1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants herein original defendants to quash and set aside the impugned judgment and order passed by the learned Principal District Judge, Rajkot dated 24.6.1997 passed in Regular Civil Appeal No.74 of 1996 by which the learned Appellate Court allowed the said appeal preferred by the original plaintiff and quashed and set aside the judgment and decree passed by the learned trial Court dated 31.7.1995 passed in Regular Civil Suit No.889 of 1992 by which the learned trial Court dismissed the suit preferred by the original plaintiff and consequently decreed the suit and declared that show cause notice dated 16.11.1991 issued by the appellant no.2 herein original defendant no.2 is illegal and void and the decision of removal taken by defendant no.2 is illegal, void and against the statutory provisions of second proviso to Section 27 A of the Bombay Police Act and consequently directed the appellants herein original defendants to reinstate the original plaintiff with all consequential benefits in service, as if plaintiff continued in service all throughout.
2.0 That the original plaintiff Jivabhai Kasambhai Bhanvar who was at the relevant time serving as police constable in the Police Department was charge sheeted on the ground of adultery and on the ground that the plaintiff is involved in the offence of moral turpitude thus has committed the misconduct. That the departmental inquiry was initiated against the original plaintiff and after conclusion of the departmental inquiry, the disciplinary authority imposed the punishment of withholding of two increments and holding that the charges leveled against the plaintiff are proved. It appears that being aggrieved and dissatisfied with the order passed by the disciplinary authority dated 5.5.1990 and imposing the punishment of withholding of two increments, the original plaintiff preferred appeal before the appellate authority i.e.
defendant no.2 and it appears that defendant no.2appellate authority / revisional authority was not satisfied with the punishment of withholding of two increments only and was of the opinion that considering the misconduct committed by the plaintiffs the proper punishment would be removal from the service and therefore, by show cause notice dated 16.11.1991 the revisional authority called upon the plaintiff to show cause why the punishment should not be enhanced to removal from service. It appears that the plaintiff replied to the same on dated 25.11.1991 and thereafter the revisional authority –original defendant no.3 passed an order of removing the plaintiff from service.
2.1. Feeling aggrieved dissatisfied with the order of removal passed by the revisional authority, the original plaintiff instituted Civil Suit No.889 of 1992 in the Court of learned Civil Judge (S.D.),Rajkot for declaration and permanent injunction to declare the order of removal illegal and against the principles of nature justice and original plaintiff also prayed for declaration and permanent injunction preventing the defendants from enforcing the order of removal against the plaintiff.
2.2. That the appellants herein –original defendants resisted the suit by filing written statement at Exh.10. It was submitted that as it was found that plaintiff has illicit relation with married woman and was living in adultery and therefore, he has committed misconduct and acted in a manner which was not defeating to a police personal. It was also submitted that the plaintiff has been removed from the service after giving an opportunity and after following procedure required under Section27(A) of the Bombay Police Act, therefore, it was requested to dismiss the suit.
2.3. That the learned trial Court framed the issue at Exh. 20 and by judgment and decree dated 31.7.1995 dismissed the suit.
2.4. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned 2nd Joint Civil Judge (S.D), Rajkot dated 31.7.1995 passed in Regular Civil Suit No.889 of 1992 in dismissing the same, the original plaintiff preferred Regular Civil Appeal No.74 of 1996 before the learned District Court, Rajkot and the Principal District Judge by impugned judgment and order dated 24.6.1997 has allowed the said appeal quashing and setting aside the judgment and decree passed by the learned trial Court as well as quashing and set aside show cause notice dated 16.11.1991 issued by defendant no.2 as well as quashing and setting aside the order of removal passed by the original defendant no.2 as revisional authority and consequently decreeing the suit mainly on the ground that the show cause notice dated 16.11.1991 was contrary to second proviso to Section 27 A of the Bombay Police Act as at the relevant time appeal preferred by the original plaintiff against the order passed by the disciplinary authority withholding of two increments was pending and also by holding that the order of removal is in breach of principles of natural justice.
2.5. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the learned Appellate Court in allowing the appeal preferred by the original plaintiff and decreeing the suit and quashing and setting aside the show cause notice dated 16.11.1991 as well as order of removal, the appellants herein original defendants have preferred present Second Appeal under Section100 of the Code of Civil Procedure.
3.0 Shri Dave, learned AGP appearing on behalf of the appellants hereinoriginal defendants has vehemently submitted that the learned Appellate Court has materially erred in allowing the appeal preferred by the original plaintiff by quashing and setting aside the judgment and decree passed by the learned trial Court dismissing the suit and consequently decreeing the suit and quashing and setting aside the show cause notice dated 16.11.1991 issued by the Revisional Authority for enhancement of the punishment issued under Section 27 A of the Bombay Police Act as well as to quash and set aside the order of removal passed by defendant no.2.
3.1. It is submitted by Shri Dave, learned AGP appearing on behalf of the appellants hereinoriginal defendants that the finding given by the learned Appellate Court that the show cause notice dated 16.11.1991 was contrary to second proviso to Section 27 A of the Bombay Police Act is factually incorrect and consequently finding given by the learned Appellate Court that the show cause notice dated 16.11.1991 was contrary to second proviso to Section 27 A of the Bombay Police Act is on misinterpretation of provision of law. It is submitted that as such by issuing show cause notice dated 16.11.1991 itself by the revisional authority calling upon the plaintiff to show cause as to why the order of removal should not be passed first the appellate authority who was also revisional authority dismissed the appeal as so observed in the notice dated 16.11.1991 itself and thereafter issued the show cause notice for enhancement of the punishment in exercise of powers under Section 27 A of the Bombay Police Act. Therefore, it is submitted that the show cause notice dated 16.11.1991 was absolutely within four corners of Section 27 A of the Bombay Police Act.
3.2. It is further submitted by Shri Dave, learned AGP appearing on behalf of the appellants hereinoriginal defendants that even finding given by the learned Appellate Court that order of removal was in breach of principles of natural justice is also factually incorrect. It is submitted that as such by show cause notice dated 16.11.1991 the plaintiff was called upon to show cause why the order of punishment should not be enhanced and order of removal shall not be passed and to that original plaintiff tendered his reply dated 25.11.1991 and not only that even the plaintiff was heard in person on 29.11.1991 and the same has been recorded in the order of removal dated 29.8.1992 and therefore, it cannot be said that the order of removal dated 29.8.1992 passed by the revisional authority was in breach of principles of natural justice.
3.3. It is submitted by Shri Dave, learned AGP appearing on behalf of the appellants hereinoriginal defendants that even otherwise considering the misconduct committed by the original plaintiff and committing act of moral turpitude and it was found that the original plaintiff was residing with another married woman and was residing in adultery and the conduct of the original plaintiff was unbecoming of police official, the learned Appellate Court has materially erred in quashing and setting aside the order of removal. It is submitted that as such the learned Appellate Court restored the order passed by the disciplinary authority withholding of two increments meaning thereby holding the charge and misconduct proved against the plaintiff and therefore, the learned Appellate Court has committed grave error in setting aside the order of removal. In support of his above submission, Shri Dave, learned AGP has relied upon the decision of the Division Bench of this Court in the case of Narayansingh Karansingh vs. State of Gujarat reported in 2009 JX (Guj) 336. By making above submissions and relying upon the above decision, it is requested to allow the present Second Appeal.
4.0. Shri Devnani, learned advocate has appeared on behalf of the respondents herein heirs and legal representatives of the original plaintiff (as the original plaintiff expired during the pendency of the present appeal). Shri Devnani, learned advocate for the original plaintiff now heirs and legal representatives of the original plaintiff has submitted that in the facts and circumstances of the case when the learned Appellate Court has held the show cause notice dated 16.11.1991 in breach of second proviso to Section 27 A of the Bombay Police Act and even the order of removal in breach of principles of natural justice and consequently has allowed the appeal and decreed the suit, the same is not required to be interfered with by this Court in exercise of powers under Section 100 of the Code of Civil Procedure.
4.1. It is further submitted that as such during the pendency of the appeal original plaintiff has also expired and therefore, question would be with respect to retiral benefits which might be available to the original plaintiff if the judgment and order passed by the learned Appellate Court is confirmed. Therefore, in the facts and circumstances of the case, it is requested to dismiss the present Second Appeal.
5.0 Heard the learned advocates for the respective parties at length. At the outset, it is required to be noted that as such the misconduct and the charge levelled against the original plaintiff who was at the relevant time serving as police constable came to be proved not only in the departmental proceedings but also by the Appellate authority also. That the disciplinary authority initially imposed the punishment of withholding of two increments only against which the original plaintiff preferred appeal before the Appellate Authority i.e. original defendant no.2 who was also revisional authority and appellate authority/ revsional authority found that the punishment of withholding of two increments was inadequate considering the seriousness and misconduct committed by the plaintiffpolice constable and therefore, according to the revisional authority the proper punishment would be the order of removal and therefore, vide showe cause notice dated 16.11.1991 the revisional authority in exercise of powers under Section 27 A of the Bombay Police Act called upon original plaintiff to show cause why the order of removal shall not be passed and the punishment imposed by the disciplinary authority should not be enhanced. That the learned Appellate Court has held the show cause notice dated 16.11.1991 contrary to second proviso to Section 27 A of the Bombay Police Act by observing that at the time when revisional authority issued the suo motu show cause notice for enhancement of the punishment, the appeal preferred by the original plaintiff against the order passed by the disciplinary authority withholding of two increments was pending and therefore, considering second proviso to Section 27 A of the Bombay Police Act when the said appeal was pending the revisional authority could not have issued the show cause notice for enhancement of punishment and consequently learned Appellate Court has quashed and set aside the show cause notice dated 16.11.1991 as well as order of removal. However, considering the show cause notice dated 16.11.1991, it appears that first the appellate authority dismissed the appeal and thereafter observing that the punishment of withholding of two increments is inadequate had issued the show cause notice and called upon the plaintiff to show cause as to why the order of removal should not be passed or punishment imposed by the disciplinary authority should not be enhanced. Therefore, it is not true and / or factually correct to say that at the relevant time when the revisional authority issued the show cause notice dated 16.11.1991 under Section 27 A of the Bombay Police Act, appeal preferred by the original plaintiff against the order passed by the disciplinary authority was pending. It appears that appellate authority first dismissed the appeal and simultaneously issued the show cause notice for enhancement of punishment. Under the circumstances, finding given by the learned Appellate Court that the show cause notice dated 16.11.1991 was contrary to second proviso of Section 27 of the Bombay Police Act is factually incorrect.
6.0 It appears from the impugned judgment and order passed by the learned Appellate Court that the learned Appellate Court has held that the order of removal is in breach of principles of natural justice. However, from the order of removal, itself it appears that after show cause notice dated 16.11.1991, the original plaintiff submitted reply dated 25.11.1991 to the show cause notice and not only that but even he was heard in person on 29.11.1991 also. Under the circumstances, it cannot be said that order of removal passed by the revisional authority was in breach of principles of natural justice. Under the circumstances, finding given by the learned Appellate Court that the order of removal passed by the revisional authority was in breach of principles of natural justice is also factually incorrect and cannot be sustained.
7.0 Even otherwise, considering the fact that original plaintiff was serving as police constable in the police departments was found to be residing in adultery with married woman and therefore, the conduct of the plaintiff was clearly unbecoming of government servant more particularly discharging duties in disciplined force like police force and therefore, also the learned Appellate Court was not justified in quashing and setting aside the order or removal.
8.0 It is required to be noted that as such charge and misconduct alleged against the plaintiff came to be proved even as observed by the learned Appellate Court, as learned Appellate Court has specifically passed an order in the operative portion of the order that order of withholding of two increments on holding charge proved is restored. Once the charge and misconduct alleged against the plaintiff came to be proved, in the facts and circumstances of the case the learned Appellate Court ought not to have quashed and set aside the order of removal.
9.0 In view of the above and for the reasons stated above impugned judgment and order passed by the learned Appellate Court cannot be sustained and same deserves to be quashed and set aside.
10.0 In view of the above and for the reasons stated above, present Second Appeal succeeds and the impugned judgment and order passed by the learned Principal District Judge, Rajkot dated 24.6.1997 passed in Regular Civil Appeal No.74 of 1996 is hereby quashed and set aside and judgment and decree passed by the learned trial Court dated 31.7.1995 passed in Regular Civil Suit No.889 of 1992 is hereby restored and suit of the plaintiff is dismissed. Present Second Appeal is allowed to the aforesaid extent. No cost.
“kaushik”
sd/ ( M. R. Shah, J. )