SCA/533920/2000 1/7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 5339 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE KS JHAVERI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= RAJENDRASINH G CHAUHAN - Petitioner(s) Versus STATE OF GUJARAT THROUGH SECRETARY & 3 - Respondent(s) ========================================================= Appearance : MR KAPADIA for MR NIRZAR S DESAI for Petitioner(s) : 1, MS ROMA I FIDELIS for Petitioner(s) : 1, MR JK SHAH AGP for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE KS JHAVERI Date : 08/12/2008 ORAL JUDGMENT 1. The petitioner by way of this petition has prayed to quash and set aside the impugned order dated 26th August, 1997 and consequential orders dated 9th SCA/533920/2000 2/7 JUDGMENT February, 1998 and 24th September, 1998 and further to direct the respondent to reinstate the petitioner in service will all consequential benefits including back wages. 2. The short facts of the case are :- 2.1. The petitioner was appointed as a Police Constable in the State Reserve Police on 29th October, 1969. Thereafter, in the year 1993 he as promoted as Police Constable Grade I. On 31st July, 1997, the petitioner was served with the show cause notice for the offences registered against the petitioner at various police stations. It is the case of the petitioner that no charge sheet nor any inquiry was initiated against him and after a span of more than one year, the respondent vide order dated 26th August, 1997, removed the petitioner from service. 2.2. Being aggrieved by the said order, the petitioner preferred appeal before respondent no. 3. However, the said appeal came to be rejected by respondent no. 3 vide order dated 9th February, 1998. Against the order dated 9th February, 1998, the petitioner preferred Revision Application before respondent no. 4, which also came to be rejected vide order dated 24th SCA/533920/2000 3/7 JUDGMENT September, 1998. 2.3. Being aggrieved by the order passed by respondent no. 4, the petitioner again preferred revision application before respondent no. 1. The respondent no. 1 after hearing the parties and considering the evidence on record, rejected the application vide order dated 15th February, 2000. Hence, this petition. 3. Mr. Kapadia, learned counsel for the petitioner has contended that the respondents while imposing punishment of removal from service has neither issued any charge sheet not initiated any departmental inquiry against him. He has, therefore, submitted that the impugned order be quashed and set aside. 3.1. In support of his contentions he has placed reliance on the decision of this Court rendered in the case of Shankerlal Kanaiyalal Narwele v. Divisional Security Commissioner reported in 2001 GLHEL 211255, wherein this Court has held that it was totally unconstitutional and illegal on the part of the disciplinary authority to straightway dismiss the petitioner on alleged confessional statement in writing and orally made. Confessional statement in itself did not warrant dispensation of inquiry. SCA/533920/2000 4/7 JUDGMENT 3.2. Mr. Kapadia has also placed reliance upon the decision of the Apex Court rendered in the case of Sudesh Kumar v. State of Haryana reported in 2005 GLHEL 36229 [2005(11) SCC pg. 525], wherein the Court has held that inquiry under Article 311(2) is a rule and dispensing with the inquiry is an exception. The authority dispensing with the inquiry under Article 311(2)(b) must satisfy for reasons to be recorded that it is not reasonable practicable to hold an inquiry. He has also relied upon the decision of the Apex Court in the case of Union of India v. Tulsiram Patel & Ors. reported in (1985) 3 SCC pg.398 and in the case of Ex. Constable Choote Lal v. Union of India & Ors. reported in (2000) 10 SCC pg.196, wherein the same view has been taken by the Apex Court as aforesaid. 4.1. As against that Mr. J.K. Shah, learned AGP, appearing for the respondents has submitted that the petitioner was involved into illegal activities of dealing into transfer of prohibited arms, wherein offences under Sections 25(1)(c), 27 etc of the Arms Act have been registered against him at different Police Stations. 4.2. Mr. Shah has further submitted that after SCA/533920/2000 5/7 JUDGMENT issuance of show cause notice dated 31st July, 1997, the petitioner was afforded an opportunity of hearing, but the petitioner has not filed any reply to the said show cause notice to substantiate his say. 4.3. In support of his contention, he has placed reliance on the decision of the Apex Court rendered in the case of Union Territory,Chandigarh & Ors. v. Mohinder Singh reported in (1997) 3 SCC pg. 68 and more particularly para 6, which reads as under :- “ Clause (3) of Article 311, it may be noticed, declares that where a question arises whether it is reasonably practicable to hold an inquiry as contemplated by clause(2), the decision of the authority empowered to dismiss such person shall be final on that question. The Tribunal has not referred to clause (3) at all in its order. We are not suggesting that because of clause(3), the court or the Tribunal should completely shut its eyes. Nor are we suggesting that in every case the court should blindly accept the recital in terms of the said proviso contained in the order of dismissal. Be that as it may, without going into the question of extent and scope of judicial review in such a matter, we may look to the facts of this case. The Superintendent of Police, Intelligence, has reported that the respondent “is a terror in the area” and, more important, in his very presence, the respondent “intimidated the complainant Shri Ranjit Singh who appeared to be visibly terrified of this Sub-Inspector.” It is also reported that the other persons who were arrested with Ranjit Singh, and who were present there, immediately left his office terrified by the threats held out by the respondent. In such a situation-and keeping in view that all this was happening in the year 1991 in the State of Punjab – the Senior Superintendent of Police cannot be said to be SCA/533920/2000 6/7 JUDGMENT not justified in holding that it is not reasonably practicable to hold an inquiry against the respondent.” 4.4. Mr. Shah, has further relied upon the decision of the Apex Court rendered in the case of Chandigarh Administration & Ors. v. Ex. S.I. Gurdit Singh reported in (1997) 10 SCC pg. 430, wherein same view as been taken by the Apex Court as rendered in the case of Union Territory,Chandigarh & Ors. v. Mohinder Singh (Supra). 4.5. Lastly, Mr. Shah has submitted that looking to the allegations levelled against the petitioner, the order removing the petitioner by dispensing the inquiry is just and proper and the petition deserves to be dismissed. 5. I have heard the learned counsel for the parties and have perused the documents on record. From the record it appears that the petitioner was involved in as many as four grievous offences, wherein he was involved in dealing into transfer of prohibited arms, purchasing of the arms without intimation to the office etc. In view the said offences, prosecution has also been filed against him and the authority has after issuing the charge sheet, dispensing the inquiry, removed the petitioner from service. Moreover, though he was granted SCA/533920/2000 7/7 JUDGMENT opportunity to substantiate his case, the petitioner has not filed reply to the show cause notice nor has remained present before the authority. Thus, looking to the gravity of offence alleged against the petitioner, the order of removal from service is just and proper. 5.1. Considering the facts and circumstances of the case, in my opinion the respondent was completely justified in dispensing the inquiry and imposing a punishment of removal from service. Hence, the petition does not deserve to be entertained under 226 of the Constitution of India. 6. In the result, the petition is dismissed. Rule is discharged. Interim relief if any, stands vacated. No order as to costs. [K.S. JHAVERI, J.] /phalguni/