Allowed

State of Raj and Ors. v. Umesh Datta Sharma

Rajasthan HC17 Jul 2018SAW/637/2018

Case brief

AI extract

What is this about?

The Division Bench held that the single judge erred in interfering with the charge-sheet finding due to lack of perversity. Finding dismissal disproportionate for a first-time absence, the court substituted it with compulsory retirement and condoned the limitation delay.

What did the court decide?

The punishment of dismissal from service was substituted with compulsory retirement; limitation delay was condoned.

State of Raj and Ors. Vs Umesh Datta Sharma — Service and Employment | Rajasthan HC (2018)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

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D.B. SPECIAL APPEAL WRIT NO. 637/2018

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

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The Dy. Inspector General Of Police, Rajasthan, Jaipur.

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The Supdt. Of Police, Jaipur City, Jaipur.

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----Appellants

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Versus

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Umesh Datta Sharma Son of Shri Sachhidanand Sharma, ExConstable No. 2643 Posted at the relevant time in Rajasthan Police Line Jaipur, resident of Village Vatika, District Jaipur.

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----Respondent

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For Appellant(s) : Mr. GS Gill, AAG For Respondent(s) : Mr. Shobhit Tiwari

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HON'BLE MR. JUSTICE MUNISHWAR NATH BHANDARI HON'BLE MR. JUSTICE DINESH CHANDRA SOMANI

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Judgment

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17/07/2018

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Heard on the application under Section 5 of the Limitation Act so as the appeal.

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Before consideration of the application under Section 5 of the Limitation Act, we want to consider merits of the case.

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The facts available on record shows that the petitionernon-appellant was served with a charge-sheet alleging absence from duty yet received salary. After the charge sheet, a disciplinary enquiry was conducted by the Department. The charges were found proved thus after serving a copy of the

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(2 of 6) [SAW-637/2018]

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enquiry report, the order of dismissal from service was passed. The petitioner-non-appellant preferred an appeal but it was also dismissed.

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The writ petition was filed to challenge the order of punishment. It was considered by the learned single judge mainly on two grounds. Firstly the charge of absence from duty is not made out and, secondly, opportunity to cross examine the witnesses was not given thus enquiry was not proper. Learned Single Judge found that charge of absence from duty is not made out because presence of the petitioner-non-appellant was recorded in the Register for the period in question. He was even paid salary. It was also found that an opportunity to cross examine the witnesses was not given thus even enquiry conducted by the Department is defective. Since the enquiry was defective thus could not have been relied for inflicting punishment of dismissal from service. The interference in the order of punishment was accordingly made vide the impugned order.

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The State has assailed the order mainly on the ground that no document or material was produced by the petitioner to show denial of opportunity to cross examine the witnesses thus finding recorded by the learned Single Judge is perverse. It is submitted that the petitioner-non-appellant absented from duties nearly for one year. The evidence was produced to show his duties at the Police Line while working as Cycle Sawar. According to the appellant, he did not report on duty either at Police Line or at the residence of the Director General of Police. As against the evidence produced by the Department, no evidence was produced

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(3 of 6)

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[SAW-637/2018]

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by the delinquent to defend his case. It is to prove that he had marked attendance in the presence of co-employee or other employees had seen him working at the residence of Director General of Police. Learned Single Judge yet made interference in the finding based on the attendance Register where presence of the petitioner-non-appellant was marked followed by payment of monthly salary. The prayer is to cause interference in the order of the learned Single Judge after condoning the delay in filing the appeal.

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Learned counsel for the non-appellant is fair to admit that no material was produced to substantiate the argument about denial of opportunity to cross-examination the witness. It is however stated that many other grounds were raised to show violation of principles of natural justice in holding disciplinary enquiry but those grounds have not been dealt with by the learned single judge. It is also stated that no evidence could be produced by the delinquent as he was not allowed to defend his case by the representatives of his choice. Initially, a representative was allowed to represent the petitioner but he left the enquiry in between. The petitioner prayed for another defence nominee, which was not allowed. Accordingly, the evidence could not laid by him.

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At this stage, learned counsel for the non-appellant submits that even if charge is taken as proved, the punishment is shockingly disproportionate. The allegation against the petitioner is about absence from duty, that too, while working on the lowest post. There was no previous delinquency thus for the first

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(4 of 6)

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[SAW-637/2018]

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misconduct, that too, absence from duty, the ultimate punishment of dismissal from service could not have been effected. The prayer, at this stage, is to cause interference in the quantum of punishment for the ends of justice, if, at all, this court is inclined to cause interference in the order passed by the learned Single Judge.

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We have considered the matter carefully and scanned the record for the aforesaid purpose.

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The perusal of the order impugned herein reveals two grounds to cause interference in the order of punishment of dismissal from service. So far as the allegation about denial of opportunity to cross examination of witness is concern, learned counsel for the non-appellant fairly considered that no material for it was produced thus the argument raised by learned Additional Advocate General Mr. GS Gill gets substantiated. The finding has been recorded without material thus there exist perversity in the order.

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So far as the factual aspect as to whether charge is made out or not is concerned, it has come that the delinquent failed to produce evidence to prove his working either at Police Line or at the residence of the DGP. He even failed to prove marking of attendance in the Register in the presence of coemployee or an officer. It is moreso when the Department could bring the evidence to prove that the delinquent remained absent unauthorisedly. He did not work either at Police Line or at the

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(5 of 6)

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[SAW-637/2018]

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residence of the DGP but managed to mark attendance to receive salary.

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In the aforesaid background, we find reasons to cause interference in the finding of fact recorded by the learned Single Judge. It is settled law that while exercising jurisdiction under Article 226 of the Constitution of India, this court should not cause interference in the finding of fact unless perversity is shown. Mere production of the attendance Register and disbursement of salary does not mean that the evidence led by the Department is to be ignored. The department laid evidence to prove the charge. Accordingly, we are causing interference in the finding of fact about the proof of charges.

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The fact now remains about the quantum of punishment. It has not been considered by the learned Single Judge for the reason that interference in the order of punishment was made. We find reasons to consider aforesaid aspect. It is not in dispute that there is no delinquency in past and the only allegation against the petitioner is of absence from duty. He was only a Cycle Sawar and the period of absence is of one year.

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Taking into consideration overall facts and circumstances of the case, we find reasons to interfere in the punishment, which is shockingly disproportionate. Accordingly, we substitute the order of punishment of dismissal from service with that of compulsory retirement. It is even after considering the fact that the petitioner-appellant has already attained the age of superannuation thus cannot be reinstated. By virtue of the order

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(6 of 6)

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[SAW-637/2018]

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of compulsory retirement, he would be entitled to the retiral benefits.

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With the aforesaid, interference in the order is made. The punishment of dismissal from service is substituted with that of compulsory retirement. The petitioner-non-appellant would be given consequential benefits arising out of it at the earliest but not later than four months from the date of receipt of the copy of this order. With the aforesaid, appeal is disposed of.

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The application under Section 5 of the Limitation Act has been filed. Since we have considered merits of the case and found substance therein thus by applying the judgment of the Supreme Court in the case of State of Haryana Vs. Chandra Mani and others [(1996) 3 SCC 132] and N. Balakrishnan Vs. M. Krishnamurthy [AIR 1998 SC 3222] and taking into consideration the merit of the case and reasons for delay in filing appeal, it is condoned. The application under Section 5 of the Limitation Act is allowed with the aforesaid.

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(DINESH CHANDRA SOMANI),J

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(M.N. BHANDARI),J

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Sunita/11

State of Raj and Ors. v. Umesh Datta Sharma

Case brief

What is this about?

What did the court decide?

State of Raj and Ors. v. Umesh Datta Sharma

Case brief

What is this about?

What did the court decide?

What the court decided

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