Shaikh Bashir Shaikh Rasool vs The State Of Maharashtra Through ...
2016 Latest Caselaw 6770 Bom

                                        1                      wp2299.99.odt         



             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                            
                               NAGPUR BENCH : NAGPUR




                                                    
                             Writ Petition No.2299 of 1999


    Shaikh Bashir s/o. Shaikh Rasool,
    Aged about 40 years, Occ.




                                                   
    Police Constable, Buckle No.341,
    r/o. Kamptee, Tq. Kamptee,
    Distt. Nagpur.                                 ..             PETITIONER




                                            
                  .. Versus ..
                             
    1. The State of Maharashtra,
       Through Secretary,
       Ministry of Home Affairs,
                            
       Mantralaya, Mumbai.

    2. The District Superintendent
       of Police, Nagpur (Rural),
       Nagpur.                                     ..            RESPONDENTS
      
   



    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
             Mr.Hitesh Katekar, Advocate for the Petitioner.
             Mrs.Kalyani Deshpande, AGP for Respondent Nos.1 & 2.
    -=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-





                                         CORAM : B.R. GAVAI &
                                                V.M. DESHPANDE, JJ.

DATE : 29.11.2016.

ORAL JUDGMENT (Per B.R. Gavai, J. )

1. Heard the learned Counsel for the respective parties.

2. The petitioner has approached this Court being

2 wp2299.99.odt

aggrieved by the Judgment and Order passed by the learned

Maharashtra Administrative Tribunal, dated 28th September, 1998

thereby dismissing Transfer Application of the petitioner.

3. The facts, in brief, giving rise to the present petition are

as under :

The petitioner was appointed as a Police Constable on

23.10.1979 and was serving in the Police department from the date

of his appointment. At the relevant time, in the year 1983, he was

serving at Katol and was residing in a Government Quarter allotted

to him in Police Colony. One Bhaurao was also working as a Police

Constable at Katol and he was residing in the same Police Colony.

Said Bhaurao lodged a First Information Report with Police Station,

Katol contending therein that, on 15.4.1985 when he returned from

his duty at around 2.00 p.m., the petitioner along with one

Rukminibai entered into his house, dragged him outside the house

and beat him. The petitioner and Rukminibai were prosecuted for

the offences punishable under Sections 448, 332, 341, 323, 355

and 506 (1) r/w. Section 34 of the Indian Penal Code. The petitioner

was put under suspension. After the trial, the learned Judicial

Magistrate, First Class, Katol convicted the petitioner as well as

Rukminibai for the said offences and sentenced them to suffer

rigorous imprisonment for three months for the offences

punishable under Sections 448, 323, 355 of the Indian Penal Code

3 wp2299.99.odt

and to pay a fine of Rs.500/- and in default to suffer rigorous

imprisonment for 15 days for the offence punishable under Section

341 of the Indian Penal Code.

4. Being aggrieved by the Judgment and Order of

conviction, the appellant preferred an appeal before the learned

District Judge. The learned District Judge, vide Judgment and Order

dt.16.7.1986 acquitted the petitioner as well as said Rukminibai of

the charges charged with. After the acquittal, the petitioner was

released from suspension and he was permitted to join his duties at

the Police Headquarters, Police Line, Nagpur.

5. The petitioner received a show cause notice from the

District Superintendent of Police, Nagpur (Rural) on 23.2.1987

calling upon him to show cause as to why the suspension period

between 21.4.1983 to 19.6.1983 and from 15.2.1986 to 1.12.1986

should not be treated as a suspension period. Respondent No.2

passed the order denying the pay and allowances for the

suspension period on the ground that acquittal of the petitioner

was not clean. Being aggrieved thereby, the petitioner preferred an

appeal before the Deputy Inspector General of Police, Nagpur. The

said appeal was also dismissed on 20.6.1988. Hence, the petitioner

filed the Writ Petition. After establishment of Maharashtra

Administrative Tribunal, the Writ Petition was transferred to the

learned Tribunal.

4 wp2299.99.odt

6. The Learned Counsel for the petitioner relies on the

Government Resolution dt.24.12.1987 wherein it is stated that, in

such cases wherein the employee is granted acquittal giving him

benefit of doubt; in such cases wherein severe strictures are

passed against the employee while acquitting him and when the

acquittal is granted on technical ground, only in such cases the

employee could be denied the benefits of pay and salary for the

period during which he was under suspension.

7.

We have perused the Judgment and Order passed by the

learned Sessions Judge in Criminal Appeal No.8 of 1986,

dt.16.7.1986. A perusal of the said Judgment would reveal that the

learned Sessions Judge has found that the prosecution has utterly

failed to prove the prosecution case. The learned trial Court found

that the evidence of medical experts did not support the

prosecution case and their evidence was contradictory to each

other. The learned trial Judge further found that there was an

inordinate delay in filing the complaint which was not at all

explained by the prosecution. It has further been found that the

names of the prosecution witnesses were not found in the First

Information Report and as such, it was not safe to rely on their

testimonies. The learned trial Court further found that though PSI

Shukla was an important witness, he was not examined. The

learned trial Judge further found that the evidence of two

prosecution witnesses i.e. Complainant and Vasanta (PW-6) was

5 wp2299.99.odt

also contradictory to each other. It could thus be seen that the

acquittal awarded by the learned trial Judge is granted since

prosecution has utterly failed to prove the prosecution case. It is

not the case wherein the learned trial Court has granted acquittal

by giving benefit of doubt. It is also not a case wherein any

strictures are passed against the petitioner while acquitting him.

Acquittal is also not granted on any technical ground. As such, the

case of prosecution is fully covered by the Government Resolution

dt.24.12.1987. At the cost of repetition, only in those three

eventualities, the petitioner could have been denied salary for the

period during which he was under suspension.

8. In that view of the matter, the petition deserves to be

allowed. Rule is made absolute in terms of prayer clauses (a) and

(b) of the Writ Petition.

The benefits payable to the petitioner be paid to him

within a period of six months from today.

                                   JUDGE                           JUDGE



    jaiswal