The court established that failure to serve a show-cause notice constitutes a violation of natural justice, warranting reinstatement of the dismissed employee.

ORDER :

Ganesh Ram Meena, J.

1. The petitioner by filing this writ petition has assailed the order dated 19.10.2000 passed by the Superintendent of Police, Jhalawar, whereby the respondent department dismissed him from the service. The petitioner has also assailed the order dated 27.01.2003 passed by the Dy. Secretary, Home (Appeal), whereby the review petition filed by him was dismissed.

2. Briefly stated facts of the matter are that the petitioner was appointed as Constable under the respondents department on 31.05.1993. When the petitioner was posted Police Station Gandhar, a criminal case No.75/1999 came to be registered against him along-with four other Constables for the offences under sections 302 and 201 IPC wherein it was alleged that the petitioner and four other constables had tortured and killed one Radhey Shyam Darji.

After completion of investigation, charge-sheet was filed against the petitioner and four other constables and after conclusion of the trial, the petitioner and three constables were convicted by the trial court and the judgment of conviction and awarding sentence to the petitioner was affirmed by the Hon’ble High Court in Criminal Appeal No.2073/2011. The judgment of conviction and sentence of the petitioner was challenged before the Hon’ble Apex Court and the Hon’ble Apex Court in Criminal Appeal No. 2072/2011 over turned the conviction and sentence vide its judgment dated 27.04.2016. The case of the petitioner is that since his conviction has been set aside by the Hon’ble Apex Court vide judgment dated 27.04.2016, he should be reinstated back in service.

3. Counsel for the petitioner submitted that though the petitioner was convicted by the trial court for the offences under sections 302 and 201 IPC and was sentenced to Life Imprisonment, however, he was dismissed from service in view of the charge of willful absence from duty for about 105 days. Counsel also submitted that the order of dismissal of the petitioner from service is purely violative of principles of natural justice for the reason that neither the charge-sheet issued against the petitioner nor the show-cause notice after conclusion of the inquiry with a copy of the inquiry report was ever served upon him. It is also the submission of the counsel for the petitioner that one of the Constable namely; Tej Singh who was also co-accused in the criminal case along-with the petitioner but acquitted by the trial court and who also dismissed from the service in view of the charge of willful absence from duty, has been reinstated back in service by altering the penalty of dismissal from service to that of withholding of two annual grade increments with cumulative effect. Counsel also submitted that the dismissal of the petitioner from the service as well as the other person Tej Singh was in view of the identical charge of willful absence from the duty and therefore, non- reinstatement of the petitioner in service back hits Article 14 of the Constitution of India. Counsel also submitted that the penalty of dismissal from service imposed upon the petitioner is disproportionate to that of charge of willful absence of the petitioner from the duty.

4. Counsels appearing for the respondents submitted that the order of penalty of dismissal from service is just and proper in the facts and circumstances of the case because the same has been passed after due consideration of the inquiry report in regard to the charges leveled against the petitioner. Counsels further submitted that this Court in exercise of writ jurisdiction under Article 226 of the Constitution of India is not required to re-appreciate the evidence. Counsels also submitted that the unauthorized absence of the petitioner was due to involvement in a criminal case in order to avoid the arrest in a criminal case and thus, he has deliberately absented himself from the duty. Counsels also submitted that it is not in dispute that the petitioner remained absent from the duty and in such circumstances,