{"id":68118,"date":"1965-04-22T00:00:00","date_gmt":"1965-04-21T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-bombay-vs-ganpat-dhondiba-sawant-on-22-april-1965"},"modified":"2015-09-29T23:10:27","modified_gmt":"2015-09-29T17:40:27","slug":"state-of-bombay-vs-ganpat-dhondiba-sawant-on-22-april-1965","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-bombay-vs-ganpat-dhondiba-sawant-on-22-april-1965","title":{"rendered":"State Of Bombay vs Ganpat Dhondiba Sawant on 22 April, 1965"},"content":{"rendered":"
Bombay High Court<\/div>\n
State Of Bombay vs Ganpat Dhondiba Sawant on 22 April, 1965<\/div>\n
Equivalent citations: 1966 CriLJ 1239<\/div>\n
Author: K Desai<\/div>\n
Bench: K Desai, Palekar<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
  K.K. Desai, J.    <\/p>\n
 (1) These  are two  cross appeals by the plaintiff and the  defendants against the judgment of and decree dated November  28, 1958, passed  by the  joint Civil Judge,  Senior Division , Poona  in special  Civil  suit NO. 7 of 1957,  dismissing the plaintiff  suit except in connection  with the claim  for money  amounting to Rs. 1, 701 – 5-0 and proportionate  costs  and interest  at 4 per  cent.  Per annum on the above  amount  from January 29,  1951, till relation. The learned judge of directed the plaintiff  to pay to the defendants  the costs  of the suit proportionate to the claim  rejected.\n<\/p>\n
  [2]  The plaintiff  suit was mainly  for a declaration that the order of dismissal of the plaintiff  dated January 11, 1954, passed by the defendants  [the state  of Bombay]  was wrongful and illegal  and inoperative and on the footing  claiming right of continuances in service  continuously inspite of the above  order of dismissal  and for money  decree  amounting  to Rs. 15,250 for arrears  of salary  and also for future of pay  and salary.\n<\/p>\n
  [3] The main facts leading  to the above order of dismissal  dated January 11, 1954  are as follows:-\n<\/p>\n
  [4] The plaintiff  jointed service in police force of the province of Bombay  on June 11, 1929. In September 1949,  the plaintiff  was attached  to the cantonment police  station, Poona as sub – Inspector of Police.  His salary  then was Rs.  234-2-0- inclusive of allowances in the grade of Rs. 120-5-195.  It appears that on September 6, 1949, at or  about  8\/8-20 p.m.,  one unknown  stranger was found lying the passage in the compound of petit Hall at Bhavani  Peth, Poona  city.  Information  about his fact was  conveyed  to a constable  about this  face was age with the limits  of the Cantonment police station.  The constable  went to the  police station and reported  the matter  orally to Head constable  kate.  The police thereafter saw the stranger in the compound  of the petit Hall and removed  him to the cantonments  police station. On the next  day i.e., September  7, 1949  in the morning   the stranger was found near Empress  Garden within the jurisdiction of under  another police station in unconscious  condition. He was  from to Sassoon  Hospital, where he was admitted  as an in  – patient  at 8.25 a.m.  he died at about  8-40 a.m.  On post – modern,  he  it was found out that the  duty he had died as  result  of cerebral  hare morrhage due to result  of cerabarla fracture of skull.  The plaintiff duty hours on September 6, 1949  at the containment  therefore  police station  as sub – section  in charge thereof appear to have  been from  9 p.m.  onwards.\n<\/p>\n
  [5] Under the  above  circumstances , by the  an order  dated October 26 ,1949  Exhibit,  25, the District  Superintendent of Police,  suspended the Plaintiff  and others from service  with effect  from  October  26,  1949, pending  departmental  enquiry  into the conduct  of the plaintiff and other  personnel  of the police  station.\n<\/p>\n
  [6] The plaintiff was prosecuted in the  court of the city magistrate,  First Class,  Poona, for  offenses  under section 202 and 217 f the Indian Penal Code. In others words, the charge against the  plaintiff  was that he  as intentionally omitted to give information and he as a public  servant disobeyed  dissections of had law with  intent to save  certain persons  from punishment. By  his judgment and order  dated November  6,  1950,  the learned Magistrate  found the plaintiff not guilty  and acquitted  him under section 258  of the code of the criminal  procedure. The result  of the above  acquittal was that by the an order dated  January 29, 1951, the District Superintendent of Police,  Poona [Rural],  ordered  the plaintiff to be reinstated in the  service and gave directions as regards his posting,  by the orders, it was  provided that the plaintiff period of subvention of be treated as duty on full pay  and  allowances.\n<\/p>\n
  [7]  The plaintiff  joined  service of as from  February 1, 1951.  On or  about September 25, 1951, a departmental enquiry  was started against the  plaintiff.  The charge  leveled  against the  plaintiff appear  in exhibit  28 dated  September  25 ,1951. The  Gravamen of the charges  was that the plaintiff  was guilty of gross  negligence  of duty and  ask slack  in supervision,  inasmuch  as on the night  of 6th\/7th  September  1949  he failed to take and legal  action or to  issue orders to his  subordinates to take  legal action in repeat of the unknown  person who was brought  to the police station on the alleged charge  of  offense  under section  61-D of the District police obtain  medical laid  id for the  unknown  person who was brought  to the police station  in a sick  condition  and become unconscious of thereafter and further  that the plaintiff  allowed the unknown  person to continue  is the police station till midnight without  any action being  taken in respect of him.  The second  charge has was that the  plaintiff was guilty of reprehensible misconduct in that  he causes  the  unknown  sick and unconscious  person to be removed  from the police station  precincts to a spot near Emoress Garden and abandoned him there in under to cause  disappearance  of and evade responsibility  and liability in the matter.  The department  enquiry  in connection with the above  charge was held by the Assistant superintendent of police Heble.  By his  report, copy whereof forms part of  Exhibit 62,  the Enquiry officer held that the  plaintiff was  present at the police station in the above dates  and that he was not in a position f however to the exercise of supervision over the happenings in the  police station.  He further held that it  was not proved that the plaintiff could have been  aware of the facts  relating  of the above stranger brought to the police station  through  other sources. Having  made the above  finding he held that the plaintiff  hand o failed to take lawful action in respect of the above stranger  and he had not orders  and \/ or  the connived  at the removal  of the strangers form the police  station to a spot  near Empress Garden.  The result of the above findings,  obviously  was that the  plaintiff  was exonerated by the above report from the charges  leveled  against him.  The District Superintendent of the police  made in endorsement of  date May 1, 1952 one the  above report accepting the same. The inspector General  of police also accepted,  the above report  by  endorsement  dated May 1, 1952.  It is necessary  to report that pending  the above enquiry  the plaintiff  was not superintended  from service  and continued  in service and continued to revoke his salary.\n<\/p>\n
  [8] It appears  from the receive  dated December  31, 192, addressed by the  secretary  to the Government Home  Department to the District Magistrate, Poona,  Exhibit  63, that the having regard to the opinion  expressed by the  R.L.A.  in connection  with the above  enquiry  proceedings the Government had decided  that a general  departmental enquiry  should be held  afresh  against all  the police officers  should  and men concerned in the respect advised  by the R.L.A.   The Government therefore  directed the District  Magistrate  that he enquiry and should be conducted by a senior  prant officer of grant district n the conduct of the polices  officers and men concerned in respects of the happenings  of 6th\/7th September  1949. The district  magistrate  was called upon to take steps  accordingly.  The other senior  police officers  were informed  about the Government  decision.  By his order dated  January 10, 1953, Exhibit  42, the District  Magistrate,  Poona  appointed  M.R. Calderia, Prant officer Poona city prant, as Enquiry  officer in the general  departmental  enquiry to the held against the  their conduct of culpable, homicide in the officer of that he cantonment police station, Poona Urban  area.  By the orders calderia was requested to observe all instructions of  regarding the in holding  departmental  esquires printed in Appendix  II to the  Bombay  Civil  Services Conduct, Discipline and Appeal Rules. In pursuance’s of the that orders,  calderia  commenced general  departmental  enquiry proceedings  against the police officers concerned including  the plaintiff.  By a memo, to show  causes and  charges sheet dated  January 24, 1953  Exhibit  29 [Collectively]  Calderia,  furnished plaintiff  with the copies  of he joint charges of statement of the allegations of against the police officers of  and me concerned  and gave him notice  that enquiry would-be held in his officer of from February 6, 1953.  The plaintiff  was called upon the to remain present and to producers oral and documentary  evidence as he required.  He was informed of the list of the witnesses who would be examined support of the charge.  The charges leveled were as follows:\n<\/p>\n
  ‘[1]  your failed to make any  entry in the station  diary regarding  this person.\n<\/p>\n
  [2] Failed to record any complaint  either by the unknown  person or against him.\n<\/p>\n
  [3] Failed to  take prompt  and necessary  measures of render  medical  aid to the unknown  person.\n<\/p>\n
  [4] Removal  the unknown  person against his will  from the police station to the road near Empress Garden,  apparel only with a view of the evade responsibility  of cover  negligence o the  duty.\n<\/p>\n
  [5] Failed  to give  information when the  photograph appeared to in the papers”.\n<\/p>\n
  [9] In due course, after all the opportunity  was given to the plaintiff  in connection therewith, the department  enquiry  was proceeded with.  Calderia  by his report  dated March  14,1953, being  endure to exhibit 32, made findings   against the plaintiff  and found the plaintiff was guilty of the all the five charges.  By his letters  dated July 1, 1953  the Assistant  Secretary  to the Government of Bombay  Home Department, the Government of plaintiff  about the finding  made informed the plaintiff above report.  The plaintiff  by Calderia  by this above report. The plaintiff was urinated  with the copy  of the report  of and he was requested to show and it he so desired,  against the proposed penalty of dismissal to be inflicted on him.  There was  certain further correspondence.   The plaintiff  representations against of the proposed  punishment of the were received  by he Government. Ultimately,  by the  challenged  order dated January 11, 1954  Exhibit  35,  the state  Government order  dismissal  f the plaintiff and certain other government  servants from service with the effect from  orders of the dismissal should be issued  separately. Such  orders of dismissal dated January 11, 1954 of was passed in connection with the  dismissal of the plaintiff.  That order of is par of the Exhibit  35.\n<\/p>\n
  [10] The plaintiff appealed  against the  above order of dismissal  on March  8, 1954. In connection  with his appeal,  the plaintiff  was heard on October 15, 1954.  By the order  dated October 18, 1954, Exhibit 86, the plaintiff  was informed  that the Government saw no reason to  reconsider  its earlier decision of the dismiss  the plaintiff from the service.  The plaintiff  served  usual  statutory notice  under section 80 of the  Code of civil  procedure dated March 8, 1957.  In his plaint,  the grounds  on the which the plaintiff  challenged  the above orders, are as follows:  The  enquiry by the  prant officers was illegal.   Ultra  vires and without of  jurisdiction  and contravened  fundamental rights of the  and other rights  guaranteed to an  individual  under the constitution.  The prant officer had no jurisdiction of the  hold the enquiry “when he [the plaintiff] was  acquitted in the court of Law and when in the  departmental enquiry he was also exonerated”.  His second  contention was that  the his condition  of service  were governed  of was  by he Bombay police Act and the  Bombay polices  Manual  and the rules made  thereunder  and the civil services  classification,  control and appears Rules  weren’t applicable  to the plaintiff.  The Rules were  not applicable to the plaintiff those facts that the  enquiry  by the prant  Officer was without  jurisdiction and was of the nature of second  trial  and contravened  the provisions of and the sprit of the constitution.  The third  contention was that the enquiry  was improper  because the prant officers  had failed  to supply to the plaintiff  copied of the  required  papers of on the plea of the confidential  documents.  We have taken the above grounds of the from the  plaint,  because of the plaint in that connections is extremely of vague.  In the plaintiff the   plaintiff  further contended  that he had  not been paid  the sum of Rs.  1,701-5-0 for the  salary  due to him during  the period of the to paid to him.  The plaintiff  further  claimed  the sum of Rs. 12,182-7-0- as arrears  of salary  from  January  11, 1954, till the  date of the suit and future salary  at the  rate of  Rs. 305-2-0 per month.\n<\/p>\n
  [11] The main  contentions  in defense raised by the  written  statement  of the state   Government  which need  be noticed  here wears  that the claim of Rs. 1,701-5-0 was  barred  under Article  102 in schedule , I to the Indian  Limitation act. The plaintiff  suggestion  that no  enquiry can be held  on the same charges  after an acquittal by the criminal  court was not  correct.  There was no legal  on the  same fact which  were also the subject matter of criminal trial.  In had found that he case the plaintiff had not been  properly considered.  It was for that the reason  that the Government directed  that fresh  general  departmental  enquiry  should be held.  The main contention of  was that the Government  had powers by the  virtue of section 4 of the Bombay police act,  1951, hereinafter  referred  to as ‘the act’, under  which superintendent of the police  force  throughout the state  vested in Government  to order fresh  general  departmental  enquiry.  For this reason,  it was contend  that there was  nothing illegal or  unconstitutional  in the governments  ordains the fresh  enquiry. The further  contention was that all the  essential requirement  of the rules of the police enquiry  as laid down by the  Bombay police Manual come to  be observe  as appeared  from the  essential requirements  of the rules of  police enquiry as laid downy the Bombay police manual come to be observed as appeared from the  department proceedings  carried out by the prant officer. A precise charge sheet giving details  and the statement  of the lalltation were served  onto plaintiff and the departmental altation  was held  in a manner  whereby  nothing that was prescribed by he rules  made under the Bombay police act and contained  in the Bombay  police Manual  had been violated.  The contention  was that as the essential requirements of the police of rules  had been satisfied, requirements  of the police Manual had  been  satisfied mere references penalties  specified in the Rule 49 of the civil  service. Rules did not affect the validity of the  enquiry.  In this connection,  by further  connotation was that the  proper  of rules were to  observed. He had in his replies  and written  statements  notarized  any such  contention.  The plaintiff  had n face acquiesced in the procedure  followed because of the plaintiff  knew the  requirements  of the rules of enquiry  under the police  relished been  satisfied. The plaintiff was accordingly not entitled to agitate  this point about the enquiry  in accordance’s with the rules contained in the police Manual.\n<\/p>\n
  [12] The learned  judge below raised appropriate  issues  having regard to the above  pleadings.  He negative the  contention of the defendants  that the notice  under section 80 of he  Code of Civil  procedure of was bad. He held that the  code of the Civil  Procedure  was bad. He held that he enquiry  by the Prant  Officer was not illegal or ultra Vires, [I], because of the plaintiff  had been acquitted  by the  in criminal  trial and [ii]  because the plaintiff had been  exonerated in the provisos  departmental  enquiry in respect of the same charges.  He negatived the plaintiff  contention  that the enquiry  by the prant officers  was without jurisdiction  and in contravention  of the  constitution.  The question of the enquiry  being improper  and in violation of he  principles  of natural,  justice because certain  papers  were not supplied  to the plaintiff  had not been  pressed before us.  The learned judge held that findings in the earlier  enquiry were not acceptable to the government  and it was the  for that  reason  competence  fro the government  to direct a fresh  enquiry.  He nagatived the contention  of the state government  that the plaintiff claim  regarding the sum of Rs. 1,701-5-0 was barred  bylaw of the limitation. Having  regard to the his finding  he dismissed the plaintiff suit as regard all the  relief’s claimed  except in the respect of in sum of Rs.  1,701-5-0. He passed decree in the terms which we have already  referred to above.\n<\/p>\n
  [13] The first  contention  which has been made before  us on behalf  of the plaintiff,  is as follows:-\n<\/p>\n
  [14]  The state Government  wasn’t  entitled  to direct and \/ or hold  the fresh  departmental enquiry of held by the  Claderia,  because the scheme of the rules  framed  under the relevant  provisions of the law negatived the rights in the Government to hold further enquires after a defaulting  government servant  was exonerated from the charges leveled against him  in prior of the duly held  departmental enquiry.  The contention  was that under section   4 of the Bombay  Police act, 1951 the state Government in its  power of the  superintendent  was not entitled  to direct  a fresh  enquiry as in contended  for by the  written  statement.  The contention  was developed  by arguing that the there was no affirmative provision for revising if the fresh enquiries  findings  made in prior enquires that the defaulting  Government servants were not  guilty of the charges  levelled against them.  The further  arguments was the powers  superintendent, if any must  be exercised by the observing  principles  of fairplay.  The order of fresh enquiry  on the basis of the same facts  and evidence  was in breach of principles of fairplay. In ordering  the fresh enquiry  in this the Government  had acted  arbitrarily and in violation of the principles of fairplay  and \/ or  natural  justice.  The powers of the superintendents of did not entitle the Government  to act arbitrarily in the above manner. In this  connection,  the alternative arguments was that  the provisions  in section 4 of the Act were not  intended to deal with and apply  to the provisions in altogether  another Chapter .e, chapter III relating to regulation,  control and  discipline of the police Force. The section 4 appears in chapter II which deal  with matters  specify  in that chapter and relates to superintendents,  control  and organization of the police  force.  The connection  was that in the connection with matter  dealt  was with under  chapter III of the  act, the provisions of section 4 relating to power to the  provisions of in section 4 relating to powers of superintendent in the  state Government were never  intended in be applicable.\n<\/p>\n
  [15] The Substances of the reply  of the state Government  was that  in all the relevant rules as well as the above act  which was admittedly applicable to the parties, there  was no  specific  bar or even  implied  bar preventing  the state Government from orderings a fresh  departmental  enquiry  in connection  with charges in respect where of a prior departmental enquiry  might have been  held.  In fact,  under the  provision in section 4 and sub section [1] of section 25  of above  act, express power was reserved  in favour of the state government  as to enable to the  Government  to order departmental esquires in  connection with misconduct  of defaulting police  officers so as to decide whether  penalties of various of kinds should be imposed  against the such police officers.  The power of the Government  as envisaged in the above  section had not been  controlled  by the any rules  or otherwise.  There were in fact no rules  which could be relied upon the on behalf of the plaintiff  to show that a fresh departmental enquiry  cannot be ordered  against  police officers who may have  been in prior  enquiry  exonerated to the charge levelled against  them.\n<\/p>\n
  [16] Now,  in connection with these contentions, it is first necessary to refer to the relevant  provisions of the act and also  the rules which were  admittedly  applicable  to the plaintiff  case. The plaintiff  belongs to the subordinate  ranks as defined  in sub section [16] of section 2 of he act Chapter II of the act relates to superintendence control  and organization of the police force. Section 4 in that Chapter provides  that ‘the  superintendence  of the police  force  throughout  the state of Maharashtra  vests in and in execrable  by the state  Government  and any control  direction or supervision  execrable  by any officer  over any member of he police Force  shall  be exercisable  subject to the  such superintendent.” Chapter II relates to regulations,   controlled and discipline of the police Force.  The important  provisions in  this chapter  relating  to punishment  of the member of the police force and procedure  to be observed in awarding punishment  and also appeals  from order orders  of punishment  and also  appeals from order or punishment  and also  contained in section 25, 26,  and 27. It is necessary  to quote  of the relevant parts of the  above  section here:\n<\/p>\n
  ‘[25] [1]  The state Government  or any officer authorized by sub – section  [2] in that  behalf  may suspends,  reduce  dismiss or remove  of an  inspector or any member of the subordinate of ranks of the police force.\n<\/p>\n
  [2] [a]  The  Inspector – General,  the commissioners  and the Deputy  Inspector – General  shall have  authority  to punish  an Inspector or any member  of the subordinate of ranks  under subsection [1]. A. District  superintendent of shall have  the like authority  in respective of any police officer  subordinate to him below the grade of  Inspector.\n<\/p>\n
  [b]……………………………..\n<\/p>\n
  [ba]……………………………\n<\/p>\n
  [bb……………………………\n<\/p>\n
  [c] The exercise of any power  conferred by the this sub – section shall be subject always of to such rules and orders  as may be  made by the  state Government in the behalf.\n<\/p>\n
  [3] Nothing  in sub = section [1] and [2] –\n<\/p>\n
  [a] shall affect any  police officer’s  liability to a criminal  prosecution for any  offense with which he  may  be charged or  <\/p>\n
  [b] ………………………….\n<\/p>\n
  [26] When any  officer passes an order for fining,  spending reducing removing  or dismissing a police officer, he shall  record such  order of cause  ………………. together with the reasons  therefore………….\n<\/p>\n
  Provided that no order  for reducing  removing or dismissing a police  officer  shall be passed without giving him  a reasonable  of opportunity  of showing  cause against the action  proposed  to be taken  against  him……………………….\n<\/p>\n
  [17] section 27 provides and appeal against the any order passed against a police officer  under  S. 25  or the rules or orders thereunder to the state Government  itself or to such  officer as the state Government  of may be general  or special  order specify.\n<\/p>\n
  [18]  The rule  applicable to he plaintiff case were the rules  enacted under the Districts  police and the continuing in force of at relevant police act  time having  regard to the relevant provisions of in the above  Bombay  police Act, 1951.  Parties have  found  it difficult to the furnish to us any  clear and complete of copy of he rules  enacted under the District  police Act. Reference  has accordingly been made to the Bombay  police  Manual  made under the District police Act.  These are all to be found in chapter  XV  beginning  with section 531.  The relevant  rules, on which  reliance of has been  placed, rules are to be  found by the reading section 535,  536, 537, 556, 557 and 558  in the above  police Manual.\n<\/p>\n
  [19] It is requires to be stated that on a reading of the section as contained in the above  manual, it appears that they  include explanation and instructions of intended to be borne in mind and are not  in the  [exact]  language of he rule made  under the District  police Act. The  relevant  parts of the above rules, which  need be  referred to, are  as follows:-\n<\/p>\n
  [20] section 535 mentions of the punishment that can be  awarded  to poice officers  including  the punishments of reduction in rank., removal  from service  and dismissal from service section 536 confers right to appeal in the respect  of the certain  punishment  imposed. Under  clause [4] of section 537,  it is provided  that no officer of the District  police below  the grade of Inspector  can be punished of departmentally  except by a superintendent, a Deputy  Inspector –  General  of police  or Government”.  It further provides  that ‘if any  district  Magistrate of considers  that a superintendent of police officer in departmental  inquiry he may unless the superintendent voluntarily revises  his own  order, report of the case  to the inspector – General  of poice for revision”.  Section 56  provides  for appeals against the Inspector – General  order of punishments of Inspectors  to the Government.  This section also makes  provision  for appears  against the orders of punishment  passed by the  Deputy  Inspector – General  of police and superintendent of police. Under  clause [4] of the this section  phrase  ‘subject  to the control  of the Inspector – General  of police”  is explained as intended to  mean that the inspector – General  of police in the  exercise  of his inherent power and duty  of as head of the Department  possesses,  the right of the  superintendent of police  section 557  relates of the  mode of he  preferring an appeal under clauses [10]  to that section it is,  inter alia, provided that  “…………………….;  but  nothing herein contained shall be deemed to  debar government  vested in them  under the  authority  of control bested in them  under the provisions of the Bombay  District  police Act,  or from  issuing  such special orders as they  may deem fit,  restricting the exercise of the power  of punishment  in the case of the particular  police officer.  Section 558 provides  for petition is revision  and confers  a right on officers who feel  aggrieved by the  decision passed by an appellate authority  on their appeals.  In connection of with the petitioners for  revision of and appeals under Clauses [4], [5],  and [6] of section 558,  it is  provided  that ‘it is improper for a superintendent of police  to revise his own proceedings  after he has received  an appeal…………………. If  fresh facts necessitating the enhancement or reduction  of the punishment of are brought  to light while a case is under appeal the  superintendent, of police should  inform the authority  accordingly.” For  enhancing  punishment  on fresh  evidence,  it is provided that ‘it will  be necessary  to hold fresh to defend himself”.  It is also provided that the procedure to be adopted  in connection with fresh proceedings should be decided  by the Deputy Inspector –  General,  on the merits,  of each  case.  Under  Clause  [6], it is  provided  that ‘it is  however, open to the punishing  authority  to revise  his own or his predecessors  order of  punishment of when no appeal lies against that  punishment but not  otherwise.\n<\/p>\n
  [21] The contention  of behalf  of the state Government is that it is clear on a reading of the provision of in section 4 and sub – section [1] of the section 25 that the state Government has been vested of with powers to inflict,  inter alia,  punishment service.  In connection  with these  powers, rules have not been framed  at any time.  The powers are not controlled  except  by and under the provisions  of articles 310 and 311 of the constitution.\n<\/p>\n
  [22] Itis clear on a reading of clauses [c] of sub – section [2] of section 25 and the corresponding provision in section 29 of he District Police Act that the rules relating  to departmental  enquiry  into the conduct of defaulting their offense of all real to the  exercise of powers in that  connection  by officers mentioned in sub section [2] of section 25.  Thus, these rules  clearly relate to inquiries to be held that by the  Inspector – General  the commissioner  and the Deputy  Inspector – General as to  the District  superintendent  and officers  mentioned in subsection [2], of section 25. These rules  do not  control  in any manner the extremely widened  general power  reserved to the state  government for  making enquiry  into  misconduct  of police officers  and imposing  punishments  against them.\n<\/p>\n
  [23] The language of section 4 is clear  unambiguous.  Obviously,  under that section the state Government  is vested  with power  of superintendent of the  over the police force throughout the state. Having  regards  to the clear  language out the section it would not be  wrong  to hold that as  regards of each and all the matters  pertaining the police  force throughout  the state, the state Government has absolute of power to deal with  them in the  interest  of police force as the  government  deems fit.  Nothing  has been pointed out from the contends of the act to show that this  general powers of the  superintendent vested in the state  Government was intended  to be curtailed in any manner of whatsoever.  The contention that the power vested in the state Government under  section 4 appearing under the Chapter II  was not  intended  to overlap  in connection with  matters  of discipline of the police. Force provided  for under section 25 appearing under Chapter III of the  act appears to unwarranted.  In fact, the heading of the chapter II contains the phrase ‘………………………………., control  …………… of police force”.  Similar is the position  in the heading  of chapter III. Chapter  III does not purport of the deal with the matter  of the power  of superintendent that is dealt with under  chapter  II.  There is  nothing in section 25 to indicate  that the powers of superintendent that is conferred  under section 4 of the  state Government  is in any manner curtailed by reason  of the provisions of in that section relating  to punishment  of the member of he subordinate  ranks of he  police force  departmentally for  neglect of duty and  other misconduct.  It appears to us that in  connection with powers given under sub section [2] of the section 25 to various  officers to award punishments against  members  of the subordinate rank of the police Force, the power  of superintendent of vested  in the state  Government  under S. 4 of he Act would  always  be available. Further,  by the first  part of section 25,  direct  power which is not  merely of superintendent is conferred on the state Government of award punishment  against the members  of the  subordinate rank of the police Force departmentally  for neglect  of duty and other  misconduct.  Thus, under  section 25,  direct authority  of power  which is created  in favor of [I] the State  Government  and [ii] of officers mentioned  particularly  in sub section  [2] of the section 25.  The result of the above  contains  of the provisions of  in Ss. 4 and 25 is that in  matters of departmental action  section 4. In those very  cases,  if find it necessary  the state Government  can directly  for itself  proceedings exercise of punitive  powers of and after  enquiry inflict necessary punishment.  There s therefore,  no substances in the contention of  that there  is nothing in the act  of confer  jurisdiction on the state  Government  to order  further departmental enquiry  of punishment of the members of the subordinator and guilty  of misconduct.  This power is to be found  in section 4 and 25. It is true that there is no direct provision in the act  providing  for ordering  of further  fresh enquiry for punishment  of member of the police force in  respect of their  misconduct.  That, however,  does not result into position  that there is no  jurisdiction in the authorities mentioned in section 4 and 25 of to order  further fresh enquiry when the facts of a particular  case warrant such directions.  The question  that requires to be answered in this connection is as to whether there is any provisions in act and \/ or rules and made thereunder to warrant a conclusion that further fresh enquiry cannot be held after defaulting police officer has been exonerated in one or more departmental enquires from the charges, levelled against him.  On behalf of the appellant it isn’t contended  that there is such direct provision in the act  the that requires that such a limitation on the power should be assumed to exist.  It is not contended that there are provisions in the Act corresponding to and \/ or like the provision of in section 11 of the Code of Civil procedure  [rejudicata]  or section 403 of the criminal  procedure code [autrfios acquit], or Article 20 of the constitution.  It is, therefore  clear that the  appellant is not able to rely upon any  statutory contents  of the act  and \/ or rules and made there  under in support  of his contention  that the  State  government of was not  entitled  to order the fresh enquiry as it did not  this case.\n<\/p>\n
  [24]. In connection with what  we have observed above,  support of can be had from  the decision of two division  benches of the courts respectively in special civil and appln  No. 361 of 1959 decided  by  Chainani, C.J. and V.S.  Desai, J. On 25-8-1959 [Bom], and the  case of  Arjunaro Babhrao  v. State of Bombay  [1960],  62 Bom  LR  1038.  In the first  of these  cases,  it as contended  of behalf  of the defaulting of police  officer  that under section 25 the powers  to punish  can be exercised  either  by the State Government  or any officer authorities by sub section [2].  Once such power to punish  is exercised  by any officer,  it was not  open to the state  Government t exercise  the power again or to revise  the order made by the officer concerned.  The court  negatived  this contention  and observed.  “This  arguments  ignores clauses [c] in sub  -section [2], which state that he exercise of the power  by any  of the officers  mentioned in clauses [a] shall  be subject  to such orders of as the state  Government  may make”.  The court  further  observed.  “Section 4 of he Act also provides  that the  superintendent of the police  force throughout the state of  Bombay  vests in and is  execrable of by the state government…………….”. The ratio to that decision of the  appears to us to be that even  in cases where  a departmental action is taken by officers  sub section  [2] of section 25,  it is permissible for the state Government  once again to the ode the further  enquiry  for the purpose  of punishing the defaulting officers.  The reason,  according  to the Division  Bench, was that such  power was  contemplated  by the contents of the first part of section 25 of and also by the reason of the powers of superintendents of created  in favor of the state government under section 4.\n<\/p>\n
  [25] In the  second case the contention on behalf  of the defaulting  police  officer  was that the  since the  district superintendent, of police had acquitted the police  officer, there was  power in the state  government under the first  part of section 25 to make a finding  that the officers  was guilty  to the offenses and impose on him the punishment  of dismissal.  In that case, six charges  were  levelled  against the  officer an concerned. He was  exonerated  in the  departmental  enquiry of the two  last charges,  being  charges Nos. 5 and 6.  The state  government  having not  been satisfied  with such  exoneration of from those charge of ordered further enquiry.  The result of that enquiry  was that  even  in respect of he last charge No.6 o the officer  concerned  was ultimately  found  guilt. He was  thereupon  dismissed from service.  The arguments  advanced  was not accepted by the division of the  Bench.  The Division Bench  agreed  with the  Ratio  of the decision  in the previous case and  observed:. “…………………….. and hold that the  mere fact that the  district  superintendent  of police  of acquitted  the appellant  would not  deprive of the state Government of the its power  under sub section [1] of section 25 to hold him guilty  of the offense of having demanded a bride  and impose on him the punishment  of dismissal”.  It is clear to us that there is no substances in the contention  that state  government  was not entitled  to make the order of further  enquiry  and direct  that the proceedings be held  for investigating  into the  misconduct  of police  officers  concerned  once again in respect  of the incident  that had  taken  place on  6th \/ 7th  September  1949.\n<\/p>\n
  [26] We have been  shown certain reported decision of different  High Courts where in connection with further fresh  enquiries  in respecting  charge where of  police officers  were first  exonerated  the courts  name to the conclusion that on  principles  of justice, equity  and good conscience of it was wrong  in the absence of the provision  in the service  Rules in that connection to permit such further departmental  esquires. We find it unnecessary  to go not details  of those cases, because it has appeared to us that the  provisions  in section 4 and sub  -s [1] of section 25  in this case  confer clear unobstructed  power onto state  government  to order furthers  departmental  inquiries.  We find  it unnecessary  to go into  details  of those  case, because  it has  appeared to us that he  provisions  in section 4 and sub – s [1] of section 25 in this case confer clear unobstructed  powers  on these Government  to order further fresh  esquires I cases in which  according  to the state Government  the fact involved  warrant  such direction.  As has  already  been discussed,  there is this  statutory  power the state Government by reason  of he provisions   in section  4 and 25. Int so case the principles which appears  to have been  accepted has been  that further proceedings in respect of the same charges of the which  an officers once  exonerated  must of necessity causes harassment. The same  would be,  therefore against the  principles of fairplay.  The principles of justice  equit and good  conscience  required that such  further departmental  esquires of that such further  departmental  esquires  should not be allowed to take  place.  The court come to that conclusion is spite  of their noticing  that there was no provisions of corresponding  to section  II of the code of the Civil  procedure  or section 403  of he Code of the Criminal procedure  of Article  20 of reconstitution  in the relevant  statues.  If is sufficient  to state  of that having  regards  to the provisions  in section 4 and 25 of the Act,  we are unable  to accept  the ratios  to the decisions of in those cases  as applicable of the facts  of this case.\n<\/p>\n
  [27] There is  no substances of the in the contention  that in the matter  to the further  enquiry  ordered by he state  govt., principles of fairplay  have not been  observed. The letter  dated December  31, 1952, Exhibit, 63,  addressed  by the secretary  to the Government  Home Department,  to the District  Magistrate Poona,  in pursuance’s of where of the further  fresh  enquiry  was held has been referred to whilst reciting  the facts  leading  to the institution of the suits.  It is clear from the contents of that letter  that the R.L.A.  had given an opinion as regards three-part  of the Enquiry  officers in the first  enquiry  observing  that proper  results  had not been  arrived  at.  It is this opinion of the R.L.A. which had induced the Government to decide  that a general  departmental  enquiry  should be held  afresh  against all the  police officers concerned. It is  in this connection relevant to notice that the  enquiry  was ordered against all police officer concerned.  The enquiry  related to an extremely gross  incident of stranger  having been  brought  to in almost  of unconscious condition  to the Cantonment police  station in the rights  of September  6, 1949 and the same person  having been  found near Empress Garden  in the jurisdiction  of the another  police station in the morning of the September 7, 1949. The person dies as  a result of the cerebral  hemorrhage consequent upon  fracture  of skull in the morning  of September  7, 1949.  Now, in a matter of such  incident obviously, it was permissible  for the Government to decide  that the  offending police officers must be brought  to book. The result  of the previous enquiry  proceedings was that for some  reasons no one was brought  to book in connection with gross misconduct to which someone  or the other was guilty  in connection with the above  incident.  The government of directed that the enquiry  should be entrusted to a senior  prant officer of poona district.  But the decision  of the Government  to order further  fresh enquiry  having regard  to the above facts  cannot be held to be in  violation of the principles  of fairplay.  It appears to us that the contention that once of and officer  is exonerated in a departmental  enquiry  he cannot be once against charged  with the same  misconduct is entirely  technical and not  warranted by any of the statutory provisions in the act and  \/ or rules made thereunder.\n<\/p>\n
  [29] On behalf  of the appellant  reliance is the placed onto above  of decision of an provision  in section 545 of and 558 in the police  Manual  being rules for inquiry  prescribed  under the District  Police Act. Under section  558, there is rights  of petition in revision  in favour  of all officers who feel aggrieved in by decisions  passed by the appellate  authority by decision passed by the appellate authority  on their appeals  to submit to the Inspector – General  of police  a petition for revision.  The contention  is that the plaintiff  who was sub – Inspector   was entailed under the above  rule to have the enqiry  proceedings  held by the superintendent  himself.  The prant office was not the prescribed  himself. The prant officer  was not the prescribed  statutory  authority  to hold the inquiry.  The enquiry  held by Calderia as Prant officer  was contrary  to the statutory  provisions and without  jurisdiction.   By reason  of Calderia having held a held the enquiry  proceedings  under the Bombay  Civil  Services  conduct,  Discipline and appeal  Rules,  of he plaintiff  lost the benefit the rights  of revision  and other rights which  might exist in his  favour  under the rules made under the  District  police Act. It is contended  that for this  reason  the plaintiff  is entitled  to succeed in this  appeal  and to a finding  that the order  of dismissal was  illegal  and void.\n<\/p>\n
  [30] It is to be noticed, I n its connection  that it is not  contended by Mr. Abhyankar  for the state  Government that the  enquiry  has been  held in this  case under  the provision  of he rules made  under the District Police Act. Even so, it appear to us  that there is no substances on this contention.  The reason  for this is that the rules  made under the  District  police Act have been  made under the provision  in section 29 of the  act which are in substances reproduced  in and correspond  with the provisions of in subsection [2] of section  25.  It is clear on a reading of sub section  [3]  of section 39 of the District  police and act  Clauses [c] of sub section  [2] of section 25 of the Bombay police act, 1951 that the statutory  rules which  have been  framed in connection with exercise  of punitive  power for  punishment of the defaulting member of the police  force have all been made the connection with the exercise  of such powers by the officers  mentioned  in sub section [2] of section 25 of the 1951 act and sub section [3], of section 29 of the District police Act.  In other words,  the rules  which have been  enacted relate to departmental  enquires  held for exercising  to departmental  enquiries held for exercising  punitive  powers by the Inspector General,  the commissioners the Deputy  Inspector General  and other subordinate   officers prescribed  by the above two sub – section.  That is the result  in the  case of the 1951 act of the provisions in calluses [c] of sub – section [2]  of section 25 and the last part of sub section [3] of section 29 of the District  police Act. In this  last sub section, the provision is:   “The exercise is any powers conferred by  this sub section  shall be  sujbet always  to such rules and orders as may be  made by state  Government  in that behalf”. If is clear,  therefore that the rules relate to the enquiries by the officers mentioned insub section [23] of section 29 of the District police Act. Similar is that effect of the provisions in clauses [c] of sub – section [2] of  section 25 of the 1951 act.  It appears to us that as regards the exercise of punitive powers by the state Government of sub section [1] of Section 25, rules, statutory or otherwise have not been  enacted. Even so to make  the whole enquiry fair the state Government  directed  that the instructions  regarding  the holding  of departmental  enquiries printed in Appendix II of the Bombay  Civil Service conduct,  Discipline  and Appeal  Rules should be observed.  In this very  connection, the lower courts  has made  a finding  that in fact  every protection that the plaintiff  was entitled  to under the  rules framed under the  District police Act  has been  made available  to the plaintiff because of observance of the above rules in the enquiry proceeding. The plaintiff  has been afforded  clear opportunity to show cause.  The plaintiff was furnished with the  charge – sheet, the statement  of allegation of against him, the  concise statement  of evidence of witness who were going  to be  produced  I the enquiry  and the list  of such witnesses.  The plaintiff was given opportunity  to cross – examine  all witnesses.  He was further  allowed to put  forward  in defense  whatever  evidence  he desired. Sufficient to state  that having  regard to the  fact as exist., it is not possible for the plaintiff  to contend of that he had  not  been afforded a fair  opportunity  to show cause in the matter of the enquiry held against the him.  The plaintiff  contention is only technical.  The contention is that he was  entitled to an enquiry  by the officers  mentioned in the rules.  He has  lost the rights  of revision as mentioned  in section 558.  As there is o prescribed  procedure binding on the state  government  in connection  with punitive powers exercised by the state government under the first  part of the  section 25 of the Act we are unable to accept the contention made as above  on behalf  of the appellant.\n<\/p>\n
  [31] The next contention that  was made on  behalf of the appellant was that inspit  of notice to procedure that was tendered  on it,  the state government  failed to produce at the hearing of the suit in the lower court the whole file of papers relating to the first  departmental enquiry. For this default, an adverse  inference should be  drawn  against the state Government  to the effect that the first  enquiry  was properly held and that there was no reason to hold further  enquiry.\n<\/p>\n
  [32] We haven’t been  able to appreciate  this contention. The plaintiff was aware of all that had happened in the first enquiry.  It in connection with any  of the issue  raised before the lower  court, the plaintiff and \/ or his advocate needed any particular  document, the same  could have been  at appropriate  time call for and tendered  in evidence.  In default of the defendants [state Government] producing  such a documents,  the plaintiff could have  made appropriate  compliant  by written  application to the trial court.  We have no doubt  that he trial  court would  have in that connection  passed  appropriate orders.  We do not also appreciate  the contention  that the production  of such documents  would  have supported the plaintiff case  that there  was no necessity  in this  case to hold further enquiry.  In that connection, what we have already  observed  above can usefully  be read over.  It is not  necessary to reproduce all that one against here.  It is sufficient  to sate that the  incident of 6th \/ 7th  September 1949 was such  that the  Government  was entitled  to take the view that all defaulting  officers should be brought to book.\n<\/p>\n
  [33] We have dealt with all  contentions  made on behalf  of the appellant.  On behalf of the state Government it is contended that the decree for Rs.  1,701-5-0 and interest  thereon as passed by the learned judges below  relates to the plaintiff  claim which  was barred  by law of limitation. The lower court  was,  therefore,  in error in granting  that decree that decree.  The relevant facts in that connection are as follows:-\n<\/p>\n
  [34] Admittedly, the sum of Rs. 1,701-5-0 relates to a part of arrears of salary  which become due to the plaintiff whilst of he was under  suspension between  October  26, 1949, and January 29, 1951.  The plaintiff  was reinstated in service  on the last  date and  continued to receive salary until he was dismissed by the order dated January 11, 1954. Thus, the above amount  become due to the plaintiff  in any event prior to January 29, 1951.  The plaintiff  in any event prior of January 29, 1951 The plaintiff  demanded the Above amount by his  letter dated  May 2, 1954.  Exhibit 37, i.e, a little before  4 months expired from the  above that of the order  of dismissal. The plaintiff  demand was rejected by the reply  dated May  15, 1954, Exhibit  39.  The suit  was filed  on January  9, 1957. The contention of the state  Government  is that to the article 102 in Schedule I to the Indian Limitation Act were applicable.   The Article  102 provides:-\n<\/p>\n
————————————————————————————————————————————-\n<\/p>\n
Description of Suit.  Period of Limitation  Time from which  period begins to run<\/p>\n
————————————————————————————————————————————-\n<\/p>\n
102 For wages not otherwise Three years.  When the  wages accrue  due<\/p>\n
expressly   provided  for this <\/p>\n
schedule<\/p>\n
————————————————————————————————————————————-\n<\/p>\n
  The suit for the above arrears  according to the state Government was liable to be filed in any event within 3 years from January 29, 1951, ie., on or before  January  29, 1954. The suit was filed about 3 years after the period of limitation expired.\n<\/p>\n
  [35] The learned Judge  below made a finding that to this claim of the plaintiff,  Article 120 in schedule I do the Indian  Limitation act applied. He, therefore granted decree  in favour  of the plaintiff Now, the learned Judge’s finding is contrary  to the view  taken by the  supreme court in the case of M.L. Vaikunthe v. state of Mysore, . The supreme court  has clearly  made a finding in that the case that to claim by an  officer for arrears of salary allowances  etc.,  Article  102 of the Limitation act applies. Following in this case of that he plaintiff claim for the above sum of Rs. 1,701-5-0 was barred by the Law of Limitation  act the date of the institution of the suit.  the claim was liable to be rejected in toto.\n<\/p>\n
  [36] The result is that the  appeal of the plaintiff,  being First appeal No. 244 of 1959,  is dismissed with  Costs.  The State Governments appeal,  being First Appeal No. 229 of 1959, is allowed without any orders as to costs. The decree of the lower court dismissing  the plaintiff suits  is accordingly confirmed.  The decree of the lower court in favour of the plaintiff in the sum  of Rs. 1, 701-5-0 and interest thereon  is reversed and set aside.  The suit  of the plaintiff is wholly  dismissed.\n<\/p>\n
 [37] Appeal dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Bombay High Court State Of Bombay vs Ganpat Dhondiba Sawant on 22 April, 1965 Equivalent citations: 1966 CriLJ 1239 Author: K Desai Bench: K Desai, Palekar JUDGMENT K.K. Desai, J. (1) These are two cross appeals by the plaintiff and the defendants against the judgment of and decree dated November 28, 1958, passed by the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[11,8],"tags":[],"class_list":["post-68118","post","type-post","status-publish","format-standard","hentry","category-bombay-high-court","category-high-court"],"yoast_head":"\nState Of Bombay vs Ganpat Dhondiba Sawant on 22 April, 1965 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-bombay-vs-ganpat-dhondiba-sawant-on-22-april-1965\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of Bombay vs Ganpat Dhondiba Sawant on 22 April, 1965 - 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