DEEVABEN RAJABHAI BAGHDA Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Parsottam Rajabhai, an Armed Police Constable, by this writ petition has brought under challenge the impugned order dated 24-12-1986 [Annexure "B"] dismissing him from service, passed by the Deputy Commissioner of Police, Ahmedabad [Respondent No. 2 herein], which ultimately came to be confirmed in appeal by the Commissioner of Police, inter alia praying for [i] quashing and setting aside the same; and [ii] to reinstate him in service with all consequential benefits including back-wages.

(2.) The petitioner was appointed as an Armed Police Constable in Ahmedabad on 12-5-1973, and thereafter was working as such till the time he came to be dismissed by an Order dated 24-12-1986 [Annexure "B"]. In a show-cause notice dated 16-10-1986 [Annexure "A"] issued against him it has been alleged that he had remained absent from his duty without leave from 31-8-1983 to 12-10-1983 [42 days] for which he came to be prosecuted and tried before the learned Metropolitan Magistrate, Ahmedabad for the offence punishable under Section 145(2) of the Bombay Police Act, 1951, and on his pleading guilty, he came to be convicted and sentenced to pay fine of Rs. 25/- in default, to undergo S.I for five days. It is also further alleged in the said show-cause notice that thereafter from 9-1-1983 to 1-3-1983, and thereafter from 31-8-1983 to 27-12-1983 he remained absent for 51 and 118 days respectively without leave. Not only that, but also during the period from the year 1974 to 1982, on 42 occasions he had remained absent without leave. In this way, it is alleged that the petitioner was in the habit of often remaining absent without leave. On the basis of these allegations it was proposed to dismiss the petitioner from service and accordingly, he was directed to show-cause within ten days from the receipt of the said show-cause notice as to why he should not be dismissed from service. It was further clarified that if within the aforesaid stipulated period, no reply was received from the delinquent petitioner, an ex parte order would be passed against him taking that he has nothing to say against the same. 2.1 It appears that despite the aforesaid show-cause notice, the petitioner neither appeared personally nor gave any reply, and in that view of the matter, the respondent No. 2 dismissed him by passing the impugned order dated 24-12-1986. This was challenged before the Commissioner of Police, Ahmedabad City, who also in his turn by an Order dated 23-3-1987, dismissed the same. It is under these circumstances that the petitioner has approached this Court inter-alia praying for the immediate reliefs as stated above in para-1 of the judgment.

(3.) Mr. Supehia, the learned advocate for the petitioner submitted that he was not in a position to dispute the factum of the petitioner remaining absent for 42 days for which he on pleading guilty came to be convicted and sentenced to pay fine of Rs. 25/- and in default, to undergo SI for five days. Mr.Supehia further submitted that he was also not in a position to dispute the fact that despite the show-cause notice as against the proposed punishment, the petitioner has not replied. Mr. Supehia also made it very clear that he does not propose to challenge the impugned order on the ground that the petitioner was not given an opportunity of being heard as against the proposed punishment. However, what Mr. Supehia seriously challenges and disputes is the extreme punishment of dismissal passed against the petitioner, which according to him, taking into consideration the facts and circumstances of the case, was ex-facie grossly disproportionate to the alleged misconduct. In support of this contention, Mr. Supehia has relied upon the decision of this Court rendered in case of Sardarsingh Devsingh vs. The District Superintendent of Police, Sabarkantha & Ors., reported in 26 [1985] 2, GLR, p-1368. On the basis of all these submissions, Mr. Supehia finally urged that the impugned order of dismissal being on face of it quite harsh, unjust and uncalled for, the same deserves to be quashed and set-aside by substituting the same by passing some order inflicting reasonable minor punishment which can meet with the ends of justice. Mr. Supehia has also incidentally pointed out that pending this petition, the petitioner expired on 1-8- 1989 ie., after about 31 months of the filing of the present petition, and that his heirs and legal representatives are duly brought on record by virtue of an Order dated 23-8-1989 passed in the Civil Application No. 1548/89.