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2009 Supreme(Raj) 604
[Citation : 2010(2) RLW 1540 (Raj.)]
(Rajasthan High Court)
Jaipur Bench
V.K. Bansal Vs. State of Rajasthan & Ors. (Asopa, J.)
HON'BLE PREM SHANKER ASOPA, J.
V.K. Bansal
Versus
State of Rajasthan & Ors.
S.B. Civil Writ Petition No. 7499 of 2008, decided on 23.04.2009
Rajednra Soni, for Petitioner;
M.F. Beg, Dy Govt. Counsel
Headnote:Rajasthan Civil Services (Conduct) Rules, 1971, Rule 3, 4, 24 — Misconduct — Necessary ingredients which constitute `misconduct' — Whether declaration of a witness as hostile will render him untrustworthy witness for which he will be further liable for disciplinary action being a misconduct under the Rules of 1971 — Held — Misconduct arises from ill motive — Mere error of judgement and any contradiction in the statements given before the police and the Court, consequential declaration as hostile witness will not constitute misconduct unless the Court declares the witness as untrustworthy and some adverse comments are made therein — Mere declaration of petitioner as hostile witness will not constitute misconduct and no charge is made out against him — Charge sheet quashed. (Paras 16 to 19)
jktLFkku flfoy lsok ¼vkpj.k½ fu;e] 1971] fu;e 3] 4] 24 & nqjkpj.k & vko';d ?kVd tks nqjkpj.k dk xBu djrs gS & D;k fdlh lk{kh dks i{knzksgh ?kksf"kr dj nsus ij og vfo'oluh; gks tkrk gS ftlds fy, og vkxs 1971 ds fu;eksa ds rgr nqjkpj.k gksus ds dkj.k vuq'kklukRed dk;Zokgh gsrq nk;h gksxk & vfHkfu/kkZfjr & nqjkpj.k nks"kiw.kZ gsrq ls mRiUu gksrk gS & fu.kZ; dh =qfV vkSj iqfyl o U;k;ky; ds le{k fn;s x;s c;kuksa esa dksbZ fojks/kkHkkl] ifj.kkeLo:i lk{kh dks i{knzksgh ?kksf"kr djus ek= ls rc rd nqjkpj.k dk xBu ugha gksxk tc rd U;k;ky; lk{khx.k dks vfo'oluh; ?kksf"kr ugha dj nsrk vkSj mlesa dqN izfrdwy fVIi.kh ugha dj nsrk & izkFkhZ dks i{knzksgh lk{kh ?kksf"kr djus ek= ls dksbZ nqjkpj.k ugha curk vkSj mlds fo:) dksbZ vkjksi ugha curk&vkjksi i= vfHk[kf.Mr fd;kA ¼in la-16 ls 19½
;kfpdk Lohdkj dhA
2. Briefly stated, facts of the case are that statement of the petitioner u/S. 161 Cr.P.C. was recorded in a trap case by the police as an independent witness on 20.11.2002. Subsequently, he was called as prosecution witness by the A.C.D. Court and his evidence was recorded on 9.3.2007. At the request of the Public Prosecutor, the petitioner was declared hostile witness and permission to cross-examine was granted to the Public Prosecutor. Treating the contradiction in the two aforesaid statements- (i) u/S. 161 Cr.P.C. and (ii) u/S. 164 Cr.P.C. the charge sheet was served upon the petitioner on 30.5.2008.
3. It is stated in the writ petition that whether a witness is trustworthy or not, has to be decided by the Court and not by the Government and unless the Court gives a clear finding of the witness being untrustworthy, no misconduct is made out. Here, in the instant case, the proceedings are still pending, therefore, there is no justification to issue the charge sheet.
4. State of Rajasthan, in its reply, has stated that the petitioner has made incorrect statement before the court, therefore, charge sheet has rightly been issued.
5. Submission of counsel for the petitioner is that no misconduct is made out and even if the charges are taken on their face value, then also, as per the judgment of the Supreme Court, the trustworthiness of the witness is to be declared by the Court. Here in the instant case, the proceedings are pending and therefore, there was no justification with the Government to sit over the matter and issue the charge sheet for misconduct. Counsel also submits that in the memorandum of charges, there is reference of Rule 24 of the Rules of 1971 which has no application and even if the case is considered with reference to the other rule i.e. Rules 3 and 4 of the Rules of 1971, then also, no misconduct is made out against the petitioner. Counsel then submits that the charge sheet has been deliberately issued in order to deprive the petitioner of promotion to the post of Executive Engineer.
6. In support of his submissions, counsel for the petitioner has placed reliance on the following judgments:
1. Union of India vs. J. Ahmed (AIR 1979 SC 1022)
2. Dr. B.K. Choudhary vs. State of Raj. & Ors. (RLR 1992 (1) 210) Para 16
3. Gauri Shankar Mishra vs. State of Raj. & Ors. (RLR 1987 (II) 560) Para 8
4. Gura Singh vs. State of Rajasthan (AIR 2001 SC 330) Para 11
5. State of U.P. vs. Chet Ram and Ors. (AIR 1989 SC 1543) Para 13
6. Syad Akbar vs. State of Karnataka (AIR 1979 SC 1848) (Paras 19 & 20)
7. Submission of counsel for the State is that the petitioner has given incorrect statement, therefore, the Government is justified in issuing the charge sheet.
8. In view of the above, the crucial questions for determination are (i) What constitutes misconduct?, and (ii) whether declaration of a witness as hostile will render him untrustworthy witness for which he will be further liable for disciplinary action being a misconduct under the Rules of 1971?
9. Before proceeding further, it is relevant to reproduce Rules 3, 4 and 24 of the Rajasthan Civil Services (Conduct) Rules, 1971 (in short `the Rules of 1971') which are as under:-
"3. General-(1) Every Government servant shall at all times-
(i) maintain absolute integrity; and
(ii) maintain devotion to duty and dignity of office.
2(i) Every Government Servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority;
(ii) No Government servant shall, in the performance of his official duties or in the exercise of powers conferred on his, act otherwise than in his best judgment except when he is acting under such direction, obtain the direction in writing, where
