ARJUNSINH MALARAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Can leniency in punishment be shown to an Armed Police Constable found in a drunken unconscious state in breach of the law of prohibition while on duty ? This is one of the main questions arising in this petition filed under Art. 226 of the Constitution of India challenging the legality and validity of the order of dismissal from service passed by respondent No. 2 on 8/04/1982.

(2.) The facts giving rise to this petition may be summarised thus : The petitioner was at the relevant time working as an Armed Police Constable at Porbandar. On 25/02/1974 at night he was found unconscious in a drunken state in the shop of one Hardas Maldey. He was supposed to be on duty at that time. He was prosecuted for offences punishable under Secs. 66(l)(b), 85(l)(i) and 85(l)(hi) of the Bombay Prohibition Act, 1949 (the 'Prohibition Act' for brief). He came to be convicted by the Trial Magistrate. The petitioner carried the matter in appeal before the Sessions Court. It came to be registered as Criminal Appeal No. 10 of 1975. His appeal came to be accepted and he came to be acquitted of the offence with which he came to be charged. A copy of the operative part of the order passed by the Additional Sessions Judge of Junagadh at Porbandar on 30/09/1975 in Criminal Appeal No. 10 of 1975 is at Annexure 'B' to this petition. It transpires therefrom that the acquittal earned by him was not on merits. He was given the benefit of doubt. It appears that the disciplinary authority decided to proceed against the petitioner departmentally for the same act of misconduct. A charge-sheet of 8/04/1976 came to be issued to him. Its copy is a part of Annexure 'C' collectively. He was subjected to the enquiry proceedings pursuant to the charge-sheet. The Enquiry Officer submitted his report to the disciplinary authority. Its copy is also a part of Annexure 'C' collectively. Thereupon the disciplinary authority caused to serve to the petitioner what is popularly styled as the second show-cause notice of 6/04/1977 calling upon him to show-cause why he should not be dismissed from service. Its copy is at Annexure 'D' to this petition. It appears that the petitioner challenged the legality and validity of the second show cause notice at Annexure 'D' to this petition as also the enquiry proceedings resulting into issuance thereof by means of a suit in the competent Court at Gondal. He also appears to have obtained an interim injunction against proceeding further with the second show-cause notice at Annexure 'D' to this petition. It appears that the suit was ultimately not entertained by the competent Court at Gondal. Thereupon the petitioner submitted his reply on 29/01/1980 to the second showcause notice at Annexure 'D' to this petition. A copy of his reply is at Annexure 'E' to this petition. Thereafter the disciplinary authority, by his order passed on 8/04/1982, ordered the petitioner's dismissal from service. A copy of the order of dismissal from service is at Annexure 'A' to this petition. The petitioner has thereupon invoked the extraordinary jurisdiction of this Court under Art. 226 of the Constitution of India for questioning its correctness.

(3.) It is difficult to accept the submission urged by Shri Rana for the petitioner to the effect that the departmental proceedings on the same set of circumstances and on the same charge were not competent on account of the acquittal of the petitioner by the Criminal Court in a criminal case instituted on the same facts and on the same charge in view of the ruling of this Court in the case of Abdul Hakim Ahmad v. Dist. Supdt. of Police and Ors., reported in (1978) XIX GLR 210 as relied on by Kum. Doshit for the respondents. It has been held therein :