ORAL JUDGMENT

1. Being aggrieved and dissatisfied with the judgment and decree passed by the First Appellate Court in Regular Civil Appeal No.15 of 1997, whereby the First Appellate Court has set aside the decree passed in favour of the plaintiff in Regular Civil Suit No.787 of 1990, the original plaintiff preferred this Second Appeal under Section 100 of the Code of Civil Procedure.

2. For the brevity and convenience, the parties are referred to in this judgment as per their character assigned to them before the Trial Court i.e. plaintiff and the defendant.

3. During the pendency of the present appeal, original plaintiff has died. Hence, his legal heirs are joined as appellants.

4. It is the case of the plaintiff that he was appointed on 01.12.1978 as a constable in Crime Branch, Junagadh District. That he was on duty from 12.10.1988 to 15.10.1988 continuously for a period of four days and he left at 11 O’clock on 15.10.1988.

It is contended that normally when a continuous duty is performed for 24 hours, rest is given.

4.1. It is contended that on 15.10.1988, i.e. on the same day at 16.00 hours, the plaintiff was called for and he was informed that one under trial prisoner namely Kevin alias Raising Soma, who, for the production before the learned Judicial Magistrate First Class, Petlad was to sent from Junagadh by somnath mail in custody of escort party consisting of (i) The Guard Commander and the Head Constable namely Mr.Gyanbag Tukaram (ii) the plaintiff Gyanchand Tulsidas and the Guard Constable Mr.Mangu Nagar. That the duty was entrusted upon the Head Constable and the plaintiff was also called for to perform the said duty under the Head Constable. According to the plaintiff, the said under trial, on the train getting slow in between the village Nimgada and Lathidad escaped with the iron fetters in his legs from the custody of the said escort party. Thereafter, a complaint was filed in pursuance to the incident and the departmental inquiry was started in respect to the very incident against the members of escort party including the plaintiff.

4.2. That he was suspended from 04.11.1988 and Dy.S.P.

was appointed as inquiry officer. The inquiry officer held all the three delinquent guilty of charges leveled against them and prepared the inquiry report and submitted it before the D.S.P. The D.S.P. issued show cause notice as to why they should not be removed from the office. Thereafter, by order dated 22.09.1989 the plaintiff stands removed from the service.

4.3. Being aggrieved by the said, the plaintiff preferred an appeal before the D.I.G.Junagadh which also came to be rejected.

5. Being aggrieved by the same, the plaintiff approached the Civil Court by filing Regular Civil Suit with a prayer for permanent injunction and temporary injunction and for mandatory injunction. The main challenge in the suit was on the ground that the Presiding Officer has acted in clear violation of principles of natural justice as he himself has acted as a Public Prosecutor and the Judge. It is also contended that the plaintiff was under the supervision of Head Constable, who was given lesser punishment, whereas, the appellant is ordered to be removed from the service and thus discriminatory treatment has been meted out to the plaintiff though he was similarly situated with the Head Constable.

6. The defendant side has resisted the suit by filing written statement, inter alia, contending that the inquiry against all the delinquent was conducted as per Rules and the principles of natural justice have been duly observed. That the Joint Inquiry is permissible as per the Rules. That no objection was raised as to non appointment of the presiding officer. That the inquiry officer under relevant Rule, the inquiry officer has authority to put any question to any witness for removal of any doubt and therefore, if such exercise is undertaken by the inquiry officer it cannot be said to be acted as both the Prosecutor and the Judge.

7. It appears that the trial