Decided on November 15,1983

Kumudbhai Mangalbhai Talpada Appellant
Surubha Jhalal Dsp Kaira Respondents


S.A.SHAH - (1.) The petitioner who was a police constable has challenged the order of his dismissal passed by the District Superintendent of Police; Kaira on 18-7-1975 produced at Annexure-C to the Petition.
(2.) It appears that the first respondent District Superintendent of Police Kaira has dismissed the petitioner from service on the ground that the petitioner was convicted by the Judicial Magistrate First Class Kaira under sec. 145 of the Bombay Police Act 1951 and therefore his conduct cannot be said to be fit to continue him in service. Against the said decision the petitioner filed an appeal before the Dy. Inspector General of Police Gandhinagar who accepted the decision of the District Superintendent of Police 2nd dismissed the appeal. Against the said decision of the Dy. Inspector General of Police the petitioner filed a revision application before the Inspector General of Police who also dismissed the same by his order dated 4-3-1977 on the ground that he had no power to hear the revision. Being aggrieved by the aforesaid decision the petitioner has filed this petition and challenged the order of dismissal on the following grounds: (a) That the order of the District Superintendent of Police dismissing the petitioner from service was ex facie bad on the ground that he had not served any show-cause notice nor has he heard the petitioner before passing the order of dismissal. (b)Though the provision of Article 311(2)(a) gives power to the competent authority to pass an order of punishment the same can only be passed by application of mind and the penalty should be imposed according to the delinquency. In the instant case the petitioner was absent on account of sickness for five days. The authorities have therefore not applied their mind nor have they given reasons for passing laconic order imposing the extreme punishment of dismissal which is arbitrary and illegal. (c) The petitioner was imposed the penalty of drill and the impugned order has been passed after one year from the date of decision of the Criminal Court which is against the policy of the State Government and therefore arbitrary and illegal. (d) That the decision of the Criminal Court cannot be relied upon because it does not disclose that offence was committed by the petitioner. In any view of the matter the Court has given benefit of sec. 3 of the Probation of Offenders Act which ought to have been considered for mitigating the offence or atleast the punishment by the Departmental authorities.
(3.) The petition shall have to be allowed on the first contention of Mr. Brahmbhatt the learned advocate appearing on behalf of the petitioner because in para 4 of the petition the petitioner has in terms stated that suddenly without any inquiry and without any notice on 20/05/1976 the respondent No. 1 D. S. P. of Kaira district passed an order of dismissal. In reply to this averment the District Superintendent of Police Kaira who filed his affidavit on 2/06/1981 stated in para 4 that if a person is convicted by the Court it is not necessary to give him reasonable opportunity of showing cause against the action proposed to be taken. It therefore necessarily means that the competent authority has not given any show cause notice to the petitioner before passing the extreme penalty of dismissal from service.;

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