MOHANLAL SHIVLAL THAKORE Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr.S.M.Mehta, learned AGP waives notice of Rule. The matter is taken up for final disposal.

(2.) The short facts of the case are that the petitioner was serving as constable in police force. On 20th September, 1992 a case was registered under Bombay Prohibition Act that while he was on duty he was found in drunken condition and not only that but it was also alleged that he has misbehaved with the Superior and there was indisciplined behaviour on the part of the petitioner. On 22-9-1992, the petitioner was placed under suspension. On 20th Oct., 1994, the charge-sheet was served and thereafter there was departmental inquiry. The departmental inquiry was held and it was found during the course of departmental inquiry that the allegations in the charge-sheet are proved and as a result thereof minor punishment was imposed upon the petitioner by the District Superintendent of Police as per the order dated 19-9-1996. The Special Inspector General of Police, Vadodara issued notice dated 19-3-1998 in exercise of the power under Section 27A of the Bombay Police Act, 1951, wherein it was mentioned that the acquittal order of the District Superintendent of Police dated 19-9-1996 is cancelled and since the charge-sheet is partly proved show-cause notice was issued to the petitioner to show cause as to why punishment of compulsory retirement should not be imposed upon the petitioner. The petitioner submitted his reply to the said show-cause notice. Thereafter, opportunity of hearing was given and it was found by the Special Inspector General of Police, as per the order dated 30-6-1998 to impose punishment of compulsory retirement upon the petitioner. The petitioner preferred appeal before the State Government against the order dated 30th June, 1998 passed by the Special Inspector General of Police and the said appeal ultimately, as per the decision dated 16th August, 1999, came to be dismissed. It is under these circumstances, the petitioner has approached this Court by preferring this petition.

(3.) Mr.Qureshi, learned Counsel for the petitioner raised mainly two contentions. Section 27A of the Bombay Police Act provides a mandatory procedure to be followed before exercise of the power under Section 27A and he submitted that even as per the proviso of Section 27A mandatory procedure of giving opportunity of hearing is required to be followed. He submitted that in the present case, the decision is already taken for cancellation of the order of the District Superintendent of Police dated 19-9-1996 and thereafter the notice is given to show cause as to why punishment of compulsory retirement should not be imposed and, therefore, Mr.Qureshi submitted that the action of imposing punishment for compulsory retirement, which is on the basis of cancellation of the earlier order dated 19-9-1996 is illegal and without following mandatory procedure. Mr.Qureshi submitted that even otherwise also punishment of compulsory retirement in a matter where the police officer is found to have consumed alcohol and the charges of indisciplined behaviour cannot be such a grave charge, which would attract punishment of compulsory retirement. Mr.Qureshi contended that since the petitioner has already retired from service pursuant to the impugned order and since even the balance service period is also over, considering the facts and circumstances of the case, the Court may consider the question of substituting the penalty and may award consequential benefits to the petitioner. Mr.Qureshi has relied upon the judgement of the Apex Court in the case of "Sukhdeo v. Commissioner Amravati Division, Amravati & Another", reported in 1996(5) SCC, 103 to contend that when the decision is taken in exercise of power in public interest, the same cannot be on the basis of adverse remarks. Mr.Qureshi has also relied upon the judgement of this Court in the case of "Ishwarbhai Marghabhai Patel v. State of Gujarat", reported in 2000(3) GLH, 283 to contend that if the order is not passed in exercise of power in public interest or passed under the guise of public interest for premature retirement, Court can examine the legality and validity of the action. Mr.Qureshi submitted that so far as the prohibition case is concerned, the petitioner has been acquitted by the Criminal Court and, therefore, the said charge cannot be taken into consideration and even in the departmental inquiry proper evidence is not led for proving the said charge.