Gujarat High Court

Premjibhai Amarabhai Asodiya vs State Of Gujarat on 22 January, 2025

Author: Vaibhavi D. Nanavati

Bench: Vaibhavi D. Nanavati

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                            C/SCA/7345/2011                                   JUDGMENT DATED: 22/01/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                     R/SPECIAL CIVIL APPLICATION NO. 7345 of 2011


                       FOR APPROVAL AND SIGNATURE:


                       HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
                       =============================================

                                   Approved for Reporting                    Yes           No

                       =============================================
                                          PREMJIBHAI AMARABHAI ASODIYA & ORS.
                                                         Versus
                                                STATE OF GUJARAT & ORS.
                       =============================================
                       Appearance:
                       DECEASED LITIGANT for the Petitioner(s) No. 1
                       MR DA BAMBHANIA(139) for the Petitioner(s) No. 1.1,1.2,1.3
                       MS POONAMBEN D MAKWANA(10177) for the Petitioner(s) No. 1.1
                       MS POOJA ASHAR, AGP for the Respondent(s) No. 1,2
                       MR DAIFRAZ HAVEWALLA(3982) for the Respondent(s) No. 3
                       =============================================

                         CORAM:HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                                                         Date : 22/01/2025

                                                         ORAL JUDGMENT

1. The petitioner herein, who hails from the Harijan Chamar

Community, came to be appointed as Armed Constable on

19.04.1991 in the time scale of RS.825-1200 and was ordered

to be posted as such with the respondent No.2 and has

invoked Article 226 of the Constitution of India challenging the

order passed by the disciplinary authority i.e. respondent No.2

herein dated 25.04.2008, confirmed in Appeal vide order dated

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17.10.2008 and the order passed in Revision dated 05.02.2009

wherein, after a period of about 9 years, an accusation has

been found out when the proceedings initiated and finalized by

the respondent No.2, came to be terminated in order of

reinstatement by substitution of lesser punishment, by

compulsorily retiring the petitioner and also the period

between 03.09.1997 to 06.02.1998 i.e. the period of

suspension was held not to be regularized. The said orders i.e.

the order dated 25.04.2008 is duly produced at Annexure - B,

the order dated 17.10.2008 passed in Appeal is duly produced

at Annexure - C, and the order passed in Revision dated

05.02.2009 is duly produced at Annexure - D as also, the

communication dated 17.07.2009 conveying to the petitioner

that the Revision is not entertained and ordered to be 'Filed', is

duly produced at Annexure - A.

1.1 Being aggrieved by the impugned orders, as referred

above, the petitioner herein has approached this Court under

Article 226 of the Constitution of India and has prayed for the

following reliefs:

"A. Your Lordships may be pleased to allow this petition;

B. Your Lordships may be pleased to quash and set aside the impugned order dated 25/4/2008, 17/10/2008, 5/2/2009 and 17/7/2009

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passed in appeal & Revisions confirming the order of punishment dated 25.04.2008 and the orders & actions taken by the authorities below, and be pleased make an order by issuing appropriate writ and or directions, and or orders, directing the respondent authorities to reinstate the petitioner with all consequential benefits including financial benefits.

By way of interim relief pending admission and final hearing

C. Your Lordships may be pleased to of the matter to direct the respondent authority to suspend the operation and further operation of impugned orders of punishments at Annexure - A to D (Colly) to the petition as if said orders have never been passed;

D. Your Lordships may be pleased to grant such other and further relief/s in the interest of justice."

2. Heard Mr. D.A. Bambhania, learned advocate appearing

for the petitioner and Ms. Pooja Ashar, learned AGP appearing

for the respondent Nos.1 and 2. Mr. R.R. Marshall, learned

Senior Counsel with Mr. Daifraz Havewalla, learned advocate

appears for the respondent No.3.

3. Briefly stated that, it is the case of the petitioner that the

petitioner has been selected on merit and upon undergoing

training at National Security Guard Training Centre Manesar

(Haryana), passed the requisite tests and examination

accordingly, adjudged to be qualified as Commando Guard.

That, the petitioner herein has been found meritorious and

efficient and accordingly, ordered to be placed in the sensitive

position of close Security Commando Guard of highly placed

and highest dignitaries of the State of Gujarat in the large

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public interest on deputation basis, outside the regular

assignment of posting, though the post held by the petitioner

was only that of a Constable in the Gujarat State Reserve

Police Force, lowest in rank and file in the law and order

maintenance reserve force.

3.1 That, on 03.08.1997, it has been alleged that while

discharging duty at 0.00 hours, the petitioner behaved

contrary to the norms and misconducted himself, dragged to

the proceedings of alleged misbehavior and immediate official

asserted imputation as to arraigned for the charges under

Rander Police Station, III - C.R. No.1349 of 1997 for imputation

of alleged commission of offence punishable under Section

66(1)(b) and 85(1)(3) of the Prohibition Act. It is the case of the

petitioner that upon lodging of such FIR, thereafter nothing

was heard nor the petitioner was called for facing the charges

levelled in the Criminal Court of Law pursuant to the said FIR.

The Medical Officer also deposed that the condition of the

petitioner was normal, answered all the questions, nothing

ostensible was found as to commission of offence, except

bodily injuries inflicted wherein, the petitioner's body was

found with assaulted injuries.

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3.2 The services of the petitioner were requisitioned by the

respondent - State for deployment in the protection U & Escort

wing of the dignitaries and accordingly in May, 1998, ordered

to be deputed for Security Protection Duty on Public Interest

outside the service posting, on deputation to the Protection

Cell under the District Superintendent of Police, Gandhinagar.

Accordingly, the petitioner was relieved for joining the

assigned duties vide order dated 26.05.1998 by the

respondent No.2. The petitioner herein continued to remain in

escort duties till 2000 when the petitioner requested for grant

of leave for few days, which was recommended but, the

recommendation annoyed the immediate officer.

3.3 That, on 25.01.2000, the petitioner was relieved from the

Protection Cell pending inquiry for reporting at parent Head

Quarter, SRP, Group-X, Ukai, District : Surat, Gujarat, on the

premises and pursuant to lodging of the FIR on 20.01.2000 for

the offences punishable under the Prohibition Act before the

Sector 21 Police Station under Crime Register No.10.2000. The

petitioner herein came to be acquitted by the competent

Court.

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3.4 The respondent No.2 issued show cause notice on

03.07.2006 which came to be finalized and a final order of

imposition of punishment awarding dismissal came to be

passed. The petitioner preferred Appeal before the higher

authorities which came to be partly allowed and the

punishment came to be substituted from dismissal to stoppage

of three increments with future effect vide order dated

23.04.2007. On reporting on duty on 05.05.2007, at SRP

Group-X, on account of substitution of punishment by the

appellate authority, the petitioner was served with a show

cause notice for Articles of charges which were drawn on

22.01.1998, after a period of 9 years and all the steps have

been taken to remove the petitioner whose order of dismissal

was set-aside by the appellate authority. The report of Inquiry

Officer was called for after about 10 years, soon after the

petitioner was ordered to be reinstated by the same Officer

who had earlier issued show cause notice for dismissal, which

came to be set aside by partly allowing the appeal, ignoring

the fact that the Medical Superintendent, only independent

Officer deposed before the Inquiry Officer that nothing was

found at the time of production of the petitioner before him

and except the complainant PSI and his companion who

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alleged that they have reached to the spot, nobody supported

the version of the complainant. Neither any of the public as

claimed for an incident alleged to have been occurred at 0.00-

0.30 hours on 03.08.1997.

3.5 It is the case of the petitioner that the respondent No.2 in

November 2007, called on the reports against the petitioner

and accordingly, final report by the Inquiry Officer asserted

and alleged to have been submitted on 02.11.2007 though the

inquiry was concluded and finalized before 9 years i.e. in the

year 1998 and having found meritorious, deputed for

Commando duties with recommendations for posting for

protection of the Highest Executive Dignitaries in the State and

personal squad of such dignitaries.

3.6 The petitioner was served with show cause notice issued

by the respondent No.2 herein on 22.02.2008 which resulted in

the order of compulsory retirement dated 25.04.2008. The

petitioner approached the appellate authority challenging the

said order by preferring appeal, which came to be dismissed

by order dated 11.10.2008 and the Revision Petition also

preferred by the petitioner came to be 'filed' by order dated

17.07.2009 which was conveyed to the petitioner as

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confidential communication. The aforesaid has given rise to

the filing of the present petition.

4. Mr. D.A. Bambhania, learned advocate appearing for the

petitioner submitted that the impugned orders passed by the

respondent authorities are required to be quashed and set

aside on the ground of inordinate delay in passing the

impugned orders for an FIR lodged against the petitioner

herein under Rander Police Station being III - C.R. No.1349 of

1997 for imputation of alleged commission of offence

punishable under Section 66(1)(b) and Section 85(1)(3) of the

Prohibition Act. It is submitted that the impugned order passed

by the disciplinary authority dated 25.04.2008 is non-est in the

eye of law; the same having been passed under the Gujarat

Civil Services (Discipline and Appeal) Rules, 1971. It is

submitted that the petitioner herein was a Constable and in

view thereof, is governed by the Bombay Police Act and the

Bombay Police (Punishments and Appeal) Rules, 1956. It is

submitted that on the aforesaid ground also, the impugned

orders are required to be interfered with.

4.1 Mr. Bambhania, learned advocate submitted that besides

the petitioner herein having acquitted from the charges by the

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competent Court and having acted upon it, there is no

provisions for re-examination by calling for the inquiry report

after 9 to 10 years and to call upon the delinquent to answer

the charges, when the understanding was given as to

everything was wiped out and the petitioner was continued in

discharge of duties for more than 9 years. It is submitted that

the disciplinary proceedings were conducted without granting

opportunity of hearing to the petitioner and providing the

documents, which is in violation of the principles of natural

justice. It is submitted that the entire exercise is undertaken

behind the back of the petitioner after a period of more than 9

to 10 years and on the aforesaid ground, it is reiterated that

the prayers as prayed for in the present petition be allowed

and the impugned orders be quashed and set aside.

5. Ms. Pooja Ashar, learned AGP appearing for the

respondent Nos.1 and 2 relied on the affidavit-in-reply, which is

filed by the respondent - State duly produced at page 66 and

page 160 to the petition, and submitted that the impugned

orders require no interference; the said orders having been

passed concurrently by the competent authority. It is

submitted that based on (i) the inquiry report by Shri K.G.

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Makawana, Presiding Officer - cum- Commandant, SRP Group -

10 (the Disciplinary Authority); (ii) a letter dated 29.06.2006

written by the respondent No.3 herein (iii) letter dated

12.07.2006 signed by Mr. P.B. Bhagora, Battalion Quarter

Master, addressed to the Commandant, SRP Group - 10

annexing therewith the inquiry report, holding that the charges

against the petitioner are held to be proved. The said

documents are duly produced at Annexure R-1 colly.

5.1 Ms. Ashar, learned AGP submitted that clarified that Mr.

Shaikh, Police Inspector, as In-charge Battalion Quarter Master

was holding the post as In-charge, Battalion Quarter Master as

well as the Inquiry Officer, when the letter dated 06.10.2007

calling for inquiry reports submitted by the earlier officers.

Therefore, final inquiry report was submitted by Mr. Shaikh

pursuant to the chargesheet dated 22.01.1998. It is submitted

that the earlier inquiry officer Shri P.B. Bhagora, who was

earlier holding the post of Dy. S.P., Battalion Quarter Master,

Group - X as well as inquiry officer, was holding the post of Dy.

S.P., Battalion Quarter Master, Group - X from 05.03.2004 to

23.10.2007. It is submitted that Shri P.B. Bhagora submitted its

first report on 12.07.2006, it was clarified that the first report

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was submitted by Mr. P.B. Bhagora because earlier officer Mr.

K.G. Makwana, Inquiry Officer retired on 31.07.2000. It is

clarified that Mr. K.G. Makwana, didn't submit his report. It is

submitted that there was a defect in the report submitted by

Mr. P.B. Bhagora on 12.07.2006 as there was no final

conclusion; therefore again a second report was submitted by

Shri Bhagora on 29.07.2006 wherein, it was found by the

Inquiry Officer that the petitioner was not guilty however, there

was a defect in the said report also and therefore, the Inquiry

Officer was again asked to resubmit the report by letter dated

06.10.2007 and final report was submitted on 02.11.2007 by

Mr. Shaikh, Inquiry Officer who at that time was holding the

charge as PI and I/c Inquiry Officer. It is submitted that in light

of the aforesaid, the final report came to be submitted by Mr.

Shaikh on 02.11.2007 by correcting the aforesaid defects. It is

submitted that the other defective reports were not taken into

consideration in passing the order dated 25.04.2008 therefore,

the documents which were not considered by the Disciplinary

Authority, were provided to the petitioner and therefore, in the

final show cause notice dated 22.02.2008, the report of the

Inquiry Officer dated 02.11.2007 was only report that was

considered.

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5.2 Ms. Ashar, learned AGP submitted that while passing the

impugned order dated 25.04.2008 and the consequential

orders confirming the order dated 25.04.2008, the respondent

authority while conscious of the fact that the petitioner is

governed by the Bombay Police Act and the Bombay Police

(Discipline and Appeal) Rules, the respondent authority has

passed the order of compulsorily retiring the petitioner under

the Gujarat Civil Services (Discipline and Appeal) Rules, 1971.

Placing reliance on the aforesaid submissions, it is submitted

that the present petition is devoid of merits and the same be

dismissed.

6. Mr. D.A. Bambhania, learned advocate appearing for the

petitioner, in rejoinder, reiterated the contentions raised earlier

and submitted that the respondent authority has erroneously

proceeded and passed the impugned order in exercise of

powers under Rule 3(i)(ii)(iii) of the Gujarat Civil Services

(Conduct) Rules, 1971 placing reliance on the show cause

notice dated 22.02.2008 duly produced at page 44, wherein,

the alleged charges are held to be proved under the Rules,

1971 more particularly, Rule 3(i)(ii)(iii). It is also submitted that

the impugned order dated 25.04.2008 is passed invoking the

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Gujarat Civil Services (Discipline and Appeal) Rules, 1971

wherein, the order of compulsory retirement is passed under

Reference (3) i.e. the Gujarat Civil Services (Discipline and

Appeal) Rules, 1971. It is submitted that once the said order is

non-est in the eye of law, the other consequential orders would

fail into insignificance.

6.1 Mr. Bambhania, learned advocate submitted that the

petitioner was exonerated by Shri Makwana, Commandant and

Disciplinary Authority, wherein, it was opined that the charges

levelled against the petitioner are not proved beyond

reasonable doubt considering the documents that are

produced during the departmental inquiry. The said report is

duly produced on record by the respondent authority at page

168, Annexure R-1. It is submitted that by report of Mr. P.B.

Bhagora dated 12.07.2006 duly produced at Annexure R-III,

page 176, it was opined that the charges levelled against the

petitioner are not proved beyond reasonable doubt. It is

submitted that by the final report of Mr. R.J. Savani - the

respondent No.3 herein dated 06.10.2007 duly produced at

Annexure R-VI, page 188, it was also again opined that the

charges levelled against the petitioner are not proved beyond

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reasonable doubt considering the documents that are

produced during the departmental inquiry. Placing reliance on

the aforesaid submissions, it is submitted that there are 3

Inquiry Reports which opined that the charges levelled against

the petitioner are not proved.

6.2 Mr. Bambhania, learned advocate reiterated that to rigor-

out of the aforesaid findings wherein, it was found that the

report dated 29.07.2006 was not defective and therefore, it

was not open for the Inquiry Officer to call for a fresh report

which was supplied by one Mr. Shaikh dated 02.11.2007. It is

submitted that the aforesaid is contrary to the Rule 16 of the

Bombay Police (Punishment and Appeal) Rules, 1956. It is also

submitted that the revisional powers exercised by the

respondent No.2 is contrary to the Rule 27-A of the Bombay

Police Act, 1951 which provides that it is open to exercise

reivisional powers within a period of three years by the

appellate authority or the State Government and the said

powers are not available to the disciplinary authority. In view

thereof, the reopening of inquiry after a period of 9 years even

otherwise, is contrary to the Bombay Police (Punishment and

Appeal) Rules, 1956.

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6.3 Reliance is placed on the show cause notice dated

22.02.2008 which is duly produced at page 44 to the petition.

Reliance is also placed on page 22 of the compilation which is

produced on record by the respondents wherein, there is

remarks on the said communication dated 02.11.2007 that

'show cause notice for dismissal be given today itself'. The

aforesaid remarks is missing from the reply duly produced at

Annexure VII, page 196, which are hand written remarks. It is

submitted that the aforesaid exercise undertaken by the

respondent authorities to overreach the process of law.

Reliance is placed on the decision rendered in Civil Appeal

No.1749 of 2019 in case of R. Alexander Vs. Registrar General

High Court & Anr., dated 19.02.2019.

6.4 Reliance is placed on the ratio laid down in 2016 (4) GLR

3024 in case of Bakulkumar Ravishankar Jani Vs. Principal

Chief Conservator of Forests & Ors ., 2005 (1) GLR 633 in case

of Ratubha Jilubha Vs. Dy. Commissioner of Police, Ahmedabad

City. Reliance is also placed on the following decisions wherein,

it is held that it is incumbent for the Disciplinary Authorities to

follow the cardinal principles of natural justice by granting

opportunity of hearing to the delinquent.

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(a) (2010) 13 SCC 427 in case of Oryx Fisheries Private Limited Vs. Union of India & Ors.

(b) (2010) 2 SCC 772 in case of State of Uttar Pradesh & Ors.

Vs. Saroj Kumar Sinha.

(d) (2009) 2 SCC 570 in case of Roop Singh Negi Vs. Punjab National Bank & Ors.

(e) Letters Patent Appeal No.1042 of 2017 in Special Civil Application No.7490 of 2004, dated 29.01.2018.

(f) Special Civil Application No.9424 of 2003 dated 29.08.2016.

Analysis:-

7. Having heard the learned advocates appearing for the

respective parties, the following emerge:

7.1 The petitioner herein, who hails from Harijan Chamar

Community, came to be appointed as Armed Constable on

19.04.1991 in the time scale of Rs.825-1200 and was ordered

to be posted on such post with the respondent No.2. In the

course of service, the respondent authorities filed an FIR being

III - C.R. No.1349 of 1997 with Rander Police Station for the

offence punishable under Section 66(1)(b) and 85(1)(3) of the

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Prohibition Act against the petitioner on 03.08.1997 alleging

that while discharging the duties at 0:00 hours, the behavior of

the petitioner was contrary to the norms and misconducted

himself.

7.2 It emerges that the Medical Officer, before whom the

petitioner was produced for medical examination, deposed and

recorded that state of condition of the petitioner was normal,

answered all the questions and nothing ostensible was found

to hold the petitioner guilty of commission of offence except,

there were body injuries inflicted upon the petitioner. The

petitioner was thereafter requisitioned by the respondent -

State for deployment in the protection U & Escort wing of the

dignitaries and accordingly, in May, 1998, ordered to be

deputed for Security Protection on Public Interest outside the

service posting, on deputation to the Protection Cell under the

District Superintendent of Police, Gandhinagar. Accordingly,

the petitioner was relieved for joining the assigned duties vide

order dated 26.05.1998 by the respondent No.2. The petitioner

continued to render such duties till 2000 when the petitioner

requested for grant of leave for few days which was also

recommended.

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7.3 A second FIR came to be lodged against the petitioner on

20.01.2000 for the offence punishable under Prohibition Act

before Sector 21 Police Station under the Crime Register

No.10/2000. The petitioner was ordered to be relieved from the

Protection Cell pending inquiry for reporting at patent Head

Quarter, SRP, Group - X, Ukai, Dist. Surat (Gujarat) by order

dated 25.01.2000. The petitioner also came to be acquitted by

the Criminal Court. By order dated 03.07.2006, the respondent

No.2 awarded the punishment of dismissal. The petitioner

being aggrieved by the said order of dismissal filed appeal

before the Appellate Authority wherein, the said punishment of

dismissal was substituted by stoppage of three increments

with future effect by order dated 23.04.2007.

7.4 The respondent No.2 issued show cause notice to the

petitioner on 22.02.2008, which is duly produced at page 44,

for the FIR being III - C.R. No.1349 of 1997 registered with

Rander Police Station for the offence punishable under Section

66(1)(b) and 85(1)(3) of the Prohibition Act against the

petitioner on 03.08.1997.

7.4.1 It is apposite to refer to paragraph 6 of the said

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show cause notice dated 22.02.2008 which read thus : (true

translation)

"6) At the end of the aforementioned discussion, the below mentioned charges have remained proved against you.

(A) You have been lying on the road in semi-naked condition by wearing only Khakhi trouser in intoxicated condition at Zanda Chock area of Rander at 00:30 hrs. on 03/08/1997.

(B) You have violated the Liquor Prohibition policy of the Government and have committed indiscipline towards duty.

(D) You have violated Rule - 3 (1)(ii)(iii) of Gujarat State Service (Conduct) Rules,1971."

7.5 Upon perusal of paragraph 6 of the show cause notice, it

emerges that clause 6(d) states that the petitioner herein has

violated the provisions of Rule 3(1)(ii)(iii) of the Gujarat Civil

Services (Conduct) Rules, 1971. The aforesaid resulted into the

impugned order dated 25.04.2008, which is duly produced at

Annexure - B, wherein, the petitioner herein is compulsorily

retired and the period of suspension for a period between

03.09.1997 to 06.02.1998 is held not to be regularized and the

punishment is imposed under Rule 3(1)(ii)(iii) of the Gujarat

Civil Services (Conduct) Rules, 1971. Being aggrieved by the

said order, the petitioner herein preferred Appeal which came

to be dismissed by order dated 17.10.2008 and the Revision

Petition preferred by the petitioner also came to be 'Filed' by

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order dated 05.02.2009; which was communicated to the

petitioner as confidential communication by communication

dated 17.07.2009.

7.6 From the perusal of the record, it emerges that in the

interregnum period, there were 3 Inquiry Reports opining that

in absence of any proof, the charges levelled against the

petitioner are such that the same are not proved. The Inquiry

Report by Shri K.G. Makwana is duly produced at page 168.

The Inquiry Report by Shri P.B. Bhagora, dated 12.07.2006 is

duly produced at page 176. Mr. R.J. Savani, called for the

review by communication dated 27.07.2006 which is duly

produced at page 177. Shri P.B. Bhagora, again submitted

report dated 29.07.2006 which is duly produced at page 178.

While passing the impugned order, the Disciplinary Authority

brushed aside the said reports and relied on the report filed by

one Mr. Shaikh dated 02.11.2007 on the ground that Shri P.B.

Bhagora was transferred on 23.10.2007 and in view thereof,

the Inquiry Report was placed on record by Mr. Shaikh dated

02.11.2007 by correcting the defects of the earlier report by

Shri Bhagora, was accepted.

8. In light of the aforesaid, it is not in dispute that the

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petitioner herein was a Armed Constable and was governed by

the Bombay Police Act, 1951. It is apposite to refer to the

decision rendered in 2005 (1) GLR 633 in case of Ratubha

Jilubha Vs. Dy. Commissioner of Police, Ahmedabad City more

particularly, paragraph 7 of the said decision which reads thus:

"7. The petitioner's contentions deserves to be examined in the light of the applicable rules governing the case of the petitioner. The petitioner is an Unarmed Police Constable and hence he is governed by the Bombay Police Act 1951. The petitioner would not be governed by the Gujarat Civil Services (Discipline & Appeal) Rules 1971 as it is specifically mentioned in the Gujarat Civil Services (Discipline & Appeal) Rules 1971, under Rule-1 (c) that " nothing in these rules shall apply to any Government servants who are members of All India Services or who are Inspectors of Police or Members of the Subordinate ranks of the Police Force." Sub section (4) of section 2 of the Bombay Police Act 1951 defines 'Constable" means a police officer of the lowest grade and sub section (11) of section 2 defines Police Officer means any member of the police force appointed or deemed to be appointed under this Act and includes Special or Additional Police Officer appointed under section 20 or 22. Thus the petitioner is admittedly governed by he Bombay Police Act, 1951."

9. In light of the aforesaid decision, it is apposite to refer to

the relevant rules, which read thus:

(a) Rule 1(c) of the Gujarat Civil Services (Discipline and

Appeal) Rules, 1971, reads thus:

1.(c) They shall apply to all persons appointed to civil services and posts in connection with the affairs of the State of Gujarat whose conditions of service are regulated in accordance with the rules made under article 309 of the Constitution.

Provided that nothing in these rules shall apply to any Government servants who are members of the All India Services or who are Inspectors of Police or Members of the Subordinate ranks of the Police Force."

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(b) Section 2(4) of the Bombay Police Act, 1951 reads thus:

"2.(4) "constable" means a police officer of the lowest grade;"

"2.(11)"Police officer" means any member of the Police Force appointed or deemed to be appointed under this Act, and includes a special or an additional Police officer appointed under Sec. 21 or 22;"

9.2 It is also apposite to refer to the interim orders passed by

this Court from time to time, which read thus:

(a) The Order dated 27.01.2017 reads thus:

"1. Considering the facts and circumstances emerging on record that respondents are seeking time to file reply, it becomes clear that they have not file affidavit in reply for last more than 10 years, therefore, there is reason to believe that practically, there is no defence available to the respondents and they are simply killing time.

2. In view of above facts, though petition needs to be proceeded further on merits considering the fact that respondents have seek time on different dates viz. On 21.07.2016, 29.07.2016, 09.08.2016, 07.09.2016, 30.09.2016 so also on 14.10.2016 and further thereafter, though matter was adjourned on two occasions i.e. on 17.11.2016 and 15.12.2016. no further time can be granted to the respondents. However, in the interest of justice when it will be appropriate to grant last chance to file affidavit in reply or to proceed further on merits, respondents are directed to produce all relevant records including service-book and papers of departmental inquiry held against the petitioner with its full record with affidavit in reply without fail. It is made clear that if such record is not placed for scrutiny before this court, then probably, proceedings on oath may not be considered because no pleading can be concluded without supporting documentary evidence.

3. In view of above facts, responders are directed to comply with the above direction on or before 23.02.2017. It is made clear that no further time shall be granted to the respondents on such ground."

(b) The Order dated 30.11.2017 reads thus:

"1. Pursuant to the earlier orders passed by this Court, the respondents

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have filed affidavit in reply, rejoinder is also filed by the petitioner.

2. Mr.Bambhania, learned advocate for the petitioner has stated that the petitioner is not having the judgment / order pertaining to C.R.No.III 1349 of 2017 registered with Randu Police Station, Surat City.

3. Mr.Chintan Dave, learned APP has submitted that after consulting with respondent authorities, appropriate order of discharge will be placed on record. Therefore, He seeks time in the matter. Request is acceded to. List the matter after six weeks.

4. It is clarified that appropriate affidavit producing the order of discharge / acquittal of the petitioner shall be filed within a period of six weeks. As observed by this Court in the order dated 27.01.2017, the respondent authority shall also produce the papers of departmental inquiry on record. The matter is adjourned to 16.01.2018."

"1. The original petitioner has died on 30.12.2017 and his legal heirs have come on record vide order dated 25.01.2018 recorded on Civil Application No.558 of 2018 .

2. Learned advocate for the petitioner and learned Assistant Government Pleader for the State Authorities are heard at length.

3. Arguments are concluded.

4. In the affidavit-in-reply, filed on behalf of the respondent Authorities dated 21.02.2017, at para:7, there is reference to another punishment order being dismissal order dated 06.01.2007, and the order passed by the Appellate Authority interfering in the said dismissal order dated 06.01.2007, imposing lesser punishment to the petitioner. Though referred to in the affidavit, to contest this petition, the copies of those orders are not on record. To enable the respondent Authorities to place the said orders on record, list on 08.02.2019."

(d) The Order dated 08.02.2019 reads thus:

"1. This Court had, on 05.02.2019, passed the following order.

"1. The original petitioner has died on 30.12.2017 and his legal heirs have come on record vide order dated 25.01.2018 recorded on Civil Application No.558 of 2018 .

2. Learned advocate for the petitioner and learned Assistant Government Pleader for the State Authorities are heard at length.

3. Arguments are concluded.

4. In the affidavit-in-reply, filed on behalf of the respondent Authorities

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dated 21.02.2017, at para:7, there is reference to another punishment order being dismissal order dated 06.01.2007, and the order passed by the Appellate Authority interfering in the said dismissal order dated 06.01.2007, imposing lesser punishment to the petitioner. Though referred to in the affidavit, to contest this petition, the copies of those orders are not on record. To enable the respondent Authorities to place the said orders on record, list on 08.02.2019."

2. Learned Assistant Government Pleader for the State Authorities states that pursuant to the above order, written communication was sent to the Commandant of SRP Group - 10 and Mr.J.V.Patel, Deputy Superintendent of Police (Armed), In-charge commandant, is present with the relevant records.

3. During the course of hearing, it has transpired, prima facie that, the so called inquiry report, which is referred to at item No.2 in the impugned order dated 25.04.2008, which was the foundation of the impugned dismissal order, was not the only inquiry report. Reference in this regard needs to be made to the letters dated 29.07.2006 and 27.07.2006, which are shown to the Court by the learned Assistant Government Pleader. On being asked, where the earlier inquiry reports are, learned Assistant Government Pleader is not in a position to show it from the record.

4. At this stage, Mr.Bambhania, learned advocate for the petitioners has drawn the attention of this Court to the earlier orders passed by this Court (Coram : Hon'ble Mr.Justice S.G.Shah) dated 27.01.2017 and (Coram:

Hon'ble Mr.Justice A.S.Supehia) dated 30.11.2017.

5. It is noted that the case of a scheduled caste police constable, who is indicated to have subsequently committed suicide, is handle by the State Authorities, in the manner noted above. The presence of some Senior Officer from the Government may also be required. However before passing any such order, for the time being, time is granted, as prayed for by learned Assistant Government Pleader, so that complete facts are before the Court.

6. At the request of learned Assistant Government Pleader for the State Authorities, stand over to 11.02.2019."

(e) The Order dated 11.02.2019 reads thus:

"1. This matter was heard on 05.02.2019 and 08.02.2019. This Court had, on 08.02.2019, passed the following order.

"1. This Court had, on 05.02.2019, passed the following order.

"1. The original petitioner has died on 30.12.2017 and his legal heirs have come on record vide order dated 25.01.2018 recorded on Civil Application No.558 of 2018 .

2. Learned advocate for the petitioner and learned Assistant Government Pleader for the State Authorities are heard at length.

3. Arguments are concluded.

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4. In the affidavit-in-reply, filed on behalf of the respondent Authorities dated 21.02.2017, at para:7, there is reference to another punishment order being dismissal order dated 06.01.2007, and the order passed by the Appellate Authority interfering in the said dismissal order dated 06.01.2007, imposing lesser punishment to the petitioner. Though referred to in the affidavit, to contest this petition, the copies of those orders are not on record. To enable the respondent Authorities to place the said orders on record, list on 08.02.2019."

6. At the request of learned Assistant Government Pleader for the State Authorities, stand over to 11.02.2019."

2. Mr. Swapneshwar Goutum, learned Assistant Government Pleader states that Mr. J.V.Patel, Deputy Superintendent of Police (Armed), In- charge Commandant SRP Group-10, who was present before the Court on 08.02.2019 is present today also and he has come with additional record, which was indicated to be not available on the last date of hearing. Learned AGP has made available to this Court, copies of some of the documents, the details of which are noted hereunder. When the copies of these documents are made available to the Court, it is inquired whether copy of these documents are made available to the learned advocate for the petitioner. To this, learned Assistant Government Pleader, after taking instructions from the officer, states that, these are privileged documents and therefore copy thereof is not made available to the learned advocate for the petitioner.

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3. Inquiry Report(s) and the correspondence connected therewith, cannot be withheld, at least from a person against whom the inquiry is held. The contention on behalf of the State, that the said documents (referred hereafter) are privileged documents, is therefore rejected. It is directed that, the said documents shall be placed on record of this petition by the State, by filing appropriate affidavit of the Competent Officer. With a view to see that, the State gets time to challenge this order, if so advised, at least seven clear working days' time is granted to file such an affidavit and place the documents, as asked for, on record. These documents are :-

(i) an inquiry report by Mr. K.G.Makawana, Presiding Officer - cum -

Commandant, SRP Group-10, (the Disciplinary Authority) holding that the charge against the petitioner is not proved;

(ii) a letter dated 29.06.2006 written by Mr.R.J.Savani, the Commandant, SRP Group-10, to Battalion Quarter Master, SRP Group-10, asking him to prepare fresh inquiry report;

(iii) a letter dated 12.07.2006 signed by Mr. P. B. Bhagora, Battalion Quarter Master, addressed to the Commandant, SRP Group-10 annexing therewith an inquiry report, holding that the charge against the petitioner is not proved;

(iv) a letter dated 27.07.2006 written by Mr.R.J.Savani, the Commandant, SRP Group-10, to Battalion Quarter Master, SRP Group-10, again asking him to give fresh inquiry report, as asked for;

(v) a letter dated 29.07.2006 signed by Mr.P.B.Bhagora, Battalion Quarter Master, addressed to the Commandant, SRP Group-10 annexing therewith an inquiry report, again holding that the charge against the petitioner is not proved;

(vi) a letter dated 06.10.2007 written by Mr.R.J.Savani, the Commandant, SRP Group-10, to Battalion Quarter Master, SRP Group-10, asking him again, to give fresh inquiry report, as asked for;

(vii) a letter dated 02.11.2007 (this time) signed by one Mr.Shaikh, Police Inspector, as In-charge Battalion Quarter Master, addressed to the Commandant, SRP Group-10 annexing therewith an inquiry report, holding that, now the charge against the petitioner is held to be proved.

4.1 From the above documents, the copies of which are made available to the Court, and over which privilege is claimed by the Government, it transpires prima facie that, for the irregularities alleged to have been committed by the petitioner in the year 1997, an inquiry was conducted by the Disciplinary Authority himself in the year 1998, and the charges against the petitioner were held to be not proved.

4.2 It is indicated that, Mr.R.J.Savani, had taken charge as the Commandant SRP Group 10, somewhere in the year 2005 - 2006. He had, as the Disciplinary Authority imposed punishment of dismissal upon the petitioner, in connection with a different chapter. The said dismissal order was dated 06.01.2007. The said dismissal order was set aside by the Appellate Authority vide order dated 23.04.2007. The petitioner thus got reinstated in service before Mr.R.J.Savani as the Commandant, but under

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the orders of his Higher Authority.

4.3 The chronology of the events indicates that, there is substantial force in the contention on behalf of the petitioner, that he was victimized by the Disciplinary Authority. There is pleading also to this effect, in the petition, however, the concerned Officer is not joined as Party Respondent in his personal capacity. It would be unfair to make any observation in this regard, in his absence.

5. Learned advocate for the petitioner seeks permission to join the said Officer - Mr.R.J.Savani, as party respondent in his personal capacity.

6. Permission as prayed for is granted.

7. Learned AGP, on instructions states that, the said Officer (Mr.R.J.Savani) is in service and at present he is posted as Inspector General of Police (Intelligence), Gujarat State, Gandhinagar.

8. Issue notice to the newly added respondent:-

Mr.R.J.Savani, Inspector General of Police (Intelligence), Police Bhavan, Gandhinagar,

returnable on 22.02.2019.

Direct Service is permitted. It would be open to the petitioner to serve the newly added respondent by Registered Post. Over and above this, it is also noted that, learned AGP and Mr.J.V.Patel, Deputy Superintendent of Police (Armed), Incharge Commandant SRP Group-10, who is present in the Court, are also requested to inform the newly added respondent about this order."

10. From the aforesaid, it emerges that the petitioner herein

was appointed as Armed Constable on 19.04.1991 and is

governed by the Bombay Police Act, 1951 and the Bombay

Police (Punishment and Appeal) Rules, 1956 in exercise of

powers conferred by clause (c) of sub-section (2) of section 25

read with section 5(b) of the Bombay Police Act, 1951. The

show cause notice dated 22.02.2008 invoking the Gujarat Civil

Services (Conduct) Rules, 1971, in the opinion of this Court,

itself an erroneous foundation laid by the respondent

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authorities. The subsequent order dated 25.04.2008 duly

produced at Annexure - B, is also passed under the Gujarat

Civil Services (Discipline and Appeal) Rules, 1971. In the

opinion of this Court, the said Rules are not applicable in the

facts of the present case. Further, there is a bar under Section

27(a) of the Act. The disciplinary action was carried forward by

the Disciplinary Authority after a period of 9 years which even

otherwise is barred by delay and latches.

10.1 Further, as held in 2016 (4) GLR 3024 in case of

Bakulkumar Ravishankar Jani Vs. Principal Chief Conservator of

Forests & Ors., the Disciplinary Authority has no power to

review its own order and has dealt with Rule 23 and Rule 6 of

the Gujarat Civil Services (Discipline and Appeal) Rules, 1971

wherein, it is held that it is only the Appellate Authority who

has the power to review the order of penalty and as per Rule 3,

the same cannot be exercised after expiry of six months of the

said order. Even considering that the power was exercised by

the competent authority, the same is contrary to the Rules,

1971. Further, Section 27(A) of the Bombay Police Act, 1951

does not confer any power of review to the Disciplinary

Authority. On both the grounds, the action undertaken by the

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respondent No.2 is required to be interfered with. It is apposite

to refer to the paragraphs 6, 7, 10, 11, 14 and 15 of the said

decision which read thus:

"6. At the very outset, it would be pertinent to advert to Rule-23 of the Disciple and Appeal Rules, which reads as below :

"23. Review of orders in disciplinary cases : The authority to which an appeal against an order imposing any of the penalties specified in rule 6 lies may, of its own motion or otherwise, call for the record of any proceeding under these rules and review any order passed in such a case and, may, after consultation with the Commission where such consultation is necessary, pass such order as it deems fit as if the Government servant had preferred an appeal against such order;

Provided that no action under this rule shall be taken after the expiry of a period of more than six months from the date of such order."

7. A perusal of the said rule makes it very clear that it is only the Appellate Authority before whom an appeal imposing an order of penalty specified in Rule-6 lies, that is empowered to call for the record and proceedings of the case and review the order passed in such case either suo motu or otherwise. The proviso to this rule clearly stipulates in mandatory language that no action under the rule shall be taken after the expiry of a period of six months from the date of such order.

10. In this context, it would be fruitful to refer to the judgment in the case of State of Orissa Vs. Kanhu Charan Majhi (supra), wherein Rule-32 of the Orissa Civil Services (Classification, Control & Appeal) Rules, 1962 was in issue. This rule has been reproduced in the judgment and is found to be pari materia with Rule23 of the Discipline and Appeal Rules under consideration. The relevant extract of the judgment is as below :

"15. So far as the exercise of power under Rule 32 of the Rules is concerned, it is very clear from the proviso to the Rule that no action can be taken under the said Rule after more than six months from the date on which the order to be reviewed was passed. By virtue of the order dated 4th September, 2000, the order dated 16th October, 1995 had been taken into review and as it was taken into review after more than six months, the order would be bad if it was passed under Rule 32 of the Rules. Thus, initiation of proceedings in pursuance of order dated 4th September, 2000 was bad and rightly held so by the Tribunal and confirmed

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by the High Court.

16. Upon perusal of both the aforestated Rules, it is clear that an order, passed by the Government Authorities, can be reviewed. So far as Rule 32 of the Rules is concerned, in a disciplinary case the Appellate Authority can review the order but the Authority can review the order within six months from the date of passing of that order and thereafter the order cannot be reviewed as specified in the proviso to Rule 32 of the Rules."

11. In light of Rule-23 of the Discipline and Appeal Rules and the judgment of the Supreme Court, this Court finds that the action of the Disciplinary Authority in reviewing its own order beyond a period of six months, definitely falls foul of Rule 23 and the proviso. Even though a submission was made in this regard before the Tribunal, it has failed to address this aspect which goes to the very root of the matter.

14. Considering the matter from every possible angle in light of Rule-23 of the Discipline and Appeal Rules, this Court arrives at the inescapable conclusion that the action of the Disciplinary Authority in reviewing its earlier order and conducting a fresh inquiry, thereafter, is unsustainable in law. All consequential action, therefore, also stands vitiated.

15. In light of the above discussion and for the reasons stated hereinabove, the following order is passed :

The order dated 13.01.2006, passed by respondent No.2- Disciplinary Authority, the impugned order of penalty dated 31.08.2007, passed by respondent No.1 as well as the order dated 13.10.2010/16.10.2010, passed by the Gujarat Civil Services Tribunal in Appeal No.276/2007, are hereby quashed and set aside."

10.2 While passing the impugned order, no opportunity of

hearing is granted to the petitioner herein, which is also not in

dispute. On perusal of the record, it emerges that the

disciplinary action is initiated against the petitioner herein for

the alleged charges levelled against the petitioner while

discharging duty at 0.00 hours on 03.08.1997 and was

arraigned for the charges under Rander Police Station, III- C.R.

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No.1349 of 1997 for imputation of alleged commission of

offence punishable under Section 66(1)(b) and 85(1)(3) of the

Prohibition Act and in the interregnum period, there were 3

Inquiry Reports opining that in absence of any proof, the

charges levelled against the petitioner are such that the same

are not proved and in view thereof also, the entire exercise

undertaken by the respondent authority is vitiated by flouting

the established principles of natural justice; the earlier Inquiry

Reports having been opined in favour of the petitioner herein,

as discussed above.

10.3 In light of the aforesaid, the following position of law

governs the field:

(a) (2018) 7 SCC 670 in case of Union of India and Others Vs.

Ram Lakhan Sharma. Paragraphs 24 to 29 of the said decision

read thus:

"24. The disciplinary proceedings are quasi-judicial proceedings and Inquiry Officer is in the position of an independent adjudicator and is obliged to act fairly, impartially. The authority exercises quasi-judicial power has to act in good faith without bias, in a fair and impartial manner.

25. Rules of natural justice have been recognised and developed as principles of administrative law. Natural justice has many facets. Its all facets are steps to ensure justice and fair play. This Court in Suresh Koshy George vs. University of Kerala and others, AIR 1969 SC 198 had occasion to consider the principles of natural justice in the context of a case where disciplinary action was taken against a student who was alleged to have adopted malpractice in the examination. In paragraph

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7 this Court held that the question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of Tribunal and the rules under which it functions. Following was held in paragraphs 7 and 8: (AIR p.201)

"7....The rules of natural justice are not embodied rules. The question whether the requirements of natural justice have been met by the procedure adopted in a given case must depend to a great extent on the facts and circumstances of the case in point, the constitution of the Tribunal and the rules under which it functions.

8. In Russel v. Duke of Norfolk, Tucker, L. J. observed:

"There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal. The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case."

26. A Constitution Bench of this Court has elaborately considered and explained the principles of natural justice in A.K. Kraipak and others vs. Union of India and others, AIR 1970 SC 150. This Court held that the aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. The concept of natural justice has undergone a great deal of change in recent years. Initially recognised as consisting of two principles that is no one shall be a judge in his own cause and no decision shall be given against a party without affording him a reasonable hearing, various other facets have been recognised. In paragraph 20 following has been held:

"20. The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely (1) no one shall be a judge in his own case (Nemo debet esse judex propria causa) and (2) no decision shall be given against a party without affording him a reasonable hearing (audi alteram partem).Very soon thereafter a third rule was envisaged and that is that quasi- judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably...."

27. In State of Uttar Pradesh and others vs. Saroj Kumar Sinha, 2010 (2) SCC 772, this Court had laid down that inquiry officer is a quasi-judicial authority, he has to act as independent adjudicator and

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he is not a representative of the department/disciplinary authority/Government. In paragraphs 28 and 30 following has been held:

"28. An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

30. When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

28. When the statutory rule does not contemplate appointment of Presenting Officer whether non-appointment of Presenting Officer ipso facto vitiates the inquiry? We have noticed the statutory provision of Rule 27 which does not indicate that there is any statutory requirement of appointment of Presenting Officer in the disciplinary inquiry. It is thus clear that statutory provision does not mandate appointment of Presenting Officer. When the statutory provision does not require appointment of Presenting Officer whether there can be any circumstances where principles of natural justice can be held to be violated is the broad question which needs to be answered in this case. We have noticed above that the High Court found breach of principles of natural justice in Inquiry Officer acting as the prosecutor against the respondents. The Inquiry Officer who has to be independent and not representative of the disciplinary authority if starts acting in any other capacity and proceed to act in a manner as if he is interested in eliciting evidence to punish an employee, the principle of bias comes into place.

29. Justice M. Rama Jois of the Karnataka High Court had occasion to consider the above aspect in Bharath Electronics Ltd. vs. K. Kasi, ILR 1987 Karnataka 366. In the above case the order of domestic inquiry was challenged before the Labour and Industrial Tribunal. The grounds taken were, that inquiry is vitiated since Presenting Officer was not appointed and further Inquiry Officer played the role of prosecutor. This Court held that there is no legal compulsion that Presenting Officer should be appointed but if the Inquiry Officer plays the role of

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Presenting Officer, the inquiry would be invalid. Following was held in paragraphs 8 and 9:

8. One other ground on which the domestic inquiry was held invalid was that Presenting Officer was not appointed. This view of the Tribunal is also patently untenable. There is no legal compulsion that Presenting Officer should be appointed.

Therefore, the mere fact that the Presenting Officer was not appointed is no ground to set aside the inquiry See :

Gopalakrishna Reddy v. State of Karnataka (ILR 1980 Kar 575). It is true that in the absence of Presenting Officer if the Inquiring Authority plays the role of the Presenting Officer, the inquiry would be invalid and this aspect arises out of the next point raised for the petitioner, which I shall consider immediately hereafter.

9. The third ground on which the Industrial Tribunal held that the domestic inquiry was invalid was that the Inquiry Officer had played the role of the Presenting Officer.

The relevant part of the findings reads :

"The Learned Counsel for the workman further contended that the questions put by the Enquiry Officer to the Management's witnesses themselves suggest that he was biased and prejudiced against the workman. There has been no explanation as to why no Presenting Officer was appointed and as to why the Enquiry Officer took upon himself the burden of putting questions to the Management witnesses. The enquiry proceedings at Ext. A-6 disclose that after the cross-examination of the Management's witnesses by the defence, the Enquiry Officer has further put certain questions by way of explanation, but from their nature an inference arises that they are directed to fill in the lacuna. The Learned Counsel for the Management contended that the Enquiry Officer has followed the principles of natural justice and that the domestic enquiry is quite valid. I am of the view that the fact that the Enquiry Officer has himself taken up the role of the Presenting Officer for the management goes to the root of the matter and vitiates the enquiry,"

As far as position in law is concerned, it is common ground that if the Inquiring Authority plays the role of a Prosecutor and cross-examines defence witnesses or puts leading questions to the prosecution witnesses clearly exposing a biased state of mind, the inquiry would be opposed to principles of natural justice. But the question for consideration in this case is : Whether the Inquiry Officer did so ? It is also settled law that an Inquiring Authority is entitled to put questions to the witnesses for clarification wherever it becomes necessary and so long the delinquent employee is permitted to cross-examine the witnesses after the Inquiring Authority questions the witnesses, the inquiry proceedings cannot be impeached as unfair."

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(b) 2005 (6) SCC 636 in case of P.V. Mahadevan Vs. MD. T.N.

Housing Board, Paragraphs 3, 11 and 12 of the said decision

read thus:

"3. Mr. V. Prabhakar, learned counsel for the appellant submitted that the charge memo had been issued in the year 2000 for the irregularity in issuing a sale deed in 1990 to one Mr. A.N. Beemaiah who was an employee of the Housing Board and was to superannuate shortly. Mr. Prabhakar also submitted that though the records were very much available with the respondent, no action has been taken against the appellant since 1990 for about 10 years; that no explanation whatsoever was offered by the Housing Board for the inordinate delay in initiating the disciplinary action against the appellant. Mr. Prabhakar placed strong reliance on the following two decisions of this Court in (i) State of Madhya Pradesh v. Bani Singh and Another, reported in [1990] Supp. SCC 738 and (ii) State of A.P. v. N. Radhakrishan reported in [1998] 4 SCC 154 and submitted that the High Court did not even consider any of these judgments, which were specifically referred in the writ petition.

11. Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interests of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer.

12. We, therefore, have no hesitation to quash the charge memo issued against the appellant. The appeal is allowed. The appellant will be entitled to all the retiral benefits in accordance with law. The retiral benefit shall be disbursed within three months from this date. No costs."

10.4 At this stage, it is apposite to refer to the ratio laid

down by the Hon'ble Apex Court in case of M/s. Radha Krishan

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Industries vs. State of Himachal Pradesh, reported in AIR 2021

SC 2114. Paragraph 27 of the said decision reads thus:

"27. The principles of law which emerge are that :

(i) The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well;

(ii) The High Court has the discretion not to entertain a writ petition.

One of the restrictions placed on the power of the High Court is where an effective alternate remedy is available to the aggrieved person;

(iii) Exceptions to the rule of alternate remedy arise where (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged;

(iv) An alternate remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternate remedy is provided by law;

(v) When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion; and

(vi) In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.

11. In the facts of the present case, the position of law as

referred above and the ratio laid down by the Hon'ble Apex

Court as also considering the documents on record, this is a fit

case to exercise extra-ordinary jurisdiction under Article 226 of

the Constitution of India. The present petition deserves to be

NEUTRAL CITATION

C/SCA/7345/2011 JUDGMENT DATED: 22/01/2025

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allowed and the same is allowed. The impugned orders dated

25.04.2008, 17.10.2008 and 05.02.2009 as also, the

communication dated 17.07.2009 conveying to the petitioner

that the Revision is not entertained and ordered to be 'Filed',