CWP 1749/96 [1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH SB Civil Writ Petition No. 1749/1996 Heeralal Vs. State of Rajasthan & others. DATE OF ORDER : 03/11/2009 HON'BLE MR. JUSTICE AJAY RASTOGI Mr. Pradeep Singh, for petitioner. Mr. Ganesh Parihar, Deputy Govt. Counsel, for respondents *** By instant petition the petitioner has assailed the order inflicting penalty of two grade increments with cumulative effect after holding enquiry under Rule 16 of the Rajasthan Civil Services (CCA) Rules, 1958 vide order Anx. 6 dt. 17/07/1990 as also the orders by which the appeal and review preferred were also rejected assigning reasons vide order Anx. 7 dt. 06/06/1991 and Anx. 8 dt. 15/07/1995 respectively. The petitioner, while working as Constable and posted at Police Station Bheemganj Mandi, it was alleged that while he was residing in Bapu Colony, in the same colony one Prabu, pick pocketor was also residing whose house was being used for prostitution and the petitioner also used to visit. The petitioner lodged report at Police Station, Railway Colony for the alleged incident dt. 08/01/1989 wherein it was alleged that in CWP 1749/96 [2] Bapu Colony Prabhu and two three more persons were abusing after consuming liquor. On this report, two Assistant Sub Inspectors and one Constable and three persons of Home Guard alongwith petitioner reached there in a police jeep at about 9.00 PM on 08/01/1989. It was alleged by complainant that petitioner alongwith three other persons entered the house of Kamta, assaulted Kamta Prasad's wife, daughter-in-law, pulled them out of their house and dragged them in a mud while putting them into jeep. The incident took place in the presence of two Assistant Sub Inspectors. For the alleged incident, the petitioner was placed under suspension which was later on revoked pending enquiry and charge sheet under Rule 16 of the CCA Rules dt. 03/05/1989 was served upon him. At the same time, two Assistant Sub Inspectors were also served with a memorandum under Rule 17 of the CCA Rules, one of them was punished with penalty of stoppage of one grade increment without cumulative effect and the other with the penalty of censure vide orders Anx. 9 dt. 08/06/1989 and Anx. 10 dt. 19/06/1989 respectively. So far as the petitioner is concerned, in all three charges were levelled against him but CWP 1749/96 [3] the enquiry officer did not find charge charge No. 1 and 2 proved, however, the charge NO. 3 was found proved against him, which is being reproduced here as under:- “यह Ǒक आपकȧ उÈ त ǐरपोट[ रपट नं 335 रोज0 आम Ǒदनांक 8-1-89 पर थाना रेã वे कालोनी से स0 उ0 िन0 ौी कã याण िसंह एवं अÞ दल मजीद कािन ु 0 हसैन मो ू 0 एवं वाã ि◌यÛ टर आर0 एच0 जी0 ौी ूवेश शमा[ सुरेÛ ि िसंह Ǿः तम खां एवं आप ः वयं मय सरकारȣ जीप के बापू कोलोनी पहच कर गाडȣ बÛ द कर ू दȣ और बाप कािन0 मय हसैन मो ु 0 तथा वािलयÛ टर आर एच0 जी0 ूवेश शमा[ सुरेÛ ििसंह व Ǿः तम खां जी से उतर कर ूभु जेबकट के मकान पर Ǿका रहा और आप ः वयं मय तीनो वािलयÛ टर होम गाड[ के कामता ूसाद पǐरवादȣ के घर मɅ घुस गये और कामता ूसाद उसकȧ प× ि◌न कैलाश देवी उसके पुऽ िशव िसंह है पुऽ वधु Ǒकरण देवी तथा पुऽ महेश कुमार को घर से बाहर िनकाल डÖ डो से मारपीट कȧ व कमाताूसाद उवकȧ प× नी एवं पुऽ वधु को मारते पीटते कȧचड भरȣ जमीन से खींचते हये बहार गली तक ले आये तथा ु कामना ूसाद के छोटे पुऽ महेश कुमार को जीप मɅ पटकर िलया काफȧ मारपीट के बाद ब कामना ूसाद के पुऽ िशविसंह ने अÛ दर से बÛ दक िनकालने कȧ धमकȧ ु दȣ तब आप सभी जीप से वापस आये ” After holding enquiry charge No. 3 was found to be proved and the disciplinary authority, taking note of the enquiry, independently examined the material and after holding the petitioner guilty punished him with the penalty of stoppage of two annual grade increments with cumulative effect and salary, other than the subsistence allowance of the period of CWP 1749/96 [4] suspension, was also withheld vide order Anx. 6 dt. 17/07/1990. The appeal preferred by him under Rule 23 was rejected by a detailed and reasoned order upholding the penalty inflicted upon him vide order Anx. 7 dt. 06/06/1991 and the review was also rejected that too after assigning detailed reasons vide order Anx. 8 dt. 15/07/1995. Counsel for petitioner submits that the charges levelled against the petitioner as also against two Assistant Sub Inspectors namely; Kalyan Singh and Abdul Mazid are for the self same incident in regard to which the report was lodged on 08/01/1989 but Kalyan Singh, Assistant Sub Inspector has been punished with penalty of stoppage of one annual grade increment without cumulative effect vide order Anx. 9 dt. 08/06/1989 and Abdul Mazid, Assistant Subject Inspector has been punished with the penalty of censure only vide order Anx. 10 dt. 19/06/1989 while the petitioner has been punished with penalty of stoppage of two annual grade increments with cumulative effect after holding enquiry under Rule 16 of the Rules vide order Anx. 6 dt. 17/07/1990 and such action of the respondents inflicting major penalty upon the petitioner is arbitrary and violative of CWP 1749/96 [5] principle of natural justice. Counsel for petitioner further submits that when the persons similarly situated are, required to be treated similarly, inflicting major penalty upon the petitioner for the self same incident is in violative of Rule 14 of the Rules, 1958 as also of Articles 14 and 16 of the Constitution of India. In support of his submissions, counsel has placed reliance on the judgment of this Court reported in WLR 1994 (Raj.)117 as also of the Apex Court reported in (1996)10 SCC 409. In reply to writ petition filed by respondents, it has been averred that the main allegation was against the petitioner and even in the course of enquiry, it is the petitioner who was specifically named by the complainant Kamta Prasad (PW-1) who deposed that the petitioner entered his house along with other persons and he was under intoxication and after beating them, pulled the members of the family out of their house and dragged them while putting them into jeep. At the same time, Smt. Kailashi Devi (WP-5)wife of the complainant whose statements were also recorded, while deposed against the petitioner but also made passing reference against the Assistant Sub CWP 1749/96 [6] Inspectors for the alleged incident but as they were not involved in entering their house and pulling them out, taking note of the incident which took place, the disciplinary authority inflicted penalty of stoppage of two annual grade increments upon the petitioner with cumulative effect. However, penalty of stoppage of one grade increment without cumulative effect was inflicted against Assistant Sub Inspector against whom passing reference was made vide order Anx. 9 dt. 08/06/1989 and another Assistant Sub Inspector, whose presence appeared to be doubtful, was punished with penalty of censure vide order Anx. 10 dt. 19/06/1989. Counsel submits that for the nature of charges levelled and found proved against the petitioner as also against two Assistant Sub Inspectors, the disciplinary authority has independently examined the record of enquiry and after recording good and sufficient reasons, inflicted penalty upon the delinquents of which reference has been made (supra). I have heard counsel for the parties and perused the material available on record. Charge No. 3, which has been found to be proved against the petitioner as already referred to (supra) is based on the statements CWP 1749/96 [7] recorded of PW-1-Kamta Prasad; PW-3-Rajesh Kumar; PW-4-Smt. Ramji Devi and PW-5-Smt. Kailashi Devi who deposed in their statements during the course of enquiry that the petitioner Heera Lal, who was under intoxication, along with others entered their house and started bearing them with Lathi and pulled the members of the family out of their house and dragged them in the mud while putting them into jeep. So far as the petitioner is concerned, his presence and act after the statements were recorded, remained uncontroverted. Since no contrary evidence came on record, the disciplinary authority, after holding the petitioner guilty for charge No. 3, punished him with the penalty of stoppage of two annual grade increments with cumulative effect but at the same time so far as the Assistant Sub Inspectors Kalyan Singh is concerned, the wife of the complainant Smt. Kailash Devi (PW-5) made passing reference of his presence and deposed that he has also beaten the members of the family and, as such, the disciplinary authority punished him with the penalty of stoppage of one annual grade increment without cumulative effect vide order Anx. 9 dt. 08/06/1989 and so far as the other Assistant Sub Inspector Abdul Mazid, whose CWP 1749/96 [8] presence itself was not deposed by either of them but on the basis of material came on record, the disciplinary authority punished him with penalty of censure only vide order Anx. 10 dt. 19/06/1989. The allegations may be for the self same incident of 08/01/1989 but the charges, which were examined and found to be proved by the disciplinary authority in regard to all the three delinquents including the petitioner were different and, as such, after examining the record of the enquiry, looking to the act and misconduct of the respective delinquent, the disciplinary authority inflicted penalty upon them vide orders Anx. 6, 9 and 10 respectively. If the act of the delinquents for the self same incident is different and found proved by the enquiry officer and accepted by the disciplinary authority, penalty in commensurate with their act of misconduct has been inflicted upon the delinquents, the petitioner and the other two delinquents Assistant Sub Inspectors cannot be said to be similarly situated in regard to the charge found proved against them. So far as the judgments, which the counsel for petitioner has place reliance are concerned, the same have no application in the facts of the CWP 1749/96 [9] instant case. Consequently, this Court finds no substance in the writ petition and the same is accordingly dismissed. [AJAY RASTOGI], J. Raghu-1749-CW-1996-final.doc