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POKHAR SINGH v THE U O I & ORS - SAW Case No. 1452 of 2006 [2007] RD-RJ 764 (7 February 2007)



Pokhar Singh Vs. The U.O.I. & ors.

D. B. Civil Special Appeal (W) No.1452/2006 under Section 18 of the Rajasthan High Court

Ordinance against the order dated 23.2.2006 passed in S. B. Civil Writ Petition


Date of Judgment ::: February 7, 2007


Hon'ble Justice Mrs. Gyan Sudha Misra

Hon'ble Justice Mr. K. C. Sharma

Mr. Liyakat Ali Khan, for the appellant.

By the Court:

This appeal has been preferred against the order of the learned Single Judge who had been pleased to dismiss the writ petition, which has been filed by the petitioner/appellant herein challenging the enquiry report in which he was held guilty of the charge of dereliction of duty.

The petitioner/appellant had been posted as a

Constable in the Central Industrial Security Force and a charge-sheet was issued against him vide order dated 8.4.1996 to the effect that while he was posted as a

Constable at Jawar Mines, Udaipur, theft of non-electric detonators, valued more than Rs.95,000/- was committed.

The petitioner/appellant replied to the charges thereafter and also participated in the enquiry, after which the charge was held to have been proved and consequentially an order imposing penalty of removal from service was passed against him on 17.10.1996. The appellant had also preferred an appeal before the

Disciplinary Authority against the enquiry and that too was rejected in the year 1997. The petitioner/appellant was consequentially removed from service and remained so but after approximately 10 years of the passing of the order of removal, which also took effect, the appellant suddenly thought it appropriate to try his luck by filing a writ petition before the learned Single Judge challenging the order of his removal from service which was dismissed by the learned Single Judge against which this appeal has been preferred.

Challenging the order of removal from service as also the enquiry report and the order of the learned

Single Judge, it was submitted that the appellant was not on duty when the theft took place and, therefore, the charge should be held to have not been established and the order of removal should be set aside. Nothing was stated as to why the appellant filed the writ petition after approximately 10 years of his removal.

However, when we tested the arguments by the counsel for the appellant after perusal of the enquiry report, we have noticed that that it has been categorically recorded in the enquiry report that he did not raise this plea that he was not on duty when the theft took place nor he could explain his act of omission and commission in that regard. Thus, this court did not find any perversity in the enquiry report, which has been submitted against the petitioner/appellant herein.

It is well settled that the enquiry report cannot be scrutinised by the concerned court under

Articles 226 and 227 of the Constitution of India as if it were holding a second enquiry in order to re- appreciate the evidence. Prima facie, if no infirmity or perversity was found in the enquiry report, we find no ground to entertain this appeal against the order of the learned Single Judge dismissing the writ petition.

Besides this, the petitioner/appellant filed the writ petition approximately after 10 years of his removal for which no explanation has been offered. It is no doubt true that the Law of Limitation is not required to be strictly followed while entertaining a writ petition but time and again it has been laid down by several authorities of the Apex Court that the time factor also can be one of the consideration while entertaining a writ petition and interference of courts may be possible if gross miscarriage of justice could be detected. The appellant's case does not fall within that bracket as it appears that he had reconciled with the order of his removal for 10 years and thereafter thought it appropriate to challenge the same without offering any explanation for such a huge delay. Besides this, on merit of the enquiry report also, we have not been able to gather any perversity in the finding recorded by the enquiry officer. Thus, we find no merit in this appeal and hence it is dismissed at the admission stage itself. [K. C. Sharma],J. [Gyan Sudha

Misra],J. /skm/


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