B. J. SHETHNA, J. ( 1 ) THIS Appeal is arising out of the judgment and decree passed by the learned City Civil Judge in Civil Suit No. 4248 of 1984 whereby the plaintiffs Suit is decreed in his favour and it is declared that the show-cause notice of removal from service issued by defendant No. 2-D. S. P. Palanpur at Exhibit 43 is illegal and unconstitutional and a nullity and all other subsequent orders if any issued in pursuance to that notice are also declared to be illegal and void and the plaintiff is declared to be deemed to be in service as if no such order in pursuance to the show-cause notice issued by defendant No.-2 D. S. P. Palanpur was ever passed and the defendants were further permanently restrained from taking any step in pursuance to the show cause notice Exh. 43 issued by the defendant No. 2 Palanpur. ( 2 ) (HOWEVER) At the time of hearing of the suit on three points the show- cause notice issued by the defendant No. 2 was challenged. They are as under: (1) The plaintiff was admittedly appointed by the Commissioner of Police Ahmedabad City whereas the charge-sheet was issued by the Deputy Commissioner of Police who was lower in rank to the appointing authority of the plaintiff and in absence of any general or special orders passed by the State Government delegating powers of the Commissioner of Police to the Deputy Commissioner of Police the powers exercised by the Deputy Commissioner of Police in issuing the charge-sheet against the plaintiff was without jurisdiction. (2) Joint charge-sheet to different delinquents in the departmental inquiry proceedings was bad in law and illegal. And (3) The appointing authority of the plaintiff was Commissioner of Police and defendant No. 2 who is lower in rank than the Commissioner of Police could not terminate the services of the petitioner in view of the provisions of Article 311 (1) of the Constitution of India and therefore the notice of removal issued by the defendant No. 2 is without Jurisdiction and null and void. At this stage it is pertinent to note that the 2nd point namely regarding the joint charge-sheet issued against the plaintiff and co-delinquents was not at all raised either in the plaint nor it was argued at the time of hearing of application for notice of motion. At this stage it is pertinent to note that the 2nd point namely regarding the joint charge-sheet issued against the plaintiff and co-delinquents was not at all raised either in the plaint nor it was argued at the time of hearing of application for notice of motion. It was argued for the first time before the learned City Civil Judge at the time of final hearing of the suit. The learned City Civil Judge has accepted all the aforesaid three contentions raised on behalf of the plaintiff and decreed the suit of the plaintiff by her judgment and decree dated 5-6-86. This judgment and decree passed by the learned City Civil Judge is challenged by the appellants in this Appeal. ( 3 ) BEFORE I advert to the submissions made by Mr. Pandya learned A. G. P. challenging the aforesaid judgment and decree passed by the learned City Civil Judge few important facts are required to be stated which are as under:that the show- cause notice dated 11/. 14-9-84 of removal from service was issued by the defendant No. 2 which was replied by the plaintiff on 18 However though the suit was also filed on 18-10-84 no reference has been made in the plaint about the same that the plaintiff has already replied to the show- cause notice. After the order of status quo was vacated on 22-2-85 by the learned City Civil Judge and the Appeal from Order No. 135 of 1985 preferred against that order was withdrawn on 4-4-85 from this Court by an order dated 31-5-92 the defendant No. 2-D. S. P. Palanpur removed the plaintiff from service. Against the said order of removal from service plaintiff has preferred regular departmental appeal on 11-7-85 before the D. I. G. which was produced before the Trial Court at Exh. 52 by the defendants. Against the said order of removal from service plaintiff has preferred regular departmental appeal on 11-7-85 before the D. I. G. which was produced before the Trial Court at Exh. 52 by the defendants. It appears from the record as well as the operative part of the order in the judgment of the learned City Civil Judge that the subsequent order of removal passed by the defendant No. 2 Palanpur was not specifically challenged in the suit before the learned City Civil Judge and therefore while declaring the show-cause notice of removal from service issued by defendant No. 2 as illegal and unconstitutional the learned City Civil Judge ordered that all other subsequent order or orders if any issued in pursuance to that notice as illegal and void Therefore when the order of dismissal was not challenged in the suit in my view the suit challenging the show cause notice for removal from service issued by the defendant Mo 2 would become infructuous in absence of any stay order operating against the said show cause notice The order which was sought to be passed in pursuance to the show cause notice of removal from service issued by defendant No 2 was passed after considering the reply to the show- cause notice submitted by the plaintiff Therefore the exercise to quash the show-cause notice would be an exercise in futility Therefore the Civil Court could not have declared the show-cause notice of removal from service as illegal void and unconstitutional and further declared that any subsequent order or orders passed pursuant to that notice as also illegal and void and the Civil Court also could not have permanently restrained the defendants from taking any step in pursuance to the show-cause notice when the step was already taken Therefore without considering any other arguments on merits which are advanced by Mr. Pandya learned A. G. P. this Appeal has to be allowed only on this short point In this case pursuant to the show-cause notice of removal from service passed by the defendant No 2 D. S. P. Palanpur the defendant No 2 D. S. P. Palanpur has passed an order of removal on 31 which was duly served upon the plaintiff Against that order of removal a statutory remedy by way of Appeal is provided and in fact in this case the plaintiff did prefer the Regular Appeal before the D. I. G. in July 1985 challenging the impugned order of dismissal passed by the defendant No 2- D. S. P. Palanpur on 31-5-85 Normally even the High Court does not interfere with the order of penalty when the statutory remedy of appeal is provided and it relegates the aggrieved person to prefer an appeal against the order of penalty Similarly when the statutory remedy of appeal is provided and in fact appeal is preferred which is pending before the competent appellate authority then the High Court is reluctant to interfere with the order of penalty in writ petition under Article 226 of the Constitution of India and it directs the party to approach it only after the order of appellate authority is passed in Appeal Therefore in my view the Civil Court should have been slow in interfering with either show- cause notice for penalty or the order of penalty where executive has its full play It would have been better if the Civil Court had restrained itself from interfering with the show-cause notice issued in this case and the subsequent order passed by the competent authority pursuant to the said show-cause notice particularly when this is a case of corruption After due inquiry the charge of corruption levelled against the plaintiff is found to be proved and after considering the reply to the show cause notice D. S. P. Palanpur has ordered to remove him from service It would have been better if the Civil Court had instead of interfering with the show cause notice of removal from service could have relegated the plaintiff to exhaust his statutory right of appeal which in fact he had availed of The City Civil Court has failed to keep in mind these aspects and decreed the suit of the plaintiff Therefore on this count also the judgment and decree passed by the City Civil Court is required to be set aside and the appeal is required to be allowed ( 4 ) MR. Pandya learned A G P appearing for the appellants submitted that the learned Judge has committed an error in holding that the charge-sheet issued by the Deputy Commissioner of Police is illegal The learned Judge has held that under Article 311 (1) of the Constitution of India only the disciplinary authority can exercise such power of issuance of- charge-sheet and disciplinary authority is necessarily the appointing authority and in the instant case the defendants have not produced any documentary evidence to show- that the Deputy Commissioner of Police Ahmedabad was the disciplinary authority in absence of any general or special power delegated to the Deputy Commissioner of Police by the State Government under Section 10 (2) of the Bombay Police Act (the Act for short) Mr. Pandya has submitted that the Deputy Commissioner of Police has exercised his power under the orders of the Commissioner in accordance with the general orders of the State Government while issuing the charge-sheet Mr. Pandya also submitted that if by a special order the powers to issue charge-sheet is delegated then only such special order was required to be produced; otherwise these are day to day duties of the Commissioner to issue charge-sheets or to initiate departmental proceedings against the subordinate officers and the Deputy Commissioner of Police has to exercise such powers under the order of the Commissioner He submitted that the learned Judge was completely in error in rejecting the contention raised on behalf of the A. G. P. only on the ground that in absence of the general or special delegation of power given to the Deputy Commissioner of Police it cannot be said that he had acted under the powers delegated to him by the Commissioner so as to hold the charge-sheet issued is valid and legal There is much force in this contention raised by Mr. Pandya Issuance of charge-sheet or initiation of departmental proceedings is the routine work of the Commissioner and the Commissioner alone could not do that work and therefore only the State Government in its wisdom had appointed the Deputy Commissioners of Police under Section 10 (2) of the Act so that they can exercise the same power which can be exercised by the Commissioner of Police himself and under general orders of the State Government this power has to be exercised Once the Commissioner of Police has delegated the powers by his order to his Deputy Commissioner of Police they merely because general or special orders of the State Government is not brought on record it cannot be said that the Deputy Commissioner of Police could not have issued the charge-sheet Mr. Lakhani learned Advocate appearing on behalf of the respondent vehemently supported the findings of the learned Judge that the Deputy Commissioner of-Police could not have issued the charge-sheet because he was not competent to issue the same However once the Commissioner of Police has delegated his power to his Deputy Commissioner of Police to issue charge-sheet against a subordinate officer the Deputy Commissioner of Police was competent person to issue charge-sheet against the plaintiff For issuance of the charge-sheet one may not be the appointing authority of the person concerned against whom the charge-sheet is issued Therefore the learned Judge has committed an error in holding that the Deputy Commissioner of Police was not competent to issue the charge-sheet ( 5 ) EVEN if I had to hold that the Deputy Commissioner of Police was not competent to issue the charge-sheet against the plaintiff I fail to understand that how it will affect the show-cause notice of removal issued by the defendant No 2 who is the competent authority to issue the show-cause notice Whether the Deputy Commissioner of Police who issued the charge-sheet against the plaintiff was competent to issue charge-sheet against plaintiff or not is totally in relevant consideration for deciding the issue whether the show- cause notice was legal or not In my view therefore the learned Judge has committed an error in declaring the show cause notice as illegal and void ( 6 ) MR. Pandya learned A. G. P appearing for the appellants has submitted that the learned Tribunal has committed an error in holding that the issuance of joint charge-sheet to different co-delinquents has deprived the plaintiff of a reasonable opportunity to cross-examine the co-delinquents and therefore such a step is illegal and bad in law He submitted that this contention was not taken on behalf of the plaintiff in the plaint The plaintiff has not averred in his plaint that he was deprived of reasonable opportunity to cross-examine a co-delinquent In fact there is no evidence on record to show- that he was deprived of a reasonable opportunity to cross-examine his co-delinquent He submitted that for the first time the Advocate of the plaintiff has argued this point before the learned Judge and the learned Judge without any material on record relying upon the judgments of this Court reported in XXV G. L. R. page 117 and XVII GLT page 277 has held in favour of the plaintiff that the plaintiff was deprived of a reasonable opportunity to cross-examine his co-delinquent and therefore issuance of the joint charge-sheet is illegal and bad in law Mr. Lakhani learned Advocate appearing for the respondent tried to submit that even if this point was not taken in the plaint it can be argued in favour of the plaintiff looking to the joint charge-sheet itself He submitted that the plaintiff was prejudiced in his defence as a reasonable opportunity to cross-examine his co-delinquent was denied to him because of joint charge-sheet ( 7 ) THERE is great force in the submission made by Mr. Pandya learned A. G. P. that the plaintiff has no where made such a grievance in his plaint In fact the day on which when he filed the suit on that day he had already filed his reply to show-cause notice He has also not made any grievance before the Inquiry Officer about any prejudice being caused to him in the inquiry because of the joint charge-sheet It is pertinent to note that his application for notice of motion was filed and it was argued before the learned Chamber Judge At that time also this contention was not raised before the learned Chamber Judge Even in an appeal which he has preferred against his order of removal before the D. I. G. he has not made any grievance that he was prejudiced in his defence in the inquiry because of the joint charge-sheet In view of this the learned Judge ought not to have permitted the learned Advocate for the plaintiff to raise this contention when there is nothing on record to show- that he was deprived of a reasonable opportunity to cross-examine the co-delinquent Even if it is to be assumed that the plaintiff could be permitted to raise this contention then also this contention has to be rejected because there was no material on record to substantiate the same That apart the Division Bench of this Court in the case of Tejaji Ravaji Vihol v. State of Gujarat reported in XVII GLT page 277 has observed as under:ordinarily no joint inquiry in respect of the same allegation should be held against an officer and his subordinate if their defences are aimed at each otherthe learned Judge has also reproduced the same However the learned Judge has not reproduced the further observations which read as under We may add that we do not intend to lay down a rigid rule by making this observationwe only suggest the course of prudence which our judicial approach requires us to do. Thus this Court has not laid down any ratio by making earlier observations. Therefore it is not a straight-jacket formula that no joint inquiry should be held against the plaintiff and the other co-delinquents. Thus this Court has not laid down any ratio by making earlier observations. Therefore it is not a straight-jacket formula that no joint inquiry should be held against the plaintiff and the other co-delinquents. In fact the submission which was raised before the learned Judge by the Advocate of the plaintiff was that the joint charges to different delinquents in the departmental inquiry proceedings is illegal because if the plaintiff wanted to examine the co-delinqent he would not be able to do so and thereby he will be deprived of a reasonable opportunity to put forward the true facts of the case. The court has not to decide if and but. This is a hypothetical argument without any material on record. Unfortunately the learned Judge has held in favour of the plaintiff as if there was material to show- that the plaintiff was deprived of a reasonable opportunity to cross-examine the co-delinquent. Therefore the learned Judge has erred in holding in favour of the plaintiff that issuance of joint charge-sheet against plaintiff and co-delinquents is illegal. ( 8 ) THE last submission made by Mr. Pandya learned A. G. P. is that the learned Judge has committed a grave error in holding that the defendant No. 2-D. S. P. Palanpur is not the appointing authority of the plaintiff and he is below in rank to Commissioner of Police who is the appointing authority of the plaintiff and therefore the show-cause notice of removal from service issued by the defendant No. 2-D. S. P. Palanpur is illegal. He has submitted that whether the D. S. P. Palanpur is the appointing authority of the plaintiff or not is a question that was already decided by the learned Chamber Judge on application of the plaintiff for notice of motion and the learned Chamber Judge has decided the same in favour of the defendants by holding that the D. S. P. Palanpur is the appointing authority of the plaintiff and therefore he is competent to issue the show- cause notice of removal from service against the plaintiff. He further submitted that against that order of the learned Chamber Judge the plaintiff had preferred Appeal from Order before this High Court and the action of the department was challenged on the ground of lack of jurisdiction of the authority issuing the show-cause notice of proposed punishment but same was not pressed before this Court and the learned Advocate appearing for the plaintiff sought permission to withdraw the Appeal from Order and accordingly permission was granted to withdraw. Therefore he submitted that when once the point was decided in favour of the defendants on materials on record and when the same was challenged before the High Court in Appeal From Order and when the same was withdrawn the finding of the learned Chamber Judge has become final. Therefore in absence of any other material on record it was not open to the learned Judge to decide against the defendants on that point. He further submitted that even otherwise on merits also the learned Judge has committed an error in holding that defendant No. D. S. P. Palanpur is subordinate in rank as compared to that of Commissioner of Police who is the appointing authority of the plaintiff and therefore show-cause notice issued by the defendant No. 2-D. S. P. Palanpur is illegal and violative of Article 311 (1) of the Constitution of India because D. S. P. Palanpur had no jurisdiction to remove the plaintiff from service. Mr. Lakhani learned Advocate appearing for the respondent submitted that the learned Judge has rightly ar rived at the conclusion that the defendant No. 2 Palanpur was subordinate in rank to the Commissioner of Police who is the appointing authority of the plaintiff. ( 9 ) I find substance in the above submissions made by Mr. Pandya. It appears that the learned Judge who decided the suit either has not perused the order passed by the learned Chamber Judge on notice of motion or she was not aware about the fact that the said point was argued before the learned Chamber Judge on an application of the plaintiff for notice of motion and the same was also confirmed by the High Court against the plaintiff in Appeal From Order. And therefore the learned Judge has taken the view at the time of hearing of the suit in favour of the plaintiff. And therefore the learned Judge has taken the view at the time of hearing of the suit in favour of the plaintiff. It is not that the Court cannot take a different view at the end of the trial of the suit than the view which is taken at the interlocutory stage. A different view can be taken provided there is additional material on record for taking different view. On same material it would not be proper for a court to take a different view when the predecessor has taken other view. Therefore it must be held that the learned Judge was in complete error in holding that the D. S. P. Palanpur was subordinate in rank to the Commissioner of Police who is the appointing authority of the plaintiff and therefore the show-cause notice issued by him is illegal and void. ( 10 ) NOW while appreciating the alternative submission made by Mr. Pandya on merits it is strange to note that the learned Judge has disbelieved the version of the defendants side. The plaintiff was already transferred to Banaskantha District and he was promoted as Unarmed Head Constable Grade-I by the defendant No. 2-D. S. P. Palanpur with effect from 31-5-81. The learned Judge has disbelieved the version of the defendants on the ground that the defendants have not produced any such order of promotion of the plaintiff. It must be stated that the defendants have clearly stated in para 14 of their written Exh. 18 that the plaintiff was transferred from Ahmedabad to Amreli and then transferred to Banaskantha and at present he is serving in Banaskantha under D. S. P. Palanpur who is the competent authority to take action against the plaintiff. The plaintiff did file rejoinder to this but has not controverted the averments made in para 14 of the written statement. Therefore at the time of hearing of the notice of motion the learned Chamber Judge did consider this aspect also and held that the real appointing authority of the plaintiff is defendant No. 2-D. S. P. Palanpur because after he was transferred to Banaskantha he was further promoted as Unarmed Head Constable Grade-I by his order dated 31-5-81. I have called upon Mr. Pandya to show me the order and Mr. Pandya has readily produced the zerox copy of that order which is ordered to be kept on record. I have called upon Mr. Pandya to show me the order and Mr. Pandya has readily produced the zerox copy of that order which is ordered to be kept on record. It seems that if the learned Judge had any doubt in her mind then she could have asked the Advocate for the defendants to produce it before her. In fact there was no reason for the defendants to make a false statement in their written statement. Therefore the learned Judge has held in favour of the plaintiff which is against the evidence on record that defendant favour of the plaintiff which is against No. 2 Palanpur is not the appointing authority of the plaintiff. Therefore it must be held that the learned Judge has committed a gross error in coming to the conclusion that defendant No. 2-D. S. P. Palanpur was subordinate in rank to Commissioner of Police Ahmedabad who was the appointing authority of the plaintiff. Therefore I hold that the defendant No. 2-D. S. P. Palanpur is the appointing authority of the plaintiff and he has power to remove the plaintiff from service and therefore the show-cause notice dated 11 issued by D. S. P. Palanpur is perfectly legal and valid. ( 11 ) IN view of the above discussion this Appeal has to be allowed and accordingly it is allowed. The judgment and decree passed by learned City Civil Judge on 5-6-86 in Civil Suit No. 4248 of 1984 decreeing the suit of the plaintiff and declaring the show-cause notice of removal from service issued by the 2nd defendant to the plaintiff (Exh. 43) as illegal unconstitutional and null and all other subsequent orders if any issuedin pursuance thereto to be illegal and void and permanently restraining the defendants from taking any step in pursuance to the show-cause notice issued by the 2nd defendant and declaring the plaintiff to be deemed to be in service as if no order of removal in pursuance to show-cause notice (Exh. 43) is passed is hereby quashed and set aside and the suit of the plaintiff is dismissed. The appeal is allowed with cost throughout. The order of removal which was passed by D. S. P. Palanpur on 31-5-85 pursuant to the show-cause notice dated 11/14-9-84 shall immediately come into force. 43) is passed is hereby quashed and set aside and the suit of the plaintiff is dismissed. The appeal is allowed with cost throughout. The order of removal which was passed by D. S. P. Palanpur on 31-5-85 pursuant to the show-cause notice dated 11/14-9-84 shall immediately come into force. The respondent-plaintiff did prefer statutory regular departmental appeal before the D. I. G. in July 1985 Therefore it is open to the respondent to prosecute that Appeal further and if the respondent-plaintiff is desirous to go on with his Appeal before the D. I. G. then in that case the D. I. G. would consider his appeal and decide the same in accordance with law. (RPV) Appeal allowed. .