MANUBHAI M PRAJAPATI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioner, who was working as P.S.I., has challenged in this petition the impugned order dated 5-3-1976 passed by the Dy. I.G. of Police, Planning, Training and Welfare, Gujarat State, Ahmedabad (Annexure 'A') removing him from service.

(2.) The petitioner was appointed as P.S.I. in 1964. In the charge-sheet dated 31-7-1975 five charges have been levelled against the petitioner, four of them are for remaining absent from duty without taking prior permission of the higher authority and one is for taking advances from four persons. Additional charge was supplemented by charge-sheet dated 11-8-1975. They were tried to be served upon the petitioner, but inspite of the best efforts of the Disciplinary Authority, it could not be served, as the petitioner absented himself from duty and not found available anywhere. The petitioner had not left any address about his whereabouts. The Disciplinary Authority tried to serve the charge-sheet through special messenger as well as Registered Post. A. D. but it could not be served as the delinquent was not found at his given residential address. The endorsement made by the postal authorities shows that it was "not claimed". Lastly, on 21-7-1975, the petitioner left by stating that he has to go to give evidence in the Court at Lunavada. From 22-7-1975 till the charge-sheet was given on 11-8-1975, he did not report for duty nor his whereabouts were known. Show cause notice was also tried to be served upon the petitioner by the Disciplinary Authority, but it could not be served for the same reasons. Several attempts were made to serve the petitioner by the Disciplinary Authority, but he could not be served. Therefore, the inquiry was held against the petitioner ex-parte and the Inquiry Officer found all (he charges to be proved. The Disciplinary Authority-respondent No. 3 concurring with the report of the Inquiry Officer by his impugned order dated 5-3-1976 removed the petitioner from service, which is challenged in this petition by the petitioner.

(3.) Mr. Hathi, learned Advocate for the petitioner, submitted that the entire inquiry and the impugned order at Annexure 'A' passed by the respondent No. 3 is in violation of principles of natural justice and, therefore, liable to be quashed and set aside as the respondent No. 3 before passing the impugned order of removal from service, did not accord the petitioner reasonable opportunity to defend his case in the departmental inquiry. He further submitted that though the statutory remedy of departmental appeal is provided against the impugned order, the impugned order is in violation of principle of natural justice and, therefore, it being void, the petitioner can challenge that order before this Court directly without availing alternative statutory remedy of appeal, in this petition under Art. 226 of the Constitution of India. He also submitted that though there is a gross delay in challenging the impugned order, it should not be dismissed on the ground, of delay and laches as delay has been satisfactorily explained by the petitioner. 3A. It is true that the entire inquiry was held against the petitioner ex-parte. But the petitioner has to blame himself for the same. He was serving in a disciplined force like Police Department and he could not remain absent from duty without the permission of the higher authority. At least when on 21-7 1975 the petitioner left his service by saying that he had to go to Lunavada Court fur giving evidence, he had to report back to his duty. Apart from reporting himself on duty, he preferred not to inform his superior authorities about his vvhereabouts and left the place where he usually used to reside. In this case, before proceeding further against the petitioner in the Departmental Inquiry, the Disciplinary Authority made all possible attempts to serve the petitioner, but inspite of that, it could not be serve the petitioner.. Therefore, there was no option left to the authority but to proceed against the petitioner ex-pane At the conclusion of the inquiry, the Inquiry Officer found all the charges levelled against the petitioner to be proved. The Disciplinary Authority concurring with the report of the Inquiry Officer passed the order of removal from service and in my opinion no other order could have been passed in the facts and circumstances of the case, particularly when the petitioner, who was a responsible officer serving as P.S.I, in the Police Department, which is a disciplined force of the State. 3B. The petitioner could have challenged the impugned order of removal, which according to him he came so know only in the month of August 1978, when it was produced during the trial, which he was facing in the Criminal Court, within 60 days from the date of his knowledge. But for the reasons best known to him, he had not challenged the said order before the appellate authority in regular appeal. However, Mr. Hathi tried to submit that the petitioner was under the impression that after he is acquitted by the Criminal Court, then he can challenge the impugned order straight way before this Court and, therefore he had not preferred any appeal. It is very difficult to accept this explanation offered by Mr. Hathi. All the charges levelled against the petitioner are totally different than the charge, levelled against the petitioner in the criminal trial. Therefore, in my opinion, it is nothing but an excuse for not preferring an appeal, which had already become time-barred by about 4 years, when he filed the petition before this Court. Mr. Hathi submitted that the petitioner may be directed to file an appeal before the appellate authority and the appellate authority may be directed to condone the delay and hear the appeal on merits. Ordinarily, I would have accepted it. But this is a gross case and in the peculiar facts and circumstances of the case, no such direction can be given to the appellate authority because the man has left the service as P.S.I, in 1975 and after 18 years, such person cannot be extended that opportunity, as in my opinion, such person is not fit to be inducted in the Police Department.