THAVRAJI MANJIBHAI TAVIYAD Vs. STATE OF GUJARAT

JUDGEMENT

(1.) All the three petitioners, one armed police head constable and two armed police constables dismissed from service by the impugned order dated 24.3.2005, have approached this Court under Article 226 of the Constitution with the prayers to set aside the order of dismissal and the order made in the appeal preferred therefrom, with other consequential reliefs. According to the impugned order dated 24.3.2005, the petitioners were charged with the misconduct and offence of allowing the detainee in their custody to escape. Pursuant to the criminal case registered against them for the offences punishable under sections 224 and 225 of the Indian Penal Code, 1860, they were convicted of the offences by the criminal court. The misconduct alleged against the petitioners were also held to have been proved in the departmental enquiry held against them. However, the Additional Police Commissioner, Ahmedabad, by the impugned order, dismissed the petitioners in exercise of the powers conferred by Rule 5 of the Bombay Police (Punishment and Appeals) Rules, 1956 with the aid of proviso to sub-clause (2) of Article 311 of the Constitution. The petitioners preferred departmental appeals from the order of dismissal, taking as one of the grounds the pendency of their appeals from conviction by the criminal court; but those appeals were also dismissed by the order dated 12.8.2005. By the judgment dated 26.9.2005, the Principal Sessions Judge allowed the appeals of the petitioners and set aside the punishment acquitting the petitioners. That judgment in appeal was based on the finding that the offences were alleged to have been committed by the petitioners while acting or purporting to act in the discharge of their official duty, but the previous sanction required under the provisions of Section 197 of the Code of Criminal Procedure, 1973 was not obtained. Otherwise, it was recorded in paragraph 11 of the judgment that the petitioners were certainly negligent in the discharge of their duty in view of the fact that, despite they being three in number, the lone accused had escaped from their custody. However, it was held to have not been proved that the petitioners had abetted his escape. It may be pertinent to note here that the sum and substance of the charge contained in the chargesheets dated 7.4.2003 issued to the petitioners was also that they had been extremely negligent in the discharge of their duty.:

(2.) Against the above backdrop of facts, it was vehemently argued by Mr. Sanjanwala, learned counsel for the petitioners, that the extreme penalty of dismissal from service could not be imposed solely on the basis of conviction of a civil servant in a criminal case and, particularly after acquittal being recorded by the higher forum, the delinquent was at least entitled to hearing in respect of the punishment and the proportion thereof. He submitted that, after the substratum of conviction being removed by the acquittal, dismissal could rest only on the departmental proceedings which were, in the facts of the present case, not fully completed and the petitioners were never heard in respect of the findings of enquiry and the punishment to be imposed. He also submitted that the charge of negligence was not proved against the petitioners in all its details and the accused in their custody could have escaped despite exercise of due care expected of a reasonable and prudent person. He also submitted that the fugitive was in any case caught again within a few days. He relied upon the judgments of the Supreme Court in Manni Lal v. Parmai Lal [ AIR 1971 SC 330] and Chaudhry Ram and Others v. State of Haryana [1994 Supp. (3) SCC 674] to submit that setting aside of the conviction and sentence in appeal has the effect of wiping out retrospectively the disqualification; and that once acquittal was on merit, delinquent would be entitled to reinstatement. Both the judgments are on different set of facts and the ratio thereof is not applicable in the different set of circumstances in the present cases.

(3.) There is no dispute about the fact that the order of conviction of the petitioners by the criminal court was operative at the time of dismissal of the petitioners and its legality could not have been challenged at that time. The subsequent event of acquittal of the petitioners by the appellate court could have removed the substratum of the order of dismissal if the acquittal were on merits. However, the acquittal of the petitioners, in the facts of the present case, is admittedly not on merits. On the contrary, the criminal court had once recorded the finding of guilt against the petitioners after appreciation of evidence and applying the standard of proof-beyond-reasonable-doubt and the appellate court has not disturbed that finding. No legal provision or precedent was cited to support the submission that, in such circumstances, no sooner the order of conviction was reversed, the order of dismissal also has to be reversed. It was only submitted that the employer, in such circumstances, was entitled to re-start or complete the departmental proceedings and pass appropriate orders in accordance with law. However, that required reinstatement of the petitioners first and then departmental proceedings, according to the submission.