https://indiankanoon.org/doc/78671942/
Rajasthan High Court
Yash Pal Sharma vs State Of Raj on 6 February, 2017
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B.Civil Writ Petition No. 5531 / 2009
Yash Pal Sharma (RPS) S/o Late Shri M.L. Sharma, aged about 57
years, At present posted as Additional Superintendent of Police
(Legal Cell), Police Head Quarter, Jaipur and resident of D-187,
Shabri Marg, Hanuman Nagar, Jaipur.
----Petitioner
Versus
State of Rajasthan through Secretary, Department of Personnel,
Secretariat, Jaipur.
----Respondent
_____________________________________________________
For Petitioner(s) : Mr. HV Nandwana with
Mr. Pradeep Kr. Singh
For Respondent(s) : Mr. BL Avasthi, AGC
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
06/02/2017
1. By way of filing this writ petition, the petitioner has
challenged the order dated 23/05/2008 whereby penalty of
withholding of one annual grade increment with cumulative effect
has been imposed upon him.
2. The enquiry officer found that the petitioner had not
committed any misconduct but the disciplinary authority differed
from the enquiry officer and imposed the punishment. While
holding the charge to be proved, the disciplinary authority has
taken on record certain facts, which were not available on entire
record as stated by the petitioner, for malicious reasons. The
petitioner has committed no dereliction in discharge of official
duties and the charge does not pertain to discharge of duties. The
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[CW-5531/2009]
charge-sheet was issued on 17/12/2004. The charge levelled was
that the petitioner had wrongfully helped one Ms. Mridulika Tiwari,
a resident of Jaipur by making wrongful recommendation for her
to the passport authority for making her passport. The wrongful
recommendation was on account of the petitioner having stated
that Ms. Mridulika Tiwari was residing at his official address at
Quarter No.79, Civil Lines, Nayapura, Kota. On the basis of such
wrongful fact the verification was done and the passport was
issued. The petitioner has stated that as per Section 6(2) of the
Passport Act of 1967, there was no requirement for any person to
have permanent place or address and therefore, no breach of
Passport Act was committed either by Ms. Mridulika Tiwari or by
the petitioner. The enquiry officer recorded in the enquiry report
that there was no requirement of permanent residence under
Section 6(2) of the Passport Act and the applicant had herself
appeared before the passport officer and the passport officer had
relied upon her driving license which was reflecting the same
address which is the official address of the petitioner and
therefore, the passport officer had accepted the said address to be
the correct address for the purpose of issuing passport and
accordingly issued the passport. Any recommendation made by
the petitioner for issuance of verification certificate was
substantiated by the neighbours of the petitioner who stated that
Ms. Mridulika Tiwari had in-fact resided at that house and the
same has been recorded by the enquiry officer. The verification
was essential and the enquiry officer has held that Ms. Mridulika
Tiwari had resided voluntarily at the official address of the
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petitioner and the whole verification process was in accordance
with law and therefore, there was no reason of any kind of
illegality which could be attributed to the petitioner. The
disciplinary authority has differed with the enquiry officer on the
ground that the Sub-Divisional Magistrate had verified address of
the Ms. Mridulika Tiwari on the recommendation of the petitioner
as well as the driving license issued from the official address of
the petitioner. The disciplinary authority has also recorded that the
address on the driving license issued on 07/09/2000 was the
same as given in the passport for verification i.e. the address of
the petitioner. The disciplinary authority has taken note of the fact
that the petitioner was studying in Kanodiya College, Jaipur from
the year 1999 to 2002 which was a fact which was nowhere
available on record and has been imported by the disciplinary
authority from the source other than the record. The parents of
Ms. Mridulika Tiwari, in-fact, had lodged FIR in which an
investigation was conducted and since Ms. Mridulika Tiwari was
residing at Mauritius, therefore, the International Police
interrogated her and the same document is placed on record as
Annexure-10 of the writ petition. It is clear from the interrogation
that Ms. Mridulika Tiwari had said that she used to stay with her
uncle Yashpal Sharma in Kota because her parents were pestering
her and were against her marriage. She has also confessed that
she stayed in Civil Lines, Kota under the guardianship of Shri
Yashpal Sharma. Ms. Mridulika Tiwari stated that she had willingly
come to Mauritius and no one had forced her to go to Mauritius.
Annexure-12, which is also a affirmation done by Ms. Mridulika
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Tiwari before the office of Attorney at Law, in which she has
solemnly affirmed that she had submitted her driving license as a
proof of residence in Kota and was rightly issued a verification
certificate by the SDM, Kota as she was residing with the
petitioner. She also denied any wrongful recommendation being
made by the petitioner.
3. These documents i.e. Annexures-10 and 12 were on record
and have not been refuted by the disciplinary authority in the
impugned order. The disciplinary authority has stated that Ms.
Mridulika Tiwari was not residing at Kota and therefore, a wrong
information was given to the authority concerned and the
petitioner was punished for such wrong information whereas the
same has been denied by Ms. Mridulika Tiwari. The disciplinary
authority has also taken note of the fact that the recommendation
was made as stated by the SDM, Kota by the petitioner regarding
the residential address and though it is proved by the other
documents that she was actually residing there, the disciplinary
authority has found the same to be false. The recommendation
made by the petitioner that Ms. Mridulika Tiwari is his niece and
was searching for a permanent residence and therefore, was
staying with him under his guardianship, was held to be an
incorrect information. The petitioner has been alleged to have
committed illegality of using his official position to get the address
verified for Ms. Mridulika Tiwari.
4. A reply to the writ petition has been filed by the respondnets
and they have stated that the contents of the charge are proved
and the disciplinary authority has in-fact adopted the procedure as
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stipulated under law for arriving at the conclusion based on the
facts of the case including the documents that the petitioner had
used his official position and recommended the passport of Ms.
Mridulika Tiwari by showing his official address to be her address
which was not correct which thus led to issuance of illegal
passport.
5. Counsel for the petitioner Shri HV Nandwana alongwith Shri
Pradeep Kumar Singh, has argued that the conclusion derived by
the disciplinary authority is shockingly contrary to the material
available on record and is also perverse in nature as it does not
reflect as to how the petitioner has abused the process of law for
his personal gain or for any kind of things which were detrimental
to official discharge of duties. Learned counsel for the petitioner
has also stated that once the enquiry officer has come to the
conclusion that the charge was not made out on the basis of the
evidence adduced, then it was not open for the disciplinary
authority to impute evidence from outside the record and ignore
the documents on record which clearly reflected that Ms. Mridulika
Tiwari was in-fact residing at the official residence as the
petitioner was her guardian and her driving license was also
issued from the same address and therefore, the passport
authority was under legal obligation under Section 6(2) of the
Passport Act to issue such passport and therefore, no illegality was
committed by the petitioner at all.
6. Counsel for the respondents Shri B.L. Avasthi, Addl. Govt.
Counsel has stated that the petitioner had in-fact used his position
in wrongful verification of address which was unbecoming of a
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senior police officer and therefore, the punishment has been
rightly awarded.
7. After hearing counsel for the parties and going through the
record of the case, this Court finds that the charge of making a
recommendation verifying the address even if found to be correct,
then also would not amount to any illegality as Ms. Mridulika
Tiwari had herself deposed before the International Police
(Interpol) and before the appropriate authority in Mauritius that
she was staying with her guardian i.e. the petitioner with her own
sweet will and nobody had forced her to live there. She also
deposed that she was living at that address on account of her
disagreement with her parents regarding her marriage as she was
left with no option.
8. The only requirement under the passport law was that the
address had to be verified and once the driving license was issued
from the same address, then the passport authority was under
obligation to issue the passport and could not have refused to
issue the passport. At least by the clear statement of Ms. Mridulika
Tiwari, it is clear that the petitioner was not responsible for
submitting any requisite information and in-fact, being a guardian
of Ms. Mridulika Tiwari, could have only acted as a good human
being to help her out for having a passport, particularly in light of
the fact that she was residing with him as he was a guardian. The
charge also does not seem to have any kind of bearing on the
quality of discharge of services and relationship between the
petitioner and the employer i.e. the Police Department which
would bring any kind of dereliction of duties, particularly in the
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light of the view that she was willingly residing at petitioner's
residence.
9. In the light of the aforementioned discussion, this Court
deems is appropriate to allow this writ petition and therefore, the
impugned orders dt. 23/05/2008 and 18/12/2008 are quashed &
set aside. The consequential benefits may be granted to the
petitioner within a period of three months from the date of
furnishing certified copy of this judgment.
(DR. PUSHPENDRA SINGH BHATI)J.
Raghu/74
