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K.M. Thaker Vs. State of Gujarat and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR66
AppellantK.M. Thaker
RespondentState of Gujarat and anr.
Cases ReferredState of Assam and Anr. v. J.N. Roy Biswas
Excerpt:
.....who accompanied shri trikambhai as well as the statements of the police patel/sarpanch, the patawala, the inmate of complainant's house and others. it is well settled principle of law that non est orders can be ignored and as and when they are sought to be employed to one's detriment, one can challenge it either directly or..........shah for the petitioner urged that the earlier order of mr. pavri, the then inspector general of police, annexure d, even was non-est because it was passed by mr. pavri without issuing any show cause notice to the petitioner. the said order had come to be passed on 26-10-70. it was acted upon also. pursuant to that order a fresh chargesheet was served on the petitioner and he ungrudgingly participated in that inquiry. after much water passed beneath the bridge, he now disinters this dead boby with the complaint that it emits foul smell. i am not prepared to go behind that order, which with the knowledge and connivance, if not with the consent of the petitioner, had come to be acted upon. after having participated in the second round of the proceedings, it is too late for the potitioner.....
Judgment:

N.H. Bhatt, J.

1. This is a petition by a Police Sub-Inspector of Police in the Gujarat State service, challenging the third round of departmental proceedings against him on the same charge.

2. A few facts badly necessary for the purpose of comprehending the controversy are essential to be stated. The petitioner was promoted as a Sub Inspector of Police as back as on 4-9-60 and has been working as such since then. In the year 1969, he was a P.S.I. posted at Detroj Police Station in Ahmedabad (Rural) District. One Vithalbhai who was attached to veterinary dispensary at Katosan Road is said to have gone to the P.S.I. on 18-7-69 for lodging a complaint of theft and other offences. The say of the department is that the P.S.I. had not recorded his complaint, which was under Sections 393, 405, 323 and 114 of the Penal Code, and had misdireted the whole inquiry as if Vithalbhais's complaint was only for prevention of peace. Said Vithalbhai, however, moved certain leaders, who in their turn approached the D.S.P. of Ahmedabad (Rural) District. Ultimately a charge-sheet came to be issued against him and the inquiry came to be made by the D.S.P., one Shri Bhaya himself, who at the close of the Inquiry exonetated the Petitioner from the charge. Annexure C is the order dated 30-4-70.

3. Then the Inspector General of Police, one Mr. Pavri, took up the papers in his suo motu revisional jurisdiction and it is alleged that without issuing any notice to the petitioner, he, by his order, Annexure D, dated 26-10-70 set aside the order of the D.S.P. in favour of the petitioner and diredted a fresh inquiry. Though the said order had come to be passed behind the back of the petitioner and to his obvious prejudice, the petitioner for reasons best known to him slept over it. Pursuant to the order, Annexure D paased by the Inspector General of Police, a fresh charge sheet came to be issued against him by the Special Inquiry Officer and the said charge is Annexure E. Ultimately, the disciplinary authority, namely, the D.S.P. Bulsar, passed the order Annexure I on 30-9-71 holding the petitioner guilty and reducing the petitioner to the stage of Rs. 250/- from the stage of Rs. 262/-. Against this order, Annexure I, the petitioner preferred an appeal, which came to be handled by the Deputy Inspector General of the Police, Baroda Range, Baroda. The Deputy Inspector General of Police then decided the said appeal on 25-1-72. He inter alia observed as follows:

It will thus be seen that his entire enquiry has been made in a very slipshod manner and will bear a through over handling to answer to all the queries raised above. The disciplinary proceedings are, therefore, quashed and ordered to be held de novo from the start after obtaining the Medical certificate and medical officer's record and recording the statement of the two persons who accompanied Shri Trikambhai as well as the statements of the Police Patel/Sarpanch, the patawala, the inmate of complainant's house and others. The charge may also be framed, if necessary.

4. Nothing thereafter was done either by the department or by the petitioner and it is the say of the petitioner that the said order was not intended to be acted upon. In the year 1974, the order, Annexure K, dated 4-5-74 had come to be passed by the competent authority to permit the petitioner to cross the Efficiency Bar in therevised time scale of Rs. 200-10-250-EB-12-310-EB-15-430 raising his pay from Rs. 310/- to Rs. 325/- with effect from 4-10-71. The allowing of the crossing of the crossing of the Efficiency Bar, therefore, was rightly treated by the petitioner as the closure of the chapter of enquiry against him apart from nothing having been done from January 1972 till the year 1974-75 and even in the year 1976. However, on 6-11-74. the 4 said order, Annexure K, permitting the petitioner to cross the Efficiency Bar came to be set aside without giving any opportunity to the petitioner in this potition is that this orderdated 6-11-74 setting aside the permission to cross the Efficiency Bar be declared as null and void.

5. The matter did not rest at this stage. The appellate authority then brought down the files from the archives from where they were gathering dust and issued the chargesheet, Annexure L, on 30-1-76. The petitioner, as he says in his petition, was shocked to hear that after the leaps of four years, he was required to face the music the third time and, therefore, he approached this Court with the prayer that these proceedings initiated along with the chargesheet, Annexure L, be quashed.

6. As far as the order dated 6-11-74 ex-parte cancelling the permission granted to the petitioner to cross the Efficiency Bar is concerned, it is required to be forthwith set aside because the said order, which obviously works to the prejudice of the petitioner, came to be passed behind his back and without affording him any opportunity of audience. Nothing much could be urged in that regard on behalf of the respondent.

7. Coming to the question of quashing of the chargesheet Annexure L, Mr. Shah for the petitioner urged that the earlier order of Mr. Pavri, the then Inspector General of Police, Annexure D, even was non-est because it was passed by Mr. Pavri without issuing any show cause notice to the petitioner. The said order had come to be passed on 26-10-70. It was acted upon also. Pursuant to that order a fresh chargesheet was served on the petitioner and he ungrudgingly participated in that inquiry. After much water passed beneath the bridge, he now disinters this dead boby with the complaint that it emits foul smell. I am not prepared to go behind that order, which with the knowledge and connivance, if not with the consent of the petitioner, had come to be acted upon. After having participated in the second round of the proceedings, it is too late for the potitioner to raise that bogey of illegal and non-est character of the order, Annexure D. Therefore, I have not permitted Mr. Shah to challenge that order on the ground that it was passed behind his back and to his prejudice.

8. Then comes the order, Annexure J, passed by the Deputy Inspector General Police, allowing the petitioner's appeal against the minor penalty imposed on him. As far as the allowing of the appeal is concerned, obviously the petitioner has nothing to make grievance about. The grievance is made against the fresh initiation of the proceedings. Mr. Shah very vehemently contends that a man cannot be subjected to this sort of treatment time and again on the same charge. He invited my attention in this connection to the judgment of the Supreme Court in the case of State of Assam and Anr. v. J.N. Roy Biswas : (1976)IILLJ17SC . This authority itself lays down that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law no Government servant can urge that a second enquiry cannot be launched. However, the Supreme Court, speaking through V.R. Krishna Iyer J. lays down further as follows:

But once the disciplinary case has closed and the official reinstated, presumably on full exoneration, a chagrined Government cannot restart the exercise in the absence of specific power to review or revise, vested by rules in some authority. The basis of the rule of law cannot be breached without legal provision or other vitiating factor invalidation the earlier enquiry.

9. The Rule 15 of the Bombay Police (Punishments and Appeals) Rules, 1956, which deals with the power of the appellate authority is quoted below:

15. The appellate authority shall consider.

(a) Whether the facts on which the order was based have been established;

(b) Whether the facts established afford sufficient ground for inflicting punishment;

(c) Whether the penalty is excessive, adequate or inadequate;

and if it thinks recessary may require the authority passing the order to make further inquiry on any point or points specified and shall then pass such order as it thinks just and proper, including the enhancement of any punishment given, or the awarding of a more severe punishment;

Provided that a punishment shall not be enhanced, or more severe punishment 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 considered.

Mr. Christie, the learned Assistant Government Pleader, appearing for the State, heavily relied upon this Rule 15 to cull out the appellate authority's power to quash the proceedings and order de novo trial. Even a casual glance at the above-quoted provisions would show that the only a power that is conferred on the appellate authority is the power to 'require the authority passing the order (that is, the enquiry authority or the disciplinary authority) to make further inquiry on any point or points specified and shall then (that is, after the further report of the further enquiry is had) 'to pass such order as it (appellate authority) thinks just and proper, including enhancement of any punishment given or the awarding of a more severe punishment.' It is implicit in the above-quoted rule, therefore, that the only power that the appellate authority has is to call for further information, but the power is not given to it under the above-quoted rule, therefore, that the only power that the appellate authority has is to call for further information, but the power is not given to it under the above-quoted Rule 15 to efface all the record of the enquiry conducted till then and to start the proceedings de novo as has been done in this case. It is really harsh and is ex-facie improper to subject an employee to repeated enquiry. It is inhuman also. The authority could have decided tht matter on the basis of the additional material. The effect of this order, as it is passed, is to remove from the record all evidence cllected till then. This would obviously work severe prejudice to the employee, who might have succeeded in eliciting favourable material in the course of the enquiry. Such a de novo trial would give an opportunity to the department to patch up the gaps to the prejudice of the employee concerned. It is because of this that the framers of Rule 15 have used the words 'further enquiry' and not the de novo enquiry or the fresh enqury. The word 'further' in my view is significant and limits the powers of the appellate authority to calling for additional fresh material, but does not confer on the authority the power to annihilate the entire proceedings and start a de novo trial, which in such circumstances is sute to prove itself to be a real torturing trial.

10. Mr. Christie, however, very vehemently contended that the order, Annexure J. had come to be passed as back as in the year 1972 and the petitioner who had slept over that order for all these years should not be now heard say that that order is without any autority of law. The reply of Mr. Shah on this score is that the order is an order passed without the authority of law and therefore, non est and the petitioner was not bound to challenge the same, unless and until it started piercingthe petitioner in any part of his body. It is well settled principle of law that non est orders can be ignored and as and when they are sought to be employed to one's detriment, one can challenge it either directly or incidentally. The petitioner in this petition has sought the quashing of the chargesheet, Annexure L, which in its turn is rooted in the order, Annexure J. If the order at this stage is to be found as incompetnt, the chargesheet also auomatically falls through.

In above view of the matter, the petitioner is entitled to succeed. The order dated 6-11-74 passed by the authority on 6-11-74 cancelling the order, Annexure K, permitting the petitioner to cross the Effiviency Bar and the chargesheet Annexure L, are set aside. Rule is accordingly made absolute with no order as to costs.


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