Allowed

Dinesh Joshi v. State and Ors.

Rajasthan HC18 Jul 2022CW/12112/2015

Case brief

AI extract

What is this about?

The High Court of Rajasthan, Jodhpur, set aside a charge-sheet under the state service rules. It held that since the criminal court found no fault with the petitioner and the *V.K. Bansal* case ratio condemns action unless a witness is declared untrustworthy, the misconduct levy was invalid.

What did the court decide?

Charge-sheet dated 06.05.2015 served on the petitioner on the ground of misconduct is quashed. All pending applications are disposed of.

Dinesh Joshi Vs State and Ors. — Service and Employment | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Civil Writ Petition No. 12112/2015

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Dinesh Joshi S/o Shri Arjun Raj Joshi, aged about 55 years, Resident of Veer Mohalla, Vyas Colony, Chandpole, Jodhpur

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----Petitioner

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Versus

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State of Rajasthan – through Chief Engineer, Water Resources Department, Rajasthan, Jaipur.

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Additional Chief Engineer, Water Resources Department, Jodhpur.

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Chief Executive Officer, Zila Parishad, Jodhpur.

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----Respondent

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For Petitioner(s)	: Mr. ManojBohra
For Respondent(s)	: Ms. Abhilasha Bora

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HON'BLE MS. JUSTICE REKHA BORANA

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Order

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18/07/2022

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The matter comes upon an application for disposal of the present writ petition in light of the judgment passed in the case of V.K. Bansal Vs. State of Rajasthan & Ors. (S.B. Civil Writ Petition No. 7499/2008) decided on 23.04.2009 reported in 2009 (2) WLN 250.

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The case of the petitioner is that he was served with a charge-sheet dated 06.05.2015 with the charge that he turned hostile in the Court matter pertaining to one Dungarmal Sharma, an employee of the Department. An FIR was registered against the said Dungarmal Sharma for the offence under Sections 7 & 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. In the said proceedings, the present petitioner was a witness and when he appeared in the witness box before the

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(2 of 3)

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[CW-12112/2015]

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Court, he turned hostile. Therefore, the charge-sheet under Section 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 was served by the Department treating the said conduct to be a misconduct.

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Heard learned counsel for the parties and perused the material available on record.

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A perusal of the order dated 24.04.2015 passed in the Criminal Case No.46/2008 whereby the said Dungarmal Sharma had been acquitted of the offence makes it clear that even the complainant Brijmohan therein had also turned hostile and therefore, the accused was acquitted. A perusal of the order also shows that the findings regarding the complainant having turned hostile have been recorded by the Court against the complainant only. No finding whatsoever has been recorded against the present petitioner. In the case of V.K. Bansal (supra) two questions were under consideration:

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“In view of the above, the crucial questions for determination are:

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(i) What constitutes misconduct?, and (ii) whether declaration of a witness as hostile will render him untrustworthy witness for which he will be further liable for disciplinary action being a misconduct under the Rules of 1971?”

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Considering the said questions, the Court replied as under:

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“ Question No.1

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16. “Misconduct” means misconduct arising from ill motive; acts of negligence, errors of judgment or innocent mistake, did not constitute such misconduct. The test must always be whether in addition to the failure to do the duty, partial or entire, which had happened, there had also been a failure to act honestly and reasonably.

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Question No.2

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17. Mere error of judgment and any contradiction in the statements given before the police and the Court, consequential declaration as hostile witness

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(3 of 3)

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[CW-12112/2015]

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will not constitute misconduct unless the Court declares the witness as untrustworthy and some adverse comments are made therein.”

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The specific ratio as laid down in V.K. Bansal’s case (supra) is that the consequential declaration as hostile witness will not constitute misconduct unless the Court declares the witness as untrustworthy and some adverse comments are made therein.

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As observed above, all the findings or comments as made by the Criminal Court are against the complainant Brijmohan and no comment whatsoever has been made against the present petitioner. Therefore, in view of the ratio as laid down in V.K. Bansal’s case (supra) no misconduct can be spelled out against the petitioner and hence, charge-sheet dated 06.05.2015 served on him on the ground of misconduct, deserves to be and is hereby quashed.

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Resultantly, the present writ petition is allowed.

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All the pending applications stand disposed of.

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(REKHA BORANA),J

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17-T.Singh, Abhishek/-

Dinesh Joshi v. State and Ors.

Case brief

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Dinesh Joshi v. State and Ors.

Case brief

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