VASANTRAO SHANKERRAO Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THIS petition is presented against an order of the Government of Bombay dated 11-3-1955 directing removal of the petitioner who was a Superintendent of Excise on suspension, from Government service with effect from that date. With that order was appended the approval of the Public Service Commission. The petitioner joined the Excise Department in 1934 and he had served with a certain amount of efficiency and had risen to the rank of a Superintendent by 1948. On 4-2-1948 he was served with an order suspending him from service until further orders. There is no doubt that no preliminary enquiry was held prior to his suspension. But it has been held that no serious challenge can be made to the order suspending him pending further enquiry. It appears however that apart altogether from this suspension on 11-3-1948, that is when he wag under suspension, he was arrested by the Police and investigations were ordered against him. After nearly 14 months of investigation the petitioner was discharged by the Chief Presidency Magistrate.

(2.) ON 11-4-1951, before he was discharged by the Magistrate, he was served with a charge-sheet on which the Director of Excise proposed to hold a departmental enquiry. One of the charges was that whilst the case against the petitioner was being investigated by the Police, the petitioner had made a false statement to the Superintendent of police, Anti-corruption Branch on 27-4-1951. By an order dated 8-5-1953 a fresh enquiry was ordered under Mr. B. S. Trivedi, Custodian of Evacuee Property and after Mr. R. S. Trivedi had entered upon the investigation that was also set aside and an enquiry was ordered to be held by Mr. Jasjitsingh, Director of Prohibition and that was under an order dated 15-9-1953 under a resolution of the same date by the Government of Bombay and the resolution states that a fresh departmental inquiry be held under Rule 55 of Civil Services (Classification, Control, and Appeal) Rules in connection with the canteen licence issued by the petitioner in the name of H. Mohomedalli and company. Jasjitsingh proceeded with this enquiry and made a report. He presented the petitioner with a charge-sheet containing two charges. The first charge was that "with having, while serving as Superintendent of Excise, Bombay, unauthorisedly issued or caused to be issued a canteen tenant system licence for the sale of foreign liquor to H. Mohomedalli and Sons and further either took part in foreign liquor business or facilitated during the period between August 1947 and January 1948 the unlawful removal by H. Mohomedalli and Sons or by persons acting on their behalf of liquor from licensed persons whose names are set out, with consequent loss of revenue to Government and illegal gain to himself and his colleagues. " the second charge was that he was charged with making before a public servant statement which he knew or had reason to believe to be false in that he, while Superintendent of Excise under suspension, stated on 27-4-1948 before the Superintendent of Police, Anti-corruption Branch, when questioned about the case in which consignments of foreign liquor were issued to H. Mohomedalli and sons, first that he did not know Shri Joseph Menezes nor had he ever seen him and secondly that he had never been to Carnac Bunder with Shri Joseph Menezes. The Director of Prohibition made his Report dated 20-4-1954. By that Report he did not convict the petitioner under the first charge, but he held that his conduct in connection with the first charge was not above suspicion. He convicted the petitioner of the second charge. That Report was sent by the investigating officer to the Under-Secretary to the Government of Bombay, and on 26-7-1954 a show cause notice was issued to the petitioner by the Government in which they stated that the investigating officer has come to the conclusion and the Government have also come to the conclusion that charge No. II, sub-charge (1) mentioned in the charge sheet had been proved against him and the Government asked and called upon the petitioner to show cause why he should not be removed from service enclosing a copy of the Report. On 12-9-1954 the petitioner wrote a long letter in reply to the Government's show cause notice in which he set out several grounds indicating reasons why he challenged the findings in the Report, although he wound up by saying that since as intimated in the above reference the Government has already accepted the finding of the Inquiry Officer and have made up their mind to remove him from service, he was constrained to think that a detailed reply to this notice would serve no purpose. In other words according to him, he could have made a fuller reply otherwise.

(3.) THE petitioner states in his petition that he was surprised that the respondent had already accepted the Report of the Inquiry Officer without giving any opportunity to the petitioner to show cause why the said Report should! not be accepted by them. He also contends in his petition that the show cause notice is defective inasmuch as no opportunity prior to that date was given to him to snow cause against the findings that were against him before he could be called upon to show cause why a penalty should not be imposed on him. He also complains that the Report of the Inquiry Officer was made on an enquiry held in contravention of several provisions of the law namely Rule 55 as well as contrary to the principles of natural justice. He also states that charge No. II was beyond the scope of jurisdiction conferred by the respondent's order dated 15-9-1953 as the Enquiry Officer was asked by the said order to hold an inquiry in connection with the canteen licence issued by him in the name of H. Mohomedalli and Co. The petitioner also states that the statement made by him on 27-4-1948 to the Superintendent of Police, C. I. D. Bombay was made whilst he was under suspension and not in his capacity as an Excise Officer. He also states that the evidence recorded amounts to no evidence, because all that happened before the Enquiry Officer was that prior statements made by certain parties were put to the said parties called as witnesses and the said parties retracted the statements made by them and said that the former statements to the C. I. D. had been made by them under pressure and by coercion and thereupon the petitioner declined to cross-examine them as there was no evidence against him to cross-examine upon. In these circumstances, the petitioner comes before me to challenge this order of the Government. There is an affidavit in reply in which these allegations have been controverted and denied. At the outset I may say that I attach no importance to the argument that the second charge was not within the jurisdiction conferred by the order dated 15-9-1953, because the whole inquiry was levelled at an investigation in connection with a wrongful issue of a licence to H. Mohomedali and Co. , in conjunction with certain colleagues including Menezes and the statement made by the petitioner before the C. I. D. was (a) that he did not know Menezes at all and (b) that Menezes had not seen him. I am clearly of the opinion that the second charge directly arose during the investigation and the unfolding of the first charge and therefore it was within the ambit of the order under which the investigating officer was functioning.