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Suhas Yeshwant Sawant Vs. Assistant Commissioner of Police and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 2333 of 1984
Judge
Reported in1986(2)BomCR303
ActsConstitution of India - Article 226
AppellantSuhas Yeshwant Sawant
RespondentAssistant Commissioner of Police and ors.
Appellant AdvocateR.M. Agrawal and ;K.K. Malphatak, Advs.
Respondent AdvocateM. Yande, A.G.P.
Excerpt:
- .....appellate authority that on that count the whole enquiry is vitiated. however, thereafter the de novo enquiry is order and if he is taken on duty by this order, then it is also directed that the decision regarding the period from the date of dismissal till he join his duty, will be taken in due course as per the rules. it is this order which is challenged in this writ petition.2. it is contended by shri agrawal the learned counsel for the petitioner that the matter being so trivial, the appellate authority should not have ordered fresh enquiry. even if a fresh enquiry is ordered it should be held by a person other than from the department concerned because the petitioner apprehends that he will not get just trial at the hands of any officer from the department. the petitioner was not.....
Judgment:

C.S. Dharmadhikari, J.

1. Now in this writ petition the order passed in Appeal by the State Government dated 17th April, 1985 is challenged. It is not necessary to make a detailed reference to the various averments made in the petition, since by this order the de novo enquiry is ordered by the State Government after setting aside the order of dismissal passed in the departmental enquiry. The Appellate Authority held that the earlier enquiry was vitiated because the principles of natural justice were not followed and the petitioner was not given and was refused assistance by the friend of his choice. In terms it is held by the appellate authority that on that count the whole enquiry is vitiated. However, thereafter the de novo enquiry is order and if he is taken on duty by this order, then it is also directed that the decision regarding the period from the date of dismissal till he join his duty, will be taken in due course as per the rules. It is this order which is challenged in this writ petition.

2. It is contended by Shri Agrawal the learned Counsel for the petitioner that the matter being so trivial, the Appellate Authority should not have ordered fresh enquiry. Even if a fresh enquiry is ordered it should be held by a person other than from the department concerned because the petitioner apprehends that he will not get just trial at the hands of any officer from the department. The petitioner was not under suspension and therefore, as soon as his order of dismissal is set aside and he is reinstated in the post, he is entitled to get all back wages, right from the date of the dismissal till be date of his reinstatement. Therefore, the order in that behalf is also wrong.

3. On the other hand it is contended by Shri Yende the Assistant Government Pleader, that the matter related to a personnel from the police department where discipline is of vital importance. Therefore, to maintain the discipline in the force this de novo enquiry is ordered. Such an enquiry is absolutely necessary having read to the seriousness of the charge levelled against the petitioner. The de novo enquiry is being conducted by the different officer, though from the same department, since Shri Pohankar previous enquiry officer has already expired. The apprehension expressed by the petitioner against whole of the department is without any basis. So far as the payment of back wages is concerned, no final decision is taken in that behalf as yet and it is directed that a decision in that behalf will be taken in due course of time in accordance with law and rules. Therefore, no interference is called for with the said directions at this stage. We find much substance in the contentions of Shri Yende.

4. It will not be fair, at this stage, to comment upon the merits of the charge, since de novo enquiry is ordered. The enquiry is being held by a person other than one who had held the enquiry on the pervious occasion. Shri Pohankar the previous enquiry officer is no more alive. The allegations made by the petitioners against the whole of the department cannot be accepted nor all officials in the department could be dubbed as biased. At the enquiry the petitioner will be given reasonable opportunity of being heard and put forward his case in accordance with the rules. Against any decision taken in that behalf he has a remedy of filing appeal. Therefore, we do not find any justification in the grievance made by the petitioner in that behalf. So far the amount relating to the back wages is concerned, no final orders have been passed in that behalf so far. The respondents have placed reliance upon Rule 17 of the rules. In our opinion it will not be fair at this stage to prejudge the issue unless the department itself takes some decision in the matter. As and when such a decision is taken the petitioner has his own remedy either under the rules or he can, approach this Court or again if necessary. This is more so when the petitioner is already taken on duty after the appellate order we passed.

In the result, we do not feel that this is a fit case for interfering with the order passed by the Appellate Authority at this stage. Hence rule is discharged. However, in the circumstances of the case there will be no order as to costs.


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