JUDGMENT

JASWANT SINGH, J.:—This appeal by special leave is directed against the judgment and decree dated October 3, 1972, passed by a single Judge of the Mysore High Court whereby allowing the respondent s second appeal No. 729 of 1967, he set aside the appellate judgment and decree dated April 18, 1967 passed by Civil Judge, Belgaum, declaring the order dismissing the appellant from service as illegal and ultra vires.

2. Facts material for the purpose of this appeal are: The appellant herein was a Police Constable attached to Khade-bazar Police Station at 1081 Belgaum in 1960. In the small hours of the morning of November 17, 1960, the Cantonment Police intercepted a tonga transporting smuggled illicit liquor in four tubes from Devi Temple to the cantonment area with the intention of disposing of the same to bootleggers. After registering a case under Section 66 (b) of the Bombay Prohibition Act, the Cantonment P. S. I. proceeded against the tonga driver and another person who was found following the tonga in a criminal court of competent jurisdiction and succeeded in securing their conviction for the aforesaid offence. In November 18, 1960, the Cantonment P. S. I. submitted a confidential report about the incident to the Superintendent of Police, Belgaum, and brought to the notice of the latter that some police constables including the appellant who were newly recruited and attached to different police stations in Belguam were indulging in smuggling illicit liquor. On receipt of this report, the Superintendent of Police directed the P. S. I. Khadabazar police station, to record the statements of three constables namely M. Y. Akki. Waman Mangesh, and Nishikant Shimaji Satyannawar. Pursuant to these directions, the P. S. I. recorded the statements of the aforesaid police constables in the presence of the Superintendent of Police. The statement of Nishikant and Akki, constables, disclosed their own and six other police constables complicity in the aforesaid smuggling activity. The Superintendent of Police thereupon suspended the appellant and the other six constables and ordered the S. D. P. O. to hold a departmental enquiry against them. The Superintendent of Police also transferred all the seven delinquents from Belgaum and directed that they would not leave their new stations without his permission except for purposes of or in connection with the departmental enquiry. Though the appellant sought permission to stay at Belgaum during the period of his suspension, his request was refused.

3. As the appellant did not plead guilty to the charge framed against him, the Enquiry officer proceeded to hold the enquiry against him in accordance with the rules contained in the Bombay Police Manual, 1950. On the conclusion of the enquiry during the course of which a number of witnesses were examined both by the prosecution and the defence, the Enquiry Officer reported to the Superintendent of Police on November 10, 1961, that the charge against the appellant was not established. He, however, recommended that the appellant should be administered a severe warning as he was convinced that he had been guilty of misconduct and dereliction of duty. The Superintendent of Police did not agree with the findings of the Enquiry Officer and directed him to examine police constable Akki whose statement had been recorded before the charge was framed against the appellant. Akki was accordingly examined but he resiled from his earlier statement. The Enquiry Officer in the course of his second report dated November 30, 1961, submitted to the Superintendent of Police that no fresh evidence was forthcoming against the appellant. He, however, stuck to his former recommendation regarding administration of severe warning to the appellant.

4. The Superintendent of Police again disagreed with the report of the Enquiry Officer and found that there was sufficient evidence against the appellant to prove his guilt. Accordingly he issued a notice to the appellant on