S.B.CIVIL WRIT PETITION NO. 98/96 - Mange Ram vs. Union of India Order dt: 11/2/2009 1/6 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R Mange Ram vs. Union of India & Ors. S.B.CIVIL WRIT PETITION NO. 98/96 DATE OF ORDER : 11/2/2009 HON'BLE DR.JUSTICE VINEET KOTHARI REPORTABLE Mr.B.P.Bohra, for the petitioner. Mr.Nimesh Suthar for Mr.Ravi Bhansali, for the respondent. 1. This writ petition is directed against the order of removal of petitioner from service dated 12/10/1994 (Annex.2) on the ground that he was found to have been charged for committing rape on 10/9/1994 on Ms.Uma Gani at a public place between the night of 9th and 10th September 1994. 2. The main ground of assailing the said order in the present writ petition is that the competent court which held the trial in the matter arising from FIR No.289/94 acquitted the petitioner of the offence S.B.CIVIL WRIT PETITION NO. 98/96 - Mange Ram vs. Union of India Order dt: 11/2/2009 2/6 under Section 376 IPC by order dated 14/2/1995 as it was found to be a case of no evidence. The said order of learned ADJ, Bikaner in sessions case no. 35/94 – State of Rajasthan vs. Mange Ram is at Annex.1 in the writ petition. The said order has become final as it appears that no appeal against said order of acquittal has been filed by the State. 3. Learned counsel Mr.B.P.Bohra has also urged that respondent authority – Commandant, RPF, Bikaner has passed the said order of removal without holding any inquiry against the petitioner and the statement made in the impugned order that it was not practicable to hold enquiry as witnesses were not likely to come forward is not sufficient and it is a mere reiteration of the stipulation in Rule 161 of the Railway Protection Force Rules, 1987 as well as Article 311 (2) proviso (b) of the Constitution of India. Relying upon the decision of Supreme Court in case of Chief Security Officer & Ors. vs. Singasan Rabi Das – (1991) 1 SCC 729 and G.M.Tank vs. State of Gujarat and others – (2006) 5 SCC 446, he submitted that the impunged order of removal from service deserves to be quashed and set aside as without holding any inquiry against the petitioner, S.B.CIVIL WRIT PETITION NO. 98/96 - Mange Ram vs. Union of India Order dt: 11/2/2009 3/6 petitioner could not be removed from service. 4. On the side opposite, Mr.Nimesh Suthar for Mr.Ravi Bhansali urged that irrespective of acquittal by the competent court, the conduct of petitioner was sufficient to remove him from service and since the competent authority was of the opinion, whose decision according to Article 311 (3) of the Constitution is final, that it was not practicable to hold such inquiry against the petitioner, therefore, the impugned order of removal from service is not required to be interfered with by this Court. 5. Having heard learned counsels and upon perusal of the record and case laws cited at the bar, this Court finds considerable force in the submissions made on behalf of learned counsel for the petitioner. 6. The Hon'ble Supreme Court in Chief Security Officer vs. Singasan Rabi Das categorically stated in para no.5 as under:- “In the present case the only reason given for dispensing with that enquiry was that it was considered not feasible or desirable to procure witness S.B.CIVIL WRIT PETITION NO. 98/96 - Mange Ram vs. Union of India Order dt: 11/2/2009 4/6 of the security/other railway employees since this will expose these witnesses and make them ineffective in the future. It was stated further that if these witnesses were asked to appear at a confronted enquiry they were likely to suffer personal humiliation and insults and even their family members might become targets of acts of violence. In our view these reasons are totally insufficient in law. We fail to understand how if these witnesses appeared at a confronted enquiry, they are likely to suffer personal humiliation and insults. These are normal witnesses and they could not be said to be placed in any delicate or special position in which asking them to appear at a confronted enquiry would render them subject to any danger to which witnesses are not normally subjected and hence thee grounds constitute no justification for dispensing with the enquiry. There is total absence of sufficient material or good grounds for dispensing with the enquiry. In this view it is not necessary for us to consider whether any fresh opportunity was required to be given before imposing an order of punishment. In the result the appeal fails and is dismissed. There will be no order as to costs.” In G.M.Tank's case the Hon'ble Apex Court held in para no.20 and 30 as under:- S.B.CIVIL WRIT PETITION NO. 98/96 - Mange Ram vs. Union of India Order dt: 11/2/2009 5/6 “This is a case of no evidence. There is no iota of evidence against the appellant to hold that the appellant is guilty of having illegally accumulated excess income by way of gratification. The investigating officer and other departmental witnesses were the only witnesses examined by the enquiry officer who by relying upon their statement came to the conclusion that the charges were established against the appellant. The same witnesses were examined in the criminal case and the criminal court on the examination came to the conclusion that the prosecution has not proved the guilt alleged against the appellant beyond any reasonable doubt and acquitted the appellant by its judicial pronouncement with the finding that the charge has not been proved. The judicial pronouncement was made after a regular trial and on hot contest. Under these circumstances, it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceedings to stand.” 7. In the opinion of this Court, mere stipulation in the impugned order which was passed just after the alleged incident of 10/9/1994 on 12/10/1994 that it was not practicable to hold inquiry against the S.B.CIVIL WRIT PETITION NO. 98/96 - Mange Ram vs. Union of India Order dt: 11/2/2009 6/6 petitioner was not sufficient without making any effort in this direction and without initiation of inquiry the respondent authority could not straightaway pass the removal order. It is only after making some effort that if it was found that it was not practicable to hold such inquiry, the stipulation to this effect could have been believed. 8. This Court is of the opinion that the facts and circumstances of the case are not such in which it can be said that it was not practicable to hold inquiry against the petitioner. 9. Consequently, the removal order passed by the respondent no.3 is liable to be quashed and same is accordingly quashed. The writ petition is allowed. The petitioner shall be reinstated in service however with no back wages on the principle of No Work No Pay. However, the petitioner will be entitled to consequential benefits in the form of notional fixation and seniority etc. No order as to costs. (DR.VINEET KOTHARI), J. item no.9 baweja/-