Ashoksinh Pyaresinh Chauhan vs State Of Gujarat
2024 Latest Caselaw 894 Guj

Gujarat High Court

Ashoksinh Pyaresinh Chauhan vs State Of Gujarat on 2 February, 2024

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     C/SCA/12975/2016                              JUDGMENT DATED: 02/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 12975 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK

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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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                        ASHOKSINH PYARESINH CHAUHAN
                                   Versus
                         STATE OF GUJARAT & 2 other(s)
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Appearance:
MR SHALIN MEHTA, SENIOR ADVOCATE WITH MS ADITI S RAOL(8128)
for the Petitioner(s) No. 1
MR ADITYA JADEJA, ASST. GOVERNMENT PLEADER for the
Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE MR. JUSTICE HEMANT M.
          PRACHCHHAK

                               Date : 02/02/2024

                               ORAL JUDGMENT

1. The present petition is filed by the petitioner under

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Articles 14, 16, 21 and 226 of the Constitution of India read

with the provisions of the Bombay Police Act, 1951 (now the

Gujarat Police Act, 1951) and the provisions of the Bombay

Police (Punishment and Appeals) Rules, 1956 read with the

Gujarat Civil Services (Conduct) Rules, 1971, challenging the

order dated 26/27.05.2010 passed by the Disciplinary

Authority and Police Commissioner, Surat City imposing a

penalty of fine of an amount equivalent to a basic pay being

received by the petitioner as reduced to Rs.1,000/- by an order

dated 22.10.2020 by the Appellate Authority and Director

General of Police and the rejection of revision application dated

29.01.2016 by the State Government by letter dated

06.04.2016 on the plea of delay in filing the revision

application. Feeling aggrieved and dissatisfied with the same,

the petitioner has preferred this petition with the following

prayers :

"A. Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the impugned letter dated 6.4.2016 from the State Government rejecting the revision application dated 29.1.2016 preferred by the petitioner merely on the plea of delay in filing the revision application without considering the merits of the case as arbitrary, illegal and contrary to the principles of natural justice and thus violative of Articles 14, 16 and 21 of the Constitution and quashing and setting aside the same;

B. Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the exoneration

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of the petitioner of the lone charge that he has taken a note in the Case Diary of his being badly insulted by his superiors in the presence of the accused contrary to the provisions of the Criminal Procedure Code and the Gujarat Police Manual;

C. Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction, declaring the impugned order dated 26/27.5.2010 passed by the Disciplinary Authority and Police Commissioner, Surat city imposing a penalty of fine of an amount equivalent to a basic pay being received by the petitioner as arbitrary, beyond his power and authority, being contrary to the provisions of the Bombay Police (Punishment & Appeals) Rules, 1956, and thus violative of Articles 14, 16 and 21 of the Constitution and quashing and setting aside the same;

D. Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction declaring the impugned order dated 22.10.2010 passed by the Appellate Authority and Director General of Police reducing the penalty of fine to Rs. 1,000 as arbitrary, beyond his power and authority, being contrary to the provisions of the Bombay Police (Punishment & Appeals) Rules, 1956, and thus violative of Articles 14, 16 and 21 of the Constitution and quashing and setting aside the same;

E. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondent authorities to consider the case of the petitioner for promotion to the next higher post of Police Inspector with retrospective effect from 21.2.2009 when his juniors were promoted with all the consequential benefits, including arrears of pay and allowances and seniority;

F. Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents herein to refund the penalty of Rs. 1,000 recovered from the petitioner;

G. Pending admission and final hearing of the present petition, Your Lordships may be please to stay/suspend the operation and implementation of the impugned orders dated 26/27.5.2010 passed by the Disciplinary Authority and dated 22.10.2010 passed by the Appellate Authority; and

H. Your Lordships be pleased to pass any other appropriate order, as deemed fit, in the interest of justice."

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2. The brief facts leading to the present petitioner are as

under :

2.1 The petitioner is presently working as Police Inspector in

the Police Academy, Karai, Gandhinagar. While he was

officiating as in-charge Police Inspector in Kapodra Police

Station, by Yadi dated 15.9.2008 he was served with a charge-

sheet charging that (1) as a sequel to the raid conducted by

him in shop no.28 at Mohanbagh Complex in the Kapodra

Police Station area for the sale of pirated and duplicate CDs,

DVDs, etc., he had without following the instructions of the

superior officers registered an FIR in crime register no. 83/08

for offences under sections 51(a) and (b), 52A, 63, 68A of the

Indian Copyright Act and under section 189 of the Indian Penal

Code displaying lack of devotion to duty and (2) he had taken

a note in the Case Diary of his being badly insulted by the DCP

in the presence of ACP and the accused contrary to the

provisions of the Criminal Procedure Code and the Gujarat

Police Manual.

2.1 It is the case of the petitioner that, the Inquiry Officer

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who conducted the departmental inquiry came to the

conclusion that all the charges are proved. However, the

Disciplinary Authority came to the conclusion that the charge-

sheet dated 15.9.2008 is partly proved in that the sole charge

that the petitioner took a note in his Case Diary of his being

badly insulted by DCP in the presence of ACP and the accused

contrary to the provisions of the Criminal Procedure Code and

the Gujarat Police Manual.

2.2 It is the case of the petitioner that, by order dated

26/27.5.2010, the Disciplinary Authority and Police

Commissioner, Surat City, imposed the penalty of fine of an

amount equivalent to one basic pay being received by the

petitioner at the relevant time. Thereafter, the petitioner

preferred an appeal before the Appellate Authority, Director

General of Police and Chief Police Officer on 30.6.2010 against

the impugned order dated 26/27.5.2010 passed by the

Disciplinary Authority imposing a penalty of fine of an amount

equivalent to one basic pay being received by the petitioner at

the relevant time.

2.3 It is further the case of the petitioner that, the appellate

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authority, Director General of Police and Chief Police Officer, by

his order dated 22.11.2010, reduced the penalty of fine from

an amount equal to one basic pay being received by the

petitioner at the relevant time to a fine of Rs.1,000. Therefore,

by challan no.2070 dated 20.12.2010, the petitioner paid into

Government account the fine of Rs. 1,000 imposed on him. It is

further the case of the petitioner that, by his representation

dated 31.12.2010, he informed the Director General of Police

and Chief Police Officer accordingly and requested to consider

his case for promotion to the next higher post of Police

Inspector from the date his juniors were promoted. The

petitioner was hopeful that the minor penalty of fine of

Rs.1,000 imposed on him will not come in the way of his being

promoted to the next higher post. Since nothing has been

forthcoming in the matter of his promotion he made further

representation to the Director General of Police and Chief

Police Officer on 4.7.2013, 14.2.2014, 23.1.2015, 6.5.2015,

20.6.2015 and 5/8.8.2015 urging him to consider his case for

promotion.

2.4 To the surprise and shock of the petitioner, by his letter

dated 28.5.2015, the Director General of Police and Chief

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Police Officer informed him that by his order dated 22.11.2010,

he reduced the penalty of fine to Rs.1,000 and that the

revision application against the said order which could have

been preferred within the prescribed time limit was also not

preferred by the petitioner and hence, there remains nothing

to be represented in this regard. Therefore, the representation

dated 8.4.2015 made by the petitioner was recorded in the

office.

2.5 It is the case of the petitioner that, finally, the petitioner

was promoted to the next higher post of Police Inspector with

effect from 24.2.2012, although he was due and lawfully

entitled to the promotion from 21.2.2009 when his juniors were

promoted resulting in recurring financial loss and seniority

merely because of the imposition of penalty of fine which itself

is void and not sustainable in law.

2.6 In these circumstances, being aggrieved by the aforesaid

Appellate Authority's order dated 22.11.2010, the petitioner

preferred a revision application dated 29.1.2016 before the

State Government under rule 16B of the Bombay Police

(Punishment & Appeals) Rules, 1956. By its letter dated

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6.4.2016, the State Government rejected the aforesaid revision

application preferred by the petitioner on the plea that the said

revision application is made after five years from the date of

the impugned order dated 22.11.2010 which is beyond the

time limit of 6 months prescribed under section 27A of the

Bombay Police Act, 1951.

2.7 It is the say of the petitioner that, as per Schedule I of the

Bombay Police (Punishment & Appeals) Rules, 1956 the

Commissioner of Police has power to inflict punishments

specified in rule 3 except extra drill and fine on Inspectors.

When the disciplinary proceedings were initiated against the

petitioner, he was officiating as in-charge Inspector. Thus, the

imposition of penalty of fine on the petitioner is contrary to the

rules 3 and 5 of the Bombay Police (Punishment & Appeals)

Rules, 1956 and thus beyond the power and authority of the

Disciplinary Authority, the respondent no. 3.

2.8 In the circumstances, being aggrieved by the impugned

order dated 26/27.5.2010 passed by the Disciplinary Authority

and Police Commissioner, Surat city imposing a penalty of fine

of an amount equivalent to a basic pay being received by the

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petitioner as reduced to Rs.1,000 by order dated 22.10.2010

by the Appellate Authority and Director General of Police and

by the rejection of revision application dated 29.1.2016 by the

State Government by letter dated 6.4.2016 on the plea of

delay in filing the revision application, the petitioner, by way of

this petition under Article 226 of the Constitution, challenges

the same.

3. Heard learned senior advocate Mr.Shalin Mehta assisted

by learned advocate Ms.Aditi Raol, appearing on behalf of the

petitioner and learned Assistant Government Pleader Ms.Aditya

Jadeja, appearing on behalf of the respondent No.1 - State.

4. Learned senior advocate Mr.Mehta, appearing for the

petitioner has submitted that the impugned order dated

26/27.05.2010 passed by the Disciplinary Authority and Police

commissioner is beyond the power and authority of the Police

Commissioner, Surat city and thus illegal, bad in law, arbitrary

and violative of Articles, 14, 16 and 21 of the Constitution of

India. He has further submitted that it is cardinal principle of

service jurisprudence that the general rule to be followed in

the matter of imposing punishment is that it should be

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proportionate to the offence committed by the delinquent. In

other words, it must match the misconduct. Thus, in imposing

punishment, the circumstances and surroundings where the

incident leading to the imposition of punishment took place

have to be seen.

4.1 It was submitted by the learned senior advocate

Mr.Mehta that, at the time of imposition of fine for the alleged

misconduct, the penalty to the tune of Rs.1,000/- was imposed

upon the petitioner and the said fine was paid by the petitioner

but, subsequently, at the time of consideration of the

promotional post, the petitioner's case was not considered

because of this penalty imposed upon him and therefore, the

petitioner had preferred revision application before the

Appellate Authority, which came to be dismissed only on the

ground that the revision application was filed at the belated

stage as it was not preferred within the prescribed period. He

has further submitted that the Appellate Authority has

dismissed the said revision application without going into the

merits of the case and therefore, the petitioner has preferred

this petition.

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4.2 It was submitted by the learned senior advocate

Mr.Mehta that the penalty of fine imposed on the petitioner is

beyond the power and authority of the respondent No.3 and is

thus required to be quashed and set aside the present petition

be allowed.

5. As against that, the learned Assistant Government

Pleader Mr.Aditya Jadeja, appearing for the respondent No.1 -

State has vehemently objected the present petition and

submitted that the petitioner had made an entry in the Case

Diary about his being badly scolded by his superior officer,

which was considered to be a misconduct on the part of the

petitioner and therefore, inquiry was initiated against the

present petitioner and after inquiry, penalty of Rs.1,000/- was

imposed upon him as punishment. He has further submitted

that the petitioner has violated the rules of Gujarat Police

Manual and has also breached the rules, and therefore, the

present petition be dismissed.

6. I have heard the learned advocates appearing for the

respective parties and perused the material placed on record.

It appears from the record that there is only one allegation that

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is stated to be proved against the petitioner that he had made

an entry in the Case Diary about his being badly insulted by his

superior in the presence of the accused. So far as the

explanation given by the petitioner with regard to the delay

occurred in preferring the revision application is concerned,

there is no averments or objections even in the affidavit filed

by the respondents. The controversy involved in the present

petition is only to the fact that instead of considering the

revision application on merits, the Appellate Authority has

dismissed the revision application on the ground of delay since

the same was not preferred within the prescribed time limit i.e.

60 days from the date of order.

7. Considering all these aspects and considering the

submissions advanced by both the sides, I am of the opinion

that the present petition deserves to be allowed with a

direction that the respondents shall consider the revision

application in time and shall decide the same on merits after

giving full opportunity of hearing to all the parties concerned. It

would be open for both i.e. the petitioner and the respondents

to contend all the grounds permissible in law and the

concerned authority shall decide the revision application of the

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petitioner within a period of six months from the date of

receipt of copy of this order.

8. For the foregoing reasons, the petition is accordingly

partly allowed to the aforesaid extent. The impugned letter

dated 6.4.2016 from the State Government rejecting the

revision application dated 29.1.2016 preferred by the

petitioner is hereby quashed and set aside. Rule is made

absolute to the aforesaid extent.

Direct service is permitted.

(HEMANT M. PRACHCHHAK,J)

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