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2016 Supreme(Guj) 799
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Abhilasha Kumari, J.
Rajumiya Hanif Saiyed - Petitioner
Versus
State of Gujarat and others - Respondents
Special Civil Application No. 23134 of 2006
Decided on : 12-1-2016
Advocate Appeared:
For the Petitioner:S.R. Yadav, Premlata B. Kadam, Advocate.
For the Respondent: Dhawan Jayswal, Asst. Government Pleader.
Important Point – Mala fides not only have to be pleaded but also have to be proved.
Headnote:Constitution of India – Article 311(2) – Dismissal from service – Dispensing with enquiry – Several notices have been issued to petitioner for his participation in inquiry but he did not remain present and some of notices could not be served as he was not found at his residence---Criminal cases against petitioner would take a long time in concluding and it would be meaningless to protract departmental inquiry for such a long time---Offences alleged against petitioner were extremely serious in nature such as taking part in communal riots, murder, unlawful assembly, mischief by fire explosives--- Allegations of mala fides are vague and are not supported by any material on record – Mala fides not only have to be pleaded but also have to be proved---No illegality has been committed by respondents in passing impugned orders.
Result – Application dismissed.
Abhilasha Kumari, J. (Oral) - By preferring this petition under Article-226 of the Constitution of India, the petitioner has assailed the order dated 15.02.2003, passed by respondent No.3, whereby the petitioner has been dismissed from service by resorting to the provisions of Clause-(b) to the second proviso of Article-311(2) of the Constitution of India. The petitioner has further assailed the order dated 30.10.2003, passed by the Appellate Authority, rejecting his appeal, as well as the order dated 24.03.2006, passed by the State Government, whereby the Revision Application of the petitioner has also been rejected.
2. Briefly stated, the facts of the case, as garnered from the material on record, are that the petitioner was appointed as an Unarmed Police Constable, by an order dated 09.07.1980. During the course of his service, an offence was registered against him at Bapunagar Police Station, being C.R.No. I-157/1994. The offence was registered under Section-120B of the Indian Penal Code, Sections-4 and 5 of the Explosive Substances Act, 1908, as well as Sections-3 and 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1985. The petitioner was placed under suspension by an order dated 24.06.1994. A charge-sheet was issued to the petitioner on 26.05.1995. Pursuant to the FIR lodged against the petitioner, Criminal Case No.235/1998 was registered in the Sessions Court, in which the petitioner came to be discharged, vide order dated 23.02.1999. However, the departmental proceedings against the petitioner were continued. During the pendency of the departmental proceedings, seven different offences were registered against the petitioner at Bapunagar and Rakhial Police Stations, which are as below :
| Sr. No. | Date | C.R.No. | Offences | Police Station |
| 1 | 28/02/2002 | 67/2002 | under section 143, 147, 148, 149, 185, 435, 436, 302, 395, 397, 398 of IPC and Section 135(1) of Bombay Police Act. | Bapunagar |
| 2. | 01/03/2002 | 69/2002 | U/S.143, 147, 148, 149, 336, 337, 435, 436, 186, 188, 395, 302, 397, 398 of IPC and section 25(1)(b)(a), 27 of the Arms Act. | Bapunagar |
| 3. | 02/03/2002 | 74/2002 | under section 143, 147, 148, 149, 186, 336, 337, 435, 436,302 of the IPC and section 25(1)(b)(a), 27 of the Arms Act. | Bapunagar |
| 4. | 28/02/2002 | 78/2002 | under section 143, 147, 148, 149, 435, 436, 337 of the IPC and section 135(1) of Bombay Police Act. | Bapunagar |
| 5. | 28/02/2002 | 22/2002 | under section 143, 147, 148, 149, 302 of the IPC and section 135(1) of the Bombay Rakhial Police Act. | Bapunagar |
| 6. | 03/03/2002 | 29/2002 | under section 143, 147, 148, 109, 353, 183, 188, 435, 427 of the IPC and section 135(1) of the Bombay Police Act. | Rakhial |
3. Respondent No.3, the Commissioner of Police, Ahmedabad City, being the Disciplinary Authority, passed the impugned order dated 15.02.2003, stating that the petitioner had not responded to the notices issued to him and was not found at his residence, therefore, he has not cooperated or remained present in the departmental proceedings though he is under suspension. Respondent No.3 has further noted that the Criminal Cases filed against the petitioner indicate his active involvement in the communal riots that took place in Ahmedabad City in the year 2002, and the petitioner was seen to be heading a mob with dangerous weapons in his hand, in connection with which he also came to be arrested. It is further stated by respondent No.3 in the said order, that the petitioner has displayed criminal tendencies, which amounts to grave misconduct, looking to the fact that he is a member of the Police Force. As the petitioner has remained in jail and has come into contact with criminal elements, it is very likely tha
