Shersingh Yadav vs State Of Gujarat
2021 Latest Caselaw 12515 Guj

    C/SCA/17969/2006                             JUDGMENT DATED: 26/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 17969 of 2006


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1    Whether Reporters of Local Papers may be allowed
     to see the judgment ?

2    To be referred to the Reporter or not ?

3    Whether their Lordships wish to see the fair copy
     of the judgment ?

4    Whether this case involves a substantial question
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                           SHERSINGH YADAV
                                 Versus
                       STATE OF GUJARAT & 1 other(s)
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Appearance:
MR ANAND L SHARMA(1714) for the Petitioner(s) No. 1
MR IS SUPEHIA(874) for the Petitioner(s) No. 1
MR KURVEN DESAI, AGP for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 26/08/2021

                             ORAL JUDGMENT

Heard learned advocate Mr.Anand L. Sharma for the petitioner and learned Assistant Government Pleader Mr.Kurven Desai for the respondents.

C/SCA/17969/2006 JUDGMENT DATED: 26/08/2021

1. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order of removal from service passed on 13th September, 2002 by the respondent No.2-Superintendent of Police, Rajkot (Rural).

2. The brief facts of the case are as under:

2.1. The petitioner was appointed as an Unarmed Police Constable on 17.06.1975 in Kutch District. Thereafter he was transferred and appointed in Rajkot(rural) District where he served upto 13.09.2002 when he was removed from service.

2.2. A charge sheet dated 21.12.2001 was issued to the petitioner for holding a departmental inquiry as on 05.09.2001 at 23.30 hours the petitioner was found having consumed intoxicant and was quarrelling with one Dhirubhai Shamjibhai and was talking non sense in public.

2.3. An Inquiry Officer was appointed to hold the departmental inquiry, who, as per his report dated 26.05.2002 found the charge proved.

2.4. The respondent no.2 agreed with the Inquiry Report and hence issued a show cause notice dated 25.07.2002 calling upon the petitioner to show cause as to why he should not be removed from service.

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2.5. The petitioner gave reply dated 22.08.2002 to the above show cause notice. After considering the above reply, the respondent no.2 by the orcler dated 13.09.2002 removed the petitioner from service.

2.6. Against the above order the petitioner filed appeal before the Special Inspector General of Police, Rajkot Range, Rajkot, who dismissed the same by the order dated 24.01.2003.

2.7. Thereafter the petitioner filed review application before the Director General and Inspector of Police, Gujarat State, Gandhinagar, who rejected the same by the order dated 28.02.2006 with respect of the same charge Criminal Case under Bombay Prohibition Act is still pending against the petitioner.

3.1. Learned advocate Mr.Sharma appearing for the petitioner submitted that the impugned order of penalty is passed without application of mind by the respondent No.2 as required by the Bombay Police Manual without considering the length of service of the petitioner for more than 27 years.

3.2. It was submitted that misconduct of consuming intoxicant had taken place at 23.30 hours on 05.09.2001 while quarreling with one Dhirubhai

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Shamjibhai, there was no witness who had stated that the petitioner misbehaved with any person. It was therefore submitted that at the most it can be said that the petitioner had consumed some intoxicant but did not misbehave in public with anybody, more particularly, at 11:30 in the night there was hardly anybody present at the place of incident and the petitioner was not on duty at that time. It was submitted that mere consumption of Alcohol by a Police Man unless followed by misbehavior is not sufficient ground to remove him from service.

3.3. In support of his submission, learned advocate Mr.Sharma relied upon the decision of this Court in the case of Mohanbhai Dungarbhai Parmar V/s. Y.B.Zala and Another1 wherein, it is held that delay in taking decisions must be considered as denial of reasonable opportunity resulting into violation of principles of natural justice.

3.4. It was further submitted that Division Bench of this Court in case of Bachubha Ramsinhji V/s. Shri Shivlal I.P.S. and Others2 has held that order of promotion amounts to fresh order of appointment and Constable promoted as Head Constable by Deputy Inspector General of Police and dismissal by Deputy Superintendent of Police is in violation of Article 311(1). Reliance was

1 20 GLR 497 2 11 GLR 827

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also placed on the decision of the Supreme Court in case of State of Mysore V/s. K.Manche Gowda and Another3 to submit that the impugned order of penalty is passed based on the past record without giving notice to the petitioner because while passing the impugned order, respondent No.2 has stated that in the past many minor and major penalties were imposed upon the petitioner and three times in the past offences were registered against the petitioner for consuming intoxicants and the petitioner was also punished for the same, however, no notice regarding this was given to the petitioner before imposing the penalty.

3.5. On the other hand, learned Assistant Government Pleader Mr.Desai appearing for the respondents submitted that the petitioner is in habit of consuming intoxicants and after giving adequate opportunity of hearing, departmental inquiry was conducted by the respondents wherein, the charges levelled against the petitioner are proved. It was further submitted that in past also criminal proceedings were initiated against the petitioner under the Bombay Prohibition Act and it has come on record that the petitioner is in habit of consuming intoxicants.

3.6. Learned Assistant Government Pleader Mr.Desai also relied upon the findings given by the respondent No.2 in the impugned order dated

3 AIR 1964 SC 506

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21.12.2001 wherein, the entire evidence against the petitioner for each of the charges is considered in detail. Reliance was also placed on the order dated 13th September, 2002 passed by the Appellate Authority wherein, all the contentions raised by the petitioner are considered. Learned Assistant Government Pleader Mr.Desai also referred the order dated 28th February, 2006 rejecting the Review Application made by the petitioner to point out that in the Review Application also the respondent No.2 has considered in detail about the conduct of the petitioner which is not befitting to a Police Personnel as the petitioner is found to be in habit of consuming intoxicants. It was therefore submitted that as there are concurrent findings of fact arrived at by the Inquiry Officer, Appellate Authority as well as Reviewing Authority, the same should not be interfered by exercising extra ordinary jurisdiction under Article 227 of the Constitution of India.

4. Having heard the learned advocates for the respective parties and having gone through the material on record, it appears that the petitioner was dismissed from service after completion of the Departmental Inquiry in accordance with law. Even the second show-cause notice was issued on 25.07.2002 calling upon the petitioner to show cause as to why he should not be removed from the service and after considering

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the reply of the petitioner, the order dated 13th September, 2002 was passed removing the petitioner from service. Thereafter, the Appeal as well as the Review Applications are also dismissed confirming the removal of the petitioner from service.

5. In such circumstances, when there are concurrent findings of fact arrived at by the respondent authorities, the same are not required to be interfered without there being anything on record to show that the decision arrived at by the respondents is perverse or contrary to the facts and evidence on record.

6. With regard to the contentions raised on behalf of the petitioner as well as the reliance placed on the various decisions, the same would not be applicable in the facts of the case. This Court in case of Mohanbhai Dungarbhai Parmar (Supra) has considered the aspect of delay in initiation of the departmental proceedings whereas, in the facts of the case, the departmental proceedings are initiated within a period of three months from the date of occurrence of the incident and hence it cannot be said that there is delay in initiation of departmental inquiry. Similarly, the decision in case of Sumermal Bherumal, Armed Second Grade Head Constable Vs. State of Gujarat rendered on

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09.11.19844 would not be applicable because during the course of departmental inquiry, as in the said case it was established before the Disciplinary Authority, the petitioner was found to have consumed Alcohol but in the facts of the case, the charges levelled against the petitioner included the misbehavior on part of the petitioner which is proved in the Departmental Inquiry which cannot be again appreciated in the present proceedings. Reliance placed on the decision in the case of Bachubha Ramsinhji (Supra) is also not applicable in the facts of the case as the petitioner was transferred from Kutch to Bhuj by the Deputy Inspector General of Police in the Rural District and therefore, the respondent No.2-Superintendent of Police, Rajkot (Rural) would be the competent authority to take the decision in the departmental inquiry. Therefore, merely because the petitioner was transferred by the Deputy Inspector General from Katch to Rajkot, it cannot be held that the respondent No.2 cannot pass the order of removal from service and the same would not be hit by Article 311 as held by the Division Bench of this Court. It is also not available from the record that who appointed the petitioner as the petitioner has not placed on record the appointment order. In such circumstances, it would be relevant to refer to the following observations made by the Division Bench in the

4 1985 Gujarat Law Times 17

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decision of Bachubha Ramsinhji (Supra):

"9. In our opinion, the only conclusion that one can reach in the light of the provisions of Rule 97 of the Bombay Police Manual, which applies to the Police Force in the State of Gujarat, is that when any person is appointed in the cadre of Head Constable either by promotion or by direct appointment, there is a fresh appointment in that cadre and it cannot be said that simply because out of the two sources of recruitment to the cadre of Head Constable, one source, viz., promotion, is resorted to, there is no fresh order of appointment as Head Constable. Under these circumstances, we have come to the conclusion that the order promotion the petitioner from the rank of constable to be rank of Head Constable and transferring him from Madhya Saurashtra District to the Kutch District amounted to a fresh order of appointment. We have further come to the conclusion, in the light of the provisions of Art. 311(1), that since that order of appointment of the petitioner as Head Constable was passed by the Deputy Inspector General of Police, Rajkot, in 1957, the petitioner should not have been dismissed from service by an officer subordinate in rank to the Deputy Inspector General of Police. It is not in dispute before us that in the instant case, the order dismissing the petitioner from service has been passed in the first instance by the District Superintendent of Police, Kutch. The fact that there was an appeal and that appeal was disposed of by the Deputy Inspector General of Police, Rajkot, does not mean that the order of dismissal passed by the District Superintendent of Police, Kutch, as the authority in the first instance, is not vitiated as being in contravention of Art. 311(1). In our opinion since the order of dismissal in the instant case was passed by an officer subordinate in rank to the officer who actually appointed the petitioner as Head Constable the order of dismissal is vitiated and, therefore, it must be set aside.

10. In R.P.Kapur v. Union of India, AIR 1964 SC 787, it has been held by the Supreme Court:-

"On general principles the Government like any other employer, would have a right to suspend a public servant in one of two ways. It maysuspend any public servant pending departmental enquiry or pending criminal proceedings; this may be called interim suspension. Or the government may proceed to hold a departmental enquiry and after his being found guilty order suspension as a punishment if the rules so permit. This will be suspension as a penalty. These general principles will apply to all public servants but they will be subject to the provisions of Art. 314.

The authority entitled to appoint a public servant would be entitled to subspend him pending a departmental enquiry into his conduct or pending a criminal proceeding, which may eventually result in a departmental enquiry against him. This general principle is illustrated by the provision in Section 16 of the General Clauses Act which is in consonance with the general law of master and servant. But what amount should be paid to the public servant during interim suspensions will depend upon the provisions of the statute or rule in that connection. If there is such a provision the payment during suspension will be in accordance therewith. But if there is no such provision, the public servant will be entitled to his full emoluments during the period of suspension. This suspension must be distinguished from suspension as a punishment which is a different matter altogether depending upon the rule in that

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behalf." In maybe pointed out that under the provisions of Art. 311(1) of the Constitution, it is only when at the end of departmental enquiry, a decision has to be taken regarding the dismissal or removal from service, that the question has tobe considered as to which was the authority that actually as a matter of fact appointed that particular Government servant. So far as the order directing that the particular government servant be suspended or that a particular Departmental Enquiry should be held against a particular Government servant is concerned, it is the competency of the authority concerned that has to be looked at in the light of the rules as they stand; and the question does not arise at that stage as to whether the officer who appointed the Government servant concerned was subordiante in rank to the office ordering interim suspension or directing Departmental Enquiry. Under these circumstances, the contention urged on behalf of the petitioner that the order of suspension passed by the D.S.P. Kutch, on July 20, 1963, is vitiated, cannot be sustained and that contention of the petitioner must fail."

7. Similarly, reliance placed in the case of State of Mysore V/s. K.Manche Gowda and Another (Supra) is also not applicable in the facts of the case as during the course of departmental inquiry the petitioner was provided with the documents and evidence recorded prior to initiation of inquiry proceedings and during the course of departmental inquiry, the charges were proved and on the basis of such report, only reference was made to the habit of the petitioner to consumer intoxicants in past. Therefore, it cannot be said that the impugned orders are passed only on the basis of the past conduct of the petitioner. The Appellate Authority has considered the past conduct of the petitioner only with regard to the plea of the petitioner for reduction of the punishment and in that context, it is observed by the Appellate Authority that the petitioner is habituated to consume the intoxicant and in the past also various opportunities were given to him to

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correct his behavior.

8. In such circumstances, reliance placed on the decision in the case of State of Mysore V/s. K.Manche Gowda and Another cannot be applied as the previous record is not taken into consideration either by the Inquiry Officer or by the Disciplinary Authority or the Appellate Authority to confirm the punishment of removal of service imposed upon the petitioner.

9.       In      view        of     the     foregoing           reasons,              the
petition                is   devoid        of     any      merits           and         is

accordingly, dismissed. Rule is discharged.

(BHARGAV D. KARIA, J) PALAK