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Gujarat High Court · body

2021 DIGILAW 946 (GUJ)

K P SWAMI v. STATE OF GUJARAT

2021-10-14

BIREN VAISHNAV

body2021
JUDGMENT : 1. This petition under Article 226 of the Constitution of India is filed by the petitioner challenging the order of punishment dated 18.11.2004, and so confirmed in review by the order dated 14.10.2008. Additionally by the order dated 14.10.2008, the petitioner’s period of suspension from 25.01.1997 to 15.11.1997 has been treated as such. The order of penalty is that of reduction of pension by an amount of Rs.100/- for a period of one year. 2. Facts in brief are that the petitioner was working as a Police Constable and subsequently as a Police Inspector. He retired from service on 31.03.2001 on attaining the age of superannuation. He was placed under suspension by an order dated 23.01.1997. The suspension was then revoked on 15.11.1997. A charge-sheet was issued on the petitioner on 29.05.1998, inter-alia, imposing 10 charges on him. The gist of the charges was as under: Charge No.1: That on the early morning of 22.01.1997, when certain accused came to take over possession of land bearing survey Nos.32/1 to 32/4, the petitioner accompanied them in his government vehicle and threatened the watchman and thereby helped the accused in getting the land evicted. That, while going on the night round on 22.01.1997, the petitioner did not inform the City Control or make such an entry in the station diary. Further, he called for the police jeep at home without proper procedure for undertaking the night round and therefore committed an act of misconduct. Charge No.2: That on 22.01.1997, though there was no assignment of night round, he at about 2:00 a.m. in the night, left for a night round without entering the particulars in the station diary or informing the State Controlling. A government vehicle viz. a jeep was called for at his residence without permission and he went to the place of the incident and in the company of the accused, indulged into illegal activities. Charge No.3: That he was complicit with the accused and conspired to take over unlawful possession of the land. Charge No.4: As a normal procedure whenever there are land disputes and the police has to intervene therein, it is expected that proper legal action is taken after making a complaint, based on any litigation that is pending, however, without following any such procedure when the complaint is sought to be made, the petitioner did not attend to such complaint. Charge No.4: As a normal procedure whenever there are land disputes and the police has to intervene therein, it is expected that proper legal action is taken after making a complaint, based on any litigation that is pending, however, without following any such procedure when the complaint is sought to be made, the petitioner did not attend to such complaint. Charge No.5: When the land was unauthorizedly occupied by the accused in the presence of the petitioner, he did not do anything to intervene or to stop such unauthorized possession and in preventing such unauthorized occupation and arresting the accused who are armed, the petitioner committed a misconduct. Charge No.6: That the petitioner admitted that the incident had occurred in his presence and the accused were armed. He failed to inquire into the illegality of the possession of arms and therefore committed gross-negligence in performance of his duties. Charge No.7: When the complainant messaged the control room and it was found that the vehicle of the petitioner which was of the Satellite Police Station was involved, despite such note, the petitioner did not undertake any investigation as in-charge of the police station with a view to see that the investigation gets delayed. Charge No.8: An application was given by the officers of the AUDA regarding unauthorized occupation of the land in question and the request was made for police Bandobast and even though the petitioner was well informed of this episode, neither the petitioner initiate any action for investigation of this complaint nor did he take steps to arrest the accused. Charge No.9: That he undertook an exercise of eviction in the midnight at 2:45 a.m. in company of armed accused and though there was an act of demolition of fencing of boards and breaking of locks, in absence of having taken any action, there is reason to believe that the petitioner was an accomplice in the act. Charge No.10: In the log book of the jeep of the Satellite Police Station, the petitioner has shown that he had undertaken a night round and he was incharge at that time. However, it was subsequently noticed that the logbook was wrongly filled in. 3. A departmental inquiry was held against the petitioner, wherein, charge nos.1, 3, 4, 5, 9 and 10 were not proved. However, it was subsequently noticed that the logbook was wrongly filled in. 3. A departmental inquiry was held against the petitioner, wherein, charge nos.1, 3, 4, 5, 9 and 10 were not proved. The charges being charge nos.2, 7 and 8 were held to be partly proved and charge no.6 was held as fully proved. Even the Disciplinary Authority agreed with the findings of the Inquiry Officer and held that only charge no.2 which was partly proved by the Inquiry Officer was so rightly partly proved, whereas, charge no.6 was held as proved. For charge No.7, though the Inquiry Officer held the same as partly proved, the Disciplinary Authority held the same as not proved. 4. Essentially therefore it is only charge nos.2 and 6 that were within the domain of the Disciplinary Authority for the purpose of imposing a penalty. The penalty was imposed by the order dated 18.11.2004 refusing the pension of the petitioner by an amount of Rs.100/- for one year. By the other order impugned dated 14.10.2008, the period of suspension was treated as such. 5. Mr.Vaibhav Vyas learned advocate for the petitioner drew the attention of the Court to the order of the Disciplinary Authority dated 18.11.2004 and by way of a charge submitted to the Court, submitted that though the charge essentially being charge no.2 was partly proved, which concerned the omission of the petitioner to inform the appropriate authority regarding the night round and the charge no.6 which was proved regarding non-checking of the fire arm license of the security, while imposing the penalty, what weighed with the authority was the entire episode of the charges in question. He would explain the same by way of a chart as under: Conclusion of Inquiry Officer Conclusion of Disciplinary Authority Charge No: 1 Not proved (Page No: 114 to 116) Not proved. Charge No: 2 Partly proved (Regarding non informing of the additional night round) (Page No:116) Partly proved. Charge No: 3 Not proved (Page No: 116 to 117) Not proved. Charge No: 4 Not proved (Page No: 117) Not proved. Charge No: 5 Not proved (Page No: 117 to 118) Not proved. Charge No: 6 Proved (regarding non checking of the fire arm license of the security persons) (Page No: 119) Proved. Charge No: 7 Partly proved (Page No: 118 to 119) Not proved. Charge No: 4 Not proved (Page No: 117) Not proved. Charge No: 5 Not proved (Page No: 117 to 118) Not proved. Charge No: 6 Proved (regarding non checking of the fire arm license of the security persons) (Page No: 119) Proved. Charge No: 7 Partly proved (Page No: 118 to 119) Not proved. (Page 18 and 19) Charge No: 8 Partly proved (Page No: 119) Not proved. (Page 18 and 19) Charge No: 9 Not proved (Page No: 119 to 120) Not proved. Charge No: 10 Not proved (Page No: 120) Not proved. 6. While assailing the order dated 14.10.2008, by which, the order of suspension was treated as such, Shri Vyas, invited the attention of the Court to page no.25 and submit that two circumstances that weighed with the authorities were fully justified being; whether the petitioner was interested in delaying the investigation and though the petitioner was aware of the incident being a cognizable offense, the petitioner did not undertake any action to investigate or arrest the accused. These observations Mr.Vyas would compare with those of the observations in the order of the Disciplinary Authority whether the Disciplinary Authority had specifically observed that the petitioner was not responsible for the omission to arrest the accused or was in any way interested in delaying the investigation. He would refer to pages 19 and 20 of the paper-book. 7. Mr.Meet Thakkar learned AGP would submit that reading the charge as a whole, though classified and bifurcated into 10 separate charges, it would indicate that as a Police Inspector, the petitioner was involved in associating with accused and helping them to forcibly evict certain people from the portion of a land on the midnight of 22.01.1997. As a Police Inspector, though of the 10 charges, eight may not have been proved, the charge that he undertook a night round without informing the concerned and not verifying the arms license of the people who had been on the sight with arms, the penalty of Rs.100/- cut from pension for a period of one year was sufficient and did not warrant interference. 8. 8. Having perused the findings of the Inquiry Officer and the conclusion of the Disciplinary Authority, the main crux of the charge that was leveled against the petitioner was that on 22.01.1997, he together with some miscreants, entered into a plot of land, threatened the watchman with his gun and sought to evict the occupants from the land. The entire episode of this incident was segregated and bifurcated into 10 separate incidents, each having a common link with the larger misconduct i.e. serious misconduct for helping illegally the accused for taking over possession of the land. 8.1 From the chart reproduced herein-above, what is evident is that only two charges viz. Charge No.2 regarding non-informing of the night round was held to be partly proved and that regarding non-checking of the firearm license was held to be proved. 8.2 While imposing the penalty of Rs.100/- cut in pension for a period of one year, however, what weighed with the authority was the entire gamut of charge and the authority in imposing the penalty took into consideration the entire charge-sheet viz. of the 10 charges and not Charge Nos.2 and 6 respectively in isolation. The order of penalty therefore suffers from perversity and non-application of mind. 9. Accordingly, the order of penalty dated 18.11.2004 is quashed and set aside. 10. The order dated 14.10.2008, wherein, not only was the petitioner’s review rejected but the period of suspension was treated as suspension, is based on two considerations which otherwise the Disciplinary Authority had exonerated the petitioner of. This could not have therefore weighed with the authority in justifying the period of suspension being treated as such. The order dated 14.10.2008 also therefore deserves to be quashed and set aside. 11. For the aforesaid reasons, both the orders dated 18.11.2004 and 14.10.2008 are set aside. Petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.