CWP 12667/09 1 In the High Court of Judicature for Rajasthan Jaipur Bench, Jaipur. ** Civil Writ Petition No. 12667/09 Tara Chand Khatik Vs. State & ors.. Date of Order ::: 07/10/09 Hon'ble Mr. Justice Ajay Rastogi Mr. Banwari Sharma, for petitioner Instant writ petition has been filed by the petitioner assailing the order of penalty of censure which has been finally inflicted upon him while holding him guilty by the appellate authority vide order dated 17/01/2005 (Anx.5) and the review petition preferred by him was also dismissed on 24/02/2009. The petitioner, while working as Station House Officer (Inspector), Police Station, Sadar, District Sikar in the year 2002, was a investigating officer in Case NO. 160/2002, which was registered under Section 302 IPC. After regular trial, the accused was acquitted by the competent court of jurisdiction vide judgment dated 06th March, 2003 and the learned trial Judge in its judgment observed that since the investigating officer has failed to discharge his duties with due diligence, the accused could not be booked. However, lateron against the order of acquittal the prosecution preferred an appeal in this Court which, has CWP 12667/09 2 been admitted and after forfeiting his bail bonds, the accused has been arrested and he is in judicial custody. But at the same time, in regard to the investigation made by the petitioner and also in view of observations made by the learned trial Judge recorded in its judgment, a memorandum under Rule 17 of the Rajasthan Civil Services (CCA) Rules, 1958 was served on 17/11/2003 and in all three charges were levelled against him and the disciplinary authority found charges no.1 and 3, which are in relation to nature of investigation undertaken by the petitioner, proved and punished him with the penalty of stoppage of one annual grade increment without cumulative effect vide order dated 05/04/2004 (Anx.3) against which the petitioner preferred an appeal. The appellate authority, while holding him guilty in regard to the charges No. 1 and 3, took a lenient view and converted the penalty of stoppage of one annual grade increment without cumulative effect to a penalty of censure vide order dated 17/01/2005 (Anx.5) against which he preferred a review petition which too has been dismissed by a detailed order on 24/02/2009. Counsel for petitioner submits that once the appeal preferred by the prosecution against acquittal has been admitted by this Court and the CWP 12667/09 3 bail bonds of the accused have been forfeited and he is in judicial custody, it cannot be inferred at this stage by the disciplinary authority that there was any lacunae in the investigation undertaken by the petitioner, particularly when the matter is sub-judice before the Court. Counsel further submits that even if the allegations, if taken at their face value that the petitioner has not undertaken the investigation with due diligence, that can not construe as misconduct for which he can be charge sheeted and punished under the Rules of 1958. Counsel further submits that he has been punished with the penalty of censure but on account of the nature of penalty inflicted upon him, he will be deprived of his consideration for further promotion to which he is otherwise entitled to be considered under law. In the opinion of this Court, the submissions made in regard to assailing order of penalty are not sustainable and merely because the appeal is pending in this Court, that cannot in any manner absolve the petitioner with regard to the investigation undertaken by him which has been examined by the disciplinary authority after serving him memo and taking note of his representation/reply submitted thereto and after affording opportunity of hearing found him CWP 12667/09 4 guilty. So far as submission that the act of the petitioner cannot be considered to be misconduct under the Rules of 1971 is concerned, suffice it to say that if the petitioner fails to discharge his duties with due diligence or he was negligent in discharge of his duties, that tantamounts to misconduct under the Conduct Rules 1971 and certainly can be charge sheeted for the alleged misconduct which he has committed. So far as the instant case is concerned, the disciplinary authority found charges No. 1 and 3 proved against the petitioner which are directly concerned with the manner of investigation undertaken by him as an investigating officer on account of which the accused could not be finally booked and disciplinary authority took its independent decision by initiating departmental action against the petitioner. So far as the submission made with regard to his consideration for further promotion is concerned, the record of service is looked into by the Committee while the incumbent is considered for promotion and if he has been inflicted with the penalty of censure, that being a part of the record, the DPC is supposed to consider him on the basis of record of his service but there cannot be a straightway CWP 12667/09 5 elimination of the incumbent from consideration merely because he has been punished with a penalty during the period which is under consideration and it is always expected from the departmental authorities to consider such an incumbent if he is otherwise eligible for promotion. This Court finds no substance in the writ petition and it is accordingly dismissed. (Ajay Rastogi), J. Raghu/12667-cw-2009-final.doc CWP 12667/09 6