RAJENDRA SAXENA, J. - (1.) THIS writ petition filed under Article 226 of the Constitution of India seeks to quash the order dated 8. 7. 1986 (Ex. 9) passed by the Dy. Inspector General of Police, Range, Jodhpur (respondent No. 2), whereby petitioner's appeal was dismissed and the order of the District Superintendent of Police, Jodhpur, dated 30. 4. 1986 (Ex. 7) inflicting penalty of removal from service & forfeiting all the remaining pay of the suspension period of the petitioner, was upheld, pursuant to a disciplinary enquiry held against him.
(2.) BRIEFLY the relevant facts are that on 20. 10. 1973 petitioner was appointed as a constable by the Superintendent of Police, Jodhpur (respondent No. 3) and that on the day of alleged incident he was posted as constable at the police out-post, Sojati Gate of Police Station, Sadar Bazar, Jodhpur. It is alleged that on 2. 11. 1985, the petitioner, who was on patrolling duty in his beat near Bata Company, Jodhpur accompanied Bhagirath, Constable No. 1048 and went to Ghasmandi. There they illegally and forcibly detained one Tulcha Ram son of Rugha Ram Sirvi resident of Devli, and snatched away Rs. 580/ from him. Tulcha Ram complained of the said incident to the Superintendent of Police, and thereupon Circle Officer, City (East), conducted an identification test parade on the same day of the police constables of Sojati Gate, Merti Gate out posts and those of police Station, Sadar Bazar. It is alleged that complainant Tulcha Ram identified petitioner Bagda Ram & constable Bhagirath. Constable Bhagirath admitted his guilt and returned Rs. 580/- to the complainant. Shri Onkar Singh, Circle Officer, City (East), Jodhpur, thereafter submitted a written report to the Superintendent of Police, whereon Crime No. 111/85 under section 392 I. P. C. was registered at Police Station, Sadar Bazar, Jodhpur against both constables vide F. I. R. No. Ex. P- 4. However, after investigation a charge-sheet was filed against Bhagirath only and the petitioner was released under section 169 Cr. P. C. The petitioner was suspended and a disciplinary enquiry under Rule 16 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (hereinafter referred to as Rules, 1958) was initiated against him. He was served with a memorandum dated 15. 11. 1985 (Ex. 1), charge-sheet (Ex. 2) and statement of allegations (Ex. 3) for the alleged mis-conduct of gross remiss, indiscipline, dereliction in discharge of his duties and carelessness. The petitioner categorically denied the charges levelled against him vide his written statement of defence dated 29. 11. 1985. The Superintendent of Police by his order dated 15. 2. 1986 ordered to hold a regular enquiry against the petitioner and Bhagirath Ram and appointed the Circle Officer (Rural), Jodhpur as an Enquiry Officer. In the said enquiry, the Department examined P. W. 1 Tulcha Ram, complainant, P. W. 2 Onkar Singh, Dy. S. P. and P. W. 3 Pooran Singh, A. S. I. In defence, the petitioner produced D. W. 1 Navin Kumar & D. W. 2 Ashok Kumar. After discussing, analysing and evaluating the evidence, the Enquiry Officer held that from the statements of prosecution witnesses it was neither proved that the petitioner had snatched Rs. 580/- from Tulcha Ram, nor established that he had kept the said amount with him. He further held that even during the enquiry, the petitioner was not identified. He further held that as per statement of P. W. 2 - Onkar Singh, Dy. S. P. at the time of alleged incident no role whatsoever was played by the petitioner. He, therefore, by his report dated 30-4. 1986 (Ex. 6) held that the charges levelled against the petitioner were not proved. However, the Superintendent of Police, after receipt of the enquiry report, without recording a statement of his finding together with brief reasons for disagreement with the findings of the Enquiry Officer, by his order dated 30. 4. 1986 (Ex. 7) held the petitioner guilty and inflicted a penalty of removal from service. He also forfeited the remaining pay and other allowance of the petitioner. Aggrieved by the said order, the petitioner filed an appeal to the D. I. G. , Police Range, Jodhpur under Rule 23 of Rules, 1958, who by his order dated 8. 7. 1986 (Ex. 9) dismissed the appeal. Hence, this writ petition. I have heard the learned counsel for the petitioner and the learned Addl. Government Advocate at length and perused the relevant reeord in extenso. The learned Additional Government Advocate has raised a preliminary objection that since petitioner did not avail the alternate remedy of filing a review against the order of D. I G. , this writ petition is not maintainable. It is true that a review petition could have been filed under Rule 32 of Rules, 1958, but it can not be said that it was an alternative efficacious remedy. In V. Bela Swami vs. Inspector General of Police (Tamil Nadu) (1), it has been held that a writ petition can not be dismissed only on the ground of existence of alternate remedy i. e. review petition and that such remedy does not dis-entitle a petitioner to move to High Court under Art. 226 of the Constitution of India. In the instant case, the respondent No. 2 had already dismissed the appeal of the petitioner and upheld the order of respondent No. 3 removing him from service and forfeiting his pay and allowances. Therefore, in my considered opinion no alternate efficacious remedy was available to the petitioner by filing a review petition, whose dismissal was a fate accompili. Therefore, the preliminary objection raised by the learned Addl. Government Advocate cannot be sustained and the same is hereby over-ruled. The learned counsel for the petitioner has strenuously contended that the charge-sheet and statement of allegations Ex. 2 & Ex. 3 respectively were vague, indefinite and devoid of particulars in as much as it was not disclosed as to who was that constable, who in fact had snatched away the money from Tulcha Ram or whether the said amount was looted away jointly by the petitioner & Bhagirath Ram and as to what was the specific overt act or role of the petitioner during the alleged incident. It is further argued that not a single witness had deposed against the petitioner, and that the Enquiry Officer had also categorically exonerated the petitioner of the charges levelled against him, but still then the respondent No. 3 without disagreeing with the findings of the Enquiry Officer and without giving reasons thereof found the petitioner guilty of the charges levelled against him. According to Shri Shishodia the Disciplinary Authority did not care to record his finding on each charge and without applying his mind objectively and thus committed an illegality in holding the petitioner guilty and inflicting the penalty of removal and forfeituring of pay and allowance, which is grossly disproportionate. He has submitted that the Disciplinary Authority also did not supply the report of the Enquiry Officer to the petitioner, which has caused a serious prejudice to him. He has contended that the respondent No. 2 also committed an illegality in rejecting petitioner's appeal, because he specifically held that although the charge of extortion of money was not proved against the petitioner, but gave an altogether different finding that since at the time of alleged incident, the petitioner was with constable Bhagiraih Ram and that he did not report the said incident to his superior police officer, he committed a mis-conduct of dereliction in discharge of his duties. Thus, the D. I. G. levelled a new allegation against the petitioner without framing any charge and remanding the case even without affording an opportunity to the petitioner for rebutting such charge.
(3.) THE learned Addl. Government Advocate has submitted that though complainant Tulcha Ram has turned hostile still then the presence of the petitioner at the time of the alleged incident was established, which proves that the petitioner left his duties and committed a mis-conduct of dereliction in discharge of his duties. He has asserted that the petitioner was also negligent in discharge of his duties in not reporting the said incident to his superiors. I have given my earnest consideration to the rival contentions. A careful perusal of the charge-sheet (EX. 2) and statement of allegation (Ex. 3) reveals that it has not been stated therein that as to who was the constable, who had in fact snatched/exorted the money from Tulcha Ram-complainant. The charge levelled against the petitioner is that he left his beat and accompanied constable-Bhagirath Ram to Ghasmandi. In Ex. 2 & Ex. 3, it has also not been clearly stated as to which of the constables had admitted his guilt and returned Rs. 580/ -. There is also no allegation in the charge-sheet and in the statement of allegations that the petitioner had been negligent in his duties or had shown dereliction in discharge of his duties in not reporting the said incident to his superior police officer. Thus, the charge as well as the statement of allegations are conspicuously silent about the said mis-conduct and those are clearly vague, indefinite and devoid of material particulars regarding the alleged misconduct for which the petitioner has been found guilty. The report of the Enquiry Officer dated 30. 4. 86 (Ex. 6) reveals that a joint departmental enquiry under Rule 16 of Rules, 1958 was conducted by him against the petitioner and constable-Bhagirath Ram, but no order as required under Rule 18 of the Rules, 1958 was passed, which has caused substantial prejudice to the petitioner. ;