R. C. Chinoy v. State of Gujarat — 1971 DIGILAW 29 (GUJ)

JUDGMENT : M.U. Shah, J. This is a Letters Patent Appeal filed against the judgment and order of dismissal of Special Civil Application No. 37 of 1965 passed by a learned single Judge of this High Court, our learned brother A.D Desai, J,. on August 26-27th, 1969. In that special civil application, the present appellant as the petitioner had asked for the reliefs of quashing the order of his removal from service, dated October 7, 1964, passed. By order and in the name of the Governor of Gujarat and signed by one Mr. R.K. Anklesaria. Deputy Secretary to the Government, Home and Civil Supplies Department, and a direction to the State Government to treat him as having continued in service as if the order of removal had not been made at all. By the said order, It the present appellant who was Deputy Superintendent of Police at the relevant time and since last about 15 years was ordered to be removed from service on the charges Nos.1(c), 2(i), 2(ii) and 2(v) of the charge-sheet served on him, the charge-sheet alleging in substance that the appellant had issued performance licences to Iranis and that he was guilty of neglect of duties and lack of proper supervision of the investigation of the Sojitra Police State Crime Register Case No. 73/60 for offence punishable under Sections 302 and 326 of the Indian Penal Code. The charge was held proved by the Board of Inquiry, specially constituted for the purpose. Although the Public Service Commission had by its letter dated July 25, 1964 stated that the Commission agreed with the Government proposal in so far 2 as charges Nos. 1 (c) and 2 (ii) were concerned and advised that ends of justice will be met if the delinquent (appellant) was reduced to the post of Inspector for a period of two years, the Government thought it proper to order his removal from service. In the special civil application, the learned single Judge reached a conclusion that the findings of the Board of Inquiry and of the Government on charge No.1 were not supported by any evidence on record and were contrary to the rules of natural justice. In the special civil application, the learned single Judge reached a conclusion that the findings of the Board of Inquiry and of the Government on charge No.1 were not supported by any evidence on record and were contrary to the rules of natural justice. Same was the conclusion arrived at by the learned single Judge in respect of charge No.2 (ii) which charge No. 2 fell into five sub-counts and amounted to dereliction of duty as a Deputy Superintendent of Police in so far as he was allegedly guilty of several acts of omissions in the discharge of his duty. The learned Single Judge found that the findings of the Board of Inquiry and of the Government on these sub-counts of charge No. 2 except sub-count No. (iv) were not supported by any evidence on record and the inquiry was contrary to the rules of natural justice. He found that the findings were contrary to the rules of natural justice. The only sub-count of the second charge which he sustained was that the delinquent did not verify the statement of one Bai Ichha, which was recorded by the investigating officer who was investigating Police Station Crime Register case No. 73 of 1960 of Sojitra, but simply initialled it without putting up the date on it. In the opinion of the learned single Judge, this was the only count or the sub-head of the second charge that was sustainable and it amounted to dereliction of duty. He took the view that the Court exercising powers under Article 226 of the Constitution of India was bound by the finding of the Board of Inquiry and the finding of the Government where it was based on appreciation of facts and it had no jurisdiction in the matter. He found that as the delinquent was found by the authorities to be guilty of dereliction of duty inasmuch as he did not verify the statement of Bai Ichha during the course of investigation of the crime, even though Bai Ichha was at the relevant time not at the place visited by the delinquent officer as a superior officer, but was an indoor patient in the hospital at Petlad for treatment of her injuries, he did not interfere and grant any relief to the delinquent. However, on the question of punishment, he observed : "It is pertinent to note that out of four charges, only one charge is sustained. In view of the decision in this case and the fact that the petitioner was in service for a period of 15 years, the explanation of the petitioner relating to this lapse and this was the only lapse on his part during his entire service, it is desirable for the Government to reconsider the order of removal passed against the petitioner." The Government does not appear to have accepted the recommendation. 2. Mr. C.T. Daru, learned advocate appearing on behalf of the appellant, has contended before us that the findings of the learned single Judge amounted to reaching a conclusion that charge No. 1 was not proved and that as regards charge No. 2 which was in relation to dereliction of duties by the appellant as a Superintendent of Police in so far as he allegedly committed several acts of omissions in not properly supervising the investigation, the charge was not proved either. In Mr. Daru's submission, the second charge was one of dereliction of duty and it fell into five sub-counts, but the charge, as a whole, related to dereliction of duty and that the only sub-count that was held proved did not show that there was any dereliction of duty, but it was an isolated act of omission, a trivial lapse, and as such, there was no act of `substantial misdemeanour' proved against the appellant and the impugned order of his removal from service was vitiated and illegal and must be quashed. Miss K.A. Daboo, learned Assistant Government Pleader appearing on behalf of the State, supported the judgment of the learned single Judge and contended that the sub-count No. (iv) of charge No. 2 amounted to an act of `substantial misdemeanour' in so far as the appellant did not discharge his duty of visitation of police station properly. She contended that the conclusion reached by the learned single Judge that there was no legal evidence about charge No. 2 (ii) was not proper. She lastly contended that the question of punishment was un-justiciable. Before we consider the rival contentions urged by the learned advocates, we would appropriately set out the relevant facts which are necessary for the purpose of deciding this appeal. 3. The appellant, one Mr. She lastly contended that the question of punishment was un-justiciable. Before we consider the rival contentions urged by the learned advocates, we would appropriately set out the relevant facts which are necessary for the purpose of deciding this appeal. 3. The appellant, one Mr. R.C. Chinoy, was employed in the State Police Force. He was a Superintendent of Police at all material times. He appears to have been in the service for the last about 15 years and, at the material time, he was posted at Petlad in Kaira District. The Government of Gujarat by its order dated December 1, 1961, ordered that a Departmental Inquiry be held against the appellant by Mr. F. N. Rana, Ex-Commissioner, Baroda Division, and Mr. P. M. Pant, Ex-Deputy Inspector General of Police, constituting the Board of Inquiry. The Board of Inquiry issued a charge-sheet dated January 8, 1962. This contained two charges against the appellant. Charge No. 1 related to issuance of performance licences to Iranis by the appellant as Deputy Superintendent of Police and fell into three sub-counts (a), (b) and (c). Charge No. 2 related to his alleged dereliction of duties and fell into five sub-counts (i) to (v), Charge No. 1 was as under: "Charge No. 1 : (a) When you were Sub-Divisional Police Officer, Petlad Division in Kaira District, you issued a licence to Irani Shri Mansoor Ali on the 29th January 1960 to conduct games for one month from the 30th January 1960 to 29th February 1960 for Petlad and Cambay without verification. (b) You failed to take precautions by neither verifying nor checking whether the games played by Irani Mansoor Ali were of chance or skill with the result that gambling was indulged in by him. (b) You failed to take precautions by neither verifying nor checking whether the games played by Irani Mansoor Ali were of chance or skill with the result that gambling was indulged in by him. (c) You failed to issue instructions to the Police Sub-Inspectors, Petlad and Cambay, in whose jurisdiction Irani Mansoor Ali was to conduct the games, to see whether the conditions of the licence given to him, were not contravened and also did not send copies of the licence to the Police Sub-Inspectors concerned." Charge No. 2 was as under: "Charge No. 2: When you were Sub-Divisional Police Officer, Patlad Division in Kaira District, you committed dereliction of duty in that you failed to supervise properly the investigations of Sojitra P.S.C.R. No. 73/60 under Sections 302, 326 of the Indian Penal Code committed on the 10th September 1960 at village Meghalpur and allowed the following irregularities in the investigation :- (i) Though Bai Ichha, widow of deceased Fula Chela who was murdered in the above offence was injured and sustained a fracture in the course of the commission of the offence was not cited as an eye-witness in the charge-sheet. (ii) Shri Natha Balu who wrote the F. I. R. of the offence for the Police Patel was not cited as a witness. (iii) One of the eye-witnesses Mangal Moti was not cited as a witness. (iv) You did not verify the statement of Bai Ichha recorded by the Investigating Officer but simply initialled it without putting up the date on it. (v) No evidence was collected as to how the police came into possession of the cut finger of Balu when the panchnama made by the P. S. I. does not show that the figures were found from under the neem tree." The appellant denied the charges levelled against him and by his letter dated February 23, 1962, requested the Board of Inquiry to supply him the copies of the report of two police officers named Mr. H. M. Patel and Mr. R. K. Patel who were examined as witnesses during the departmental inquiry. Mr. R. K. Patel was Deputy Commissioner of Police. Anti-Corruption Branch, and Mr. H. M. Patel was a Police Officer. The Board of Inquiry by its letter dated March 1, 1962 communicated to the appellant that the copy of the report of Mr. H. M. Patel and Mr. R. K. Patel who were examined as witnesses during the departmental inquiry. Mr. R. K. Patel was Deputy Commissioner of Police. Anti-Corruption Branch, and Mr. H. M. Patel was a Police Officer. The Board of Inquiry by its letter dated March 1, 1962 communicated to the appellant that the copy of the report of Mr. R. K. Patel cannot be furnished as it was a confidential document. At the inquiry, three witnesses were examined on behalf of the Department, two of whom were police officers who only stated that they had made preliminary inquiry on which the charges were based and they had no personal knowledge about the fact on which the charges were based. The third witness who was a clerk in the Sub-Divisional Police Office did not say anything against the appellant. The two defence witnesses were examined at the inquiry. The appellant alleged that the reports made by the two police officers were necessary for the cross-examination of the said police officers and as they were not supplied to him, the principles of natural justice were violated and the inquiry was vitiated as provided by Article 311 of the Constitution of India. At the conclusion of the inquiry, the statement of the appellant was recorded. The Board of Inquiry then made a report of its findings to the Government on April 27, 1962, It found that the appellant was guilty of charges Nos. 1 (c), 2 (i), 2 (ii) and 2 (iv). The State Government did not agree with the findings of the Board of Inquiry and considered that charges Nos. 1 and 2 with all the counts were proved. The Government proposed to remove him from service on the ground that he was guilty of all these charges. Show cause notice dated March 12, 1963 was issued to the appellant to show cause why he should not be removed from service. The appellant filed his reply and after giving him a personal hearing, the Secretary to the Government of Gujarat in the Home and Civil Supplies Department by his letter dated August 27, 1963 addressed to the appellant informed him that the Government considered charges Nos.1 (a), (b), (c) and 2 (i), (ii) and (iv) as having been proved as against him. The letter stated that the Government did not propose to pursue the charge No. 2 (iii) in view of the absence of the draft charge sheet and the fact that the charge-sheet was not submitted through him; and also did not propose to pursue charge No. 2 (v) in view of the panchnama which showed as to from where and how the cut fingers came in possession of the police. It was further stated in the said letter that in the show cause notice dated March 12, 1963, the proposal of removal from service of the petitioner was inadvertently made and that the Government has, however, decided to dismiss him from service. The Government then took the advice of the Public Service Commission in the matter and the Commission advised the Government by its letter dated July 29, 1964 that it agreed with the findings of the Government so far as charges Nos. 1 (c) and 2 (ii) were concerned. However, it recommended that the appellant he reduced to the post of Inspector for a period of two years. The Government then passed Resolution dated October 7, 1961 stating that the Government did not accept the advice of the Public Service Commission and that the conclusion of the Government was that charges Nos. 1 (c), 2 (i), 2 (ii) and 2 (iv) were proved and decided to remove the appellant from service. Accordingly, order dated October 7, 1964, signed by R. K. Anklesaria as Deputy Secretary to Government in Home and Civil Supplies Department and By order and in the name of the Governor was issued. It stated: "The Governor of Gujarat is hereby pleased to remove Shri R. C, Chinoy from Government service from the post of Deputy Superintendent of Police, with effect from the date of issue of these orders." 4. It stated: "The Governor of Gujarat is hereby pleased to remove Shri R. C, Chinoy from Government service from the post of Deputy Superintendent of Police, with effect from the date of issue of these orders." 4. It appears that in the writ petition, the appellant as the petitioner challenged the order of his removal from service on the ground that he was not given reasonable opportunity to show cause why he should not be removed from service; that important documents which were necessary for the cross-examination of the witnesses had not been supplied to him, resulting in not giving an opportunity to cross-examine the witnesses who deposed during the enquiry; and that there was no evidence on record to support the finding of the Government that the appellant was guilty of the charges Nos. 1. (c), 2 (i), 2 (ii) and 2 (iv). As regards charge No. 1 (c), the learned single Judge has found that normally the practice was not to endorse the copies of the licences to the Sub-Inspectors and there was no evidence on record to prove the theory of prudence enunciated by the Board of Inquiry. He found that the finding of the guilt of the petitioner (appellant) on count No. 1 (c) was based on no evidence and was contrary to the rules of natural justice; that there was no evidence on the record to establish such duty. As regards charges Nos. 2 (i), (ii), he observed that it was true that the petitioner was acting as Sub-Divisional Police Officer at the time when the crime was investigated, hut the investigation was made by the Police Sub-Inspector and the Sub-Divisional Police Officer was not concerned with submitting the charge-sheet and that being so, the petitioner cannot be held liable for not mentioning the names of Bai Ichha and Natha Balu as witnesses in the charge-sheet. He found that the evidence on record disclosed that the charge-sheet is not normally sent through the Sub-Divisional Police Officer to the Court and in the case before him, it was not sent through the petitioner. He found that there was no evidence on record to show that the Police Sub-inspector who was investigating the case had consulted or discussed the case with the Sub-Divisional Police Officer, i. e. the petitioner, before sending the charge-sheet to the Court. He found that there was no evidence on record to show that the Police Sub-inspector who was investigating the case had consulted or discussed the case with the Sub-Divisional Police Officer, i. e. the petitioner, before sending the charge-sheet to the Court. He found that, assuming, therefore, that there was a procedure of the Investigating Officer discussing evidence with the Sub-Divisional Police Officer, it cannot be held by any reasonable body of persons that the petitioner was guilty of this charge because there was no evidence on record to establish that the Investigating Officer concerned with the investigation of the crime had discussed the case with the petitioner who was Sub-Divisional Police Officer. Under the circumstances, the learned Judge reached a conclusion that the findings of the Board of Inquiry and of the Government of these sub-counts were also not supported by any evidence on record and therefore, were contrary to the rules of natural justice. He found that as regards non-citation of the name of Bai Ichha in the charge-sheet of Sojitra Crime Register Police Case No. 73/60 so far as it concerned charge No. 2 (1) which was of dereliction of his duty, there was no evidence to show that the petitioner was responsible. He observed that as regards charge No. 2 (ii), the Board of Inquiry and the Government relied only on some remarks in the judgment made by the learned Sessions Judge, Nadiad, who tried the Sojitra murder case and this was not legal evidence. In his view, the effect of relying upon the remarks in that judgment was that the relevant witness Natha Balu was kept back and not examined and the petitioner was deprived of the opportunity of cross-examining him. As regards charge No. 2 (i), he further observed that the statement of Bai Ichha which was produced during the departmental inquiry (without examining her) clearly showed that she was not an eye-witness and further that there was no dispute that Bai Ichha was not an eye-witness and it was not necessary for the Investigating Officer to cite Ichha as a witness in the charge-sheet. He thus found that the finding of the Government that the name of Bai Ichha should have been shown in the charge-sheet and as the same was not shown, the petitioner was guilty of the charge, cannot be accepted as the same was based on reasons in respect of which there was no evidence and it completely ignored the statement of Bai Ichha that she was not an eye-witness. It may be remembered that charges Nos. 2 (iii) and 2 (v) were not pursued by the Government at the final stage of the inquiry. Thus, the only charge that survived is sub-count (iv) of the second charge which, it may be recalled, is, "You did not verify the statement of Bai Ichha recorded by the Investigating Officer but simply initialled it without putting up the date on it." Here, the learned single Judge has found that there was no dispute that the petitioner had not verified the statement of Bai Ichha, but he had simply initialled it; that there was also no dispute that Bai Ichha was in the hospital at Petlad when the petitioner visited the scene of offence and that Bai Ichha had received the injuries as a result of some violent act. He has observed that the petitioner had gone to the scene of offence in order to help the investigation and this was his duty as a Sub-Divisional Police Officer. Under these circumstances, the petitioner's lapse to verify Bai Ichha's police statement has been considered by the learned Judge as dereliction of duty. Thus, the only charge that has been sustained against the delinquent is one falling under sub-count No. (iv) of charge No. 2, that is to say, omission to verify the statement of Bai Ichha, which was recorded by the P.S.I. as Investigating Officer. The learned Judge has relied upon some observations of Their Lordships of the Supreme Court in State of Orissa v. Bidyabhushan Mohapatra, A.I.R. 1963 SC 779, as laying down that the Court had no jurisdiction to go into the question of punishment, a question which, in his opinion, was not justiciable. He has thus come to dismiss tire writ petition, although while making recommendation to the Government to reconsider the nature of punishment to be imposed on the appellant. 5. He has thus come to dismiss tire writ petition, although while making recommendation to the Government to reconsider the nature of punishment to be imposed on the appellant. 5. It would thus appear from the aforesaid narration of facts that, although the appellant was charge-sheeted for two offences, viz., (i) issuance of performance licences to Iranis, and (ii) his neglect of duties, meaning lack of proper supervision of the Sojitra Police Station Crime Register Case No. 73/60 under Sections 302 and 326, I. P. Code, committed at Meghalpur village, neither of the two charges have been sustained save that the learned single Judge has found that the sub-count No. (iv) of Charge No. 2 has been proved against the appellant. 6. Now, Charge No. 2 is one about the dereliction of duty by the appellant as a Superintendent of Police in so far as he did not properly supervise the investigation of the Sojitra murder case. This charge which fell into five sub-counts has been accepted only, as aforesaid, in relation to sub-count No. (iv). Thus, it is only an isolated trivial lapse or dereliction of duty, of which the appellant has been held to be guilty. Obviously, this sub-count does not make out a case of habitual neglect by the appellant of his duties as a Dy. Superintendent of Police to supervise the investigation of a major crime. It is not the cause as urged on behalf of the Government that this was a charge which had any relation to moral turpitude. Again, Bai Ichha whose statement was recorded by the Investigating Officer, but was not verified by the appellant who only put his initials upon it, has been found to be not an eye-witness to the incident. Thus, it cannot he the case of the Government that omission by the appellant to verify the statement of Bai Ichha was attended by serious consequences. No such case was urged at the inquiry or before the learned single Judge, nor is any such case put up before us. Thus, we have before us a case wherein a Deputy Superintendent of Police has been held to he guilty of an isolated lapse or an omission in so far as he did not verify the statement of Bai Ichha. Thus, we have before us a case wherein a Deputy Superintendent of Police has been held to he guilty of an isolated lapse or an omission in so far as he did not verify the statement of Bai Ichha. Here, we would not consider the defence of the appellant that Bai Ichha was not in the village Sojitra where appellant had gone for visitation but was an in-door patient in the Petlad Hospital and further that he was required to attend the inspection parade to he held on the next day by the D.I.G.P. at Kaira and, therefore, he did not consider it necessary to extend his stay in Sojitra for the purpose of verification of the statement of Bai Ichha whose police statement did not disclose that she was not an eye-witness to the incident. This is a question which we are not entitled to go into in this Letters Patent Appeal. However, the fact remains that the sub-count of Charge No. 2 that has been sustained against the appellant is not shown to be a serious charge or an act of substantial misdemeanour. Prima facie, a mere isolated omission of the type found proved against the appellant cannot be said to amount to dereliction of duty. It is a mere lapse and as the learned single Judge has observed, the only lapse on the pari of the appellant during his entire service period. The omission could not thus be visited by any penalty. 7. It was, however, urged by Miss Daboo that the charge under sub-count No. (iv) would amount to gross dereliction of duty in so far as it was an important part of the duty of the appellant as superior officer to verify the police statements of witnesses and the appellant did not verify the statement of Bai Ichha. Miss Daboo relied upon paragraphs 135 (5) and 136 of the Bombay Police Manual, 1959, Volume III, 1962 Edn., at pp. 127 and 128. Apart from the contention of Mr. Daru that these are merely rules for the guidance of the superior police officers and they do not constitute any obligation on the superior officers to perform the several duties specified in paragraphs 135 and 136 of the Bombay Police Manual, 1959, Vol. III, we may say that para. 127 and 128. Apart from the contention of Mr. Daru that these are merely rules for the guidance of the superior police officers and they do not constitute any obligation on the superior officers to perform the several duties specified in paragraphs 135 and 136 of the Bombay Police Manual, 1959, Vol. III, we may say that para. 135 (5) does not make it an absolute rule for the superior officer to verify the statement of a witness even in the case of a serious crime. Paragraphs 135 and 136 fall in Section V of Chapter IV which deals with "Investigation of Crime". Section 5 deals with visitation of serious crime. Paragraph 136 deals with investigation by superior officers. Sub-paragraph (5) lays down that: "(5) Superintendents of Police and Sub-Divisional Police Officers should identify themselves with the Police enquiry in such serious cases as they are able to visit. Though not as a rule in a position to take up the threads of an investigation, they may, under the provisions of Section 551, Criminal Procedure Code, assume the position of investigating officers, whenever the occasion warrants the step. Their presence during an investigation should be brought out in the papers of the case, whenever possible, either by signing panchnamas or by recording-statements of witnesses in the case or in any other suitable manner, so that it may at least form a guarantee for the regularity of such periods of investigation as come under their personal inspection and control. They should also, when visiting the scene, personally go through the case papers, case diaries and panchnamas already prepared, question the persons concerned and verify their statements. In order to show that they have done so, they must always initial case papers, case diaries, panchnamas, etc. and attest the statements of witnesses with their dated signatures. Before an officer leaves a scene of offence involving dacoities, etc., he must arrive at some definite conclusion and give instruction to his subordinates........... Paragraph 136 deals with the object and importance of visitation by superior officers. Sub-paragraph (I) lays down the object of such visit. Sub-paragraph (2) lays down that: "In the interest of the detection and prevention of serious crime in a District or on a Railway and of Police efficiency generally. Paragraph 136 deals with the object and importance of visitation by superior officers. Sub-paragraph (I) lays down the object of such visit. Sub-paragraph (2) lays down that: "In the interest of the detection and prevention of serious crime in a District or on a Railway and of Police efficiency generally. this personal enquiry into crime by the Superintendent of Police or the Sub-Divisional Police Officer is a most important duty Circumstances, of course, alter cases, and while in some cases a prolonged stay is desirable, in others it is not called for or perhaps possible. No hard and fast rule can be laid down. Superintendents and Sub-Divisional Officers must, of course, use their discretion in the matter, bearing in mind that close and successful personal enquiry, and supervision of the enquiry into a few important, difficult or undetected serious offences is preferable to flying visits, productive of no particular result, to the scenes of many. These two paragraphs of the Police Manual which have been relied upon by Miss Daboo do lay down that in cases of serious crime, visitation by superior officers to supervise the investigation is desirable, but no hard and fast rule can be laid down and this is left to the discretion of the police officer concerned. However, we do not wish to go into the question whether the rule is obligatory or discretionary. Assuming that the rule is obligatory, even then, in the instant case, the fact remains that the mere non-verification of the statement of a witness who did not appear to be an eye-witness and has been subsequently also found not to have been an eye-witness to the incident, would not per se amount to a habitual neglect or dereliction of duty. Prima facie, a single lapse of this type must certainly be considered to be isolated act and not an act amounting to `substantial misdemeanour'. It is true that while exercising the powers under Art. 226 of the Constitution of India, the Court cannot go into the question of punishment, nor can it review the order of penalty. But, in case like the one before us, when it is found that the order of punishment cannot supported on any finding as to 'substantial misdemeanour' or serious charge tor which the punishment can lawfully be imposed, the order of removal cannot be justified. 8. But, in case like the one before us, when it is found that the order of punishment cannot supported on any finding as to 'substantial misdemeanour' or serious charge tor which the punishment can lawfully be imposed, the order of removal cannot be justified. 8. Miss Daboo has relied upon the observations of Their Lordships of the Supreme Court in Civil Appeal No. 213 of 1962 reported in State of Orissa v. Bidyabhushan Mohapatra, A.I.R. 1963 SC 779, at p. 786, which have been referred to with approval in a later Supreme Court decision in Railway Board, New Delhi v. Niranjan Singh, A.I.R. 1969 SC 966, and contended that the impugned order of removal is not justiciable, as one lapse has been sustained. In the case of A.I.R. 1963 SC 779, an enquiry was held against the delinquent for two charges: (i) relating to five specific heads charging the delinquent with having received illegal gratification, and (ii) relating to possession of means disproportionate to his income as a Sub-Registrar. The Tribunal held that there was reliable evidence to support four out of the five heads in the first charge `of corruption' and also the charge relating to possession of means disproportionate to the income and recommended that the respondent be dismissed from service. The recommendation of the Tribunal was founded on its findings on charges 1 (a), 1 (e), 1 (c), 1 (d) and charge (2). The finding of the Tribunal was tentatively approved by the Governor of Orissa and the respondent therein was called upon to show cause why he should not be dismissed from service as recommended. The respondent made a detailed submission in rejoinder and contended, inter alia, that the Tribunal held the inquiry in a manner contrary to the rules of natural justice. After consulting the Public Service Commission, the Governor of Orissa passed an order of dismissal of the respondent from service. In the writ petition, the High Court held that the findings of the Tribunal in respect of charges 1 (a) and 1 (e) be set aside as being opposed to the rules of natural justice and directed the Government to reconsider the question of punishment. In the writ petition, the High Court held that the findings of the Tribunal in respect of charges 1 (a) and 1 (e) be set aside as being opposed to the rules of natural justice and directed the Government to reconsider the question of punishment. However, the High Court had found that there was evidence to support the findings on heads (c) and (d) of charge (1) and on charge (2); but, in the civil appeal that was filed in the Supreme Court against that order, Shah, J., (as he then was), speaking for the Supreme Court, has made the following observations to be found at pages 785 and 786 of the report: "It is not necessary for us to consider whether the High Court was right in holding that the findings of the Tribunal on charges 1 (a) and 1 (e) were vitiated for reasons set out by it, because in our judgment, the order of the High Court directing the Government to reconsider the question of punishment cannot, for reasons we will presently set out, be sustained. If the order of dismissal was based on the findings on charges 1 (a) and 1 (e) alone the Court would have jurisdiction to declare the order of dismissal illegal but when the findings of the Tribunal relating to the two out of five heads of the first charge and the second charge was found not liable to be interfered with by the High Court and those findings established that the respondent was prima facie guilty of grave delinquency, in our view, the High Court had no power to direct the Governor of Orissa to reconsider the order of dismissal. The constitutional guarantee afforded to a public servant is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed, and that he shall not be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. The reasonable opportunity contemplated has manifestly to be in accordance with the rules framed under Art. 309 of the Constitution." The judgment then proceeds to say: "But the Court in a case in which an order of dismissal of a public servant is impugned is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanour established. The reasons which induce the punishing authority, if there has been an enquiry consistent with the prescribed rules, are not justiciable; nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were `unassailable', the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for, as we have already observed, the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable." The judgment further proceeds to say: "Therefore, if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. The High Court was, in our judgment, in error in directing the Governor of Orissa to reconsider the question." Relying upon the aforesaid observations, Miss Daboo contended that, if the impugned order can be supported on any finding, it is not for the Court to consider whether that ground alone would have weighed with the authority in removing the public servant. Miss Daboo's contention misses the material observation of the Supreme Court that the finding as to misdemeanour must be of `substantial misdemeanour'. Miss Daboo's contention misses the material observation of the Supreme Court that the finding as to misdemeanour must be of `substantial misdemeanour'. With respect, the decision merely lays down that if the impugned order can be supported on any finding as to `substantial misdemeanour' for which the punishment can be lawfully imposed, the Court's jurisdiction is ousted, and the Courts exercising jurisdiction under Art. 226 of the Constitution cannot go into the question of punishment and cannot review it. It is in such cases when the delinquent is prima facie guilty of `grave delinquency' that the penalty is not open to review by the Court; nor are the reasons which induced the punishing authority justiciable. In the case before us, we are not considering the reasons which induced the punishing authority to pass the impugned order. In our opinion, the solitary or the isolated act of non-verification of the police statement of an unimportant witness, which may be treated as a mere omission of such a duty as is imposed upon the superior police officer by the relevant paragraph of the Bombay Police Manual, 1959, Vol. III, I cannot prima facie amount to dereliction of duty, much less can it amount to an act of `substantial misdemeanour' or `grave delinquency'. The impugned order cannot be supported on any finding as to 'substantial misdemeanour' for which the punishment can lawfully be imposed. 9. In State of U. P. v. Om Prakash Gupta, A.I.R. 1970 SC 679, His Lordship Hegde, J., speaking for the Supreme Court, has re-affirmed the view taken by the Supreme Court earlier in Bidyabhushan's case, A.I.R. 1963 SC 779 (supra) and observed: "Once it is held that the respondent was properly found guilty under charge No. 1, it is unnecessary to go into other charges. The gravity of the offence of the respondent under the first charge is such as to merit his dismissal from service. As observed by this Court in A.I.R. 1963 SC 779, that if the order of the Government can be supported on any finding as to substantial misdemeanour for which the punishment imposed can be lawfully imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority dismissing the public servant." The charge No. 1 in that case was of substantial misdemeanour. In our opinion, the observations lay down that if the impugned order can be supported on any finding as to `substantial misdemeanour' for which the punishment imposed, which is the punishment of removal in the instant case, can be lawfully imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority removing the public servant. But, as aforesaid, in our view, sub-count No. (iv) of charge No. 2 does not amount, in any case, to an act of `substantial dis-demeanour' for which the punishment imposed can lawfully be imposed. In substance, the only sub-count of the charge that has been sustained by the learned single Judge and which survives, does not amount to dereliction of duty. In any case, this is not a case of any serious charge or substantial misdemeanour or grave delinquency. The impugned order is thus not legal and cannot be sustained. 10. It was contended by Mr. Daru that in view of the principle applied by the Federal Court in the case of Keshav Talpade v. Emperor, 1943 FCR 49 at pp. 79-71 = (A.I.R. 1943 FC 1) and approved by the Supreme Court in Shibban Lal v. State of U. P., A.I.R. 1954 SC 179 at p. 181 laying down that where an order of dismissal is made by an executive authority based on the findings of an Enquiry Officer and some of the findings turn out to be not sustainable, it is not desirable or proper to allow the order of dismissal to stand inasmuch as it is not possible to ascertain to what extent the bad findings operated on the mind of the dismissing authority or whether the dismissal order would have been made at all if only the remaining findings had been before them, the impugned order before us must be quashed. Having regard to the aforesaid view taken by the Supreme Court in Bidyabhushan's case, A.I.R. 1993 SC 779, we do not consider it proper to consider this contention of Mr. Daru. 11. Having regard to the aforesaid view taken by the Supreme Court in Bidyabhushan's case, A.I.R. 1993 SC 779, we do not consider it proper to consider this contention of Mr. Daru. 11. As regards Miss Daboo's contention that on charge No. 2 (ii), viz., that Natha Balu who wrote the F.I.R. of the offence for the Police Patel was not cited as a witness, there were some observations to be found in the judgment of the learned Sessions Judge in the Sojitra case and that was per se evidence on the count, we may only say that that is not legal evidence and we do not propose to go behind the finding of the learned single Judge on this point. 12. As aforesaid, in our opinion, sub-count or head No. (iv) of charge No. 2 being an isolated or solitary act of omission and the only lapse as found by the learned single Judge, it does not amount to dereliction of duty. In any case, it does not amount to an act amounting to 'substantial misdemeanour' or a `serious charge', The impugned order cannot be supported on any finding as to `substantial misdemeanour' for which the punishment can lawfully be imposed. The impugned order is thus liable to be quashed and set aside. 13. We accordingly order issuance of a writ of certiorari quashing and setting aside the impugned order dated October 7, 1964, passed by order and in the name of the Governor of Gujarat ordering the removal of the appellant from Government service from the post of Deputy Superintendent of Police. The appellant being a public servant would, therefore, be entitled to a declaration that he continues to remain in service as if the order of removal (impugned order) had not been made at all, and we order accordingly. 14. In the result, the appeal is allowed with costs of both the Courts. Appeal allowed.