

(5 of 8)

¶33

[CW-1129/2000]

¶34

again. Even the review petition was examined and was rejected as well. He prays that no further interference is called for.

¶35

Learned counsel also relies on the law of judgment passed by the Apex Court in the case of Chief Executive Officers, Krishna District Cooperative Central Bank Limited and Ors. Vs. K. Hanumantha Rao: (2017) 2 SCC 528 and another Civil Appeal No.11975/2016 decided on 09.12.2016 wherein the Supreme Court has examined the proportionately of the punishment order and did not find it to be shockingly disproportionate.

¶36

Having heard learned counsel at Bar, I find from the record that some facts are not disputed. The petitioner was sent to the residence of DG to work as Cycle Sawar on 21.03.1990, as per the directions issued from Police Line, Jaipur. There is no information sent from residence of DG, Jaipur about his being absent from duty. His attendance was being marked regularly and he received his salary on the basis of his attendance each month upto April, 1991. It appears that he was called back at Police Lines, Jaipur and as per the submissions of the petitioner, as mentioned in the writ petition, some altercation took place with the Senior Officer of Police Lines, Jaipur, resulting in allegations being levelled of being absent from duty.

¶37

A person can be stated to be absent from duty, only when his presence is not marked in the attendance register or there may be a circumstance where an allegation is levelled of the said delinquent having wrongfully marked his attendance in the

¶38

(6 of 8)

¶39

[CW-1129/2000]

¶40

attendance register and from the back date and actually he was absent. However, such circumstance cannot remain unnoticed.

¶41

None of the circumstances exists in the present case and on the other hand, it comes out on record that the attendance of the petitioner has been marked in the register and he has been paid salary for each month, despite he is stated to be absent from duty. The Enquiry Officer has, however, cursorily rejected these facts which are on record and both the Disciplinary Authority as well as Appellate Authority have not even bothered to consider this aspect of the matter before holding the petitioner absent from duty for 395 days.

¶42

While this Court has a limited scope to review departmental proceedings, one cannot ignore facts and wherever it is found that there has been ignorance of facts, the order would to be vitiated in law.

¶43

On examining the departmental enquiry as per the legal norms, this Court finds that the enquiry is vitiated as the petitioner has not been availed the fair opportunity as provided under Rule 16 of the CCA Rules to defend himself. As stated hereinabove, the petitioner was denied opportunity to crossexamine the witnesses, which have been made basis to hold the petitioner guilty of the charges levelled against him. Therefore, proceedings have been vitiated in law. The decision on the basis of such an enquiry report would also stand vitiated. The judgments cited at bar, which I respectfully agree, would have their

¶44

(7 of 8)

¶45

[CW-1129/2000]

¶46

application on facts which may arise in each case and would also accordingly be examined on facts.

¶47

In the present facts, as have come on record, it is a case of no evidence. In view of the law laid down in the case of Kuldeep Singh Vs. Commissioner of Police and Ors. (1999) 2 SCC 10 it has been held as under:-

¶48

“8. The findings recorded in a domestic enquiry can be characterised as perverse if it is shown that such findings are not supported by any evidence on record or are not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of A.P. Vs. Rama Rao in which the question was whether the High Court under Article 226 could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of of India Ltd. V. Prakash Chand Jain and Bharat Iron Works Vs. Bhagubhai Balubhai Patel. In Rajinder Kumar Kindra Vs. Delhi Admn. it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are its mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.

¶49

Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of “guilt” is based on no evidence. It would be a perverse finding and would be amenable to judicial scrutiny.”

¶50

In view of above, the entire enquiry proceedings culminating into orders passed by the Disciplinary Authority dated 05.08.1992 as well as appellate order passed in appeal dated 26.02.1993 as well as review order dated 06.03.1995 are quashed and set aside with all consequential benefit of continuity of service and

¶51

(8 of 8)

¶52

[CW-1129/2000]

¶53

reinstatement of the petitioner from the date he was dismissed from service. He would be entitled to 50% notional benefits for the intervening period as possibility on his working elsewhere cannot be made out completely. The petitioner would, however, be given all other service benefits to which he may be entitled, including benefit of selection scales which would also be calculated on 50 %notional basis and actual payment shall be made from the date

¶54

of passing of this order.

¶55

The writ petition is allowed with 50% back wages for the intervening period as directed. No costs.

¶56

(SANJEEV PRAKASH SHARMA)J.

¶57

M.Meena/6

Umesh Dutta v. Governor through Secretary

Case brief

What is this about?

What did the court decide?

Umesh Dutta v. Governor through Secretary

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Smt Shakuntala Devi Vs Irfan Khan and Ors.

Dilraj and Ors. Vs State of Rajasthan through Pp

Saroj Vs State of Rajasthan and Ors.

Lukman Khan Vs State of Rajasthan through P P

Suresh Vs State of Rajasthan through Pp

Asim Husain Allias Khatam Vs State of Rajasthan through P P