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Lakshman Kumajibhai Barot Vs. Harishchandra Singh and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtGujarat High Court
Decided On
Judge
Reported in(1979)2GLR563
AppellantLakshman Kumajibhai Barot
RespondentHarishchandra Singh and anr.
Cases Referred(see Swadeshi Cotton Mills v. S.T. Tribunal U.P.
Excerpt:
- - i-applicability of section 25 of the bombay police act, 1951: 3. the submission was that the suspension in the instant case was governed by section 25(1) of the bombay police act, 1951 and that in order that suspension thereunder could be ordered, the competent authority must be satisfied that the person placed under suspension was 'cruel, perverse, remis or negligent in the discharge of his duty or unfit for the same' and that in the instant case it was manifest that no such satisfaction was reached before ordering suspension. the distinction between the two kinds of suspension is very well known. the government like any other employer would have a right to suspend a public servant in one of those two ways. i in that case an order similar to annexure l-l herein was the appointment.....p.d. desai, j.1. the petitioner, who is holding the post of police sub-inspector, challenges herein the order of suspension dated july 3, 1979 (annexure 'a'). the order is passed by the commissioner of police, ahmedabad and it, inter alia recites that the petitioner was placed under suspension from the date of the service of the order, pending the outcome of the criminal proceedings instituted in the court of the metropolitan magistrate against him for offences under sections 307, 506 and 323 or departmental inquiry contemplated against him. the order, in terms, connects the criminal proceedings with an incident which is alleged to have occurred on june 30, 1979 and recites that in connection with the said 'serious misconduct and indiscipline' the petitioner was placed under suspension.2......
Judgment:

P.D. Desai, J.

1. The petitioner, who is holding the post of Police Sub-Inspector, challenges herein the order of suspension dated July 3, 1979 (Annexure 'A'). The order is passed by the Commissioner of Police, Ahmedabad and it, inter alia recites that the petitioner was placed under suspension from the date of the service of the order, pending the outcome of the criminal proceedings instituted in the Court of the Metropolitan Magistrate against him for offences under Sections 307, 506 and 323 or departmental inquiry contemplated against him. The order, in terms, connects the criminal proceedings with an incident which is alleged to have occurred on June 30, 1979 and recites that in connection with the said 'serious misconduct and indiscipline' the petitioner was placed under suspension.

2. The order of suspension has been challenged in the petition on diverse grounds but only some of those points were canvassed before me at the hearing Hereinafter I shall seriatim deal briefly with the grounds which were urged for my consideration.

I-Applicability of Section 25 of the Bombay Police Act, 1951:

3. The submission was that the suspension in the instant case was governed by Section 25(1) of the Bombay Police Act, 1951 and that in order that suspension thereunder could be ordered, the competent authority must be satisfied that the person placed under suspension was 'cruel, perverse, remis or negligent in the discharge of his duty or unfit for the same' and that in the instant case it was manifest that no such satisfaction was reached before ordering suspension. In my opinion, the argument is thoroughly misconceived. Section 25(1) deals with punitive suspension and not interim suspension. This is manifest from the context and collocation as also from the marginal note. The distinction between the two kinds of suspension is very well known. The Government like any other employer would have a right to suspend a public servant in one of those two ways. It may suspend any public servant pending departmental inquiry or pending criminal proceedings. This is usually called 'interim suspension'. The Government may, in another case, proceed to hold a departmental inquiry and after the public servant is found guilty may order suspension as a punishment if the rules so permit and this will be suspension as a penalty. In the instant case, the order of suspension, in terms, makes it clear that it is suspension pending the outcome of the criminal proceeding or a contemplated departmental inquiry. Therefore, in my opinion, Section 25(1) is not applicable. It might be incidentally mentioned that under the Bombay Police (Punishments and Appeals) Rules, 1956 there is a specific provision with regard to suspension pending an inquiry which is contemplated or is pending or where any complaint of any criminal offence is under investigation or trial. The relevant provision is Rule 3(1-A)(i). The appointing authority empowered by the State Government in this behalf is authorised under the said sub-rule to place a Police Officer under suspension under such circumstances. The Explanation below the said sub-rule makes it clear that suspension thereunder shall not be deemed to be punishment. The exercise of power of suspension, therefore, in the instant case is obviously under this provision and not under Section 25(1) of the Bombay Police Act.

II-Suspension not by the Competent Authority:

4. The submission under this head was that the petitioner was appointed by the Special Inspector General of Police & Director of Anti-Corruption Bureau, by his order dated July 22, 1974 (Annexure L-3 collectively) and that therefore, it was that authority who was competent to place the petitioner under suspension and not the Commissioner of Police. Now, a mere look at the order relied upon shows that it is an order of posting. In terms the order says that the Police sub-Inspectors named therein were posted in various units on their transfer to Anti-Corruption Bureau. One will have to stretch one's imagination too far to hold this to be an order of appointment. It was alternatively urged that the petitioner was confirmed with effect from February 1, 1972 by an order dated December 23, 1974 (Annexure L-4 collectively) made by the same officer and that the said order was truly the order of appointment in the eye of law and that, therefore, also the Commissioner of Police was not the competent authority to suspend the petitioner. This argument, in my opinion, is equally unfounded. A person acquires the status of a government servant from the day he joins duty pursuant to his appointment even if such appointment is on probation or on a temporary basis. On that basis it has been held in a number of cases that Articles 16 and 311 apply even to probationers and temporary servants. Besides, for computing all service benefits such as seniority, increments, retirement benefits, etc, what is ordinarily taken into account is the entire service commencing from the date of joining duty and not from the date of confirmation is often made after a number of years and cases are not unknown where a government servant even retires without being confirmed. The argument, therefore, that the order of confirmation is the order of appointment is wide off the mark cannot possibly be upheld.

5. It might be pointed out that the order of appointment really is the one dated December 31, 1968, issued by the Commissioner of Police, Ahmedabad, which is at Annexure L-2 collectively. Under that order the petitioner was appointed as probationary Police-Sub-Inspector on temporary basis with effect from January 1, 1969 or any subsequent date on which he reports for duty and the posting of the petitioner was to Kagdapith Police Station. It is significant to note in this connection that before the order dated December 31, 1968 was made, by an order dated June 27, 1967 (Annexure L-1 collectively) the petitioner was given an intimation by the office of the Inspector General of Police that he had been selected for admission to the Sub-Inspectors' training course commencing at the Central Police Training School, Junagadh from July 3, 1967, subject to his being found medically fit. Now, in Special Civil Application No. 139 of 1974 decided by A.D. Desai and T.U. Mehta, JJ. on March 18, 1975, the principal question was whether in the case of the petitioner-P.S.I in that case an order similar to annexure L-l herein was the appointment order or an order in like terms as Annexure L-2 herein was the appointment order. The Division Bench, on a consideration of all the relevant factors, came to the conclusion that the order similar to the order at Annexure L-2 herein under which the petitioner-P.S.I. was appointed in that case was the order of his appointment. It would thus appear to be beyond any doubt or debate that the order at Annexure L-2 is the order of appointment of the petitioner. Since the appointment was made under the said order by the Commissioner of Police, he was the appointing authority who could have exercised the power of suspension pending inquiry. The impugned order, therefore, is passed by the competent authority.

III. Rules of natural justice violated:

6. The submission under this head was that there was violation of rules of natural justice in as much as the order of suspension was made without affording to the petitioner an opportunity of being heard. It is not in dispute that the petitioner was not afforded any such opportunity. The question, however, is whether rules of natural justice requiring prior notice and hearing have any play at the stage when interim suspension is ordered. Not a single judgment of any Court which has taken the view that such requirement would be attracted even in such a case has been cited before me. There is none that I know of. On the contrary, there are clear observations in the judgment of Reghubar Dayal and Mudholkar, JJ. in Pratap Singh v. State of Punjab : (1966)ILLJ458SC , which appear to take a contrary view. The petitioner in that case had challenged, inter alia, the order of the Punjab Government placing him under suspension said order was challenged, along with certain other connected orders, on two grounds, namely, illegality and mala fides. When the matter ultimately reached by way of an appeal to the Supreme Court, a Bench of five learned Judges, which heard the appeal, was unanimous on the question as to the legality of all those orders including the order of suspension (see paras 4 and 30 of the majority decision of Ayyangar, J. at pages 81 and 93.) The Bench was, however, divided on the question as to whether those orders including the order of suspension were vitiated on account of mala fides. It would thus appear that though the decision of Raghubar Dayal and Mudholkar, JJ. in the said case reflects the minority view, so far as the issue relating to mala fide exercise of power is concerned, the opinion expressed therein on the question of legality or the orders reflects the unanimous view of the Court. Now, one of the grounds on which the legality of the order of suspension was challenged in the said case was that since it was passed without obtaining a prior explanation of the appellant with regard to the charges of misconduct, it was bad. This argument was repelled in the following words in para. 55 of the judgment at page 98:

It was contended that the appellant's suspension, without calling him to explain the charges first, was bad as the proceedings to suspend him were of a quasi judicial character and therefore necessitated the Government's obtaining his explanation to the charges of misconduct before passing the order of suspension. The order suspending the Government servant pending enquiry is partly an administrative order. What has been held to be quasi-judicial is the enquiry instituted against the Government servant on the charges of misconduct, an enquiry during which under the rules it is necessary to have an explanation of the Government servant to the charges and to have oral evidence (3) if any, recorded in his presence and then to come to a finding. None of these steps is necessary before suspending a Government servant pending enquiry. Such orders of suspension can be passed if the authority concerned, on getting a complaint of misconduct, considers that the alleged charge does not appear to be groundless, that it requires enquiry and that it is necessary to suspend the Government servant pending enquiry.

It would thus appear to be a well-settled proposition that it is not necessary to have a prior explanation of the concerned Government servant with regard to the charges on the basis of which it is deemed fit to place him under suspension pending inquiry.

7. The question might still be examination briefly on first principles in the light of the relevant service rules which govern the matter of suspension in our State. Suspension, when empowered by contract or statute, has the effect of temporarily suspending the relationship of master and servant with the consequence that the servant is not bound to render service and the master is not bound to pay (see Hotel Imperial v. Hotel Worker's Union A.I.R. 1969 S.C. 1342). If, however, there is a provision in the contract or statute providing for the scale of payment during suspension, the payment would be made in accordance therewith (see B.R. Patel v. State of Maharashtra : (1968)IILLJ700SC ). Rule 151 of the Bombay Civil Service Rules empowers the State Government to withhold pay for the period of interim suspension but the Government servant is entitled thereunder to a subsistence allowance at such rate as the suspending authority may direct within the prescribed limits. Under the proviso, there is also provision for grant of compensatory allowance in addition to suspension allowance, if the State Government makes a general or special order in that behalf. Under Rule 152 of the Bombay Civil Service Rules, when suspension of a Government servant is held to have been unjustifiable or not wholly justifiable or when he is reinstated, the competent authority has the power to grant (i) the full pay and allowances or (ii) such proportion of such pay and allowances as the competent authority may prescribe, depending upon whether the concerned Government servant is or is not honourably acquitted. There is also the power to direct as to whether the period of absence from duty should be treated as period spent on duty or on leave admissible from duty should be treated as period spent on duty or on leave admissible depending upon circumstances of the case and satisfaction of the requisite conditions. In Gopalkrishna v. State of M.P. : (1968)IILLJ125SC , it was held that Fundamental Rule 54, which is couched in a similar language to that Rule 152, contemplates a duty to act in accordance with the basic concept of justice and fairplay. The competent authority, therefore, has to afford a reasonable opportunity to the concerned Government servant to show cause before taking a decision in the matter of admissible pay and allowances and treatment of the period of absence from duty. The decision would apply with full force to Rule 152 and therefore, any decision under the said rule can only be reached at the appropriate stage consistently with rules of natural justice. It is in this context that the question of affording hearing to the concerned Government servant before an order of interim suspension is made requires consideration.

8. Another equally important point which has to be borne in mind is that having regard to the nature of the action involved in ordering interim suspension insistence upon compliance with the audi alteram partem rule at the stage or time when such order is made or prior thereto might, more often than not, prove to be a self-defeating exercise plainly contrary to the common sense of the situation. Such action is to be taken quite often emergently in order that the concerned Government servant may not tamper with the records or otherwise do irreversible damage to the further progress of the investigation in the alleged criminal offence or defeat the contemplated departmental inquiry by misusing his authority in some way. Besides, in in case of a Government servant against whom a criminal proceeding is pending, it would be embarrassing to permit him to continue to perform the duties of his office and if the charge is connected with his position as Government servant, it would indeed be inadvisable to allow him to continue to do so any further. This also is a ground justifying the need for promptitude. It is a recognised principle of administrative law that 'a prima facie right to prior notice and opportunity to be heard may be held to be excluded by implication where an obligation to give notice and opportunity to be heard would obstruct the taking of prompt action, especially action of a preventive or remedial nature' (see A.S. de Smith, Judicial Review of Administrative Action, 2nd Edition at page 174). Fair play in action, it is well settled, may be excluded where, having regard to the nature of the action to be taken, its object and purpose and the scheme of the relevant statutory provision, fairness in action does not demand its implication and even warrants its exclusion. Under such circumstances, the audi alteram partem rule is held inapplicable because nothing unfair can be inferred by not affording an opportunity to present or meet a case Even assuming, however, that there cannot be an exception to the rule of fair play in action and that the Court would not allow the rule of natural justice to be jettisoned save in very exceptional circumstances where compulsive necessity so demands, there is no manner of doubt that mere absence of prior hearing would not invalidate an order in the nature of interim suspension. As pointed out in Menka Gandhi v. Union of India : [1978]2SCR621 ;

The audi alteram partem rules is intended to inject justice into the law and it cannot be applied to defeat the ends of justice, or to make the law 'lifeless, absurd, stultifying, self-defeating or plainly contrary to the common sense of the situation'. Since the life of the law is not logic but experience and every legal proposition must, in the ultimate analysis, be tested on the touchstone of pragmatic realism, the audi alteram partem rule would by the experimental test, be excluded, if importing the right to be heard has the effect of paralysing the administrative process or the need for promptitude or the urgency of the situation so demands.... The audi alteram partem rule is not cast in a rigid mould and judicial decisions establish that it may suffer situational modifications.

It is been held in the same decision that natural justice may be satisfied in certain situations demanding prompt or urgent action even if post-decisional remedial hearing is afforded. This is another aspect which must be borne in mind while considering the submission of the petitioner.

9. Now, it would appear, in view of the foregoing discussion, that insistence upon prior notice and hearing before interim suspension is ordered does not appear to be warranted, indeed it is implicitly excluded, having regard to the nature of the action and its object and purpose. That does hot mean, however, that the audi alteram partem rule is altogether excluded. Rule 152, which contemplates a duty to act in accordance with the basic concept of natural justice and fair play, will afford a reasonable opportunity of hearing to the petitioner at an appropriate stage before final decision is taken thereunder in the matter of admissible pay and allowances and the treatment of the period of the absence from duty, in case the suspension is held unjustifiable or not wholly justifiable or if the ultimate outcome of the criminal proceeding or the contemplated departmental inquiry against the petitioner is in his favour. Meanwhile, an alternative safeguard, more practicable under such circumstances, is available to guard against arbitrary exercise of powers, namely, insulation against mala fide exercise of power or exercise of power in violation of the guidelines laid down by the State Government. That alternative safeguard is a substitute for prior hearing before the order is made. Whether the order of interim suspension herein complies with that alternative safeguard is a different matter to which I will presently advert. The petitioner cannot, however, be heard to complain, in view of what is stated above, that since he was not heard before the impugned order of suspension was passed, there was breach of rules of natural justice.

10. It might be mentioned that considerable reliance was placed on behalf of the petitioner upon the decision of the Supreme Court in Maneka Gandhi's case (supra) and, more particularly, on the observations made in paragraphs 57 to 60 of the said decision and it was urged that even in administrative actions which involve civil consequences it was necessary to follow the rules of natural justice and that, therefore, unless prior hearing was afforded, the impugned order of suspension could not have been made. There cannot be any dispute about the principle that natural justice is applicable to administrative actions which involve civil consequences. However, as earlier pointed out, on the basis of the observations contained in the very same decision, it must be held that rules of natural justice are not inflexible and rigid. The audi alteram partem rule is sufficiently flexible to permit modifications and variations to suit the exigencies of myriad kinds of situations which might arise. While dealing with orders in the nature of interim suspension, one cannot insist upon prior notices and hearing. Hearing to be subsequently afforded under circumstances mentioned in Rule 152 would meet the requirement of natural justice. I do not think, therefore, that the observations in the said decision can sustain the argument of the petitioner that he should have been heard before the order of interim suspension was made.

IV. Breach of guidelines:

11. There are two Circulars of the Government which lay down the guidelines with regard to the circumstances under which interim suspension could be ordered. The first Circular is dated July 8, 1970 and the second Circular, which modifies the previous Circular, is dated October 5, 1976. The first Circular provided that interim suspension should be ordered only if both the following conditions are satisfied, namely, (1) that the officer or person concerned is involved in a grave misconduct or has committed very serious offence and on the basis of the available evidence there is a prima facie case for his dismissal, removal or compulsory retirement; and (2)(i) that there is reason to believe that the continuance of the Government servant in active service is likely to hamper the inquiry or investigation or to afford opportunity for interference with the witnesses or tempering with the evidence; or (ii) his continuance in service is likely to afford him an opportunity to indulge in the commission of similar misconduct or offence as envisaged in B.C.S.R. 156. By the second Circular, the Government clarified that insistence upon observance or satisfaction of both the conditions precluded even suspension of persons involved in cases of corruption of grave indiscipline and that that was not the intention of the Government. Accordingly, the Government directed 'in modification of the earlier orders that suspension should be resorted to in cases of corruption or gave indiscipline wherever the Competent Authority is satisfied that a prima facie case exists against the concerned Government servant'. It is this guideline which now holds the field.

12. In the instant case, the suspension is ordered, as manifested by the impugned order, on the ground that the petitioner was guilty of 'gave misconduct and indiscipline' arising out of some incident which is alleged to have occurred on June 30, 1979. Therefore, the Competent Authority appears to have exercised the power of suspension on relevant ground, namely, that there was grave indiscipline on the part of the petitioner. It is true and on this point some emphasis was laid on behalf of the petitioner-that the order of suspension does not recite that the Competent Authority was satisfied that a prima facie case exists against the petitioner with regard to grave indiscipline. In my opinion, however, it is not necessary to recite such satisfaction is so many words in the order of suspension itself. Exercise of power must legitimately be presumed to have been made on the Competent Authority having been satisfied about the existence of such prima facie case. That apart we are not herein concerned with a statutory order which could be made only upon satisfaction of certain conditions precedent. Even in such cases, it has been held that it is not necessary that the satisfaction of those conditions must be recited in the order itself, unless the stature requires it and that even where the recital is not there on the face of the order, the order will not become illegal ab initio and only a further burden is thrown on the authority passing the order to satisfy the Court by other means that the conditions precedent were complied with (see Swadeshi Cotton Mills v. S.T. Tribunal U.P. : (1961)IILLJ419SC ). In the instant case, we are concerned merely with an order of interim suspension made by a competent authority in exercise of administrative powers. In such a case, the observations made in Swadeshi cotton Mills Co.'s case would apply with greater force. The present Commissioner of Police who is the successor-in-office of the competent authority who made the impugned order has in terms stated in his affidavit that the impugned order was passed by his predecessor-in-office after a preliminary inquiry was conducted by the Deputy Commissioner of Police (West). The deponent further stated that the petitioner was alleged to have beaten one Balubhai Patel with a stick in Court premises in public and that when the Advocate approached the petitioner, the petitioner took out his revolver and jesticulated in a manner which was threatening. According to the deponent, on the basis of this material his predecessor-in-office was satisfied that prima facie the petitioner had indulged in grave misconduct and serious indiscipline, warranting dismissal or removal and that further continuance of the petitioner on duty was likely to seriously hamper the investigation and might give to the petitioner an opportunity to temper with material evidence. Therefore, the deponent proceeds to state, the suspension was ordered on appropriate satisfaction of the competent authority that the conditions for the exercise of the power of suspension were satisfied in the instant case. In view of this affidavit, which in unmistakable terms sets out the circumstances under which the power of suspension was exercised in the instant case, there can be hardly any doubt that the guidelines have been observed. I wish to make it clear that this Court should not be taken to have expressed any opinion on the truth or otherwise of the allegations made against the petitioner on the basis on which the competent authority exercised its power of suspension. The limited question before the Court is whether there was material which could have satisfied the competent authority and it is only in that context that reference has been made above to the relevant portions from the affidavit filed by the Commissioner of Police.

v. Malafide exercise of power:

13. The submission under this head was that the Home Minister had taken undue interest and gone out of way and taken an illegal decision in arranging for suspension of the petitioner and that the power of suspension was really exercised by the Commissioner of Police under the dictates and directions of the Home Minister. The relevant averments in this behalf are to be found in para 11 of the petition. The allegation is that the Home Minister had yielded to the illegal threat of several members of the Bar Association of the Criminal Courts, Ahmedabad City, which was given at the point of time when the case against the petitioner was subjudice and without applying his mind to the facts of the case against the petitioner, the Home Minister prevailed upon the then Commissioner of Police, who had resumed his duty after a long sick leave, to place the petitioner under suspension. This allegation is controverted, in the first place, by the Home Minister who has filed an affidavit dated August 3, 1979. In the course of his affidavit, the Home minister has stated that a delegation of the members of the Bar Association of the Criminal Courts, Ahmedabad City, had approached him complaining against the conduct of the petitioner and that thereupon he had requested the Commissioner of Police, Ahmedabad, to look into the matter and take such appropriate steps as may be deemed fit and proper in the circumstances of the case. The Home Minister has expressly stated that in no way he exerted any undue interest or went out of way in order to ensure that the petitioner was suspended, irrespective of whether the facts of the case justified suspension or not. The Home Minister has also denied the allegation that he had yielded to any illegal threat or that he made any attempt to interfere with he had not directed the Commissioner of Police to suspend the petitioner nor exerted any pressure on him to make any such order. A copy of the resolution passed by the emergency meeting of the Ahmedabad Criminal Courts Bar Association appears to have been handed over to the Home Minister on July 2, 1979, according to the endorsement made by the Home Minister in his own hand on the said copy. On the same day, however, according to the file shown to the Court, the Commissioner of Police appears to have been independently apprised of the incident by the Deputy Commissioner of Police (West) and on the basis of the report of the Deputy Commissioner of Police, the Commissioner of Police appears to have decided to suspend the petitioner on the next day. On perusing the relevant files and papers, it appears that the decision by the Commissioner of Police to suspend the petitioner was taken independently and uninfluenced by any external source, including the Home Minister. It is significant to note that this is also the case of the successor-in-office of the Commissioner of Police, that is to say, of the present Commissioner of Police in his affidavit dated August 3, 1979 (see para 13). It would thus appear that the entire edifice with regard to mala fide exercise of power is built upon an apprehension which has no foundation in facts.

VI. Violation of fundamental right guaranteed under Article 14:

14. In para 7 of the petition, the petitioner has cited instances of several Police Officers who, according to him, were involved in serious criminal offences and who were still not suspended during the period that the offences were under investigation or trial. By an order made on July 18, 1979 this Court had directed the petitioner to furnish better and further particulars to the respondents in respect of the illustrations contained in para. 7.2. The Court had made it clear in the course of its order that the petitioner will be permitted to rely only upon such instances in respect of which he is able to furnish better and further particulars on or before July 23, 1979. Accordingly, the petitioner filed an affidavit dated July 23, 1979 in which he appears to have furnished some particulars. From para. 11 onwards of the affidavit of the Commissioner of Police, dated August 3, 1979 some of those instances have been dealt with but not all. A grievance has been made by the Commissioner of Police that even the better and further particulars which were supplied in the affidavit dated July 23, 1979 were not adequate for him to meet the relevant allegations and that, therefore, he was only dealing with some of the instances referred to in the said affidavit. It requires to be clarified that when the matter reached for hearing after this affidavit was filed, it was made clear on behalf of the petitioner that for the purpose of the instant argument, he would rely only on those instances which have been dealt with in the affidavit-in-reply dated August 3, 1979 filed by the Commissioner of Police. In other words, the plea of discrimination was sought to be substantiated only on those instances in respect of which the Commissioner of Police has given his version in his affidavit dated August 3, 1979.

15. Now, it requires to be noted in the first place that in the very nature of things, each case of suspension would stand on its own facts. Each case would have to be examined to find out whether it is exactly similar to the case before the Court in order to invoke the protection of Article 14. The Commissioner of Police in the course of his affidavit has pointed out that some of the instances upon which the petitioner has relied were cases of cross-complaints in which the concerned Police Officer was prosecuted for having acted in the discharge or performance of his official duty. In some other cases, there was no sufficient evidence and in one of the cases, the complaint was not even prosecuted by the complainant. The following extract from the affidavit being pertinent may be cited:

I further submit that the job of a police officer is not an easy one and he is exposed to several risks in the performance of his duties. One of the risks which they have to face is of frivolous complaints filed against them, even if they have only bona fide performed their official duties. In such circumstances, it will be both unjust and unfair to immediately conclude that the filing of a complaint must entail automatic suspension. Suspension must be resorted to only in those cases where a preliminary enquiry reveals that the prerequisites for the imposition of an order of suspension exist. These requisites has been satisfied in the case of the petitioner and, therefore, the petitioner cannot seek to assault the order of suspension by attempting an exercise of comparing incomparables and of alleging breach of equality even between unequals.

It would thus appear that the stand of the competent authority is that those cases of officers who were not placed under suspension although prosecuted for certain criminal offences were not comparable and that upon a preliminary enquiry the competent authority was satisfied that this was one case where the power of suspension was required to be exercised in view of the facts and circumstances of the case. It is also significant to note that the order of suspension read as a whole makes it clear that the grave misconduct and breach of discipline has been found by the competent authority in relation to an incident which is alleged to have occurred on June 30, 1979. As pointed out earlier, the action has been taken upon the report of the Deputy Commissioner of Police (West). There was, therefore, material in the instant case before the competent authority on the basis of which it was satisfied that an order of interim suspension was required to be made. It is difficult to comprehend, under such circumstances, how the order of suspension can be challenged on the ground of violation of Article 14 by reference to some other distinct cases of different Police Officers. One more thing. Merely because the authority has failed to suspend a person who ought to have been suspended in the facts and circumstances of one case, it cannot be precluded from exercising the power of suspension in another like case, although suspension might be justified on the facts of that case, by invoking Article 14. One or two or even series of cases where power of suspension ought to have been exercised but has erroneously not been exercised cannot be relied upon in order to claim the protection of Article 14 in a subsequent case where the power might have been reasonably and bona fide exercised on legitimate grounds. That truly is not the sweep of Article 14.

16. These were the only points urged at the hearing of the petition and since there is no merit in any of them, the writ petition is summarily rejected.

17. Before parting with the case, it requires to be mentioned that Mr. Barot, in the course of his arguments, has referred to certain authorities. I have, however, not referred to those cases because, in my opinion the principles of laws on which I have relied are well-founded and no reference to any cited authority is required to be made.


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