HIMATGIRI MOHANGIRI Vs. SHRI PAVARI K.S. AND/OR HIS SUCCESSOR IN OFFICE, INSPECTOR GENERAL OF POLICE, AHMEDABAD AND ANOTHER

JUDGEMENT

(1.) The petitioner, who was an unarmed third grade Head Constable and who had put in about 21 years of service, was suspended on Aug. 28, 1967. On the same day, he was prosecuted along with other 16 accused for an offence under section 5 of the Bombay Prevention of Gambling Act, 887. The trial ended in the conviction of the petitioner who was sentenced to simple imprisonment for one month and to pay a fine of Rs. 200.00 and in default to rigorous imprisonment for seven days. The petitioner carried an appeal to the Sessions Court against the aforesaid order of conviction and sentence. The appellate Court set aside the conviction and sentence imposed upon the petitioner and acquitted him. The order of acquittal was made on Aug. 31, 1968. On Jan. 29, 1969 the petitioner was served with a charge-sheet, the allegation in the departmental proceedings being the same on which the prosecution was launched, against him, namely, that he was found "playing gambling" on Aug. 28, 1967. The petitioner in the course of the departmental proceedings, inter alia, contended that, since he was acquitted by a competent Court in respect of the same charge, no departmental proceedings could be initiated against him. At the end of the departmental inquiry, the Inquiry Officer found that the charge levelled against the petitioner was proved. Pursuant to the report of the Inquiry Officer, a show cause notice was issued to the petitioner and the disciplinary authority, by its order dated May 8, 1970, dismissed the petitioner from service. An appeal earned against the said order was dismissed. Thereupon the petitioner has tiled the present petition challenging the order of dismissal.

(2.) Though the order of dismissal is challenged on various grounds in the petition, it is not necessary to pronounce upon the validity of all of them, because, as would appear presently, the petitioner is entitled to succeed on one ground, namely, that having regard to the principle and policy adopted by the State Government in respect of departmental proceedings against its employees who have been acquitted in a criminal case, no departmental proceedings could have been initiated against the petitioner in the present case.

(3.) It is well-settled that there is no constitutional bar to a departmental inquiry being held on the termination of a criminal proceeding in favour of a delinquent. There is also no statutory or legal bar against such proceedings. However, the Mate Government has m its own wisdom laid down certain guiding principles to be followed in initiating departmental proceedings against Government servants who have been acquitted in a criminal trial on the same charge. These guiding principles are to be found in the Circular, dated July 26, 1968 issued by the Government of Gujarat in the General Administration Department. By the said Circular, instructions in paragraph 6 of an earlier Circular dated Aug. 1, 1966 on the same subject were to some extent modified and certain fresh directives were given. According to the said directives, there was no objection in holding a departmental inquiry on identical set oi facts and allegations on which the delinquent might nave been previously tried and acquitted, provided the court recording the order of acquittal merely expresses a doubt as to the correctness of the allegations, or (2) it holds that the allegations are proved but that they do not constitute the criminal offence with which the delinquent is charged and it such proved allegations are considered good and sufficient for taking disciplinary action, or (3) the charge in respect of which the departmental inquiry is proposed to be initiated is not identical with or similar to the charge in the criminal case and ts not based on any allegations which have been negatived by the criminal court, or (4) it the concerned allegations had not been examined by the court out are considered good and sufficient for departmental/disciplinary action. According to the said Circular, however, it the facts or allegations had come to be examined by a court of competent jurisdiction and the court has given a finding that the allegations are not the, then the consequent acquittal by the court is required to be generally respected, even though it might be open to the competent authority to proceed against the delinquent departmentally on the same charge and taking therein a different view from that taken by the court it would thus appear that the State Government, in exercise of its executive power, has laid down certain guide-lines to govern departmental proceedings against its employees on the same charge on which they might have been tried and acquitted earlier by a court of competent jurisdiction. When the State Government lays down such guide-lines, it will not be open to its limbs to deviate from the same at their sweet-will and pleasure and if there is any case in which they want to give a go-by to the said guidelines, they will have to justify the same on a rational basis so that the charge of arbitrariness or discrimination may not be levelled against them. These principles are well-settled and they flow from the mandate or Articles 14 and 16 of the Constitution.