Mr. Prateek Mathur, learned counsel accepts notice on behalf of the respondent in Appeal No. 416/2019. Service of the respondent in that appeal is taken as complete.
There is delay of 66 days in filing of Appeal No. 353/2019. Application No. 236/2019 under Section 5 of the Limitation Act has been filed seeking condonation of delay in filing of aforesaid appeal.
For the reasons mentioned in the application, the same is allowed. Delay in filing of Appeal No. 353/2019 is condoned.
Heard learned counsel for the parties on the appeals.
These appeals are directed against judgment dated 01.10.2018 passed by the learned Single Judge of this Court whereby writ petitions filed by the responde
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nts have been allowed. The respondents in the writ petition had challenged order dated 05.04.2012 passed by the reviewing authority dismissing revision petitions of the respondents; order dated 26.07.2008 dismissing appeals of the respondents and order of their dismissal from service dated 20.11.2007. The respondents were dismissed from service by the disciplinary authority, Commandant, Second Battalion, RAC, Kota by invoking Rule 19 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (for short ‘the Rules of 1958’) after recording his satisfaction that it was neither expedient nor reasonably practicable to follow the regular procedure contained in Rule 16 of the Rules of 1958. Allegation against the respondents-writ petitioners was that they were found indulged in offences punishable under Section 394, 341 and 397 read with Section 34 IPC. The incident of loot allegedly had taken place on 11.11.2007. Order of dismissal of the respondents from service by invoking Rule 19 of the Rules of 1958 was passed on 26.11.2007. The respondents filed appeals against the aforesaid order, which were dismissed by the appellate authority vide order dated 26.07.2008. In the criminal case, the Court of Additional Chief Judicial Magistrate Communal Riots, Kota vide its judgment and order dated 27.07.2009 acquitted the respondents Bheem Singh and Mohan Singh of the charges under Section 394, 394/34 IPC but convicted only respondent Bheem Singh for offence under Section 393 IPC and sentenced him to undergo two years rigorous imprisonment with fine of Rs. 1,000/-, in default of payment of fine to further undergo one month’s imprisonment additionally. However, the respondent Bheem Singh filed appeal against the aforesaid judgment. Learned Additional District and Sessions Judge No. 4, Kota vide judgment dated 09.06.2011 acquitted him. Learned Single Judge has while allowing the writ petitions directed the appellants to reinstate the respondents in service with all the consequential benefits including benefit of seniority, continuation of service, pay fixation as per revised pay rules and further directed that arrears be accordingly calculated and released to the respondents within three months.
Mr. Harshal Tholia, learned counsel appearing on behalf of the appellants submitted that the disciplinary authority taking into consideration the grave nature of allegation against the respondents had dispensed with the regular disciplinary proceedings as he was on the basis of adequate material on record satisfied that it was neither expedient nor reasonably practicable to proceed against the respondents in a regular disciplinary proceeding. Invocation of Rule 19 of the Rules of 1958 in the facts of the present case was perfectly just and legal and the learned Single Judge was wholly unjustified in interfering with the matter. The respondents, who being police constable are members of the disciplined police force and responsible for the safety of the people, were found to be indulging in a serious offence of loot, therefore, they have to be visited with severe penalties. Mere non holding of regular disciplinary proceedings does not in any manner prejudice the case of the respondents. It is contended that subsequent acquittal of the respondent Bheem Singh does not in any manner improve case of respondents particularly when it cannot be said to be a case of total absence of evidence and the trial court in the original judgment held him guilty and convicted and sentenced him.
Mr. Prateek Mathur, learned counsel for the respondents submitted that the disciplinary authority has mechanically invoked Rule 19 of the Rules of 1958 inasmuch as there was no justification for invoking aforesaid rule which require exceptional circumstances to invoke the same. It is contended that protection of Article 311 of the Constitution of India available to a government servant cannot be so easily done away with. There was no such extra ordinary situation that the appellants/disciplinary authority could not hold the regular enquiry. Had the appellants held the disciplinary enquiry, the respondents would have got the opportunity to defend themselves. The circumstances of the case did not warrant invocation of the second proviso to Article 311 of the Constitution of India. It cannot be held that it was not reasonably practicable to hold the regular enquiry. Learned counsel submitted that the respondent Mohan Singh and the respondent Bheem Singh immediately after his acquittal from the appellate court on 09.06.2011 filed review petitions before the reviewing authority but the same have been mechanically dismissed vide order dated 05.04.2012. Thereafter, they filed writ petitions and the learned Single Judge has rightly allowed the same vide impugned judgment, which does not call for any interference.
Having heard learned counsel for the parties and perused the impugned judgment, we find that the appellants indeed have not been able to make out a case as to why it was not reasonably practicable to hold the regular disciplinary enquiry. When the FIR was lodged and the aggrieved persons were produced as witnesses in the trial, there was no reason for the disciplinary authority for not summoning them even in the regular enquiry. At the same time, however, considering that initially the respondent Bheem Singh was convicted by the trial court but later on he was also acquitted by the appellate court, but the fact is that they were not physically on duty all through out, having been dismissed from service. Therefore, in the facts of the present case, while we are not inclined to interfere with the judgment of the learned Single Judge to the extent of direction to reinstate the respondents and holding them entitled to continuity of service, but we modify the impugned judgment in the terms that the respondents would be entitled to only notional benefits with regard to pay fixation in terms of revised pay scale rules and selection scales etc. It would, however, be open for the appellants, if they so decide, to even now subject the respondents to regular disciplinary proceedings under Rule 16 of the Rules of 1958.
Compliance of this Judgment for reinstatement with notional benefits shall be made within a period of three months from the date of receipt of copy of the judgment. Both the appeals are disposed of, however, with the aforesaid directions.
Stay applications also stand disposed of.
Office is directed to place a copy of this judgment on record of connected appeal