AMIRKHAN F PATHAN Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Petitioner Amirkhan F. Pathan has filed this writ petition under Articles 226 and 227 read with Article 311 clause (2) of the Constitution of India for issuance of a writ of or in the nature of certiorari or any other appropriate writ order or direction quashing or setting aside the report made and findings recorded by third respondent and the show cause notice dated 16th December 1961 issued by second respondent pursuant to the report and findings and for a writ of prohibition restraining the three respondents from dismissing or taking any other disciplinary action against petitioner on the basis of the report and the findings.

(2.) Petitioner was at the relevant time a Sub-Inspector of Police. The first respondent is the State of Gujarat. The original second respondent Mr. Nagarwala was at the relevant time Inspector General of Police Gujarat State and he is now represented by his successor Mr. Imdadali. Third respondent Mr. Shethna was at the relevant time Deputy Inspector s General of Police Baroda Range Baroda. In the month of July 1956 petitioner was working as Police Sub-Inspector Dahanu Thana District. One Captain Hirasing was District Superintendent of Police Mehsana at about that time. Hirasing appeared on 9th and 10th July 1956 in an examination called the Police Higher Standard Examination held in Bombay by the Public Service Commission. The Government of Bombay found that Hirasing had committed mal-practices in that examination. In that connection petitioners statement was recorded on 11th July 1957 by Mr. Modak Deputy Inspector General of Police Anti-Corruption Branch. In September 1957 Hirasing was ordered to be removed from police service. Thereafter on 26th November 1957 petitioner was served with a chargesheet by the Deputy Inspector General of Police Ahmedabad who was ordered to hold an enquiry by the Inspector General of Police into the charges which were proposed to be levelled against petitioner in connection with the mal-practices alleged to have been committed by Hirasing. Broadly speaking the charges against petitioner were that he had prepared in company with some others answers to the examination papers set in the aforesaid examination after copies of the examination papers were brought by some others at the Hotel Delamar Bombay and that thereafter he had despatched the answer books to the examination hall. Three other Sub-Inspectors of Police and a Constable driver working in the office of District Superintendent of Police Mehsana were also served with similar charge-sheets at about the same time. Petitioner gave his reply to the charge-sheet on 14th December 1959. Thereafter a joint enquiry was held against petitioner and the aforesaid three Sub-Inspectors of Police. A number of witnesses were examined on behalf of the Department. Petitioner examined three witnesses in his defence and on 9th December 1960 petitioner filed a final defence statement. Thereafter the Enquiry Officer made his report on a date which is not to be found on the record. The Enquiry Officer reported that the charges levelled against petitioner had been proved to his satisfaction Thereupon the original second respondent provisionally came to the conclusion that the charges against petitioner had been proved and on that basis he issued a second show cause notice on 16th December 1961 calling upon petitioner to show cause why he should not be dismissed from service. Whilst the departmental enquiry was at this stage petitioner came up to this Court on 15th January 1962 and filed the present petition. This Court admitted the petition on 16th January 1962 and issued a rule. It also granted an interim injunction restraining respondents from taking further proceedings or disciplinary action against petitioner pursuant to the aforesaid report and findings recorded by third respondent and the show cause notice dated 16th December 1962 issued by second respondent. The result therefore to-day is that only a second show cause notice has been issued against petitioner and the final proceedings which may or may not result in his dismissal have yet to be taken. Mr. Daru who appears in support of the petition says that he presses for writ of prohibition in the first instance and that if the Court comes to the conclusion that there is no case for the issuance of a writ of prohibition in the alternative he prays for the issuance of a writ of certiorari in regard to the report and the findings recorded by third respondent and a writ of prohibition against second respondent then would follow as a sequel.

(3.) Mr. Sompura the learned Assistant Government Pleader raises a preliminary objection on the above facts He contends that the facts disclosed by the petition do not entitle petitioner to the issuance of a writ of prohibition and that the prayer for the issuance of a writ of certiorari against the report and the findings of third respondent is premature. Mr. Sompuras submission is that the petition deserves to be dismissed in limine on the aforesaid grounds and that the proceedings started by second show cause notice should be allowed their normal course and petitioner should be left to come to this Court only when and if an order of dismissal is passed against him. Before we discuss the submissions made by Mr. Daru in detail regarding the preliminary objection it is necessary to bear in mind the grounds of attack which he presses in support of the petition. Mr. Daru contends that the proceedings so far recorded against petitioner are bad for two reasons:-