STATE OF MAHARASHTRA Vs. DILIP ANANT SURVE

JUDGEMENT

(1.) Rule. Heard forthwith. The State of Maharashtra has challenged the order of MAT dated 15-11- 2000 in O. A. No. 646 of 2000 relying on its earlier Order dated 1-7-1998 in O. A. No. 472 of 1999. By that order, it has been held that the departmental enquiry held against the respondent, delinquent employee was without authority of law and hence vitiated and consequently set aside the impugned order imposed on the respondent which was by way of dismissal from service. The petitioners were however, given liberty to start fresh enquiry if they chose to re-start the enquiry, to the appropriate Enquiry Officer as per relevant Government decisions. Subsequent to that judgment, a Full Bench of MAT was constituted consequent on MAT noticing, that there was divergent opinion amongst its Benches on the issue. By order dated 7-6-2002 the Full Bench was pleased to hold that the power to hold departmental enquiries under the Bombay Police Rules exists and continues to exist and that neither G. R. dated 29-12-1988 nor the subsequent circulars such as circular dated 11-1-1990 have taken away the said power conferred by the statutory rules. MAT also made it clear that the enquiries which had already been conducted and concluded and had become final cannot be affected or reopened consequent to the judgment. Considering this judgment, the impugned order of MAT it is contended is liable to be set aside if otherwise the judgment can be supported.

(2.) A few facts may be set out for the purpose of deciding the controversy which has arisen in the present petition. The enquiry commenced against the respondent on 30-6-1998. The enquiry was concluded on 29-10-1998 and the order of dismissal came to be issued on 13-5-1999. The appeal preferred was thereafter dismissed. Pursuant to which the petitioner took out O. A. No. 646 of 2000 which was allowed by order dated 15-11-2000. Hence, the present petition by the State.

(3.) The Full Bench Judgment, MAT, firstly dealt with G. R. dated 29-12- 1988 and the subsequent G. R. s and circulars. The Full Bench proceeded to address itself to the issue, as to whether the G. R. s can be considered as rules framed as per power conferred under Article 309 of the Constitution of India, considering the Full Bench Judgment of this Court in Chandrakant Sakharam karkhanis and ors. vs. State of Maharashtra and ors. , 1976 Mh. L. J. (F. B. ) 755 = air 1977 Bombay 193. The Full Bench held that there is the Bombay Police Act, 1951 which had received the assent of the President on 1-6-1951. Rules came to be made under the said Act, known as the Bombay Police Punishment and appeal Rules, 1956 which hereinafter shall be referred to as the Rules. By virtue of Rule 1 (2) all police officers, including Railway Police Officers, below the rank of Inspector in the State of Bombay are governed by the said Rules. The Full bench then proceeded to hold that the G. R. s and the circulars are not applicable to police officers who are governed by Bombay Police Rules and that they are applicable only in those cases of other Government servants who are not governed the Bombay Police Rules and are applicable to cases of other government servants such as those governed by M. C. S. R. (Discipline and appeal) Rules, 1979. The learned Full Bench then proceeded to hold that there is no difficulty in accepting that the G. R. dated 29-12-1988 can be called as Rule framed under the proviso to Article 309 of the Constitution and it is applicable in the case of Class III and Class IV State Government employees. However, held, it is not possible to accept that it also covers the officers/employees of the police department. The Full Bench noted that the G. R. dated 29-12-1988, has been issued for achieving salutary objects, i. e. speedy disposal of departmental inquiries and by persons having expertise, as it was found that many inquires were pending for a long time and many of them would have become finally futile if exercise was conducted by persons who were not well versed in it. And in these circumstances, G. R. dated 29-12-1988 was issued and thereafter circular dated 11-1-1990. The challenge on that ground was negatived. The contention that G. R. dated 29-12-1988 had been accepted by the Home Department in respect of Police Officers and employees covered under the Bombay Police rules was rejected by holding that it is well established that there can be no estoppel against statutory provisions. The further challenge was that the government circular dated 6-1-2001 is having prospective effect and the inquiries which are to be initiated after that date can only be conducted by the police authorities. The learned Bench observed that G. R. dated 29-12-1988 and the subsequent circulars issued dated 11-1-1990 or 6-1-2001 cannot override the statutory rules framed under the Bombay Police Act, 1951. The nature of power to be exercised under Rule 16a was considered. It was next submitted that the bombay Police Rules do not provide specifically for appointment of Enquiry officer and in the absence thereof the G. R. dated 29-12-1988 and the circular issued by the Home Department dated 11-1-1990 should prevail. That contention was rejected by placing reliance on Rule 16a of the Rules.