K P Swami vs State Of Gujarat
2021 Latest Caselaw 16211 Guj

    C/SCA/13615/2009                              JUDGMENT DATED: 14/10/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 13615 of 2009

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BIREN VAISHNAV

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1    Whether Reporters of Local Papers may be allowed                  NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                           NO

3    Whether their Lordships wish to see the fair copy                 NO
     of the judgment ?

4    Whether this case involves a substantial question                 NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                               K P SWAMI
                                 Versus
                           STATE OF GUJARAT
==========================================================
Appearance:
MR VAIBHAV A VYAS(2896) for the Petitioner(s) No. 1
MR.MEET THAKKAR, AGP (1) for the Respondent(s) No. 1
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    CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV

                              Date : 14/10/2021

                              ORAL JUDGMENT

1. This petition under Article 226 of the Constitution of

India is filed by the petitioner challenging the order

of punishment dated 18.11.2004, and so confirmed

in review by the order dated 14.10.2008.

Additionally by the order dated 14.10.2008, the

C/SCA/13615/2009 JUDGMENT DATED: 14/10/2021

petitioner's period of suspension from 25.01.1997 to

15.11.1997 has been treated as such. The order of

penalty is that of reduction of pension by an amount

of Rs.100/- for a period of one year.

2. Facts in brief are that the petitioner was working as

a Police Constable and subsequently as a Police

Inspector. He retired from service on 31.03.2001 on

attaining the age of superannuation. He was placed

under suspension by an order dated 23.01.1997. The

suspension was then revoked on 15.11.1997. A

charge-sheet was issued on the petitioner on

29.05.1998, inter-alia, imposing 10 charges on him.

The gist of the charges was as under:

Charge No.1: That on the early morning of

22.01.1997, when certain accused came to take over

possession of land bearing survey Nos.32/1 to 32/4,

the petitioner accompanied them in his government

vehicle and threatened the watchman and thereby

helped the accused in getting the land evicted. That,

while going on the night round on 22.01.1997, the

C/SCA/13615/2009 JUDGMENT DATED: 14/10/2021

petitioner did not inform the City Control or make

such an entry in the station diary. Further, he called

for the police jeep at home without proper

procedure for undertaking the night round and

therefore committed an act of misconduct.

Charge No.2: That on 22.01.1997, though there

was no assignment of night round, he at about 2:00

a.m. in the night, left for a night round without

entering the particulars in the station diary or

informing the State Controlling. A government

vehicle viz. a jeep was called for at his residence

without permission and he went to the place of the

incident and in the company of the accused,

indulged into illegal activities.

Charge No.3: That he was complicit with the

accused and conspired to take over unlawful

possession of the land.

Charge No.4: As a normal procedure whenever

there are land disputes and the police has to

C/SCA/13615/2009 JUDGMENT DATED: 14/10/2021

intervene therein, it is expected that proper legal

action is taken after making a complaint, based on

any litigation that is pending, however, without

following any such procedure when the complaint is

sought to be made, the petitioner did not attend to

such complaint.

Charge No.5: When the land was unauthorizedly

occupied by the accused in the presence of the

petitioner, he did not do anything to intervene or to

stop such unauthorized possession and in preventing

such unauthorized occupation and arresting the

accused who are armed, the petitioner committed a

misconduct.

Charge No.6: That the petitioner admitted that the

incident had occurred in his presence and the

accused were armed. He failed to inquire into the

illegality of the possession of arms and therefore

committed gross-negligence in performance of his

duties.

C/SCA/13615/2009 JUDGMENT DATED: 14/10/2021

Charge No.7: When the complainant messaged the

control room and it was found that the vehicle of the

petitioner which was of the Satellite Police Station

was involved, despite such note, the petitioner did

not undertake any investigation as in-charge of the

police station with a view to see that the

investigation gets delayed.

Charge No.8: An application was given by the

officers of the AUDA regarding unauthorized

occupation of the land in question and the request

was made for police Bandobast and even though the

petitioner was well informed of this episode, neither

the petitioner initiate any action for investigation of

this complaint nor did he take steps to arrest the

accused.

Charge No.9: That he undertook an exercise of

eviction in the midnight at 2:45 a.m. in company of

armed accused and though there was an act of

demolition of fencing of boards and breaking of

locks, in absence of having taken any action, there is

C/SCA/13615/2009 JUDGMENT DATED: 14/10/2021

reason to believe that the petitioner was an

accomplice in the act.

Charge No.10: In the log book of the jeep of the

Satellite Police Station, the petitioner has shown

that he had undertaken a night round and he was in-

charge at that time. However, it was subsequently

noticed that the logbook was wrongly filled in.

3. A departmental inquiry was held against the

petitioner, wherein, charge nos.1, 3, 4, 5, 9 and 10

were not proved. The charges being charge nos.2, 7

and 8 were held to be partly proved and charge no.6

was held as fully proved. Even the Disciplinary

Authority agreed with the findings of the Inquiry

Officer and held that only charge no.2 which was

partly proved by the Inquiry Officer was so rightly

partly proved, whereas, charge no.6 was held as

proved. For charge No.7, though the Inquiry Officer

held the same as partly proved, the Disciplinary

Authority held the same as not proved.

C/SCA/13615/2009 JUDGMENT DATED: 14/10/2021

4. Essentially therefore it is only charge nos.2 and 6

that were within the domain of the Disciplinary

Authority for the purpose of imposing a penalty. The

penalty was imposed by the order dated 18.11.2004

refusing the pension of the petitioner by an amount

of Rs.100/- for one year. By the other order

impugned dated 14.10.2008, the period of

suspension was treated as such.

5. Mr.Vaibhav Vyas learned advocate for the petitioner

drew the attention of the Court to the order of the

Disciplinary Authority dated 18.11.2004 and by way

of a charge submitted to the Court, submitted that

though the charge essentially being charge no.2 was

partly proved, which concerned the omission of the

petitioner to inform the appropriate authority

regarding the night round and the charge no.6

which was proved regarding non-checking of the fire

arm license of the security, while imposing the

penalty, what weighed with the authority was the

entire episode of the charges in question. He would

explain the same by way of a chart as under:

 C/SCA/13615/2009                              JUDGMENT DATED: 14/10/2021



                    Conclusion          of   Inquiry Conclusion of
                    Officer                          Disciplinary
                                                     Authority
     Charge No: 1   Not proved                          Not proved.
                    (Page No: 114 to 116)

Charge No: 2 Partly proved (Regarding Partly non informing of the proved.

                    additional night round)
                    (Page No:116)
     Charge No: 3   Not proved                          Not proved.
                    (Page No: 116 to 117)
     Charge No: 4   Not proved                          Not proved.
                    (Page No: 117)
     Charge No: 5   Not proved                          Not proved.
                    (Page No: 117 to 118)
     Charge No: 6   Proved (regarding non               Proved.
                    checking of the fire arm
                    license of the security
                    persons)
                    (Page No: 119)
     Charge No: 7   Partly proved                       Not proved.
                    (Page No: 118 to 119)               (Page 18 and
                                                        19)
     Charge No: 8   Partly proved                       Not proved.
                    (Page No: 119)                      (Page 18 and
                                                        19)
     Charge No: 9   Not proved                          Not proved.
                    (Page No: 119 to 120)
     Charge No: 10 Not proved                           Not proved.
                   (Page No: 120)

6. While assailing the order dated 14.10.2008, by

which, the order of suspension was treated as such,

Shri Vyas, invited the attention of the Court to page

no.25 and submit that two circumstances that

weighed with the authorities were fully justified

C/SCA/13615/2009 JUDGMENT DATED: 14/10/2021

being; whether the petitioner was interested in

delaying the investigation and though the petitioner

was aware of the incident being a cognizable

offense, the petitioner did not undertake any action

to investigate or arrest the accused. These

observations Mr.Vyas would compare with those of

the observations in the order of the Disciplinary

Authority whether the Disciplinary Authority had

specifically observed that the petitioner was not

responsible for the omission to arrest the accused or

was in any way interested in delaying the

investigation. He would refer to pages 19 and 20 of

the paper-book.

7. Mr.Meet Thakkar learned AGP would submit that

reading the charge as a whole, though classified and

bifurcated into 10 separate charges, it would

indicate that as a Police Inspector, the petitioner

was involved in associating with accused and

helping them to forcibly evict certain people from

the portion of a land on the midnight of 22.01.1997.

As a Police Inspector, though of the 10 charges,

C/SCA/13615/2009 JUDGMENT DATED: 14/10/2021

eight may not have been proved, the charge that he

undertook a night round without informing the

concerned and not verifying the arms license of the

people who had been on the sight with arms, the

penalty of Rs.100/- cut from pension for a period of

one year was sufficient and did not warrant

interference.

8. Having perused the findings of the Inquiry Officer

and the conclusion of the Disciplinary Authority, the

main crux of the charge that was leveled against the

petitioner was that on 22.01.1997, he together with

some miscreants, entered into a plot of land,

threatened the watchman with his gun and sought to

evict the occupants from the land. The entire

episode of this incident was segregated and

bifurcated into 10 separate incidents, each having a

common link with the larger misconduct i.e. serious

misconduct for helping illegally the accused for

taking over possession of the land.

8.1 From the chart reproduced herein-above, what

C/SCA/13615/2009 JUDGMENT DATED: 14/10/2021

is evident is that only two charges viz. Charge No.2

regarding non-informing of the night round was held

to be partly proved and that regarding non-checking

of the firearm license was held to be proved.

8.2 While imposing the penalty of Rs.100/- cut in

pension for a period of one year, however, what

weighed with the authority was the entire gamut of

charge and the authority in imposing the penalty

took into consideration the entire charge-sheet viz.

respectively in isolation. The order of penalty

therefore suffers from perversity and non-application

of mind.

9. Accordingly, the order of penalty dated 18.11.2004

is quashed and set aside.

10. The order dated 14.10.2008, wherein, not only was

the petitioner's review rejected but the period of

suspension was treated as suspension, is based on

two considerations which otherwise the Disciplinary

C/SCA/13615/2009 JUDGMENT DATED: 14/10/2021

Authority had exonerated the petitioner of. This

could not have therefore weighed with the authority

in justifying the period of suspension being treated

as such. The order dated 14.10.2008 also therefore

deserves to be quashed and set aside.

11.For the aforesaid reasons, both the orders dated

18.11.2004 and 14.10.2008 are set aside. Petition is

allowed to the aforesaid extent. Rule is made

absolute to the aforesaid extent.

(BIREN VAISHNAV, J) ANKIT SHAH