Gujarat High Court
Mulchandbhai N. Parmar vs District Superintendent Of Police on 9 December, 2004
Equivalent citations: (2005)2GLR1291
Author: Anant S. Dave
Bench: Anant S. Dave
JUDGMENT Anant S. Dave, J.
1. This petition under Article 226 of the Constitution of India is filed by the petitioner against the concurrent findings of the Disciplinary Authority, the Appellate Authority and the Revisional Authority, after exhausting two rounds, where, the petitioner was dismissed from service by order dated 31st May 1989 by the respondent No. 1.
2. The main grounds of challenge to the impugned order of dismissal dated 31st May 1989 passed by the respondent No. 1 are that the petitioner had never indulged in the misconduct alleged to have been committed by him; the procedure of departmental enquiry held by the Authority was not in consonance with the principles of natural justice; the findings of the Enquiry Officer are based on no evidence; and, the Disciplinary Authority, the Appellate Authority and the Revisional Authority have failed to look into this aspect and, therefore, the impugned order of dismissal dated 31st May 1989 passed by the respondent No. 1 deserves to be quashed and set aside.
3. It is the case of the petitioner that, pursuant to the incident dated 12th October 1985, the petitioner was placed under suspension by order dated 27th March 1986 and, thereafter, charge sheet dated 1st June 1986 came to be issued, where, mainly, two charges were levelled against the petitioner, namely, (i) the petitioner had brought one tribal lady to the police quarter, room No. 59, 'C' Block, with ill-intention, and (ii) the petitioner was found in a drunken condition. According to the charge sheet, the petitioner had committed the misconduct of unbecoming of a member of the disciplinary force.
3.1 The petitioner denied the charges levelled in the said charge sheet and, after completion of the departmental enquiry, a show cause notice dated 25th January 1988 was issued by the respondent-Authority, to which, the petitioner submitted his reply on 30th March 1988, and contended that the Officer, who had prepared the enquiry report, was not competent to do so, because, he had conducted the preliminary enquiry. Thereafter, the Authority had given an opportunity of hearing to the petitioner on 4th July 1988 and the enquiry report was rewritten by another Officer and, thereafter, again, a show cause notice was issued on 14th February 1989 calling upon the petitioner to explain why he should not be dismissed from service. The petitioner submitted his explanation on 13th March 1989 and requested the Authority that it was not a fit case to impose punishment of dismissal, in view of the fact that some of the witnesses had not deposed in the departmental enquiry as per their original statements, and no case was made out against the petitioner.
3.2 Having perused the report of the Enquiry Officer pursuant to the departmental enquiry, and the reply submitted by the petitioner, the respondent-Authority passed the order of dismissal dated 31st May 1989. In the said order, the respondent No. 1, carefully, discussed the objections raised by the petitioner and the main objection with regard to conduct of preliminary enquiry by the very Officer who had investigated the offence against the petitioner, was dealt with by the Disciplinary Authority by stating that the enquiry report was written by another officer and even the petitioner, along with his next friend, was heard on 4th July 1988. According to the Disciplinary Authority, proper procedure was followed and there was no violation of principles of natural justice and, looking to the grave misconduct of the petitioner, the petitioner was dismissed from service by treating the period of suspension as such.
4. Against the said order of dismissal dated 31st May 1989 passed by the respondent No. 1, the petitioner had preferred an appeal before the Deputy Inspector General of Police, Gandhinagar, respondent No. 2 herein, and the challenge to the order of dismissal in the said appeal also failed, and the order of the Disciplinary Authority dated 31st May 1989 came to be confirmed by the Appellate Authority by order dated 28th November 1989.
5. Being aggrieved by the order dated 28th November 1989, the petitioner filed Special Civil Application No. 1630 of 1990 before this Court, and this Court had, initially, rejected the said writ petition by order dated 12th March 1990. Thereafter, the learned advocate for the petitioner filed a review application and, subsequently, this Court, by order dated 20th March 1990, permitted the petitioner to withdraw the writ petition with a view to enable him to make a representation before the concerned Authority, and, accordingly, the said writ petition was disposed of as withdrawn.
6. The second round of litigation was undertaken by the petitioner by filing a revision application on 25th May 1990 before the Director General of Police, State of Gujarat, and submitted to the said Authority that the case of the petitioner is required to be reconsidered and the impugned order of dismissal dated 31st May 1989, and confirmed in appeal by the Appellate Authority by order dated 28th November 1989, are required to be quashed and set aside in view of the fact that there was no concrete material in the form of evidence against the petitioner.
6.1 However, by order dated 16th November 1991, the Director General of Police, State of Gujarat, rejected the said application observing that no illegality was committed by the Authorities-below in passing the impugned order of dismissal and, thereafter, confirming the same. He also observed in the said order that the charge of misconduct of the petitioner of bringing a tribal lady to the police quarter with ill-intention was proved and the misconduct of 'moral turpitude' was completely believed by the Director General of Police. However, the second charge that the petitioner was found in a drunken condition was not believed due to contradictory evidence. In any case, the order of dismissal dated 31st May 1989 remains confirmed in the second round of litigation also.
6.2 The petitioner once again preferred a detailed, exhaustive and final revision application before the Secretary, Department of Home, State of Gujarat, on 28th January 1992, and submitted to the said Authority that the order of dismissal dated 31st May 1989 as confirmed by the Appellant Authority by order dated 28th November 1989 and, thereafter, by the Revisional Authority by order dated 16th November 1991, were suffering from the vice of principles of natural justice and no cogent material in the form of oral and documentary evidence was available to prove the charge against the petitioner, since almost majority of the witnesses had not confirmed the said incident and the charges levelled against the petitioner were not proved and, therefore, the order of dismissal dated 31st May 1989 was required to be quashed and set aside.
6.3 However, by order dated 22nd May 1992, the Joint Secretary, Home Department, State of Gujarat, in exercise of power under Section 27(C) of the Bombay Police Act, finally, rejected the said revision application of the petitioner and confirmed the order of dismissal dated 31st May 1989 for all purposes.
7. Learned advocate for the petitioner, Mr. R.R. Vakil, has urged to this Court to reappreciate the evidence, to scrutinise the findings recorded by the Authorities below, and to come to a different conclusion in exercise of power under Article 226 of the Constitution of India.
7.1 According to Mr. Vakil, learned advocate for the petitioner, in respect of the first charge levelled against the petitioner, namely, bringing a tribal lady to the police quarter with ill-intention, no witness had fully supported the case of the Authority and it is not conclusively proved that the petitioner had indulged into the said misconduct of 'moral turpitude'. So far as the second charge against the petitioner of he being found drunk is concerned, it was not believed, and, ultimately, by the order dated 16th November 1991 of the Revisional Authority, the said charge was held to be not proved due to contradictory statements and evidence and, therefore, no penalty of dismissal can be inflicted upon the petitioner on the basis of hearsay evidence of the witnesses.
7.2 Mr. Vakil, learned advocate for the petitioner, has also relied upon the judgment of this Court, in the case of R.K. Divyeshwar v. State of Gujarat, reported in 1999 (1) GLR p.47, and submitted that the said judgment is squarely applicable to the case of the petitioner since there was violation of principles of natural justice.
7.3 Lastly, Mr. Vakil, learned advocate for the petitioner, has submitted that, the charge, which is believed by the Authorities below, of 'moral turpitude' against the petitioner, namely, to bring a tribal lady to the police quarter with ill-intention, is also based on ipse-dixi of some witnesses and against the evidence on record and, therefore, the penalty of dismissal is disproportionate to the alleged misconduct and, hence, the case of the petitioner is required to be dealt with some leniency, and some lesser punishment may be inflicted against the petitioner.
8. Learned Assistant Government Pleader, Mr. K.T. Dave, for the respondents, has vehemently submitted that the petitioner has failed upto the Revisional Authority against the order of dismissal in two different rounds of litigation and, therefore, it is not open for this Court to reappreciate the evidence and to upset the concurrent findings of the Authorities below, and, even if a second view is possible, it cannot be replaced by this Court in exercise of its power under Article 226 of the Constitution of India.
8.1 Learned Assistant Government Pleader, Mr. K.T. Dave, for the respondents, has invited the attention of this Court to the judgment in the case of Sarguja Transport Service v. S.T.A. Tribunal, Gwalior, reported in AIR 1987 Supreme Court 88, where it is observed by the Apex Court that, on the ground of withdrawal of the petition on earlier occasion, the second petition is not maintainable at all. Mr. Dave has further submitted that, in the present case also, once Special Civil Application No. 1630 of 1990 filed by the petitioner was withdrawn by him to enable him to exhaust the remedy of revision against the order of dismissal dated 31st May 1989, the petitioner could not have filed the present Special Civil Application No. 6520 of 1995.
8.2 In any case, according to Mr. Dave, learned AGP, even after the second attempt upto the revisional authority, the case of the petitioner was not believed and, on the contrary, all the three Authorities, namely, the Disciplinary Authority, the Appellate Authority and the Revisional Authority (on two occasions), have passed reasoned orders after discussing evidence on record and after taking into consideration various contentions raised by the petitioner, and no infirmity or illegality is committed by the Authorities below and, therefore, the present writ petition requires to be rejected with costs.
9. Having heard the learned advocates for the parties and on going through the record of the case, I am unable to agree with the submission of the learned advocate for the petitioner that the proper procedure was not followed by the respondent-Authority while coming to the conclusion that the case against the petitioner was a serious misconduct and the punishment of dismissal is not just and proper. On the contrary, all the contentions raised by the petitioner have been properly dealt with by all the Authorities below. The presence of a tribal lady at the police quarter is, conclusively, proved, as discussed by the Disciplinary Authority, and some of the witnesses had supported the presence of the tribal lady at the police quarter. The Authority had also changed the Enquiry Officer and, finally, the Deputy Superintendent of Police, Tharad, was appointed to conduct the departmental enquiry since there was objection of the petitioner against the earlier Presiding Officer. While accepting the finding of the Enquiry Officer, the Disciplinary Authority, in its order dated 31st May 1989, had given elaborate reasons, and, after affording personal hearing to the petitioner along with his next friend, had come to the conclusion that the charge sheet issued against the petitioner stands proved beyond any doubt. In the first round of litigation, the Appellate Authority, respondent No. 2 herein, in his order dated 28th November 1989, had elaborately discussed the grounds of appeal filed by the petitioner and, finally, confirmed the impugned order of dismissal dated 31st May 1989 passed by the respondent No. 1. So is the case with the Revisional Authority, and the same is reflected in his order dated 16th November 1991 produced by the learned advocate for the petitioner at the time of hearing. The Revisional Authority had also come to the conclusion that the main grievance of the petitioner about the role of the Police Inspector, H.V. Zala, who was also investigating the offence against the petitioner and delinquent was wrongly implicated in the said incident, was also redressed by appointing another Deputy Superintendent of Police, Tharad Division, and the findings of the said Officer were believed by the Disciplinary Authority, and the second charge of the petitioner being found in drunken condition, was not believed by the Revisional Authority, in view of the fact that there was some contradictory statement and the evidence qua this charge. However, the first charge of 'moral turpitude' and of unbecoming member of the disciplinary force against the petitioner did stand proved and, therefore, in the order dated 16th November 1991 also, the order of dismissal dated 31st May 1989 passed by the Disciplinary Authority and the order dated 28th November 1989 passed by the Appellate Authority were confirmed.
10. However, it is pertinent to note that, though the case of the petitioner was decided upto the level of the Director General of Police, State of Gujarat, a final attempt was made by the petitioner against the order dated 16th November 1991 by preferring a revision application before the Secretary, Home Department, State of Gujarat, on 28th January 1992, which was also rejected by order dated 22nd May 1992 and, finally, the order of dismissal was confirmed against the petitioner after two rounds of litigation upto the revisional authority. Even in the order dated 12th May 1992 also, the Revisional Authority has dealt with various contentions of the petitioner in detail and, after discussing the same, it was found by the Revisional Authority that, on the basis of reliable evidence of the witnesses, it was found that the tribal lady was brought to the police quarter with ill-intention by the petitioner and, thus, the charge of serious misconduct of moral turpitude and unbecoming of a member of police force was, conclusively, proved against the petitioner and, therefore, the punishment of dismissal was, rightly, inflicted upon the petitioner.
10.1 The case law relied upon by the learned advocate for the petitioner in the case of R.K. Divyeshwar v. State of Gujarat, reported in 1999 (1) GLR p.47, with regard to violation of principles of natural justice, is also of no help to the petitioner, in view of the fact that, subsequently, the Division Bench of this Court [Coram: C.K.Thakker (as His Lordship then was) & A.L. Dave, JJ.], while admitting Letters Patent Appeal No. 1358 of 1998, by order dated 18th November 1998, passed in Civil Application No. 10699 of 1998, granted interim relief as prayed for in paragraph 5(a) of the Civil Application. Paragraph 5(a) of the Civil Application reads as under:
"Pending the hearing and final disposal of the Letters Patent Appeal, Your Lordships will be pleased to stay the execution and operation of the order dated 11th November 1998 passed by the learned single Judge (Kundan Singh, J.), in Special Civil Application No. 6421 of 1993."
Thus, since the judgment of the learned single Judge in the case of R.K. Divyeshwar v. State of Gujarat, reported in 1999 (1) GLR p.47, is stayed by the Division Bench, the reliance placed by the learned advocate for the petitioner on the aforesaid judgment is of no help to the case of the petitioner.
11. The last, but unsuccessful, attempt was made by the learned advocate for the petitioner by urging that the penalty of economic death inflicted upon the petitioner is disproportionate to the misconduct attributed to the petitioner and, therefore, this is a fit case where the Court would exercise extraordinary power under Article 226 of the Constitution of India by replacing or modifying the impugned order, or even by remanding the matter to the concerned Authority for a lesser punishment, so that the service career of the petitioner may not be ruined completely. This submission of the learned advocate for the petitioner has no force of law, in as much as, in a case where the punishment awarded shocks the judicial conscience or punishment/penalty awarded is disproportionate to the alleged misconduct, the Court would like to exercise judicial review under Article 226 of the Constitution of India. In the present case, as rightly submitted in paragraph 6 of the affidavit-in-reply filed by the District Superintendent of Police, respondent No. 1 herein, the misconduct, which has been proved in the departmental enquiry and upheld by the Disciplinary Authority, as well as the Appellate and the Revisional Authorities, reflected the nature of seriousness of the charge of unbecoming of a member of the police force, where the modesty of a tribal lady was at stake and she was brought to the police quarter with ill-intention by the petitioner and, therefore, this is not a fit case where the Court would like to show any leniency.
12. Looking to the evidence on record, in my view, no illegality or irregularity is committed by the Disciplinary Authority, the Appellate Authority and the Revisional Authority, in their respective exercise of powers, and, therefore, this is not a fit case for exercise of power under Article 226 of the Constitution of India.
13. As a result of foregoing discussion, the petition fails and is rejected. Rule is discharged with no order as to costs.