2003 Supreme(Guj) 659

Gujarat High Court
Judgename :H.K.RATHOD
F.D.RATHOD - Appellant
Versus
STATE - Respondent
S.C.A. 7320 of 1990
Decided On : 12/01/2003

Headnote:(a) Bombay Police Act, 1951 (Bom. Act 22 of 1951) - Sec. 27-A - Power under - Exercise of - Three authorities the State Government, the Inspector General or Deputy Inspector General of police are vested with powers under the provision and thus any one of them was competent to exercise said powers - When the facts power has already been exercised by Deputy Inspector General then again review of order by Inspector General is not permissible - The order reviewed cannot be reviewed again - Consequently punishment imposed by the Inspector General dated 19.3.1990 rectified by order dated 24.1.1991 is not sustainable and deserves to be quashed and set aside - Constitution of India, 1950 - Arts. 226 & 227.

       Section 27-A of the Bombay Police Act, 1951 confers powers on three authorities viz. the State Government, the Inspector General or a Deputy Inspector General. Therefore, this power can be exercised by any of the authorities. Looking to the facts of this case, the power has already been exercised by the Deputy Inspector General and the order again reviewed by the Inspector General under Sec. 27-A of the Act which is, in fact, not permissible under the Act, once the order of review has been passed by the authority. The order of review cannot be reviewed again while exercising the powers under Sec. 27-A of the Bombay Police Act. Therefore, according to Courts opinion, this being sufficient ground that punishment imposed by the Inspector General dated 19th March, 1990 rectified by order dated 24th January, 1991, deserves to be quashed and set aside as the Inspector General had no power and authority to set aside the order of Deputy Inspector General and, therefore, the order passed by the Inspector General dated 19th March, 1990 which is amended vide order dated 24the January, 1991 is hereby quashed and set aside.

       [Para 8]

       (b) Constitution of India, 1950 - Art. 226 - Inquiry - Delay of 13 years - Propriety - When petition was filed reversion order was stayed and stay continued for thirteen years - In the mean time during pendency of interim relief in favour of petitioner he retired on 31.3.2001 - In view of these facts to pursue and implement the order passed by the Deputy Inspector General dated 4.6.1988 to hold de novo preliminary and departmental inquiry was unnecessary specially when charges are not of very serious nature - Bombay Police Act, 1951 - Sec. 27-A.

       Initially, when the petition has been filed, reversion order has been stayed and the stay granted by this Court is still continued till date, meaning thereby, it remained in operation for more than thirteen years. It also requires to be appreciated that during operation of the interim relief in favour of the petitioner, the petitioner has retired from service on 31.2.2001. Therefore, after this much lapse period and/or passage of time and when the petitioner has already retired from service on 31.3.2001 and thereafter also, period of two years have elapsed and, therefore, considering all these aspects and the mental agony after retirement of the petitioner, now to pursue and implement the order passed by the Deputy Inspector General dated 4th June, 1988 would be unnecessary in the facts and circumstances of the case without any reason and on the contrary, it will cause unnecessary hardships and further mental agony to the petitioner who is a retired employee for more than two years. Without going into merits of the matter, apparently there was no serious charge of dishonesty, misappropriation and/or fraud against the petitioner. It was merely charge of lack of some supervision or negligence which is considered to be serious by the Department and punishment was imposed. But, when the punishment order itself is without jurisdiction and contrary to the provisions of Sec. 27-A of the Bombay Police Act, 1951 and, therefore, now to hold further de novo preliminary inquiry and regular departmental inquiry would be nothing but merely a harassment and to create mental tension in the mind of the retired employee. Therefore, according to Courts opinion, this chapter requires to be closed down here and no further de novo preliminary inquiry and de novo regular departmental inquiry requires to be continued against the petitioner.

       [Para 9]

       (c) Constitution of India, 1950 - Art. 226 - Retiral benefits - Admissibility - Because of Court order dated 19.1.2001 the pension and all other retiral benefits to petitioner have been fixed on the basis of lower post - In the facts of the case there was no exigency and contigency for such an order - Court in order to justice in the matter issued suitable directions.

       The original punishment order dated 19th March, 1990 is limited for the period of two years. There is no further punishment awarded by the competent authority. The petitioner who retired on 31.3.2001. Naturally, after two years from 19th March, 1990, 19th March, 1992 the petitioner would have been promoted to the post of PSI as his punishment would be over and then he was working as PSI and, therefore, where is the question to fix the pension and other retirement benefits in the post of First Grade Head Constable which is admittedly the lower post. Therefore, no question would have been arisen at all but because of order of this Court, the pension and all retiral benefits have been fixed on the basis of the lower post. The attention of this Court is also drawn to the fact that initially the pension and retirement benefits were fixed for the post of PSI but subsequently, pursuant to the order of this Court dated 19th January, 2001, the pension and retiral benefits have been calculated on the basis of reversion post of First Grade Head Constable by order dated 12th March, 2001. Learned Advocate Mrs. Sangeeta Pahwa submitted that this being difficulty arose on account of the order passed by this Court on 19th January, 2001 and the petitioner is now suffering not receiving the proper retirement benefits from the respondent and the petitioner has been receiving the benefits in the post of First Grade Head Constable and not on the basis of the post of PSI. She also submitted that order of reversion was only for two years and after a period of two years, the petitioner had worked for more than nine years on the post of PSI even though the petitioner has not been receiving the retirement benefits including the pension in the post of PSI.

       [Para 11]

       In view of conflict and the order passed by this Court on 19th January, 2001 which has given cause to difficulty and adverse situation for the petitioner, according to Courts opinion, some suitable directions require to be issued to do the justice in the facts and circumstances of the case to enable the petitioner to get proper retirement benefits in the post of PSI from the respondent department.

       [Para 12]