GOVERNMENT OF GUJARAT Vs. SHIVABHAI S MAKWANA

JUDGEMENT

(1.) This appeal by the State of Gujarat and Dy. Commissioner of Police, Shahibaug, Ahmedabad is filed against the judgment and decree dated 29-4-1988 passed by City Civil Judge, Court No. 9, City Civil Court at Ahmedabad in Civil Suit No. 5886 of 1986 under which the suit of the plaintiff-respondent since deceased, now represented by his legal heir, has been decreed and his dismissal from the services was declared to be illegal and void and he was ordered to be reinstated back in service with full benefits subject to withholding of two grade increments by way of punishment in respect of first charge.

(2.) The facts of the case are that the plaintiff since deceased, now represented by his legal heir (hereinafter referred to as the respondent) was serving as a unarmed police constable in the office of the Police Commissioner, Ahmedabad from 28-2-1980. From 2-6-1980 he was posted in Traffic Branch. Vide memo dated February, 1982 of Deputy Commissioner of Police, Shahibaug, Ahmedabad a charge-sheet was served to the respondent for his misconduct of abusing language and for having been found under the influence of liquor, and for the charge of taking of liquor. A criminal case has also been registered against him in which he was acquitted on 17-1-1992 by the Chief Metropolitan Magistrate, Ahmedabad. On the same charge, the respondent stated in the suit that the Deputy Commissioner of Police punished him after holding a departmental inquiry vide order dated 24-7-1985 by penalty of withholding two grade increments and treating the period of suspension without pay. Against this charge-sheet and penalty imposed, the respondent made the grievances namely, (i) once he has been acquitted in the criminal case he could not have been suspended for same charge in departmental inquiry, (ii) the entire period of suspension after his acquittal in criminal case could have been treated as period on duty, (iii) the charge framed against him is not proved. In the suit, the prayer has been made for declaration of the order of penalty and charge-sheet as are being bad in law and against the principles of natural justice. The respondent then comes up with the further case that after he has been punished for alleged misconduct in first charge-sheet he was served with another charge-sheet in which the misconduct alleged against him was that 'unbecoming of the Government servant'. In second charge-sheet, the alleged misconduct against the respondent was that he was keeping, a mistress. That charge was found proved against him in the departmental inquiry and the penalty of dismissal from services has been given. That order of dismissal and charge-sheet were also subject-matter of challenge by the respondent in the civil suit.

(3.) The suit has been contested by the appellants and on the basis of the pleadings of the parties, learned trial Court framed as many as ten issues in this case, which reads as under : 1. Has the Court no jurisdiction to try the suit ? 2. Whether the plaintiff proves that order of the defendant No. 2 of relating the entire period of suspension without pay is illegal ? 3. Whether the plaintiff proves that order of the suspension by Deputy Commissioner of Police is illegal ? 4. Whether the plaintiff proves that the order of finding him guilty of abusive language is against the principles of natural justice and hence bad in law ? 5. Does the plaintiff prove that in enquiry for the second charge of "unbecoming of a Government servant", he was wrongfully deprived of the right of cross- examination by the friend, therefore, denied his right to make proper defence in the charge against him ? 6. Whether the plaintiff proves that in case of second charge defendant No. 2 has not followed the proper procedure ? 7. Whether the plaintiff proves that the second charge is wrongfully held proved against him ? 8. Is the plaintiff entitled to declaration sought in plaint para 18(1) ? 9. Is the plaintiff entitled to declaration sought in plaint para 18(2) ? 10. What order and decree ?