BHANDARI, J. - (1.) BY this writ petition, petitioner has challenged the order dated 9. 11. 2004 (Annexure-6) whereby petitioner was published with the punishment of withholding of 20% pension for a period of five years. A further challenge has been made to the order dated 26. 2. 2003 (Annexure 4) whereby the disciplinary authority disagreed with the enquiry report.
(2.) THE petitioner- Jeevan Ram Jeenagar died during the pendency of this writ petition and his legal heirs have already been taken on record, therefore, original petitioner-Jeevan Ram Jeenagar would hereinafter be referred to as `the petitioner. ' It is contended that petitioner while working as District Educational Officer was served with a charge-sheet dated 19. 8. 1999 under Rule 16 of the Rajasthan Civil Services (C. C. A.) Rules, 1958 (hereinafter referred to as `the Rules of 1958', for short ). The petitioner denied all the charges levelled against him and stated that the charges were framed and FIR was lodged on account of personal bias of Musammat Sultana Syed, who was a lady teacher and was not accommodated for her transfer. The petitioner was due for retirement on 31. 12. 2001, thus respondents passed an order dated 28. 12. 2001 with intention to remove petitioner from services. However, in view of the challenge to the said order by maintaining a writ petition bearing S. B. Civil Writ Petition No. 266/2002, and an interim order passed, petitioner could not be removed though petitioner was directed to participate in the departmental enquiry. The petitioner was in the meantime acquitted from the criminal case vide order dated 4. 2. 2002 pursuant to the settlement/compromise between the parties. The order of compromise was recorded by the High Court on an appeal preferred by petitioner otherwise petitioner was sentenced with one year simple imprisonment and a fine of Rs. 1,000/ -. In the departmental enquiry, charges against the petitioner were not found proved, however, petitioner was served with a notice dated 26. 2. 2003 regarding disagreement of finding. Petitioner gave a detailed reply to the notice, but then after considering the reply submitted by petition, order of punishment was passed. It is stated that petitioner having been acquitted from the criminal case deserves to be exonerated in the departmental enquiry, but petitioner was erroneously punished vide the impugned order. Learned counsel for the petitioner submits that as per the provisions of Rajasthan Civil Services (Pension) Rules, 1996 (for short `the Rules of 1996'), it is the Governor, who reserves the right of withholding or withdrawing of pension or part thereof. Rule 7 of the Rules of 1996 provides the procedure along with a provision that the final order has to be issued in the name of Governor. However, in the present matter, the order was issued under the Rajasthan Civil Services (CCA) Rules, 1958 (for short `the Rules of 1958') though petitioner had already retire in the meantime, thus no order could have been passed under the Rules 1958. It is also urged that as per Rule 7 of the Rules of 1996, respondents are required to follow the principles of natural justice and in that respect, an order for proposed punishment of withholding or withdrawing the pension has to be given, but in the present matter, respondents failed to undertake such an exercise. According to learned counsel for petition, since no notice for proposed punishment was given, thus also the impugned order deserves to be quashed and set aside. It is further contended that now it is a settled law that if an employee has been acquitted from a criminal case, then he cannot be punished pursuant to the departmental enquiry based on same allegation and material, apart from the fact that even the disagreement recorded by the disciplinary authority against the finding of the enquiry officer is not proper. In fact, on merit no case is made out. Learned counsel for petitioner made reference of judgments of the Hon'ble Apex Court in the case of Jasbeer Singh vs. Punjab & Sind Bank & Ors. reported in 2007 (1) SCC 566 and in the case of G. M. Tank vs. State of Gujarat reported in 2006 (5) SCC 466 = 2006 (3) RLW 2480 (SC) and Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. reported in 1999 (3) SCC 679 to show that once an employee is acquitted from the criminal charges, then he could not be punished in the departmental enquiry. Learned counsel for respondents, on the other hand, submits that petitioner while working as District Education Officer called Musammat Sultana Syed in a hotel room and tried to commit rape on her. Thus, an FIR was lodged under Sections 342, 376 and 511 of IPC and petitioner was arrested therein and remained in judicial custody. The petitioner was immediately charge-sheeted for the misconduct and on submission of explanation, when it was not found satisfactory, a detailed enquiry was conducted. In the meantime, the petitioner was convicted with sentence of one year simple imprisonment and a fine of Rs. 1,000/ -. The learned Court recorded finding of guilt of the petitioner and so far as acquittal of petitioner is concerned, it was based on compromise and not on merit so as to show that the charges against petitioner were not made out. Even it was stated latter on by Musammat Sultana Syed herself that she had accepted the compromise under pressure of her husband and relatives.
(3.) THE enquiry officer in the enquiry did not fine charges to be proved, however, looking to the material available on record, disciplinary authority gave a notice to petitioner regarding disagreement and thereupon after discussing the material available on record, a detailed order was passed holding the charges to be proved. It is contended that the charges against petitioner are quite serious in nature, inasmuch as, a lady teacher working in the school was not only called in the hotel room by the petitioner and was then alleged to have been committee rape. Thus, punishment of stoppage of 20% pension is nothing but a lenient view taken by the respondents. Learned counsel for respondents submits that so far as the order passed in the present case is concerned, it has been passed in reference to Rule 7 of the Rules of 1996. So far as reference of Rules of 1958 is concerned, that is in respect of only initiation of the enquiry as originally charge-sheet was issued under Rule 16 of the Rules of 1996. Thus, it is wrong to contend that petitioner is being punished under the Rules of 1958 by the impugned order. So far as compliance of Rule 7 of the Rules of 1996 is concerned, same has been allowed, inasmuch as, after submission of enquiry report and issuance of the notice for disagreement, entire matter was placed before the Governor and after taking consultation from Rajasthan Public Service Commission (for short `rpsc'), the order was passed. Rule 7 does not provide that a notice for proposed punishment has to be given before passed the order of punishment and the Government's decision quoted in Para 10 is not a statutory provision and otherwise is not in conformity with the rules. Coming to the other aspect in reference to the judgment of the Hon'ble Apex Court on the issue that if an employee is acquitted in a criminal case pertaining to charge, which is also a matter of disciplinary authority, the order of punishment should not be passed based on departmental enquiry. It is urged that in the present matter, the statements of the witnesses in the criminal case and in the departmental enquiry are not exactly the same and otherwise fact remains that even in the criminal case, finding so recorded after considering the evidence, was against the petitioner and thereby he was convicted with one year simple imprisonment and fine of Rs. 1,000/ -. Subsequently, the compromise cannot wash out the proof of guilt already recorded and to affect the departmental enquiry. The acquittal based on compromise cannot wash off the finding recorded in the disciplinary action and thereupon the judgment of the Hon'ble Apex Court in the case of Jasbeer Singh vs. Punjab & Sind Bank & Ors. reported in 2007 (1) SCC 566 and in the case of G. M. Tank vs. State of Gujarat reported in 2006 (5) SCC 466 (supra) and Capt. M. Paul Anthony vs. Bharat Gold Mines Ltd. reported in 1999 (3) SCC 679 (supra) cannot be applied to the present matter. Reference of judgment of the Hon'ble Apex Court otherwise on the issue has also been given of the case of T. N. C. S. Corporation Ltd. & Ors. vs. K. Meerabai reported in 2006 (2) SCC 255 and State of Raj. vs. B. K. Meena & Ors. reported in 1996 SCC (L & S) 1455 = RLW 1997 (1) SC 1, Krishnakali Tea Estate vs. Akhil Bhartiya Chah Mazdoor Sang & Ors. reported in 2004 (8) SCC 200 to support the argument of the respondents. Coming to the merit of the case, it is urged that the disciplinary authority had recorded a finding of fact, which cannot be made as a subject matter of appreciation by this Court while exercising jurisdiction under Article 226 of the Constitution of India. It is stated that petitioner working on the post of District Education Officer could not explain as to why he called Musammat Sultana Syed in the hotel room. Looking to this fact, it is submitted that petitioner's act is such that he is rightly being punished with the punishment by the impugned order. Thus, it is prayed that petitioner has rightly been denied benefit of pension to the extent of 20% for a period of five years. ;