CW 3158/08 //1// In the High Court of Judicature for Rajasthan Jaipur Bench ** Civil Writ Petition No.3158/2008 Kesar Khan Versus State & Ors Date of Order ::: 03/08/2010 Hon'ble Mr. Justice Ajay Rastogi Mr. Peush Nag, for petitioner, Mr. MF Baig Addl. Govt. Counsel for respondents State The petitioner appears to have been compelled to approach this Court in a matter which could be settled by State Government at its own on his representation having been made in compliance of order dt.12/09/2006 (Ann.8) of this Court in CWP-3768/98, but having been rejected without assigning reasons vide order dt.11/12/2007 (Ann.11). To examine the controversy, it is relevant to jot down certain facts. Petitioner was appointed as Constable in Rajasthan Police Subordinate Service on 11/06/1965. However, criminal case (FIR-84/89) came to be registered at police station Civil Lines, Jaipur on 23/06/1989 against petitioner who happens to be father-in-law of complainant & other family members for offences U/Ss 498-A & 406, IPC. Taking note of criminal case being registered (supra), disciplinary proceedings were initiated against him; however, on being held guilty of allegation of misconduct, was inflicted with a penalty of dismissal from service vide order dt.08/02/1991 – against CW 3158/08 //2// which appeal U/r 23 of Rajasthan Civil Services (Classifiation, Control & Appeal) Rules, 1958 (“CCA Rules”) was preferred by petitioner and his appeal was allowed by appellate authority and order of his dismissal was set aside vide order dt.16/08/91 (Ann.1) with the observation that final fate of disciplinary proceedings would be conclusive and based on fate of criminal case pending against him. However, to his utter dismay, petitioner was convicted by Judl. Magistrate NO.3, Ajmer for offences U/Ss 498-A & 406; and sentenced to undergo rigorous imprisonment for six months vide judgment dt. 31/01/1992 (Ann.5). Taking note of the conviction (supra), petitioner was dismissed from service while passing fresh order by disciplinary authority on 15/02/1993 (Ann.2) - against which appeal and review petition were filed which were rejected on the premise of judgment of conviction being passed against him vide orders dt.05/06/1993 (Ann.3) & 10/03/1995 (Ann.4). Against judgment of conviction dt.31/01/1992 (Ann.5), petitioner preferred criminal appeal which was allowed by Additional Sessions Judge NO.1, Ajmer vide judgment dt.24/01/1998 (Ann.6) whereby he was acquitted from offences U/Ss 498-A & 406, IPC and order of his conviction (Ann.5) was accordingly set aside. Taking note of acquittal (supra), CW 3158/08 //3// petitioner submitted representation before the authority for reconsideration on account of change in circumstances having taken place, which was made to be basis at one stage while passing order of his dismissal from service but no orders were passed by respondents; as such CWP-3768/1998 was preferred by petitioner but the same was disposed of by this Court vide order dt.12/09/2006 (Ann.8) directing the respondents to decide his representation within six months, in the light of his order of acquittal; however, his representation remained pending which compelled him to approach this Court by way of contempt petition and upon show cause notice being issued by this Court, representation of petitioner was decided and rejected vide order dt.20/11/2007 (Ann.10) on the premise that in disciplinary inquiry, he was found guilty and looking to the nature of criminal charges imputed against him, it would not be in the fitness of things to permit him to join the service. It appears that further representation made was rejected vide order dt.11/12/2007 (Ann.11) which has been assailed by way of instant petition. Counsel for petitioner submits that once petitioner has been finally acquitted by competent court of jurisdiction, respondents cannot be held to be justified in upholding the order of dismissal more so while finding of CW 3158/08 //4// guilt in disciplinary inquiry was set aside on his appeal being allowed by appellate authority vide order dt.16/08/91 (Ann.1) and no fresh disciplinary inquiry was ever initiated against him. Taking note whereof, Counsel submits that order of dismissal based on conviction (Ann.5), which stood eclipse on being acquitted by competent court of jurisdiction (Ann.6), does not hold good and deserves to be set aside. Reply to writ petition has been filed by respondents State wherein it has been averred that since criminal charge being imputed against petitioner which remained proved in disciplinary inquiry, even if he was later on acquitted, that would not preclude the respondents in passing fresh order inflicting penalty; and no error has been committed while passing impugned order of dismissal from service. As regards representations having been submitted by petitioner in compliance of order of this Court, Government Counsel submits that the same has been examined by competent authority and after assigning reasons, it has been rejected which does not call for interference. This Court has considered rival contentions of Counsel for parties, and with their assistance, examined the material on CW 3158/08 //5// record. Sole question which arises for consideration is about the fate of the order of his dismissal from service passed by respondents on 15/02/93 (Ann.2) based on judgment of conviction (Ann.5) which was later on converted into acquittal on his appeal being allowed by appellate court vide judgment dt.24/01/98 (Ann.6). Facts remained uncontroverted from material on record that initially in disciplinary inquiry, petitioner was dismissed from service vide order dt.08/02/91 which was set aside by appellate authority on his appeal vide order dt.16/08/91 (Ann.1) with the observation that disciplinary authority will be free to pass orders afresh after examining the fate of criminal case instituted against him. However, on being convicted vide judgment dt.31/01/92 (Ann.5) in criminal case, disciplinary authority inflicted penalty of dismissal from service without holding any inquiry taking note of R.19 of CCA Rules vide order dt.15/02/93 (Ann.2). But, later on petitioner was acquitted by appellate court on appeal being preferred, vide judgment dt. 24/01/1998 (Ann.6). It is not the case of respondents that any disciplinary proceedings were initiated before inflicting penalty of dismissal from service vide order dt.15/02/93 (Ann.2) in CW 3158/08 //6// regard to the alleged misconduct if any committed by him; whereas impugned penalty of dismissal was based on judgment (Ann.5) of conviction passed by competent court of jurisdiction. However, if the conviction did not hold good at a later stage on appeal being allowed by appellate court vide judgment dt. 24/01/98 (Ann.6) and while setting aside his conviction and acquitting him from criminal charge U/Ss 498-A & 406, IPC; the order inflicting penalty of his dismissal from service which at one stage was based on conviction; in such changed circumstances, in the opinion of this Court, stands eclipse and order of penalty impugned does not hold good. This Court would like to take note of the fact that the petitioner immediately approached this Court, but at that stage, it was considered appropriate to direct the respondents to examine representations of petitioner afresh in the light of later judgment of acquittal but to utter dismay, respondents without taking note of judgment of acquittal from criminal charges U/Ss 498-A & 406, IPC, rejected his representations one after the other vide orders (Ann.10 & 11); and the only reason assigned by disciplinary authority was of the charges being proved in disciplinary inquiry held earlier and that if he is permitted to join duties based on alleged CW 3158/08 //7// criminal offences being committed, it would not be in the fitness of things and interest of administration permitting him to join duties; and such reasons assigned while rejecting his representations are wholly arbitrary and without application of mind and once petitioner stood acquitted by a competent court of jurisdiction, criminal case instituted, stands eclipse and at no stage, it would carry stigma of criminal case being registered against him. Further reason assigned that permitting him to join despite alleged criminal offences being committed will not be in the interest of administration, was wholly ill-founded and it appears to be personal perception of the disciplinary authority but the order impugned is not legally sustainable. In the opinion of this Court, rejection of representations of the petitioner by disciplinary authority vide orders dt. 22/11/2007 & 11/12/2007 (Ann.10 & 11) has been passed without application of mind and deserves to be set aside. Question at this stage arises as to what will be its consequential effect and whether petitioner would be entitled to actual or notional benefits flowing thereof as regards salary and other benefits in view of the fact that he has attained age of superannuation and is presently 70 years of age. Taking note of material on record, this Court considers it CW 3158/08 //8// appropriate that petitioner may get notional fixation of pay and payment of arrears of pensionary & retirral dues payable from the date of his retirement in accordance with pension rules. Consequently, writ petition succeeds and is hereby allowed. Orders dt.15/02/1993 (Ann.2), 20/11/2007 & 11/12/2007 (Ann.10 & 11) are quashed & set aside and the petitioner be reinstated but he would be entitled to get notional benefits as if he would have been in service for fixation of pay as became applicable from time to time under revised pay scales, if any; and would be entitled to get pensionary benefits & retiral dues and arrears from the date of attaining age of superannuation alongwith interest U/r 89 in accordance with pension Rules, 1996. All exercise to comply with aforesaid directions be made within three months. No order as to costs. (Ajay Rastogi), J. K.Khatri/p.8/ 3158CW2008Aug3DEAld.doc