BHALCHANDRA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Bhalchandra Ramchandra Vaidya the petitioner before us has filed this Special Civil Application against the State of Gujarat praying for the issue of a writ of certiorari or other orders and direc- tions under Articles 226 and 227 of the Constitution of India calling for the record and proceedings of the case against the petitioner and quashing and setting aside an order of dismissal passed against the petitioner and for the issue of a writ of mandamus or other writs orders and direc- tions under Articles 226 and 227 of the Constitution of India ordering the State of Gujarat to cancel the said order of dismissal or to forbear from taking any steps or action under the said order and from doing any act prejudical to the rights and interests of the petitioner. The petitioner has further asked for a declaration that the petitioner is and be continued in service of the Police Department of the State of Gujarat and be given his proper seniority and other reliefs.

(2.) In the year 1949 the petitioner commenced service in the Police Department of the State of Saurashtra as a Deputy Superintendent of Police. In the year 1953 the petitioner was working as a Deputy Super- intendent of Police at Dhrangadhra. In the month of May 1953 the petitioners attention was drawn to a report in a local newspaper that one Jashwantrai whose wife Nirmala was then living had contracted a second bigamous marriage with one Pushpa. The petitioner thereupon suo motu ordered an enquiry to be held in the matter. The enquiry was held by Police Sub Inspector A. T. Vachharajani of the Dhrangadhra Police Station who submitted his report stating that no such marriage between Jashwantari and Pushpa was proved to have been contracted. On 3rd June 1953 K. C. Trivedi the brother of Bai Nirmala lodged a complaint with the Dhrangadhra City Police Station about the alleged bigamous marriage of Jashwantrai with Pushpa. This complaint was investigated by Vachharajani who submitted his report to the Police Inspector Dhrangadhra Sub-Division who in his turn submitted the papers to the petitioner. The petitioner concurred with the conclusion of the Police Sub Inspector that no offence of bigamy was proved to have been committed and that the First Class Magistrate Dhrangadhra should be moved to grant C summary i.e. that no offence had been committed and he made a recommendation to that effect. On 17th July 1953 Bai Pushpa and her mother Bhagirathi filed affidavits before the First Class Magistrate Dhrangadhra stating that a marriage had taken place between Jashwantrai and Pushpa and charging Jashwantrai with having committed the offence of bigamy. Thereupon on 2nd August 1953 the Magistrate ordered an enquiry under sec. 202 of the Criminal Procedure Code. The enquiry was made by the petitioner. He examined about 13 witnesses and ultimately came to the conclusion that no reliable evidence was forthcoming which would afford a reasonable chance of the case ending in a conviction. He made a report to that effect to the Magistrate and sent to him the entire record of the proceedings. The Magistrate did not accept the recommendation of the petitioner to grant C summary and called for a charge-sheet and proceeded with the case and ultima- tely convicted Jashwantrai and sentenced him to one years rigourous imprisonment and fine of Rs. 300.00 for having committed the offence of bigamy. An appeal was preferred from the said order of conviction and sentence to the Sessions Court at Jhalawad. In the course of the hearing of the appeal Jashwantrais advocate admitted the fact of Jashwantrais marriage with Pushpa and the Sessions Judge confirmed the conviction but altered the sentence to one of three months rigourous imprisonment and a fine of Rs. 100.00. The Government of Saurashtra took the view that the petitioner was superficial and negligent in his enquiry and ordered a departmental enquiry to he held against the petitioner. That was in the year 1955 The enquiry was held by N. Ram Iyer the then Inspector General of Police Saurashtra who came to the conclusion that the charges of superficiality and negligence had been proved and he made a recommendation to the Government of the State of Saurashtra for appro- priate punishment. On 6th October 1955 an order of dismissal was passed against the petitioner by the Saurashtra Government. The petitioner pre- ferred an appeal therefrom to the Rajpramukh of Saurashtra. The same was dismissed by the Rajpramukh of Saurashtra on 21st December 1955 The petitioner made an application for review of the said order of dismissal to the Rajpramukh of Saurashtra but the same was rejected on 16th April 1956.

(3.) On 1st November 1956 the State of Saurashtra merged with the State of Bombay. The petitioner filed a petition in the High Court of Judicature at Bombay being petition No. 30 of 1957 for an appropriate writ and/or orders under Articles 226 and 227 of the Constitution of India for quashing the order of dismissal passed as aforesaid and praying that the petitioner may be declared to have continued in service. The said petition was summarily rejected on 11th February 1957. The petitioner thereupon served a notice on the State of Bombay under sec. 80 of the Code of Civil Procedure giving notice of his intention to institute a suit against the State of Bombay praying for a declaration that the order of dismissal passed against the petitioner was illegal and void and also praying for a decla- ration that the petitioner continued in service in spite of the said order of dismissal and for claiming arrears of salary. The notice is dated 4th May 1957. After the receipt of the said notice the State of Bombay on 14 October 1957 passed an order setting aside the order of dismissal and reinstating the petitioner in service with effect from the date that he joined duty the petitioner being posted at Rajkot. By the same order the Government of Bombay directed that on reinstatement the petitioner should be placed under suspension with effect from the date he joined duty and that a fresh departmental enquiry should be held by the Deputy Inspector General of Police Rajkot Range as regards his alleged conduct in making superficial and negligent investigation in connection with the aforesaid offence under sec. 5 of the Prevention of Hindu Bigamous Marriages Act. It was further provided that during the period of suspen- sion the petitioner should he granted subsistence allowance in accordance with rule 151 of the Bombay Civil Services Rules. After the petitioner joined duty the enquiry officer served on the petitioner a fresh charge- sheet on 21st February 1958 attaching therewith a statement of allegations and a statement of the evidence. The inquiry officer called for a written statement from the petitioner. On 21st March 1958 the petitioner filed his written statement. The petitioner was given a personal hearing. On 5 April 1958 the petitioner filed a further written statement on 8th May 1958. the enquiry officer submitted his report to the Government to the effect that the charge mentioned in charge-sheet had been proved against the petitioner and recommending the removal of the petitioner from service on 20th August 1958 a show cause notice was issued against the petitioner by the Joint Secretary to the Government of Bombay Home Department intimating to the petitioner that the Government considered that in view of the serious nature of the petitioners default the punishment of removal from service recommended by the enquiry officer was not adequate and that the Government pro posed to dismiss him from service on the ground that he had been found guilty of the charge levelled against him. The petitioner was called upon to show cause why the proposed action should not be taken against him. The petitioner filed his written statement dated 24th September 1958 in reply to the said show cause notice. On 16th May 1959 the Government of the State of Bombay passed an order dismissing the petitioner from Government service with effect from 16th May 1959. The petitioner preferred an appeal against the said order to the Governor of Bombay on 22nd June 1959. On 19th April 1960 the Joint Secretary to the Government of Bombay Home Department addressed a letter to the petitioner stating that the Government saw no reason to revise its deci- sion contained in Government order dated 16th May 1959 whereunder the petitioner had been dismissed from service. With the said letter an extract from a letter dated 24th March 1960 from the Public Service Commission was enclosed in which it was stated that in the opinion of the Public Service Commission the petitioner had not advanced any fresh grounds which would justify reconsideration of the order of dismissal and that the Commission advised that his appeal may be rejected. On 1st May 1960 the State of Gujarat came into being. On 19th May 1960 the petitioner filed the above Special Civil Application in this High Court against the State of Gujarat contending that the order of dismissal had been passed without complying with the provisions of Article 311(2) of the Constitution of India and claiming the reliefs set out in the earlier part of this judgment.