- (1.) IN second inning of his legal battle the petitioner has challenged impugned orders dt. 13. 1. 94 (Annex. 4) dismissing him from service for the misconduct and which has been affirmed in his appeal by order dt. 29. 7. 94 (Annex. 6 ).
(2.) FACTS relevant for disposal of this petition, in brief, are that the petitioner was initially appointed as Constable on 1. 12. 1973 by the Superintendent of Police (S. P.) Jaipur and later on was transferred to the office of S. P. Sikar in January, 1987. During his posting as Constable in Treasury Guard, Sikar on 12. 5. 91; as per charge sheet dated 21. 8. 91, the petitioner is alleged to have left place of his duty (Treasury Guard) alongwith a register but in a drunkard condition had proceeded to the office of S. P. Sikar alongwith his rifle, inasmuch as he ill-behaved with officials deployed in election duty in his drunkard state on the way and thereafter entered in the chambers of the S. P. The charge-sheet is said to have been served on 24. 8. 91 and whereafter the Addl. S. P. was appointed as Enquiry Officer who during inquiry is said to have informed the delinquent (petitioner) as to the inquiry dates on various occasions through special messangers - as detailed out in inquiry report dated 31. 3. 92 (Annex. 1) but he remained allegedly absent despite service of notice on 2. 3. 92 for date 4. 3. 92, hence proceedings were ordered as ex-parte. During inquiry the department produced eleven witnesses and got seven documents exhibited. The Inquiry Officer submitted his report on 31. 3. 92 holding misconduct of the petitioner for the allegations under both the charges as proved and thereby held him guilty of two charges. On the basis of inquiry report, the S. P. Sikar (disciplinary authority) punished the petitioner for the guilt of misconduct directing his dismissal from service by order dated 30. 4. 92 against which appeal filed by him too was rejected by the appellate authority under order dated 26. 12. 92 holding his appeal as time barred. Against both the orders of punishment and the appellate authority, the petitioner had also approached this Court by way of his CWP No. 1796/93 wherein though several grounds were raised but this Court considered it necessary to refer only the plea that copy of enquiry report was not furnished before punishing him but with punishment order, thereby he had no opportunity to make his submissions against conclusions drawn by the inquiring authority, which has resulted in depriving him of reasonable opportunity of being heard as contemplated by Article 311 (2) of the Constitution so also Rule 16 of 1958 Rules. This Court after having considered rival contentions and various decisions cited at the Bar, in its judgment dated 29. 7. 1993 (Ann. 2) allowed the petitioner's writ petition in the following terms: " Since there has been a clear non-compliance of the Rules and the principle of natural justice, order of punishment passed by the Superintendent of Police is liable to be quashed. There is no escape from the conclusion that by not giving a copy of the inquiry report to the petitioner as well as an opportunity to make submissions with reference to adverse findings recorded by the inquiry officer, the Superintendent of Police has breached Article 311 (2) of the Constitution as well as Rule 16 of the Rules, of 1958 and principles of natural justice. Once it is held that the original order of punishment passed by the Superintendent of Police is vitiated, the appellate order passed by the Dy. Inspector General of Police, Jaipur Range, Jaipur is also liable to be declared as void. In the result, the writ petition is allowed. Orders dated 30. 4. 92 (Ann. 1) passed by the Superintendent of Police, Sikar and dated 26. 12. 92 (Ann. 4) passed by the Dy. Inspector General of Police, Jaipur Range, Jaipur are declared illegal and are hereby quashed. The petitioner shall be reinstated in service. The Superintendent of Police shall be free to make fresh order after calling upon the petitioner to make representation against the findings of the inquiry officer. Parties are left to bear their own costs. " Thereupon, pursuant to aforequoted direction, the petitioner has reinstated in service by order dated 19. 10. 93 (Ann. 3) but the disciplinary authority (S. P. Sikar) by impugned order dated 13. 1. 94 (Ann. 4) after considering explanation of the petitioner held him guilty of misconduct of both the charges and dismissed him from service, and against which appeal was also filed but it was also rejected by the appellate authority by its order dated 29. 7. 94 (Annex. 6 ). Hence, this writ petition. First attack to the validity of the impugned order of punishment, as contended by Shri M. K. Sharma, learned counsel for the petitioner, is that for the punishment of dismissal of the petitioner from service, the Superintendent of Police was neither competent nor having jurisdiction to punish the petitioner with major penalty inasmuch as he was having authority under the State Government's Circular dated 17. 10. 86 issued under Rule 15 (1) of Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, "cca Rules"), only to impose minor penalty upto stoppage of two grade increments without cumulative effect. Since the petitioner holding the post of Constable was a member of Subordinate & Ministerial Services in the Police department, I must look at the Appendix III of the CCA Rules which deals with delegation of powers under Rule 15 (1 ). According to this Appendix III, it is crystal from D. O. P. Order No. F3 (1) Karmik/a-III/85, dated 17. 10. 86 that the State Government in exercise of the powers conferred by sub-rule (1) of Rule 15 of the CCA Rules, had empowered all Heads of Offices (in case of Police constable, the office of the S. P. is the Head Office and its head is the S. P. in the district) to impose minor penalties upto the stoppage of two grade increments (without cumulative effect) in respect of the Ministerial Staff working under them. This circular was partially modified by Order No. F. 3 (1) Karmik-A- III/85 dated 18. 4. 90 as under:- " In partial modification of this Department Order No. F. 3 (1) Karmik/a-III/85, dated 17. 10. 86 and in exercise of the powers conferred by sub-rule (1) of Rule 15 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958, the Government hereby empower all Heads of Offices to impose penalties upto the stoppage of two grade increments (without cumulative effect) in respect of the Ministerial Staff working under them. " (reproduced from CCA Rules Book published by Sachivalaya Sandesh Cooperative Society Ltd. Secretariat, Jaipur p. 124 ). In this view of the matter, once it stands established that the Superintendent of Police, Sikar being head of his office in the district Police was empowered by the State Government under aforequoted circulars to impose penalties upto the stoppage of two grade increments (without cumulative effect) in respect of the Ministerial Staff working under them, then legally the S. P. was not competent so also having no jurisdiction to impose penalty of dismissal from service in respect of the petitioner who admittedly being a constable was Ministerial Staff working under the S. P. Therefore, the order of punishment of dismissal from service in case of the petitioner is illegal and without jurisdiction having been passed without any authority under CCA Rules and thereby such a penalty order deserves to be set aside.
(3.) NEXT plunk of attack as to the validity of the impugned orders of punishment, as vociferously contended by learned counsel for the petitioner is that the impugned orders require judicial review on manifold reasons inter alia that not only the inquiry but also its report has been in utter disregard of principles of natural justice and in violation of the CCA Rules, because the inquiry itself was conducted ex parte and no intimation of the date of inquiry proceedings was ever communicated nor any notice thereof was served, which has resulted in depriving of the petitioner of his valuable right of cross-examination to the departmental witnesses. The inquiry record of the impugned charge sheet given to the petitioner was produced during the course of hearing by the respondents. From this record, I find that charge sheet alongwith allegation of charges so also a list of departmental witnesses and documents was served on the petitioner on 24. 8. 91. After the inquiry officer (Addl. SP Sikar) was appointed, it was found that the petitioner did not present himself before him so, the inquiry officer sent a notice D-431 on 15. 2. 92 for his appearance on 19. 2. 92 to the petitioner and as per service report submitted by Mehtab Hussain Constable No. 341 Addl. SP Office Sikar, the petitioner was reported to have been not found at his address and on 12. 2. 92 & 13. 2. 92 he was alleged to be there in Sikar and then went to his village. Thereupon notice No. 447 dated 18. 2. 92 was sent to the petitioner for his appearance on 22. 2. 92 alongwith application for appointing his defence counsel (it should have been defence nominee) with consent and this notice dated 18. 2. 92 was got allegedly served on 20. 2. 92 on the petitioner. But again he did not appear on 22. 2. 92 pursuant to the said notice. Again notice was sent for service upon him vide letter No. 483 dated 24. 2. 92 again with same message for his alleged absence during inquiry proceedings on previous date 22. 2. 92 but for his appearance on 28. 2. 92 alongwith consent of his defence nominee and this notice was sent through special messanger Mehtab Hussain who further reported as to having not found him either at his address to also in the office, rather at the back of notice dated 24. 2. 92 it has been reported by Head Mohrir C. P. Reserve Police Line, Jaipur City that the petitioner on his transfer had joined on 4. 1. 92 but thereafter from 7. 1. 92 he has been absent at his own will. Again at the village address of the petitioner, he was informed through SHO PS Khandela (Sikar) for his appearance before the inquiry officer on 4. 3. 92 and this wireless message through SHO was got served on the petitioner on 2. 3. 92, wherein it was also stated that the petitioner should appear alongwith consent of his defence nominee and the ex parte proceedings had already been ordered. ;