PERMOD KOHLI,J. - (1.) ORDER dated 15th of December, 2005 passed in WP (S) No. 6069 of 2005 by a learned Single Judge of this Court dismissing the writ petition of the appellant against the order of dismissal dated 28th of July, 2005 has been challenged in the present appeal.
(2.) BRIEFLY stated facts leading to the filing of the present appeal are that appellant was served with the Memo of charge dated 16th November, 2004 containing the following three charges: 1. He was an accused in Lohardaga P.S. Case No. 139 of 2002 registered under Sections 376 and 302, IPC. 2. Appellant deliberately concealed dead body after committing rape and falsely implicated other person due to enmity. In the aforesaid criminal case he remained in jail from 18,1.2001 to 27.1.2001. 3. Appellant filed a detailed reply thereto objecting to holding of enquiry in regard to the charges mentioned in the memo of the charge on the ground that he is being tried for the aforesaid charges in a criminal Court on the basis of an FIR No. 139 of 1992 dated 30th of August, 1992, for the offences under Section 376 and 302 IPC and prayed for deference of the disciplinary proceedings till the conclusion of the trial. He also denied the substance of the allegations against him. The Department, however, proceeded to hold an enquiry, which was concluded and an enquiry report No. 21 of 2004 was issued, holding the appellant guilty of the charges against him. Based upon the Enquiry Report, order dated 28th of July, 2005 came to be passed dismissing the appellant from service. This order was challenged before the appellate authority who confirmed the same vide order dated 23rd September, 2005 WP (S) No. 6069 of 2005 was filed challenging the dismissal. Writ Court dismissed the writ petition on the grounds that the charges against the appellant (petitioner) were enquired into and prove in the departmental proceedings and the disciplinary authority being satisfied with the proved charges, dismissed the appellant (petitioner) and the dismissed order having been confirmed in appeal, no interference is required considering the gravity of the charges.
(3.) WE have heard the learned Counsel for the parties and perused the order impugned in the writ petition. We failed to understand, how the allegations as contained in the memo of charge can constitute a misconduct under Service jurisprudence. Three charges against the appellant relate to (i) registration of a criminal FIR against him (ii) allegations as contained in the FIR/charge -sheet produced in the criminal Court and (iii) the fact of the appellant remaining in jail. The registration of FIR and the appellant remaining in jail on being arrested on the criminal charge do not per se constitute any misconduct. In so far the allegations of commission of offence of rape and murder are concerned, the same are being enquired into in regular criminal trial for which a charge -sheet has been filed in the criminal Court and a competent criminal Court is yet to return its findings based upon evidence. The disciplinary authority unfortunately recorded the statement of a Police Officer, who produced some documents regarding the registration of a criminal case against the appellant and based upon this material, appellant has been dismissed from service. Though apparently an enquiry has been held against the appellant by serving a charge -sheet and soliciting his reply thereto but entire proceedings appears to be misdirected. The charge against the appellant for commission of a criminal offence is yet to be established in a competent Court of law. Without there being a verdict from the competent Court, appellant has been dismissed from service. There is no charge against him for dereliction of duty. The charges are of commission of criminal offences unrelated to the service. A distinction has to be made between a charge which constitute a criminal offence as also misconduct and the one which is simplicitor a criminal offence if proved. In the first category criminal as well as disciplinary proceedings can be initiated but in the later case action against the employees is permissible only on conviction by the competent criminal Court. Case of the appellant falls in 2nd category. No disciplinary proceedings can be initiated on the basis of such charges.;