SBCWP NO.6596/97. 1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. O R D E R S.B. CIVIL WRIT PETITION NO.6596/1997. Tej Singh Versus State of Rajasthan & Ors. Date of Order:- March 5, 2010. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri Champeshwar Goyal for the petitioner. Shri B.S. Rajawat, Deputy Government Counsel. **** Reportable BY THE COURT:- This writ petition has been filed by the petitioner aggrieved by the order of penalty dated 16/5/1990 (Ann.6) by which, he along with two other delinquents were awarded penalty of reduction to the minimum of scale of pay for a period of three years and with direction that he shall not be allowed any other benefit except the subsistence allowance for the period of suspension from 22/7/1989 to 13/2/1990 when he was reinstated. It was further directed that the period of suspension shall not be counted towards the increments, pension, gratuity and leave etc. Petitioner has also challenged the order by which, his appeal was dismissed vide order dated 17/7/1991 and the order dated 18/8/1995 by which, SBCWP NO.6596/97. 2 his revision was dismissed. 2) The first charge against the petitioner Head Constable and other two Constables namely; Kanwarlal and Motilal was that when they were entrusted the custody of Ramesh, detenue under the National Security Act, to take him in their protection to the Court on 21/7/1989, they instead of straightway going to the Court, reached to the Barbour's shop to get the hair of detenue Ramesh cut and did not make payment to the Barbour. 3) The second charge was that they allowed detenue Ramesh to ask his friend Shankar to fetch the bottle of wine and thereafter all the three delinquents with Ramesh consumed liquor and in that intoxicated state, brought detenue Ramesh to Sub Jail Ramganjmandi. 4) The third charge was that when they were all subjected to medical check up, they were found under the influence of liquor. 5) Shri Champeshwar Goyal, learned counsel for the petitioner has argued that there was absolutely no evidence to sustain the finding recorded by the enquiry officer. There was no justification for awarding penalty of reduction to the minimum of pay scale for a period of three years and at the same time, directing that petitioner shall not be entitled to the remainder of benefits for the period of suspension and that suspension period shall not be counted for the SBCWP NO.6596/97. 3 purpose of increment, pension, gratuity and leave etc. Learned counsel submitted that in the normal circumstance, his original pay should have been restored on expiry of three years but this has not been done by the respondents. The appellate authority as well as the reviewing authority have both mechanically passed the order relying on the preliminary enquiry report submitted by the SHO Ramganjmandi. Copy of the enquiry report was not supplied to the petitioner which has seriously prejudiced his case. Disciplinary Authority has also on the basis of the preliminary enquiry report of SHO Ramganjmandi, imposed penalty. In the preliminary enquiry report, neither name of the complainant at whose instance enquiry was initiated nor his address was given. Therefore very initiation of the disciplinary proceedings was bad in law. Penalty that has been inflicted upon the petitioner is not envisaged by Rule 14 of the Rajasthan Civil Services (Classification, Control & Appeal) Rules, 1958 (for short, “Rules of 1958”). SHO was biased against the petitioner therefore he implicated the petitioner for malafide reasons in a false case. It was wrong that petitioner was found under the influence of liquor in medical examination. 6) Shri B.S. Rajawat, learned Deputy Government Counsel has opposed the writ petition and submitted that charges against the petitioner SBCWP NO.6596/97. 4 and two other Constables were serious and that they were rightly subjected to proceedings under Rule 16 of the Rules of 1958 and a joint enquiry was held as per Rule 18 thereof. All the particulars were provided to the petitioner to defend himself. Petitioner even otherwise has not raised any such argument that he was not supplied any documents. Disciplinary Authority has taken a very lenient view by inflicting a comparative lighter penalty upon him along with two other Constables of reducing them to minimum of the pay scale for a period of three years. Petitioner has rightly not been held entitled to any other benefit for the period of suspension except subsistence allowance as per Section 54 of the Rajasthan Service Rules, 1951. It is further argued that the appellate authority as well as the reviewing authority have fully applied their minds to the arguments raised by the petitioner. 7) Upon hearing learned counsel for the parties and perusing the material on record, I find that charges against the petitioner and two other Constables were really very serious. When they were entrusted with the custody of detenue Ramesh for producing him to the Court, they instead of first going to the Court, reached the Barbour's shop for cutting of hair of detenue Ramesh and did not make payment to the Barbour. Thereafter, they allowed detenue Ramesh to ask his SBCWP NO.6596/97. 5 friend Shankar to fetch the bottle of wine. Thereafter all the three delinquents with Ramesh consumed liquor and in that intoxicated state of affair, they brought him to Sub Jail Ramganjmandi. When all were subjected to medical examination, they were found under the influence of liquor. Thus, in over all facts situation, the penalty that has been imposed, cannot be said to be disproportionate to the gravity of charges and it does not get mitigated by mere non-supply of the enquiry report. Appellate Authority & Reviewing Authority have rightly rejected appeal and revision filed by the petitioner. 8) However, at the same time, in my considered view, although the order of penalty to the extent of reducing pay of the petitioner to the minimum of pay scale for a period of three years may be justified but upon expiry of period of three years, he would be entitled to have his salary restored at the same level which he was otherwise getting. In the scope of Rule 54 of the Rajasthan Service Rules 1951, Disciplinary Authority ofcourse could direct that petitioner would not be entitled to any other benefits except the subsistence allowance which might even include the increments but there was absolutely no justification for further directing that this period would not be admissible even for the purpose of computation of pension, gratuity and SBCWP NO.6596/97. 6 leave etc. Accepting this would mean that there was break in service of the petitioner which was not the intention of the order of penalty. Even otherwise, when disciplinary authority chose to impose penalty of reduction to the minimum of pay scale for a period of three years, but on expiry of such three years, normal consequence would be revival of his salary at the same level at which petitioner was fixed including the increments for that period, the order of penalty to that extent need to be modified. 9) In the result, writ petition is partly allowed. It is directed that petitioner shall be entitled to salary to the same level which he was getting prior to imposition of penalty, on expiry of three years of penalty. However, petitioner would not be entitled to any other benefits except the subsistence allowance during suspension period but he shall be entitled to increments for the suspension period and that period of suspension shall also be admissible for the purpose of computation of pension, gratuity and leave etc. 10) Compliance of the judgment shall be made within a period of three months from the date copy of this judgment is produced before the respondents. (MOHAMMAD RAFIQ), J. anil