- (1.) In this application the petitioner has prayed for quashing of the order dated 04.04.2011 passed by the respondent no. 5 whereby and whereunder the petitioner pursuant to a departmental proceeding has been dismissed from service. A further prayer has been made for quashing the letter dated 12.02.2013 by which the appeal preferred by the petitioner had been rejected on the ground of limitation. The petitioner has also prayed for quashing of the order dated 30.08.2013 passed by the respondent no. 3 by which the second appeal preferred by the petitioner was also rejected.
(2.) The facts in brief is that when the petitioner was posted as Hawaldar at Markacho Police Station a First Information Report was instituted on 04.06.2010 against the petitioner under Section 377 of the Indian Penal Code. Pursuant to the institution of the First Information Report the petitioner was taken into custody on 04.06.2010 itself and on 05.06.2010 he was put under suspension. A charge-sheet was served upon the petitioner on 25.06.2010 when the petitioner was already in custody. On 16.11.2010 a show cause was issued by the enquiry officer upon the petitioner for his reply failing which the enquiry shall be done ex parte to which the petitioner has given a detailed reply on 18.12.2010. Subsequently, after submission of the enquiry report a notice was served upon the petitioner vide letter dated 15.02.2011 as to why the petitioner shall not be dismissed from service. Thereafter, vide letter dated 04.04.2011 the impugned order of dismissal was passed against the petitioner by the respondent no. 5. The petitioner had preferred an appeal but the same was rejected on the ground of limitation on 12.02.2013 and, thereafter, the petitioner had preferred a second appeal for reconsideration of his case which was also rejected on 30.08.2013.
(3.) Heard Mr. Mr. Saurav Arun, learned counsel appearing for the petitioner and Mr. Vaibhav Kumar, learned J. C. to A.G. It has been submitted by the learned counsel for the petitioner with respect to the same set of charge a criminal case was also instituted being Markacho P.S. Case No. 51 of 2010 in which although the petitioner was convicted but subsequently his appeal was allowed. It has been submitted that since benefit of doubt has been given to the petitioner and since on account of the same set of charges the petitioner was also proceeded departmentally the petitioner deserves to be reinstated in service on the basis of his acquittal in the criminal case. It has also been submitted that the petitioner could not attend the departmental proceeding diligently as the petitioner was for most of the time in custody and the enquiry report is based on hearsay evidence. It has also been submitted that since the victim himself has stated otherwise in course of trial which strikes the very foundation of the criminal case as well as the departmental proceeding the respondents could not have passed an order of dismissal against the petitioner, more so in view of his acquittal in the criminal trial. Mr. Vaibhav Kumar, learned J. C. to A.G., has submitted that the petitioner at no point of time had taken a plea to keep the departmental proceeding pending awaiting the conclusion of the criminal case and in such circumstance, therefore, it cannot be said that any prejudice has been caused to the petitioner in both the proceedings which had continued simultaneously. Learned counsel further submits that the petitioner was convicted by the learned trial court but although in appeal he has been acquitted but such acquittal cannot be termed to be a clean acquittal. Learned counsel also submits that the departmental proceeding as well as the criminal trial are separate proceeding and although in criminal trial a higher degree of proof is required but the departmental proceeding depends upon the preponderance of probabilities and having considered the entire aspect the enquiry office had found the charge proved against the petitioner which subsequently led to passing an order dated 04.04.2011 dismissing the petitioner from service.;