VYAS, J. - (1.) BY this writ petition, the petitioner has challenged order dated 23. 02. 1994 passed by the Superintendent of Police, Churu whereby the petitioner was dismissed from service from the post of Constable in the Police Department as well as enquiry report dated 30. 01. 1993 of the Enquiry Officer (Dy. S. P. , Churu) and so also order passed by the appellate authority, Deputy Inspector General of Police, Bikaner Range, Bikaner dated 14. 03. 1995 and the order passed by the Reviewing Authority dated 19. 02. 1996 whereby the order of termination passed by the Superintendent of Police, Churu was upheld.
(2.) ACCORDING to the facts narrated in the petition, the petitioner was substantively working on the post of Constable in the Police Department. Initially he was appointed on 01. 01. 1985. It is indicated in the petition that the petitioner along with two other persons was charged for theft under Sections 379 and 411, I. P. C. and an FIR was lodged bearing No. 89/1991 on 25. 05. 1991 at the Police Station Sri Dungargarh (Churu District ). In that FIR, the police submitted FR after investigation on the ground of limitation of jurisdiction of Police Station Shri Dungargarh. Thereafter, for the same allegation, another FIR was registered at Police Station Doodhwa Khara on 29. 05. 1991. In that FIR, investigation was conducted and, thereafter, challan was filed by the police against the petitioner and two other persons for offence under Section 420, I. P. C. in the Court of Chief Judl. Magistrate, Churu. In connection with that FIR, the petitioner was kept in police custody for 10 days and then he was released on bail. After trial, vide judgment dated 25. 05. 1995, the learned Chief Judl. Magistrate, Churu acquitted the petitioner along with two other persons from the charges levelled against them. The said judgment is placed on record as Annex.-3. As per the allegations in the FIR, one Danaram (P. W.-5) alleged that the petitioner played fraud upon him by taking away his camel from the custody of Bachchan Singh impressing upon Bachchan Singh that the camel will be returned to him (Dana Ram ). At the trial, the petitioner denied all the charges levelled against him and, for adjudication, 3 questions were framed by the trial Court, namely - (i) whether or not the petitioner played fraud upon Dana Ram and conspired with two other persons viz. , Ishwar Singh and Hardev Ram to grab the camel belonging to Dana Ram; (ii) whether the petitioner alongwith others had played fraud upon Dana Ram by taking away camel from the residence of Bachchan Singh conveying to him that the same will be returned to Dana Ram; and, (iii) if it is so, for which offence the accused persons can be held liable for punishment. On both the aforesaid substantial questions, after taking into account the evidence recorded in the case, the learned Chief Judl. Magistrate, Churu acquitted the petitioner holding that the petitioner is not guilty of any of the charges levelled against him. Thus, the criminal Court for the aforesaid charges, after due trial in accordance with law, acquitted the petitioner and held that the petitioner is not guilty of any of the charges levelled against him. The said judgment was delivered by the trial Court on 29. 05. 1995 which attained finality as no appeal was filed by the State against that judgment. On the same charge which was levelled against the petitioner in the criminal Court as noted above, however, a departmental enquiry was initiated against the petitioner and, in that enquiry, the petitioner was penalized with penalty of dismissal from service. The petitioner was placed under suspension under Rule 13 of the RCS (CCA) Rules. After issuance of the charge- sheet under Rule 16 of the CCA Rules on 07. 11. 1991, the petitioner filed his detailed reply to the charge-sheet. Along with the reply, the petitioner made a representation for staying the departmental enquiry while the criminal case was pending for the same charge in the criminal Court; but, no heed was paid by the respondents and the departmental enquiry was continued simultaneously. During the course of the enquiry, 13 witnesses were examined by the Enquiry Officer and, in defence, the petitioner led evidence of 9 witnesses. After conclusion of the enquiry, the Enquiry Officer submitted the enquiry report to the Disciplinary Authority. The Disciplinary Authority issued show- cause notice on 13. 01. 1994 asking the petitioner to submit explanation to the report of the Enquiry Officer. The petitioner filed his representation against the conclusion of the enquiry report dated 30. 01. 1994 stating that he was not given reasonable opportunity in the enquiry. The petitioner also pointed out that the representations were filed for supplying documents but the grounds raised by him were turned down and finally the Disciplinary Authority imposed the penalty of dismissal from service upon the petitioner. Against the order of dismissal, the petitioner filed appeal which was dismissed by the appellate authority vide order dated 20. 12. 1994. A review petition was also filed by the petitioner which was dismissed vide order dated 19. 02. 1996. Hence the present writ petition. Learned counsel for the petitioner while challenging the aforesaid orders, submitted that once the criminal Court has acquitted the petitioner from the charges the same cannot be prosecuted by the respondents to prejudice the petitioner. It is submitted that the charge of fraud and theft levelled against the petitioner is found to be baseless after consideration of the evidence of the prosecution witnesses at the trial and the trial Court has specifically observed that the incident is totally without any evidence and there is nothing on record to establish the charge against the petitioner and others that they tried to play fraud upon Bachchan Singh. There is no evidence to establish that the petitioner had committed any act of conspiracy so as to defraud Dana Ram. The criminal Court having reached the conclusion that no offence is made out against the petitioner and others, on the same charge and upon the same set of evidence, the petitioner cannot be punished by the Department; but, in the departmental enquiry before conclusion of the criminal trial, the petitioner was punished by the Department.
(3.) LEARNED counsel for the petitioner vehemently argued that in the departmental enquiry as many as 13 witnesses were examined and, before the criminal Court also, the prosecution led evidence of the same set of witnesses. According to learned counsel for the petitioner, the evidence of the prosecution witnesses recorded at the trial completely failed to establish the charge against the petitioner that any fraud was at all committed by the petitioner; then, it is clear that concocted and false story was coined up for implicating the petitioner and the petitioner has been charge-sheeted by the Department merely on the ground that after investigation in the FIR filed by Dana Ram on 29. 05. 1991 the police have filed challan and in the investigation it has come out that the petitioner has committed offence of fraud. On that basis, the petitioner was arrested and challan was filed. It is argued by learned counsel for the petitioner that the charge levelled against the petitioner in the charge-sheet issued under Rule 16 of the CCA Rules cannot be termed as misconduct unless it is proved before the trial Court in the criminal case. Mere filing of the challan against a State employee does not constitute misconduct so as to warrant disciplinary action, therefore, in the face of the finding recorded by the trial Court, the termination order passed by the Disciplinary Authority, Superintendent of Police before conclusion of the criminal trial vide order dated 23. 02. 1994 deserves to be quashed. In support of his submission, learned counsel for the petitioner placed reliance upon the judgment of this Court passed in S. B. Civil Writ Petition No. 669/1989, Kalu Ram vs. State & Another, decided on 21. 09. 1989. Learned counsel for the petitioner also placed reliance upon the judgment of the Supreme Court reported in (2006) 5 SCC 446 = (2006 (3) RLW 2480 (SC), G. M. Tank vs. State of Gujarat & Others. Drawing strength from the aforequoted legal position, learned counsel for the petitioner submitted that though the order inflicting penalty upon the petitioner was passed prior to the judgment of the criminal Court, however, the criminal Court has acquitted the petitioner; and, during the pendency of the criminal case against the petitioner, the petitioner made representations for staying the departmental proceedings against him. It is further submitted that during the pendency of the review petition filed by the petitioner against the orders of the Disciplinary Authority and the appellate Authority, which was decided on 19. 02. 1996, the petitioner was already acquitted by the criminal Court. ;