Full Judgment
Rajesh Balia, J.
1. Heard learned Counsel for the parties.
2. This appeal is directed against the judgment of learned Single Judge dated 26.4.2006 dismissing the appellant's writ petition seeking mandamus for staying the further proceedings in the departmental enquiry regarding the charges levelled in the memo of charge-sheet dated 12.1.06.
3. Learned Single Judge has rejected the writ petition solely on the ground that the petitioner was not able to explain as to what happened in the criminal trial pending against him and it is not shown by the learned Counsel as to whether compromise has been arrived at or not and as to whether the evidence of these witnesses has been recorded or not for which the petitioner was granted time by the court.
4. In order to understand the controversy we take notice of the facts that a complaint was lodged by daughter-in-law of the petitioner under Section 498 A IPC alleging that he has demanded dowry and he harassed her for demand of dowry. In respect to the said complaint the matter was investigated and the charge-sheet was filed in the trial Court.
5. In the memo of charge sheet dated 12.1.06 the following charges were levelled:
vki Jh tSrnku dkfu- 306 fjtoZ iqfyl ykbZu tks/kiqj 'kgj esa inLFkkfir gS vki ij fuEu vkjksi gS%
;g fd vkids fo:) vijk/k la[;k 130 fnukad 36-6-03 /kkjk 498 ,] 406]323 Hkknl Fkkuk xqMk ,Unyk ftyk ikyh esa iaftc) gqvk ftlesa okn vuqla/kku vkids fo:) /kkjk 498,] 406 Hkknl dk vijk/k izekf.kr ik;k tkus ij pktZ'khV U;k;ky; esa izLrqr dh xb ZA
;g fd vki }kjk iqfyl foHkkx esa gksrs gq, dkuwu dh tkudkjh gksrs gq, Hkh vkijkf/kd d`R; fd;k tks jktLFkku flfoy lsok vkpj.k fu;e 1971 ds fu;e 4 dk mYya?ku g SA
vkidk mDr d`zR; vuq'kklughurk ,oa vkijkf/kd ekufldrk dk ifjpk;d gksdj foHkkxh; fu;ekuqlkj n.Muh; g SA
6. A bare reading of the aforesaid charges shows that no misconduct is alleged to have been committed by the petitioner-appellant. The subject matter of the charge is that since investigation has been made by the police and a charge-sheet has been filed under Section 498A & 406 which is a serious misconduct under Rule 4 of the Rajasthan Civil Services Conduct Rule 1971 which is punishable under the Rajasthan Civil Services (Classification Control and Appeal) Rule 1958.
7. Apparently, Rule 4 does not include that filing of the charge and the pendency of the criminal trial itself is misconduct. Apparently, filing of the complaint and subsequent investigation and prosecution on that complaint are the acts which are not and which cannot be attributed to civil servant. Unless the disciplinary authority is satisfied about the fact that prima facie, act or omission attributed to Civil servants are substantiable that he can have recourse to disciplinary proceedings to hold enquiry into the alleged acts of commission or commission of the civil servant which may constitute misconduct. But mere fact of pendency of the trial by itself cannot be misconduct of the civil servant which can be enquired into.
8. As a matter of fact memorandum of charge on its perusal reveals that it is not founded or satisfaction for the Disciplinary Authority about omission or commission of the alleged acts by the civil servant but the fact of pendency of the criminal case in the court at Pali itself has been found to be misconduct. Pendency of a criminal trial by Itself is not a misconduct under Rule 4 of the Conduct Rules, in respect of which any inquiry can be conducted. Infact during the pendency of investigation or trial into alleged offence committed by the Civil Servant, the CCA Rules envisage suspension of Civil Servant during such pendency, if the Disciplinary Authority thinks It to be desirable.
9. Enquiry can only lie be held into acts of omission of commission of Civil Servant himself and a memorandum of charge can only be in respect of specific acts/omission or commission in such memorandum.
10. No specific acts of commission or omission has been stated in memorandum of charges. This is an apparent error.
11. As a matter of fact, the charge stated in the memorandum of the charges itself suggests that proof of such charges is subject to ultimate out come of the trial on the findings of which depends the final result of the pending trial. In such event even if the charge is not quashed as no prayer for such relief is made in the writ petition. Since the outcome of the enquiry depends on the outcome of the criminal trial that is to say the charge is proved against him, dismissal on the basis of the conviction, may follow and if he is acquitted then the enquiry will result in exoneration. Therefore it was a fit case in which in our opinion, the further inquiry in to memorandum of charges ought to remain stayed during the pendency of the trial of the criminal case.
12. Accordingly the appeal is allowed. The judgment under appeal is set aside. Consequent to the aforesaid discussion, the further proceedings in pursuance of Annex. 4 dated 12.1.06 in the departmental enquiry should remain stayed until criminal trial is over.