STATE OF GUJARAT Vs. LALJI GOKALBHAI

JUDGEMENT

(1.) This appeal under section 100 of the Code of Civil Procedure is filed by the original defendants against whom the respondent-original plaintiff filed Regular Civil Suit No. 379 of 1993 to declare the order dismissing him from service passed on the basis of departmental inquiry and the order of his suspension as void and without any legal foundation and further declare him to be in continuous service as if he was never dismissed from service and to pay him full pay and allowances as if he was in active service.

(2.) Case of the plaintiff in his suit is that he was serving as police constable, as confirmed employee. When he was serving at Lodhika, DSP Rajkot placed him under suspension by order dated 2.9.1972 and he was served with the Memo (Charge-sheet) dated 12.7.72 alleging that on 26.7.1971, PSI Shri G.N. Raval found Lalji Gokal (plaintiff) with Constable Himatlal Prabhashankar and Suresh Pranlal on National Highway. The plaintiff could not give satisfactory explanation. On further search from the bag of Suresh Pranlal, two rubber tubes giving smell of alcohol with policeman button, short and shirt were found.

(3.) It is the further case of the plaintiff that the ASP Gondal conducted the departmental inquiry and the charges against the plaintiff were held proved and on the strength of such charges, the plaintiff was served with the notice dated 27.3.1973 by the DSP to show cause as to why the plaintiff should not be dismissed from service. The plaintiff, therefore, initially filed the suit without serving notice under section 80 of the Code of Civil Procedure and after withdrawing the same, the plaintiff filed the another suit. The suit was disposed of by directing the plaintiff to avail the alternative remedy of appeal before the DIG through the DSP as required under the Manual. It is further averred by the plaintiff that the charge against the plaintiff was of mere presence of the plaintiff with the above said two persons and no misconduct was proved by any evidence in the departmental inquiry, still, the DSP dismissed the plaintiff from service. The appellate authority before whom the appeal was filed also dismissed the appeal without application of mind. The appellate authority has failed to appreciate that there was no charge of misconduct proved against the plaintiff in the departmental inquiry and, therefore, it was a case of no evidence,still the appellate authority mechanically disposed of the appeal without speaking order. Such order of the DSP dismissing the plaintiff from service and confirmed by the appellate authority is null and void and the plaintiff is, therefore, entitled to benefit of continuous service with other consequential benefits.