BHIMSING SARDARSING Vs. DISTRICT SUPDT OF POLICE

JUDGEMENT

(1.) The petitioner joined service in the Police Department as un-armed police constable to 1/12/1958 On Decem 30/12/1976 the petitioner was served with a charge-sheet dated 2/12/1976 The substance of the charge leveled against the petitioner was: (1) that on 14/06/1976 an offence of house-breaking took place at village Makhalia in the house of one Rathod Kabhasinh Ratansinh (2) that in connection with that offence a complaint was lodged at the Kothamba Police Station for offence punishable under secs. 457-380 of the India Penal Code (3) that the petitioner who was at the material time posted as unarmed police constable at the said police station was entrusted with the investigation of the said offence on 15/06/1976 at 5 p.m. (4) that one Jibhai Abhesing Head Constable who was also entrusted with the investigation along with the petitioner had demanded bribe in the sum of Rs. 200.00from Kabhsinh Ratansinh in the presence of the petitioner stating that it would be necessary to pay the amount if the offence was to be detected (5) that Kabhsinh Ratansinh had paid Rs. 100.00to Head Constable Jibhai Abhesing after borrowing the said sum from one Kabhsinh Chandusinh and the said payment was made in the presence of his brother Daharsinh Ratansinh and Kabhsinh Chandusinh (6) that Head Constable Jibhai Abhesing having accepted the said amount handed over the same to the petitioner and (7) that the petitioner had in that manner abated Head Constable Jibhai Abhesing in accepting bribe in the sum of Rs. 100.00. A copy of the charge-sheet is at Annexure A. At the enquiry which followed and which was held by the disciplinary authority himself the Department as well as the petitioner led evidence both oral and documentary. At the conclusion of the enquiry the petitioner filed his written statement Annexure B on 13/06/1977 The disciplinary authority recorded a reasoned order in the form of a summing up taking into consideration the entire material which was placed on record of the enquiry and came to the conclusion that the charge leveled against the petitioner was established. A copy of the said summing up is at Annexure C. The disciplinary authority also tentatively formed the view that the petitioner was required to be dismissed from service. The petitioner was therefore served with a show cause notice dated 30/06/1977 (Annexure D) with a copy of the summing up annexed and he was called upon to show cause why he should not be dismissed from service as the charge leveled against him was proved. By a subsequent communication Annexure F dated 8/08/1977 the petitioner was informed that the show cause notice Annexure D was withdrawn and that it should be treated as canceled inasmuch as the discussion on issues Nos. 3 and 4 in the summing up was not related to the allegations made against the petitioner. On 17/08/1977 another show cause notice Annexure F was issued to the petitioner and he was called upon to show cause why he should not be dismissed from service as the charge leveled against him was proved. The petitioner had meanwhile shown cause against the show cause notice Annexure D on 25/07/1977 By to order of 24/10/1977 the petitioner was dismissed from service. The said order is not on the record of the petition. However a subsequent order dated 1/11/1977 Annexure H which is in the form of erratum and which clarifies that in addition to the imposition of penalty of dismissal the period spent by the petitioner under suspension was also decided to be treated as such by the disciplinary authority is placed on record. The petitioner preferred an appeal against the said order of dismissal on 31/12/1977 By an order dated 27/03/1978 Annexure I the appeal preferred by the petitioner was dismissed by the Deputy Inspector General of Police Baroda. Thereafter the petitioner preferred a revision application to the Inspector General of Police which was dismissed on 22/01/1979 Annexure J. The petitioner there upon instituted the present writ petition on 6/05/1981 Rule was issued on 1/10/1981 and the petition has reached hearing now.

(2.) On behalf of the petitioner the following three submissions were urged for consideration at the hearing of the petition:

(3.) There is no substance in the first submission urged on behalf of the petitioner because the withdrawal of the show cause notice at Annexure D under the communication at Annexure E was not on the ground that the disciplinary authority was satisfied that the case against the petitioner was not established. As pointed out earlier the disciplinary authority himself conducted the enquiry and in the course of summing up found the petitioner to be guilty of the charge leveled against him. The finding of guilt is recorded in no uncertain terms in the summing up. Under the circumstances it would be going too far to hold that the withdrawal of the show cause notice (Annexure D) he the communication issued by the same authority (Annexure E) was based on the premise that the petitioner was not guilty. Besides the communication at Annexure E makes clear in terms that the show cause notice Annexure D was withdrawn because it was founded on the discussion in the summing up in regard to issues which were not relatable to the petition. In other words the show cause notice was withdrawn because it was found that it suffered from the vice of having been based on extraneous or irrelevant material Whether or not this presumption was correct is another matter. Even assuming that the presumption is not correct it would not be legitimate to bold that the withdrawal reflected the considered view of disciplinary authority that the petitioner was not required to be dealt with any further in the exercise of disciplinary jurisdiction. In my opinion therefore the petitioner cannot plead any bar on the basis of the action of the disciplinary authority withdrawing the show cause notice at Annexure D by the communication at Annexure E.