Manubhai M. Prajapati vs State of Gujarat and Others

Shethna, J.—The petitioner, who was working as P. S. I. has challenged in this petition the impugned order dated 5-3-1976 passed by the Dy. I. G. of Police, Planning, Training and Welfare, Gujarat State, Ahmedabad (Annexure ''A'') removing him from service.

The petitioner was appointed as P. S. I. in 1964. In the charge-sheet dated 31-7-1975 five charges have been levelled against the petitioner, four of them are for remaining absent from duty without taking prior permission of the higher authority and one is for taking advances from four persons. Additional charge was supplemented by charge-sheet dated 11-8-1975. They were tried to be served upon the petitioner, but inspite of the best efforts of the Disciplinary Authority, it could not be served, as the petitioner absented himself from duty and not found available anywhere. The petitioner had not let away address about his whereabouts. The Disciplinary Authority tried to serve the charge-sheet through special messenger as well as Registered Post A. D. but it could not be served as the delinquent was not found at his given residential address. The endorsement made by the postal authorities shows that it was "not claimed". Lastly, on 3\\21-7-1975, the petitioner left by stating that he has to go to give evidence in the Court at Lunavada. From 22-7-1975 till the charge-sheet was given on 11-8-1975, he did not report for duty nor his whereabouts were known. Show cause notice was also tried to be served upon the petitioner by the Disciplinary Authority, but it could not be served for the same reasons. Several attempts were made to serve the petitioner by the Disciplinary Authority, but the could not be served. Therefore, the inquiry was held against the petitioner ex-parte and the Inquiry Officer found all the charges to be proved. The Disciplinary Authority-respondent No. 3 concurring with the report of the Inquiry Officer by him impugned order dated 5-3-1976 removed the petitioner from service, which is challenged in this petition by the petitioner.

Mr. Hathi, learned Advocate for the petitioner, submitted that the entire inquiry and the impugned order at Annexure ''A'' passed by the respondent No. 3 is in violation of principles of natural justice and, therefore, liable to be quashed and set aside as the respondent No. 3 before passing the impugned order of removal from service, did not accord the petitioner reasonable opportunity to defend his case in the departmental inquiry. He further submitted that though the statutory remedy of departmental appeal is provided against the impugned order, the impugned order is in violation of principle of natural justice and, therefore, it being void, the petitioner can challenge that order before this Court directly without availing alternative statutory remedy of appeal, in this petition under Art. 226 of the Constitution of India. He also submitted that though there is a gross delay in challenging the impugned order, it should not be dismissed on the ground of delay and laches as delay has been satisfactorily explained by the petitioner.

3-A. It is true that the entire inquiry was held against the petitioner ex-parte. But the petitioner has to blame himself for the same. He was serving in a disciplined force like Police Department and he could not remain absent from duty without the permission of the higher authority. At least when on 21-7-1975 the petitioner left his service by saying that he had to go to Lunavada Court for giving evidence, he had to report back to his duty. Apart from reporting himself on duty, he preferred not to inform his superior authorities about his whereabouts and left the place where he usually used to reside. In this case, before proceeding further against the petitioner in the Department Inquiry, the Disciplinary Authority made all possible attempts to serve the petitioner, but inspite of that, it could not be served on the petitioner. Therefore, there was no option left to the authority but to proceed against the petitioner ex-parte. At the conclusion of the inquiry, the Inquiry Officer found all the charges levelled against the petitioner to be proved. The Disciplinary Authority concurring with the report of the Inquiry Officer passed the order of removal from service and in my opinion no other order could have been passed in the facts and circumstances of the case, particularly when the petitioner, who was a responsible officer serving as P. S. I. in the Police Department, which is a disciplined force of the State.

3-B. The petitioner could have challenged the impugned order of removal, which according to him he came to know only in the month of August 1978, when it was produced during the trail, which he was facing in the Criminal Court, within 60 days from the date of his knowledge, But for the reasons best known to him, he had not challenged the said order before the appellate authority in regular appeal. However, Mr. Hathi tried to submit that the petitioner was under the impression that after he is acquitted by the Criminal Court, then he can challenged the impugned order straight way before this Court and, therefore he had not preferred any appeal. It is very difficult to accept this explanation offered by Mr. Hathi. All the charged levelled against the petitioner are totally different than the charge, levelled against the petitioner in the criminal trial. Therefore, in my opinion, it is nothing but an excuse for not preferring an appeal, which had already become time-barred by about 4 years, when he filed the petition before this Court. Mr. Hathi submitted that the petitioner may be directed to file an appeal before the appellate authority and the appellate authority may be directed to condone the delay and hear the appeal on merits. Ordinarily, I would have accepted it. But this is a gross case and in the peculiar facts and circumstances of the case, no such direction can be given to the appellate authority because the man has left the service as P. S. I. in 1975 and after 18 years, such person cannot be extended that opportunity, as in my opinion, such person is not fit to be inducted in the Police Department.

The impugned order of removal from service came to be passed on 5-3-1976 and the same was challenged in the petition in the year 1982, i.e., after about 6 years. There is a gross delay of 6 years in challenging the impugned order before this Court and, therefore, also this petition is required to be dismissed solely on the group of gross delay and laches. However, Mr. Hathi tried to submit that he came to know about the passing of the removal order only in August 1978 and the petitioner was under the impression that he can challenge the same only after the criminal trial is over. The petitioner came to be acquitted by the Criminal Court on 21-9-1981 and, therefore, immediately within 5 months i.e. on 8-2-1982 he has filed this petition before this Court. Therefore, there is no delay as such in filing this petition and even if there is delay, it is sufficiently and satisfactorily explained. It is very difficult to accept the explanation given by Mr. Hathi. The petitioner left the service on 21-7-1975 and never bothered either to report on duty or to make inquiry about the orders passed against him for nor reporting to duty. Even according to him he came to know abut the passing of order in August 1978. At least at that time he could have challenged that order, but he has not chosen to do so. At stated earlier, the charge levelled against the petitioner in criminal case and the charges levelled against the petitioner in the departmental inquiry were totally different. Therefore, the excuse or explanation sought to be given by Me. Hathi that he was under the impression that he can challenge the order of removal only after the criminal trial is over, is not acceptable. It may be stated that on the point of delay, Mr. Hathi, learned Advocate, relied upon the judgment of the Supreme Court in case of Ramchandra Shankar Deodhar and Others Vs. The State of Maharashtra and Others, and submitted that the principle on which the Court can refuse relief to the petitioner on the ground of laches or delay only if the rights which have accrued to others by reason of the delay in filing to be disturbed and there is no reasonable explanation for the delay. In my opinion, the judgment of the Supreme Court in R. S. Deodhar''s case (supra) has no application in the facts of this case. Ms. Doshit has rightly submitted that such person, who has remained out of service for all these seventeen years, can never be reinstate and can never be granted any opportunity be defend his case. In the peculiar facts and circumstances of the case, I fully agree with the submission made by Ms. Doshit, that Police is a disciplined force and such person can never be allowed to be continued in Police Department. If the petition of the petitioner is allowed and the petitioner is directed to be reinstated in the service, then he is definitely going to disturb other persons, who are already promoted to the higher post. Thus on the ground of gross delay and laches alone this petition is required to be dismissed.

Mr. Hathi, learned Advocate, submitted that respondent No. 3 was not the appointing authority of the petitioner. He is subordinate to the appointing authority of the petitioner, who was I. G. and, therefore, the impugned order is in violation of Art. 311(2) of the Constitution of India.

There is no material on the record to show that respondent No. 3 was not the appointing authority of the petitioner. Therefore, this submission of Mr. Hathi is rejected.

Mr. Hathi submitted that after order of removal passed by the respondent No. 3, a criminal complaint was filed against the petitioner u/s 145 of the Bombay Police Act and he was tried before the competent Criminal Court on almost same charges, which are levelled in the charge-sheet and ultimately at the end of regular trial, learned Magistrate acquired the petitioner for the offence u/s 145 of the Bombay Police Act, which is confirmed by this Court on 23-4-1990 dismissing State''s acquittal Appeal No. 145 of 1982 and, therefore, the order of removal passed, almost on the same charges, cannot be sustained and it must be set aside. I have already stated earlier that the charges levelled against the petitioner in the departmental inquiry are totally different than the charge levelled against the petitioner in the Criminal Court. Therefore, the acquittal recorded by the Criminal Court in his favour and confirmed by this Court in appeal has no relevance in the matter. The submission made by Mr. Hathi is devoid of any merit or substance and, therefore, it is rejected.

No other contentions have been raised in this petition, except the aforesaid contentions. I do not find any substance or merit in any of the aforesaid contentions. Accordingly, this petition fails and is dismissed.

Rule discharged with no order as to costs.