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2022 DIGILAW 121 (GUJ)

Jivan Devjibhai Parmar v. State of Gujarat

2022-01-20

BIREN VAISHNAV

body2022
JUDGMENT : BIREN VAISHNAV, J. 1. Heard Mr. Chetankumar Darji learned advocate for the petitioner and Mr. Kurven Desai learned AGP for the respondent - State. 2. In this petition under Article 226 of the Constitution of India, the challenge is to the order dated 29.12.2016, by which, the petitioner has been dismissed from service and the consequential orders dated 13.04.2018 and 17.11.2018 confirming such orders. 3. Facts in brief would indicate that the petitioner was convicted for an offense under the provisions of the Prevention of Corruption Act. The conviction was passed by a competent Criminal Court on 13.09.2016. A Criminal Appeal was filed by the petitioner being Criminal Appeal No. 1443 of 2016 which appeal is admitted and sentence is suspended. 4. According to Mr. Darji, the case of the petitioner is that the dismissal order is passed in violation of principles of natural justice. He would submit that the petitioner was a member of the disciplined force viz. Police Force and therefore the provisions of Gujarat Civil Services (Discipline and Appeal) Rules, 1947, (hereinafter to be referred to as 'the Rules' for short) will not be applicable. 5. Mr. Darji would submit that if Rule (3) of the Bombay which talks of applicability of the Gujarat Civil Services (Discipline and Appeal) Rules is seen, it specifically states that the Rules apply to all persons appointed to Civil Services and Posts in connection with the affairs of State of Gujarat whose conditions of service are regulated in accordance with the Rules made under Article 309 of the Constitution of India. The proviso further would indicate that the Rules did not apply to members who are inspectors of police or principles of the subordinate ranks of the police force. 6. Relying on Rule 3(1)(iii) of the Bombay Police Punishment and Appeal Rules, Mr. Darji would submit that if this rule is read with Rule 4 of the Rules, dismissal cannot be without holding a proper inquiry. On both these counts therefore, the order of dismissal is bad. Reliance was placed by Mr. Darji on decision of this Court in case of Ramilaben Vijaysinh Parmar v. State of Gujarat passed in Special Civil Application No. 9678 of 2019 decided on 21.08.2019. 7. Mr. On both these counts therefore, the order of dismissal is bad. Reliance was placed by Mr. Darji on decision of this Court in case of Ramilaben Vijaysinh Parmar v. State of Gujarat passed in Special Civil Application No. 9678 of 2019 decided on 21.08.2019. 7. Mr. Kurven Desai learned AGP would submit that the order was passed in compliance of the principles of natural justice inasmuch as show cause notice dated 27.10.2016 was issued to the petitioner. 8. Considering the submissions made by the learned advocates for the respective parties, as far as the contention regarding the applicability of the Gujarat Civil Services (Discipline and Appeal) Rules are concerned, when the show cause notice is read, what is evident is that the provisions of the police punishment and appeal rules have also been invoked. That the Gujarat Civil Services Discipline and Appeal Rules are not applicable, the spirit of Rule 14 of the Rules is that of the provision lay down in Article 311(2) (a) of the Constitution of India, which provides that whenever Government servant is convicted, he can be dismissed from service without holding a departmental inquiry. That such a provision invoked in context of the petitioner and is in accordance with law is also evident from reading Section 26 of the Bombay Police Act, which reads as under: 26. Procedure to be observed in awarding punishment.-When any officer passes an order for fining, suspending, reducing, removing or dismissing a Police officer, he shall record such order or cause the same to be recorded, together with the reasons therefor and a note of the inquiry made, in writing, under his signature: Provided that [no order for reducing, removing or dismissing a Police officer] shall be passed without giving him a reasonable opportunity of showing cause against the action proposed to be taken against him except in cases referred to in the proviso (a) to clause (2) of Article 311 of the Constitution. 9. For the aforesaid reasons therefore, no error can be found in the action of the respondents in dismissing the petitioner from service and the orders therefore are sustained. 10. For the aforesaid reasons, the petition is without merits and the same is hereby dismissed.