Mohammad Rafiq, J. - (1.) THIS writ petition has been preferred by petitioner Hari Mohan challenging the order dt. 10.5.1994 (Ann.1) by which he has been awarded penalty of stoppage of two annual grade increments with cumulative effect and forfeiture of the salary for the period of suspension i.e. from 16.12.1991 to 16.5.1992 except the subsistence allowance already to him, the order dt. 18.8.1994 (Ann.2) by which his appeal filed against the aforesaid order dt. 10.5.1994 (Ann.1) was dismissed and the order dt. 4.8.1997 (Ann.3) by which review petition filed by the petitioner has been dismissed. Facts of the case are that a joint charge -sheet under Rule 18 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short, the "Rules of 1958") was served upon petitioner -Hari Mohan and co -delinquent Bijendra Singh alleging that petitioner along with co -delinquent Bijendra Singh, while they were on duty of Vehicle No. RNG 3236 Chetak No. 4 on 15.12.1991 as a Driver in Police Stations Mansarovar and Sodala, took the vehicle for the private work to Rajasthan Police Academy, Nehru Nagar, Jaipur, Where the vehicle met with an accident and got damaged. Charge against them was that this act of theirs proved their negligence and dereliction of duties. Petitioner submitted reply to the charge -sheet denying the charges. He even denied the fact he was deputed on duty on the said vehicle. It was submitted that the documents do not prove that both were simultaneously given duty on the same vehicle. At the time of accident also, petitioner was not present. Department examined 10 witnesses and exhibited 6 documents. The enquiry officer in his enquiry report proved all the charges against both of them.
(2.) THE disciplinary authority on that basis awarded penalty of stoppage of two annual grade increments with cumulative effect vide order dt 20.3.1993. Petitioner preferred departmental appeal, which was allowed by the appellate authority vide order dt. 17.7.1993 and remanded the matter back to the disciplinary authority with the directions to supply the findings of the enquiry officer and then to afford an opportunity of hearing to the petitioner. In compliance of the order of the appellate authority dt. 17.7.1993, the enquiry officer furnished copy of the enquiry report to the petitioner and asked him to submit his explanation. Petitioner submitted reply. The disciplinary authority passed the fresh order of penalty on 10.5.1994 (Ann.2) again reiterating the same punishment of withholding of two annual grade increments with cumulative effect and forfeiture of the salary for the period of suspension i.e. from 16.12.1991 to 16.5.1992 except the subsistence allowance already to him. Petitioner filed departmental appeal before the Deputy Inspector General of Police, Jaipur Range, Jaipur, who dismissed the same vide order dt. 18.8.1994 (Ann.3). Petitioner filed review petition against the order dt. 18.8.1994 before His Excellency, the Governor of Rajasthan, who too dismissed the review petition vide order dt. 4.8.1997 (Ann.3). Boarding the incident, a first information was also ledged against both of them Lying FIR No. 384/1991 at Police Station Banipark, Jaipur for offence u/Ss. 279 and 337 IPC. However, after investigation, the police filed a negative final report in the Court holding petitioner not responsible for the rash and negligent driving. The Court accepted the final report. Mrs. Anupama Chaturvedi, learned counsel for the petitioner has argued that the enquiry officer has committed serious illegality in holding the petitioner guilty on the basis of statement of Bijendra Singh, who was also co -delinquent facing the same enquiry. It is well settled principle of law that statements of one accused cannot be used against another accused. This is so because the petitioner was not given opportunity to cross examine Bijendra Singh. Learned counsel further argued that in terms of Section 30 of the Indian Evidence Act, 1872, when more person than one are being tried jointly for the same offence and a confession made by one of such person, affecting himself and some other of such person is proved, the Court cannot take into consideration such confession as against such other person. In the present case, Bijendra Singh has tried to save his skin and made an attempt to shift the entire guilt upon petitioner. Thus, his statement cannot be used against petitioner. Otherwise also, police filed negative final report in a criminal case registered against petitioner, which was accepted by the Court. It is argued Rule 12 of the Rules of 1958 provides that all appointments to the subordinate and ministerial services shall be made by Head of the Department or by any authority specially empowered by the Head of the Department with the approval of the Government on that behalf. The Superintendent of Police in the instant case is not an appointing authority and hence was not competent to impose penalty, therefore, the punishment awarded is without jurisdiction.
(3.) IT is further argued that power to appoint includes the power to suspend and dismiss also vide Section 16 of the General Clauses Act, 1897 and Article 311(1) of the Constitution prohibits the dismissal or removal by an authority subordinate to the Appointing Authority. Counsel argued that as per Rapat Rojnamcha No. 141 of Police Line on 15.12.1991 at 7.10 pm., there was duty of co -delinquent Bijendra Singh, Constable at Vehicle No. RNG -3236. As per another Report No. 1195 at 8.00 pm. of the same day, it is proved that Bijendra Singh, Constable was performing the duty of Driver on the said vehicle and this fact has been proved from the documents of the department itself viz. Exh.P -2 and Exh.P -4. Not only this, Sayar Singh, Sub Inspector has also proved by stating that co -delinquent Bijendra Singh was driver on the said vehicle. The charge alleged against petitioner is thus not made out and consequently, the penalty imposed upon petitioner on the basis of said charge cannot be sustained. Learned counsel for the petitioner in support of her arguments has placed reliance upon the judgments of this Court in Rameshwar Lal v. State of Rajasthan,, WLN 1992(5) Raj. 521 and Hanuman Singh v. State of Rajasthan, : 1998 (3) WLC 235.;