Gujarat High Court

Shantubhai D. Khuman vs State Of Gujarat on 30 July, 2025

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                           C/SCA/9089/2008                                        JUDGMENT DATED: 30/07/2025

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                                    IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                       R/SPECIAL CIVIL APPLICATION NO. 9089 of 2008


                      FOR APPROVAL AND SIGNATURE:


                      HONOURABLE MR. JUSTICE SANDEEP N. BHATT
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                                   Approved for Reporting                        Yes           No
                                                                                  ✓
                      ==========================================================
                                                     SHANTUBHAI D. KHUMAN
                                                             Versus
                                                    STATE OF GUJARAT & ORS.
                      ==========================================================
                      Appearance:
                      MR. PRAVIN BHACHKAR FOR MR BM MANGUKIYA(437) for the
                      Petitioner(s) No. 1
                      MR. HENIL SHAH, AGP for the Respondent(s) No. 1,2,3,4
                      ==========================================================

                         CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                                             Date : 30/07/2025
                                                             ORAL JUDGMENT

1. The present petition is filed by the petitioner for

seeking the following reliefs:

"(A) Be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other writ, order or direction to direct the respondent to quash and set aside the impugned order dated April 25, 2007 confirming the order passed by the respondent No.2 dated February 23, 2007;

(B) Pending admission and final disposal of the present

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petition, be pleased to direct the respondent to stay the implementation, execution and operation of the impugned order passed by the respondent No.1 dated April 25, 2007 confirming the order passed by the respondent No.2 dated February 23, 2007;

(C) Be pleased to pass such other and further orders as may be deemed fit and proper."

2. Brief facts as stated in the memo of the petition

are as under:

2.1 It is the case of the petitioner in this petition that

the petitioner is serving as a Police Constable and was

posted in Gadhada Police Station since 10.08.2000. The

petitioner was transferred for more than 14 times in Bhavnagar District. Therefore, the petitioner submitted

an application to the Police Commissioner, Bhavnagar

pointing out several instances and reasons for his

frequent transfers. It is further the case of the petitioner

in this petition that since the petitioner was

apprehending his transfer again, the petitioner preferred

a Civil Suit before the competent court at Bhavnagar

wherein the Hon'ble Court granted stay against his

transfer. It is further the case of the petitioner in this

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petition that on 04.04.2001, the petitioner was put under

suspension. It is further the case of the petitioner in

this petition that on 09.04.2002, the Police Commissioner,

Bhavnagar issued a charge sheet dated 9.4.2008 wherein

4 articles of charges are levelled against the petitioner

and the petitioner was called upon to submit his reply

within 10 days. On 21.10.2002, the Dy. Superintendent of

Police, SC/ST Cell, Bhavnagar was appointed as

Presiding Officer. It is further the case of the petitioner

in this petition that on 18.08.2004, the departmental

inquiry was initiated against the petitioner and the

petitioner submitted his written reply on 18.08.2004

denying all the allegations and charges leveled against

him.

2.2 It is further the case of the petitioner in this

petition that on 27.10.2004, the Police Commissioner,

Bhavnagar issued a show cause notice to the petitioner

calling upon him to show cause as to why the petitioner

is not dismissed from service in view of the charged

sheet issued to the petitioner. It is further the case of

the petitioner in this petition that pursuant to the

issuance of show cause notice, the petitioner submitted

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his reply on 1611.2004 stating that the punishment

sought to be imposed upon the petitioner is harsh and

does not commensurate with the gravity of the alleged

misconduct. It is further the case of the petitioner in

this petition that on 31.01.2005, the Dy. Superintendent

of Police, Bhavnagar dismissed the petitioner from service

holding that the petitioner is guilty of the charges

leveled against him. Being aggrieved by the order of

dismissal, the petitioner preferred an appeal before the

Deputy Inspector General of Police which was rejected by

the Deputy Inspector General of Police vide order dated

26.07.2005. Therefore, on 23.02.2007, the petitioner

preferred Revision Application before the respondent no.2

which was rejected by the respondent no.2 vide order dated 23.07.2007 confirming the order passed by the

respondent no.3. Hence, being aggrieved by the same, the

petitioner preferred Revision Application before the

respondent no.1. However, the respondent no.1 rejected

the same holding that the petitioner was afforded ample

opportunity of defending his cause and hence Revision

Application is not maintainable. It is further the case of

the petitioner in this petition that the petitioner, being

aggrieved by the order passed by the respondent no.1

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confirming the order of dismissal, the present petition

has been preferred.

3. Heard Mr. Pravin Bhachkar, learned advocate

appearing on behalf of Mr. B.M. Mangukiya, learned

advocate for the petitioner and Mr. Henil Shah, learned

Assistant Government Pleader for the respondents -

State.

4. Mr. Pravin Bhachkar, learned advocate appearing

on behalf of Mr. B.M. Mangukiya, learned advocate for

the petitioner has drawn the attention of this Court

towards the impugned order dated 29.04.2007 passed by

respondent No.1 in Second Revision, whereby the respondent No.1 has confirmed the order dated

23.02.2007 passed by the respondent No.2. He has also

submitted that the said order has been passed in

mechanical manner without considering any grievance of

the petitioner. He has submitted that the respondent

Authorities have merely confirmed the order passed by

the respondent No.4 without considering any single

contention or averment made by the petitioner. He has

further submitted that the respondent Authorities have

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recorded the contentions of the petitioner but have failed

to give any findings there upon. He has further

submitted that the respondent Authorities have acted in

prejudiced manner against the petitioner. He has further

submitted that the respondent No.1 while passing the

impugned order has held that the petitioner has been

afforded opportunity of defending himself as per the rules

and, therefore, the revision application preferred by the

petitioner cannot be entertained in view of the provisions

of the Bombay Police Act, 1951. He has submitted that

in fact, the petitioner was not afforded opportunity of

hearing for defending himself as per the rules and mere

empty formality has been made to show that an

opportunity of hearing was given and the entire proceedings were initiated in accordance with law. He

has further submitted that the principle of natural

justice are required to be complied and there is a clear

violation of the principle of natural justice on the part of

the respondent Authorities. He has further submitted

that the petitioner has expired long ago during the

pendency of the proceedings and the heirs are not

brought on record. He has further submitted that in

view of Section 27-A of the Bombay Police Act, which

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provides for revisional powers of the State Government,

the respondent No.1 has held that since there is no

provision in the Bombay Police Act for hearing the

revision application, the revision application preferred by

the petitioner cannot be taken into consideration. He has

further submitted that it is also provided in Section 27-

A, that after affording reasonable opportunity of being

heard, the order should be passed and, therefore, he has

submitted that the impugned orders passed by the

respondent Authorities are bad in the eyes of law and

required to be quashed and set aside by granting

prayers made in the present petition.

5.1 Per contra, Mr. Henil Shah, learned Assistant Government Pleader for the respondents - State has

drawn the attention of this Court towards the affidavit-

in-reply and has submitted that the petitioner was

appointed as Armed Police Constable on 13.11.1978 and

his first positing was at Police Head Quarters

Bhavnagar. He has further submitted that the petitioner

was accused for the offence registered at Gadhda Police

Station for the offence punishable under Section-7 and

3(D) of Prevention of Corruption Act as during the

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investigation of CR. No. 53 of 2001 registered at Gadhda

Police Station for the offence punishable under Sections

468, 469, 470, 471, 506(2), 511, & 114 of the Indian

Penal Code, the petitioner along with the other accused

had demanded the bribe from Mr. Ashokbhai Balabhai

Patel. Hence the petitioner was also as one of the

accused for the offence punishable under the corruption

Act and during the pendency of the trial of the above

mentioned corruption offence, the petitioner had made

baseless allegations against the superior officer that to

directly to the Hon'ble Chief Minister, Leader of

Opposition and to Special Range Inspector General,

Junagadh. He has further submitted that the

departmental proceedings was also initiated for the corruption charges leveled against the present petitioner

and Authority had taken final decision for not to impose

any separate punishment as the petitioner was already

dismissed from the service qua the departmental

proceedings, which was initiated vide charge-sheet dated

09.04.2002. He has further submitted that by way of

present petition, the petitioner is challenging three

concurrent findings of different Authorities against the

present petitioner. He has further submitted that in view

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of Inquiry Officers report dated 28.09.2001, whereby

Deputy Superintendent of Police, Botad was inquiry

officer and he held that all the charges are proved

against the present petitioner. He has further submitted

that further order passed by the Superintendent of

Police, Bhavnagar on 31.01.2005 thereafter, on

26.07.2005, the order is passed by the Deputy Inspector

General of Police, Junagadh and lastly, has has been

passed by the Director General of Police, Gandhinagar on

23.02.2007 and therefore, he has submitted that there

are tree concurrent findings of facts of the high level

authority against the present petitioner and all the

procedure prescribe under the service law was duly

complied with during the departmental proceedings and hence, there are no lacunas in the departmental

proceedings.

5.2 He has further submitted that all the three orders

passed against the present petitioner are passed after

considering all the relevant aspects in detail and also

after considering the submissions made by the petitioner.

He has further submitted that therefore, the ground

raised by the petitioner, that contentions of the petitioner

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was not considered is baseless and against the record,

which is available by way of findings of the Authority in

three different orders. He has further submitted that

that contention raised by learned advocate for the

petitioner that there were no fair opportunity of hearing

had been granted to the petitioner to examined any

independent witness; in fact, the petitioner has examined

four witnesses namely (i) Deputy Superintendent of

Police, Botad (ii) B.H.Chavda, Police Sub Inspector (iii)

Chimanlal Manilal Gamit, Unarmed Police Constable and

(iv) Fatehsinh Jaisinhbhai, Unarmed Police Constable, but

at no point of time, the petitioner had made any request

for examining other witnesses on his behalf. The

petitioner's friend Mr. B.K.Trivedi had cross-examined the above mentioned witnesses. He has further submitted

that essentially, the inquiry pertains to misconduct

within the departmental hierarchy hence there is a no

requirement of examining any independent witness from

the public. Even in his statement dated 04.08.2004, the

petitioner has stated that he doesn't want to examine

any of the witnesses. He has further submitted that in

judgment of the Hon'ble Apex Court in the case of

Jagdish Singh Vs. Punjab Engineering Collega and

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Others reported in 2009 (7) SCC 301, it has been held

by the Hon'ble Supreme Court that The Courts and the

Tribunals can interfere with the decision of the

disciplinary authority, only when they are satisfied that

the punishment imposed by the disciplinary authority is

shockingly disproportionate. In this case, the punishment

is imposed by the disciplinary authority and which was

subsequently confirmed in Appeal as well as in Revision

are just and proper and it is essentially to maintain the

discipline and decorum in police force. He has further

submitted that the complain made by the petitioner

directly to the Chief Minister is not proper and not in

correct manner and as per the Rule-366(2)(3) of Gujarat

Police Manual (Part-I), any officer can not made any allegations against the superior officer without the proper

channel. Lastly, he has submitted that Section 27-A of

the Bombay Police Act clearly stipulates that any

submission or application made by the petitioner is

required to be considered and, therefore, it cannot be

said that there is any need of any opportunity of

personal hearing of the matter. In support of his

submission, he has relied on the judgment passed by

this Hon'ble Court in the case of R.M. Bajpaee Vs. State

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of Gujarat reported in 1985 (0) AIJEL-HC 209833, by

referring to the head note and paragraph 6, he has

submitted that personal hearing in not mandatory and,

therefore, he has prayed to dismiss this petition.

6.1 I have considered the rival submissions made at the

bar. I have also gone through the order passed by all

the three Authorities and also perused the necessary

materials available on the record. It transpires that the

petitioner has participated in every proceeding and has

been given enough opportunities by the Authorities to

put his case/defence pursuant to the allegation in

connection with the department proceeding. It also

transpires that on behalf of respondent - Authorities, four witnesses of the department were examined; Deputy

Superintendent of Police, Botad, Police Sub Inspector and

two Unarmed Police Constable to whom cross-examination

was also carried out by the Authorized representative /

friend of the petitioner namely Mr. B.K.Trivedi.

6.2 Considering the fact that the petitioner was serving

in the police department and there are severe charges

against the petitioner in connection with the

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departmental proceeding against the petitioner, the

petitioner has written letters to the Hon'ble Chief

Minister, Leader of Opposition and to Special Range

Inspector General, Junagadh without following necessary

procedure to make such representation through proper

channel, more particularly, considering the provisions of

Rule 366(2)(3) of the Gujarat Police Manual Part-I, by

which, it transpires that any officer cannot make any

allegation against the superior officer without properly

challenging and also considering the fact that findings of

the Authorities are concurrent in nature, I found that

the Authorities have also taken into consideration the

submission/representation made by the petitioner.

Consider the above, it transpires that the aspect of principles of natural justice has been complied with in

view of abovementioned fact.

6.3 Moreover, it is fruitful to refer the provisions of

Section 27-A of the Bombay Police Act, which reads as

under:

"Section 27 in Bombay Police Act, 1951

27. Appeals from orders of punishment. - An appeal against any order passed against a Police Officer under

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section 25 or the rules or orders thereunder shall lie to the State Government itself or to such officer as the State Government may by general or special order specify:

[Provided that, a punishment shall not be enhanced or more severe punishment shall not be awarded in appeal, unless notice to show cause against such enhancement or, as the case may be, more severe punishment, has been given, and any cause shown thereon has been considered.] [27A. Power of State Government or Director-General and Inspector-General to call for record of any inquiry or proceeding. - The State Government or the Director-General and the Inspector-General may, suo motu or on an application made to it or him, as the case may be, within the period prescribed in this behalf, call for and examine the record of any inquiry or proceedings held against any Police Officer under this Chapter by any authority for the purpose of satisfying itself or himself as to the legality or propriety of any decision taken or order passed in any such inquiry and as to the regularity of the proceedings held, against such officer, and may, at any time -

(a) confirm, modify or reverse any such order;

(b) impose any punishment or set aside, reduce, confirm or enhance the punishment imposed by such order;

(c) direct that further inquiry be held; or

(d) make such other order as, in the circumstances of the case it or he, as the case may be, may deem fit:

Provided that, an order in revision imposing or enhancing the punishment, shall not be passed unless the Police Officer affected thereby has been given a reasonable opportunity of making a representation which he may wish

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to make against such punishment:

Provided further that, no order in revision shall be passed,-

(i) in a case where, an appeal against the decision or order passed in such inquiry or proceeding has been filed and such appeal is pending;

(ii) in a case where, an appeal against such decision or order has not been filed, before the expiry of the period provided for filing of such appeal; and

(iii) in any other case, after the expiry of a period of three years from the date of the decision or order sought to be revised."

6.4 Furthermore, it is also fruitful to refer the

judgment passed by this Hon'ble Court in the case of

R.M. Bajpaee Vs. State of Gujarat reported in 1985 (0)

AIJEL-HC 209833, more particularly, paragraph 6 is relevant, as under:

"6. It was next submitted by the learned advocate for the petitioner that before the revision application was disposed of by the State Government, the petitioner ought to have been given a personal hearing. By not giving him a personal hearing, submitted counsel, the State Government had committed a breach of rule of natural justice which vitiated the impugned order of dismissal. Sec. 27A of the Bombay Police Act provides that the State Government may, suo motu, or on an application made to it, call for

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and examine the record of any inquiry or proceeding of any subordinate police officer for the purpose of satisfying itself as to the legality or propriety of any decision or order passed by, and as to the regularity of the proceedings of such officer, and may, at any time, confirm, modify or reverse any such order, impose any penalty or set aside, reduce, confirm or enhance the penalty imposed by such order, as may be deemed fit. The proviso to that Section lays down that an order in revision imposing or enhancing penalty shall not be passed unless the police officer affected thereby has been given a reasonable opportunity of being heard. On the basis of the language of the proviso to Sec. 27 A, learned counsel for the petitioner submitted that it was incumbent on the State Government to give a personal hearing to the petitioner before imposing the order of punishment. Now in the first place it must be remembered that the word imposing used in the proviso to Sec. 27A contemplates imposition of punishment or penalty for the first time in revision and not mere confirmation thereof. This becomes clear if we read the Section as a whole. The State Government is empowered to confirm any order passed by the authority below. For such confirmation the proviso does not contemplate any hearing to be given, much less a personal hearing. The proviso contemplates giving of a reasonable opportunity of being heard only in cases where an order imposing or enhancing penalty is proposed to be passed in revision. Confirmation of penalty by which the petitioner has already been visited is covered by Clause (a) whereas imposition of penalty is covered by Clause (b). This makes it clear that these are two distinct orders and it is

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only in the case of the latter that the proviso contemplates the giving of a reasonable opportunity of being heard. Therefore, the submission that penalty was imposed in revision because the order passed by the authority below was confirmed is clearly misconceived. Secondly, the granting of a reasonable opportunity of being heard does not necessarily envisage a right to audience. The Supreme Court in Madhya Pradesh Industries V/s. Union of India, AIR 1966 SC 671 observed that it is no doubt a principle of natural justice that a quasi judicial tribunal cannot make any decision adverse to a party without giving him an effective opportunity of meeting any relevant allegations against him. The said opportunity need not necessarily be by personal hearing. It can be by written representation in the form of memo of revision. Again in Union of India v. Jyoti Prakash, AIR 1971 SC 1093, the Supreme Court observed that in proceedings of a judicial nature, the basic rules of natural justice must be followed but it is not necessarily an incident of the rule of natural justice that personal hearing must be given to the party likely to be affected by the order. Except in proceedings in Courts, a mere denial of opportunity of making oral representation will not, without more, vitiate the proceedings. A party likely to be affected by a decision is entitled to know the evidence against him and. to have an opportunity of making a representation. However, the party cannot claim that an order made without affording a personal hearing cannot be sustained. It would appear from the a-foresaid provisions that even assuming that proviso to Sec. 27A applied, the nature of opportunity of being heard

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contemplated thereby need not be a personal hearing, any representation received from the delinquent on the basis of which the revisional jurisdiction is exercised, should suffice. I am, therefore, of the opinion that the contention founded on the language of the proviso to Sec. 27A that the impugned order is vitiated as the delinquent was not given a personal hearing before the revision application came to be disposed of is unsustainable."