D.C. Kandian vs State of Gujarat and Others

A.L. Dave, J.—The Petitioner came to be appointed as Unarmed Police Sub-Inspector in the year 1967 and was promoted as Police Inspector by order dated 10th June, 1999. He came to be charge sheeted on 7.4.1976. Simultaneously, he was also prosecuted for the same charges in the Court of Metropolitan Magistrate, Ahmedabad, in Criminal Case No. 184 of 1975. Later on, the said prosecution came to be withdrawn. Order dated 31st December, 1997 was passed by Respondent No. 3 dropping the inquiry against the petitioner and treating his period of suspension as the period on duty. The inquiry, however, came to be re-started on 17.3.1999 for the same accusations from the stage it was dropped. He came to be reverted by order dated 23rd February, 2000, after issuing a show cause notice calling upon him to show cause why he should not be reverted. However, again Additional Chief Secretary, Home Department, set aside the above order by order dated 23rd February, 2000 and issued a notice calling upon the petitioner to show cause why he should not be dismissed from service. That notice was issued on 31st May, 2000. Later on, by order dated 7th September, 2000, the petitioner came to be dismissed from service, which has resulted into this petition.

Heard learned Advocate, Mr. Supehia, for the petitioner and learned Assistant Government Pleader, Mr. Rindani, for the respondents.

Mr. Supehia has raised number of contentions before this Court, one of which is that the hearing was afforded to the petitioner by one Officer and the order impugned in the petition came to be passed by another Officer. The proceedings, therefore, are vitiated.

3.1 Learned Assistant Government Pleader, Mr. Rindani, had to concede to this factual aspect. But he contended that the order is, ultimately, passed by the State Government.

This petition, therefore, deserves to be allowed on the above solitary round requiring the respondent-authorities to re-hear and decide the petitioner''s case in accordance with the merits thereof. This Court, therefore, does not enter into merits of other contentions raised by learned Advocate for the petitioner.

It is averred in the petition in paragraph 14 that the hearing was afforded to the petitioner by Dr. V. V. Ramsubbharao, Additional Chief Secretary, Home Department, whereas the impugned order of dismissal came to be passed by Anand Zinzala, Deputy Secretary, Home Department. The hearing, therefore, has not culminated into an order and the order is passed by a person who has not afforded hearing to the petitioner. The purpose behind affording hearing to the petitioner is not fulfilled, which is a clear violation of principles of natural justice. The contention raised by Mr. Rindani that the order in question is, ultimately, passed by the State Government cannot hold water for the reason that State is an impersonal machinery and for observing the principles of natural justice, hearing has to be afforded by the person, who passes the order. The order dated 7th September, 2000, passed by the Deputy Secretary, dismissing the petitioner cannot be permitted to stand. The order, therefore, stands quashed and set aside. The matter is remanded to the respondent-authority to hear and decide the question of punishment of the petitioner. The respondent-authorities shall take a decision afresh after affording hearing to the petitioner within a period of three months from the date of receipt of writ of this order. Rule is made absolute to the above extent. No costs.