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2011 DIGILAW 763 (GUJ)

R. S. Chauhan v. State of Gujarat

2011-11-17

K.S.JHAVERI

body2011
Judgment K.S. Jhaveri, J.—By way of this petition, the petitioner has prayed for following relief/s:— a. Quashing and setting aside the order or removal dated 17.11.1997 as confirmed by the appellate and revisional authorities and to reinstate the petitioner in service with all benefits including backwages with interest. b. Quashing and setting aside the order dated 16.01.1996 stopping the subsistence allowance and to direct the respondents to pay the subsistence allowance from 01.01.1996 to 12.11.1997 as per law with interest. 2.0 The short facts of the case are that the petitioner was serving as an unarmed Police Constable. A charge-sheet dated 20.09.1995 containing two charges was served upon him for holding a departmental inquiry against the petitioner. The Inquiry Officer held both the charges proved but the disciplinary authority held that only one charge was proved. The petitioner was removed from service by order dated 17.11.1997 against which, he preferred appeal and revision which came to be dismissed. The subsistence allowance paid to the petitioner was stopped from 01.01.1996 by the order dated 16.01.1996. Hence this petition. 3.0 Learned advocate appearing for the petitioner contended that stoppage of subsistence allowance deprived him to appear before the departmental inquiry as a result of which he could not defend himself. He submitted that the departmental inquiry which was conducted ex-parte is vitiated in view of the decision of the Hon’ble Apex Court in the case of Ghanshyam as Shrivastava vs. State of M.P., reported in AIR 1973 SC.1183 and in the case of Jagdamba Prashad Shukla vs. State of U.P. and others, reported in 2000 AIR SCW 3047. He further placed reliance on unreported decision of this Court rendered on 27.03.2003 in Special Civil Application No. 5284 of 2002. 3.1 He further contended that the impugned order of removal is null and void inasmuch as the petitioner could not participate in the departmental inquiry for want of money as well as due to the fact that he was facing departmental inquiry and the prosecution. Simultaneously, the subsistence allowance was also stopped from 01.01.1996 by order dated 16.01.1996 and the Inquiry Officer was appointed on 16.01.1996 for conducting the Inquiry. On some occasions the dates fixed for inquiry and for prosecution were the same. The petitioner required money for the purpose of defending in the departmental inquiry. He had to engage friend on payment to assist him at the inquiry. On some occasions the dates fixed for inquiry and for prosecution were the same. The petitioner required money for the purpose of defending in the departmental inquiry. He had to engage friend on payment to assist him at the inquiry. He also required money to spend for the purpose of attending the inquiry by way of transportation since he had to attend the Inquiry at Shahibaug from Vatva which is about 15 kms away and he could not undertake that journey for want of money. According to the petitioner he has no other income. Thus, the petitioner contended that he was denied reasonable opportunity to defend his case at the departmental inquiry for want of funds and hence the impugned order is null and void and required to be quashed and set aside. 3.2 Learned Advocate appearing for the petitioner further contended that the petitioner could not reply to the show cause notice dated 24.09.1997 to show cause as to why he should not be removed from service. As stated in the impugned order of removal dated 17.11.1997, this order was served on the petitioner on 27.09.1997 and he was supposed to give reply within 10 days, i.e. upto 07.10.1997 but he did not give reply to the show cause notice within the stipulated period. Thereafter, another memo dated 22.10.1997 was sent to the petitioner to send his reply before 31.10.1997 but this memo could not be served upon him because on inquiry he was not found in his house. Therefore, once the time to submit his reply was extended, it was necessary to inform the petitioner about the extended period. If no extension was granted then the disciplinary authority was within its power to take a final decision within the prescribed time, i.e. upto 07.10.1997 but having extended the time the petitioner ought to have been apprised of the same. It is not the case that the petitioner avoided service. Learned Advocate therefore submitted that the petition deserves to be allowed. 4.0 Learned Assistant Government Pleader contended that despite the subsisting marriage, he has kept one Durgaben as mistress with whom he cohabited and one son has been born on 15.10.1992. Hence, the petitioner was involved in criminal offence registered with Odhav Police Station, Ahmedabad City vide CR. Learned Advocate therefore submitted that the petition deserves to be allowed. 4.0 Learned Assistant Government Pleader contended that despite the subsisting marriage, he has kept one Durgaben as mistress with whom he cohabited and one son has been born on 15.10.1992. Hence, the petitioner was involved in criminal offence registered with Odhav Police Station, Ahmedabad City vide CR. No. II- 83 of 1995 for the offence under Sections 323, 506(2) of Indian Penal Code as well as under the Section 135(1) of Bombay Police Act. In support of his contention, he placed reliance on the decision reported in case of Prabhatsinh Samatsinh vs. District Superintendent of Police and Another reported in 2009 (3) GLR 2499 wherein in Paragraph Nos. 11, 25 and 24 it is held as under: “We, however, find that Rule 3 of the Gujarat Civil Services (Conduct) Rules, 1971 is very wide. Sub-rule (1) thereof reads as under:— “3. General:— (1) Every Government servant shall at all times— (i) maintain absolute integrity, (ii) maintain devotion to duty, and (iii) do nothing which is unbecoming of a Government servant. Explanation :—A Government servant, who habitually fails to perform a task assigned to him within the time set for the purpose and with the quality of performance expected of him, shall be deemed to be lacking in devotion to duty within the meaning of Clause (ii)” The expression, “do nothing which is unbecoming of a Government servant” has wide amplitude and large number of actions of the Government servant would be covered under the said expression. In the present case, it has been held against the petitioner that despite subsisting marriage, out of which wedlock, he had five children, he first had illicit relation with another lady with whom he cohabited for several years giving birth to two children. Thereafter, once again, while investigating into a complaint, he came in contact with one Dhuliben, a married woman. He developed illicit relations with Dhuliben and eloped with her and they started staying together as husband and wife. Such a conduct of a police official who has been employed in a disciplined force carrying out important functions of maintaining law and order and investigating crimes would certainly amount to acts unbecoming of a Government servant and therefore misconduct. 24 Facts of the present case are very glaring. As already noted, the petitioner was engaged as an Armed Constable. Such a conduct of a police official who has been employed in a disciplined force carrying out important functions of maintaining law and order and investigating crimes would certainly amount to acts unbecoming of a Government servant and therefore misconduct. 24 Facts of the present case are very glaring. As already noted, the petitioner was engaged as an Armed Constable. He was married for a long time. Out of his first marriage, he had 5 children. Though the marriage was subsisting, he cohabited with another lady, namely, Savitaben out of which cohabitation, he had two children. Yet again, while investigating a criminal complaint, he came in contact with one Dhuliben who was a married women. He developed illicit relation with her and eloped with her. They started staying together as husband and wife. The conduct of the petitioner was thus clearly such that would bring disgrace to the Department. He was employed in a disciplined force discharging important and sensitive duties of maintenance of law and order and investigation of crimes. His conduct would certainly amount to grave misconduct which had to be appropriately dealt with. Re: Second Show Cause Notice being prejudged. 25. It was contended that in the show cause notice issued by the Disciplinary Authority, it has been stated that the authorities have decided to impose punishment of removal and therefore the show cause notice was a mere formality and the entire issue was prejudged. There was, therefore, breach of principles of natural justice. This contention also cannot be accepted. In the show cause notice itself, the Disciplinary Authority has stated that the decision is tentative and that the petitioner is permitted to make a representation against such a proposal. If such representation is made, the same will be considered before taking a final decision. The Disciplinary Authority thus made it sufficiently clear that the proposal for awarding punishment of removal is only tentative and final decision can be taken only after receiving representation from the petitioner. The petitioner thus had sufficient opportunity to make his representation with respect to all aspects of the matter including the quantum of punishment. The Disciplinary Authority thus made it sufficiently clear that the proposal for awarding punishment of removal is only tentative and final decision can be taken only after receiving representation from the petitioner. The petitioner thus had sufficient opportunity to make his representation with respect to all aspects of the matter including the quantum of punishment. 4.1 Learned Assistant Government Pleader also invited attention of Paragraph 12 of the affidavit-in-reply filed on behalf of the Respondent No. 2 which reads as under:— “So far as Para 12(A) and 19 of the memo of the petition is concerned, I say and submit that it was already stated in the order of suspension that petitioner has to mark his presence at head Quarter G.I.D.C., Vatva Police Station and on failure penal action would be initiated against him, even though petitioner has not marked his presence at the Head Quarter and thereby committed breach of condition of the order, therefore, show cause notice dated 10.10.1995 was issued to the petitioner for stopping suspension allowance. I say and submit that petitioner has not given any reply to the show cause notice dated 10.10.1995 which clearly established that petitioner has not marked his presence at the head quarters and, therefore, as a penal action suspension allowance from 01.01.1996 was stopped. Thus, aforesaid steps were taken against the petitioner for default on his part during suspension period, even though after considering submissions made by the petitioner an in view of the Government guidelines by order dated 17.10.1998 suspension allowance which was stopped was ordered to be paid w.e.f. 01.01.1996. Therefore, demand raised by the petitioner in respect of suspension allowance is not required to be considered. 4.2 Learned Assistant Government Pleader, submitted that the learned Advocate for the petitioner has sought time to file rejoinder and he has been given time to file the same. But the same is not filed and the Paragraph No. 12 remains uncontroverted. 4.3 Learned Assistant Government Pleader further submitted that the subsistence allowance was paid to the petitioner and it was stopped after giving him notice. Therefore, the decision of the Apex Court which was relied upon by the petitioner will not apply to the facts of the present case in view of the decision of the Division Bench of this Court in case of Prabhatsinh Samatsinh (Supra). Therefore, the decision of the Apex Court which was relied upon by the petitioner will not apply to the facts of the present case in view of the decision of the Division Bench of this Court in case of Prabhatsinh Samatsinh (Supra). 4.4 I have heard learned advocates for the parties and perused the documents on record. 5.0 Before proceeding with the matter it is required to be noted that in Paragraph No. 12 of the affidavit-in-reply it is stated that show cause notice was issued to the petitioner for stopping suspension allowance on the grounds mentioned therein. The petitioner has not given any reply to the show cause notice dated 10.10.1995 which clearly established that petitioner has not marked his presence at the head quarters and, therefore, as a penal action subsistence allowance from 01.01.1996 was stopped. Thus, aforesaid steps were taken against the petitioner for default on his part during suspension period. It is required to be noted that after considering the submissions made by the petitioner and in view of the Government guidelines by order dated 17.10.1998 subsistence allowance which was stopped was ordered to be paid w.e.f. 01.01.1996. Therefore, demand raised by the petitioner in respect of subsistence allowance is not required to be considered. Further, the petitioner has not challenged the action of the stoppage of subsistence allowance and he has also not filed any rejoinder to the affidavit-in-reply by controverting Para 12 of the affidavit in reply. In that view of the matter, the contention of intimation of stopping of subsistence allowance and the ratio laid down in the decision of the Apex Court will not apply in the present case. The contention of the petitioner that no such show cause notice was given is misconceived and deserves to be rejected. 6.0 Further, with regard to the contention that no extension was given to file reply to show cause notice, if the petitioner had applied for extension for filing reply to the show cause notice, he would have been given adjournment or extension at that point of time . The petitioner could have filed the reply to the show cause notice even after the completion of the extension period. In that view of the matter, the decision taken by the authority is just and proper. The petitioner could have filed the reply to the show cause notice even after the completion of the extension period. In that view of the matter, the decision taken by the authority is just and proper. Keeping in view the seriousness of the charges that despite subsisting marriage, he developed illicit relation with another woman with whom he cohabited by giving birth to one son, the disciplinary authority has rightly taken the decision for non- payment of subsistence allowance to the petitioner and it will not be appropriate to give benefit on technical which has been caused at the instance of the petitioner himself. The petitioner was granted sufficient time to file affidavit-in-rejoinder. In spite of that no rejoinder is filed by the petitioner by controverting Paragraph 12 of the affidavit in reply. Hence the order of the authority is just and proper. The petition is therefore, dismissed. Rule is discharged with no order as to costs. Interim relief, if any, stands vacated.