Nitin Janardhan Raut vs State Of Maharashtra And Anr.
2002 Latest Caselaw 553 Bom

JUDGMENT

V.G. Palshikar, J.

1. By this petition, the petitioner has challenged the order of his dismissal from service as violative of provisions of section 26 of the Bombay Police Act and Article 311 of the Constitution of India.

2. Briefly stated the undisputed facts are that while the petitioner was working as Police Constable in Nashik Police Commissionarate, he was deputed to guard an accused named Bakhtiyar Khan, who was undergoing treatment in Civil Hospital at Nashik. While the accused was under the guard of the petitioner and some other Constables he was escaped from the Civil Hospital, Nashik. The responsibility, according to the police department, was with the petitioner and other Constables who acted obviously negligently and therefore they were suspended and thereafter on 11-3-1993 an order was passed discharging the petitioner from the police service. The order on the face of it is one passed under Article 311, Clause (2)(b) of the Constitution. The order of discharge states that holding of departmental enquiry is not possible because the only witness of the negligence of the petitioner is the prisoner who has ran away.

3. An application filed against this order of discharge before the Maharashtra Revenue Tribunal came to be dismissed. Hence after making arrangement to defend himself the petitioner has filed this petition in 1999. He has pleaded poverty, non-availability of fund and proper legal advise as the cause of the delay in approaching this Court.

4. The learned Counsel Ms. Karnik appearing on behalf of the petitioner submits that it is a case of violation of statutory and constitutional rights vested in the petitioner and the reasons given by the petitioner are sufficient enough to condone the latches, for which the petitioner is guilty due to the circumstances beyond his control. Looking to the fact that the petitioner is dismissed from duty and is facing starvation, we see no reason to reject this submission and dismiss the petition only on the ground of latches.

5. The learned Counsel Ms. Karnik submitted that there is violation of section 26 of the Bombay Police Act and that the explanation contained in the order of discharge for avoiding departmental enquiry is grossly inadequate and incorrect. The departmental enquiry can always be held in such conduct of negligence. Evidence could be led to show that the Police Constables were not vigilant on their duty, evidence could be led to show that there was conspiracy between the accused, who ran away, and the Police Constables on duty, conspiring the conflict and the accused to run away, and the petitioner would have constitutional right to be heard in the matter and could have established his innocence.

6. It is the submission of the learned Counsel that section 26 of the Bombay Police Act does impose the necessity of granting the hearing to any person before an order of punishment is made. The Bombay Police Act is the special legislature and therefore inspite of what is provided under Article 311(2)(b), an opportunity as contemplated under section 26 of the Bombay Police Act is liable to be given. According to the learned Counsel Article 311(2)(b) is a provision permitting the Disciplinary Authority to dispense with the departmental enquiry for which reasons to be recorded in writing. According to the learned Counsel, the reasons recorded by the Disciplinary Authority are grossly inadequate and it cannot be said that for that reasons, it is not reasonably practicable to hold such enquiry. It is the submission of the learned Counsel that the reasons to be recorded in writing for dispensing with the disciplinary enquiry are justifiable because the principle of natural justice and the basic right of audience is being taken away from a citizen and therefore the courts can question the correctness of the reason for recording in writing as also the question regarding dispensing with the enquiry and in particular can also be adjudicated all the reasons why the enquiry reveals unsustainable and therefore the petition is liable to be allowed.

7. Unfortunately in this case we do not have the assistance on behalf of the State. However, since the questions of law are involved and the submissions given by the learned Counsel are substantiated, we see no reason to postpone the hearing. Hence we heard the Counsel and now proceed to decide the matter.

8. The Bombay Police Act of 1951 was passed in that year after the commencement of the Constitution of India. The Government of Maharashtra was therefore aware of the provisions of Article 311 and yet it framed section 26 in the following words.

"26. Except the cases referred to in the second proviso to Clause (2) of Article 311 of the Constitution of India, no order of punishment under sub-section (7) of section 25 shall be passed unless the prescribed procedure is followed:

Provided that no order for reducing, removing or dismissing a Police Officer shall be passed without giving him a reasonable opportunity of showing cause against the action proposed to be taken against him except in cases referred to in the proviso (a) to Clause (2) of Article 311 of the Constitution."

9. It will be seen, therefore, from the provisions of section 26 quoted above, that holding of departmental enquiry for punishing an employee of a police department is a must. Exception which is provided in section 26 is two fold. Departmental enquiry need not be held in cases covered by Article 311(2). It is, however, provided that even though holding of enquiry may be dispensed with, if recourse is taken to Article 311(2), opportunity to show-cause against the proposed punishment will have to be given according to the provisions of section 26 of the Bombay Police Act. Proviso very clearly states that no order for reducing, removing or dismissing a Police Officer, shall be passed without giving him a reasonable opportunity of showing cause, against the action proposed to be taken against him. A plain reading of the provisions of section 26 therefore shows that holding of departmental enquiry may be dispensed with in cases covered by Article 311(2). But even if such enquiry is dispensed with, an opportunity as contemplated by proviso to section 26 of Bombay Police Act will have to be given. Admittedly no such opportunity is given in the present case. Therefore the order impugned is liable to be set aside as no show cause notice asking the petitioner to show cause as to why he should not be discharged from service was issued. The statutory right of showing such cause which vested in the petitioner by reason of section 26 was therefore imposed by the State. On this ground alone the impugned order is liable to be set aside.

10. We have already observed above that the language of Article 311(2)(b) does permit the dispensing with the departmental enquiry to certain cases for reasons to be recorded in writing. But those reasons must have reasonable nexus to the approach of dispensing with the enquiry. The reasons given in this case on the face of it are improbable. There is no reason to dispense with such enquiry and therefore taking recourse to Article 311(2)(b) is a colourable exercise of power by the State to avoid the holding of departmental enquiry in the misconduct committed by the petitioner. Such colourable exercise of powers under Article 311(2)(b) cannot be permitted on this ground also. Therefore, the impugned order is liable to be quashed. However the possibility of the petitioner having committed misconduct cannot be overruled. The Government does have right to conduct enquiries for such misconduct. We do not order that such right of Government is taken away. We therefore make it clear that the Government shall be at liberty to proceed with such departmental enquiry as it wishes in the circumstances of the escape of the accused from Civil Hospital, Nashik. However in the foregoing reasons the order of discharge or termination cannot be sustained. It will have to be set aside. In the result therefore the petition succeeds and is allowed and the impugned order of termination is set aside. The petitioner is directed to be reinstated with all consequence of continuity of service etc. But the petitioner shall not be entitled to any back wages for this period because for whatever reasons, he himself is to be blamed for the delay in approaching this Court.

The petition is therefore allowed and disposed of accordingly.

Parties to act on the authenticated copy of this order.