Hisamuddin Abdul Rahim Kazi v. State of Maharashtra

15TH JULY 2005 DATE OF PRONOUNCING THE JUDGMENT: 12TH AUGUST 2005 JUDGMENT : (Per H.L. Gokhale, J.) JUDGMENT JUDGMENT - 2 -

The Petitioner herein is a Sub-Inspector of Police who joined the services of State of Maharashtra way back on 1st March 1967 and has been ordered to be compulsorily retired by an order dated 4th June 1987 passed by the Commissioner of Police, Mumbai after holding a departmental enquiry involving misconduct. The Petitioner preferred an internal Appeal to the State Government, but the same was dismissed on 18th December

1989. He filed an Application to the Maharashtra Administrative Tribunal. The same also came to be dismissed on 19th May 1999. He seeks to challenge all those orders and seeks reinstatement with full back wages.

The Respondents to this petition are (1) State of Maharashtra (2) Deputy Commissioner of Police, who conducted the enquiry (3) Commissioner of Police who passed the order of punishment (4) Director General of Police (5) Home Minister (6) Joint Secretary, Home Department (7) Chief Secretary, Home Department, (8) Secretary, Home Department and (9) Deputy Secretary, Home Department.

The short facts leading to this petition are as follows:- . A Motor Lorry bearing No.MHO-1778 laden with smuggled goods was detained at the Lower Gate of Raj - 3 - Bhavan, Malabar Hill, Mumbai by Sub-Inspector of SRP one Shri Jaisingrao Chavan on the night of 21st October

1984. The complaint of this Shri Chavan is the basis of the proceeding against the Petitioner. Shri Chavan in his complaint states that on that day he along with one Shri Hollar as usual left the Upper Gate of Raj Bhavan on the night round patrol at about 9.00 p.m. When they walked down the lower drive towards the Lower Gate, they noticed one big branch of a tree fallen on the road. When they approached the tree, they saw one person standing nearby who was later on identified as one Shri Keshav Bhosale of P.W.D. and he stated that he would be removing the tree. He made a signal by hand to someone to come up from the seashore side and one person emerged who was later on identified as one Shri Sabnis, a Superintendent working in the Raj Bhavan. When this Shri Sabnis was asked as to what was he doing there, Shri Sabnis hurried towards the Lower Gate. When Shri Chavan and Shri Hollar followed him, they saw a motor lorry near the Lower Gate with some persons running away. Shri Sabnis started running after the lorry and Shri Chavan and Shri Hollar started running after him. Shri Chavan later on stopped Shri Sabnis and asked as to

why he was running. Shri Sabnis stated that the lorry was containing the blankets for distributing them to the riot affected people in Bhiwandi. Shri Chavan then shouted at the people near the Lower Gate and one Shri Pawar and other constables stopped the lorry, but the - 4 - persons in charge of the lorry managed to run away in the darkness. Shri Pawar detained Shri Sabnis, who started imploring that he may be allowed to go. Shri Chavan asked Shri Pawar to take Shri Sabnis into the guard-room and asked him to keep an eye on Shri Sabnis. Shri Chavan thereafter tried to contact the Sub-Inspector, in-charge of the Upper Gate, one Shri Prabhu and also caused a phone call to be made to the Gamdevi Police Station.

At about 11.15 p.m., the Petitioner along with one Shri Sopan Dinkar Walhekar (Head Constable No.12722), Shri Vivek Shantaram Salekar (P.C. No.22507) and Shri Kisan Laxman Patil (Motor Driver No.17550), all attached to the Gamdevi Police Station, arrived on the scene. On Shri Chavan informing him about the incident, the Petitioner boarded the lorry by taking the torch from Shri Chavan and saw inside as to what was being carried in it. Two policemen with him also went inside and opened one of the packages, from which a couple of packages of 10" x 8" were taken out. The Petitioner stated that they were containing wrist watches. On being asked as to why he was carrying the packages, he stated that they were required for drawing a panchanama. After a few minutes, the Petitioner along with the driver and two constables left the Lower Gate in their jeep. - 5 -

Later on, Shri Prabhu, the Sub-Inspector in-charge of the Upper Gate arrived on the spot and asked Shri Chavan to allow Shri Sabnis to go and then took him outside the gate and again brought him back. The Petitioner and his team came back after about half an hour and later on left the place for informing the ACP and DCP. After the Petitioner went out, Shri Prabhu again requested Shri Chavan to allow Shri Sabnis to go and on his own took him outside to a parked taxi without telling Shri Chavan anything. The Petitioner and his staff returned at about 2.00 a.m. and stated that the matter was being reported to the Custom Authorities. He then told his policemen that if anybody wanted wrist watches, they may take out from the lorry before the Custom Authorities arrived. Some of the packages were removed from the lorry and thrown into the bushes in the dark. This was done by the Petitioner and Shri Prabhu in spite of Shri Chavan objecting to this. There was a verbal exchange between them. After sometime, Shri Prabhu allowed Shri Sabnis to leave the place in a taxi. Shri Prabhu himself went towards the Raj Bhavan and did not return.

At about 3.15 a.m., the Custom Officers came and inquired as to what had happened. Shri Chavan states in his complaint that the Petitioner and Shri Prabhu frightened him saying that if he disclosed anything about the concealed goods or about the release of Shri - 6 - Sabnis, it would not only harm Shri Sabnis and themselves but also it would cause severe harm to Shri Chavan and hence he kept quiet. The Custom Officers seized the contraband found in the lorry. The Petitioner drew the panchanama and Shri Prabhu helped him. On the next day, i.e. on 21st October 1984, the statement of Shri Chavan was taken by the Custom Authorities, wherein he stated what had happened except detention of Shri Sabnis and his release as also the concealment of the packages in the bushes. It is his case that he did not disclose the full facts due to the pressure of the Petitioner. However, later on he received a summons from them and on 25th October 1984 he disclosed the entire episode implicating Shri Sabnis, the Petitioner and Shri Prabhu and as to how they concealed a few packages in the bushes.

It is material to note that in between, i.e. on 23rd October 1984, a search was carried out in the bushes near the Lower Gate of Raj Bhavan and a few packages containing wrist watches were recovered. On 6th November 1984, the Petitioner and others were arrested though released on bail on the same day. On 13th November 1984, he was suspended from service. On 22nd November 1984, the Petitioner was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (COFEPOSA), but was later on released by the Advisory Board on 17th April 1985. 8. - 7 - Before starting the full-fledged departmental enquiry, a preliminary investigation was done by the officers of the State Government wherein statements of all concerned were recorded before ACP Shri Khot. The Petitioner’s statement was recorded on 29th October 1985. In para 14 of his statement, he stated that he had been falsely implicated by Shri Chavan and Shri Hollar of SRP. He alleged that the seized lorry was in their custody and the SRP had used the time and opportunity to remove the wrist watches by opening the packages.

Thus, from this above narration, it is clear that a lorry laden with certain articles was detained at the Lower Gate of the Raj Bhavan on the night of 21st October 1984; and that one Shri Sabnis, Superintendent from Raj Bhavan was connected with this happening. Shri - 9 - Pawar, the SRP constable from the Lower Gate stated in the preliminary statement that Shri Sabnis had instructed him to allow the lorry to come in. It is also clear that the Petitioner was the first person from the concerned police station along with his constables to visit the site. He came to know about the incident from the Complainant Shri Chavan and he had also seen Shri Sabnis detained over there. Yet it becomes clear that he and his men left the site for allegedly contacting the superiors. As far as some packages from the lorry being removed is concerned, that is not disputed by the Petitioner. He also does not dispute that they were so recovered in the combing operation on the next day. He however denied that he has done any such thing and alleged that this is done by the SRP persons. What is material to note is that this statement is being made by the Petitioner making such an allegation for the first time when his preliminary statement was recorded on 29th October 1985. If Shri Chavan and SRP personnel were the culprits, one fails to see as to why the Petitioner did not lodge any complaint against them. As against that, the fact remains that the Complainant Shri Chavan did not implicate anybody on the date of the incident, but on 25th October 1984, i.e. just 3 days thereafter he made a clean breast of whatever had happened. He also stated that he had been threatened by the Petitioner and Shri Prabhu and therefore he had not stated the full facts correctly - 10 - earlier. Thus, what we find is that the statement of the Complainant involving the Petitioner, Shri Prabhu and Shri Sabnis is made within 3 days of the incident, whereas the explanation of the Petitioner has come more than one year thereafter.

After the preliminary investigation, the Commissioner of Police decided to hold a full-fledged enquiry against the Petitioner, Shri Prabhu - the other Sub-Inspector involved in the case and the 3 constables. The statements of Shri Chavan, Shri Hollar, Shri Pawar and other witnesses of the department were recorded. The Petitioner was given an opportunity to cross-examine all witnesses. As far as the statement of the Complainant Shri Chavan is concerned, we hardly find any cross-examination by the Petitioner. In his deposition, Shri Chavan has stated that when the Petitioner and his constables arrived at the place where the lorry was detained, he told him about the incident narrated earlier in the statement. There is no cross-examination on this statement. Shri Chavan further states that Shri Pawar and Shri Kokate of SRP told him that Shri Sabnis had accompanied the lorry when it came there in the Raj Bhavan Campus at 9.45 p.m. Shri Chavan further states that at that time he pointed out Shri Sabnis to the Petitioner and requested him to see what lorry contained and take charge of everything for enquiries. Thereafter Shri Chavan stated as follows:- - 11 - "At that time, S.I. Kazi took torch from me and stood on the wooded rear plank of the lorry as it was covered lorry and saw inside with a torch light. He also took the assistance of two policemen in plain clothes who had come with him. Policemen had entered inside out opened one of the package from which the packages of 10" x 8" size were taken out by them and given to S.I. Kazi, who then got down. I asked S.I. Kazi as to what was inside the lorry. He told me that those were the wrist watches and packages from the lorry also contained the same. I then asked S.I. Kazi as to where he was carrying the two packets. He told me that those packets were required for samples for drawing a panchanama at the Police Station and for taking charge of. Just before that also, I had told him when they started opening the packages from the lorry not to do so when Shri Kazi told me that he wanted to see for that it was to be opened. Then, within 5 minutes i.e. at about

11.20 p.m., S.I. Kazi along with driver and those two policemen left the lower gate in a jeep saying that he would go to police station, show the same to the P.I. on duty and come back taking further instructions. " - 12 - There is no cross-examination of Shri Chavan on all these statements.

Later on, Shri Chavan has stated in his deposition that the Petitioner and Shri Prabhu told their men to remove the packages before the Custom people arrive and later on they threw them into the bushes. He has also mentioned that heated arguments took place between them and has used the exact words exchanged. There is no cross-examination on this aspect. Subsequently, it is also stated that when the Custom Officers arrived, the Petitioner and Shri Prabhu frightened him saying that if he would disclose anything about the concealed goods or about the release of Shri Sabnis, it would not only harm Shri Sabnis and themselves, but would also cause severe harm to Shri Chavan and hence he kept quiet helplessly. There is no cross-examination on this statement also.

The charges that were levelled against the Petitioner were as follows:- CHARGE " CHARGE CHARGE . Remiss and perverse conduct in that you P.S.I. H.A.R. Kazi while attached to Gamdevi Police Station and while on Station House Duty from 6.00 p.m. on 21-10-1984 to 8.00 a.m. on 22-10-1984 jointly or - 13 - severally did commit the following defaults:- a) Failed to keep clear and proper record of your movements at Gamdevi Police Station. b) In dereliction of duty tampered with the smuggled goods from motor lorry No.MHO-1778 instead of protecting the same before the arrival of custom staff on the spot at lower Gate, Raj Bhavan by removing part of the smuggled goods from motor lorry No.MHO-1778 through the policemen who had accompanied you and P.S.I. V.L. Prabhu by directing them to take out the packages containing smuggled watches and watch movement parts for themselves and get the same removed. These items were subsequently recovered from open places by the side of lower Gate by the Crime Branch Police staff. c) Failed to detain D.A. Sabnis, Suptd. Raj Bhavan even though he was involved and concerned in the disposal of smuggled watches and watch movement parts in the motor lorry No.MHO-1778 detained on that night at the lower Gate by the S.R.P. staff and thus failed to take legal action against him. d) Failed to make any report to superiors about the involvement in the said smuggling activities of K.A. Sabnis, Suptd., Raj Bhavan. - 14 - e) Failed to maintain absolute integrity and devotion to dutyas Police Officer and abused and neglected the S.R.P. staff who took objection to your misconduct. "

After the enquiry, the then Police Commissioner, Shri S.D. Soman came to the conclusion that except for part of Charges (a) and (e), the other charges were established. He, therefore, issued a Show Cause Notice to the petitioner as to why he should not be dismissed. The Petitioner filed his reply. By the time, the reply was considered, there was change of guard and Shri V.K. Saraf became the Police Commissioner. By his order passed on 4th June 1987, he directed the Petitioner to be compulsorily retired.

The Petitioner thereafter preferred an Appeal to the State Government, but the same came to be dismissed on 18th December 1989. The Petitioner preferred an Application to the Administrative Tribunal. That also came to be dismissed. Hence, the present Petition.

Shri Adenwala, learned counsel appearing for the Petitioner, principally advanced three submissions before us. Firstly, that there was violation of principles of natural justice inasmuch as some of the documents, which he had sought during the enquiry, were not furnished to him. Secondly, that in any case, on - 15 - the basis of the material on record, the misconduct had not been established and thirdly, that the Appellate Order was bad inasmuch as it was not a speaking order giving reasons. The first grievance of Shri Adenwala was that the Petitioner had applied for furnishing the copies of the statements made by Shri Jaisingrao Chavan before the Custom Authorities on the second occasion and the same were not furnished to him. His submission was that Shri Chavan had initially not stated anything against the Petitioner, but later on he is supposed to have made an adverse statement. The Petitioner wanted to ascertain as to what were the contents of that statement and to confront Shri Chavan with his statement. It was submitted that by not providing these documents, principles of natural justice have been violated.

Reliance was placed on the judgment of the Constitution Bench of the Apex Court in State of Madhya State of Madhya State of Madhya Pradesh v. Chintaman Sadashiva Waishampayan - AIR 1961 Pradesh v. Chintaman Sadashiva Waishampayan - AIR 1961 Pradesh v. Chintaman Sadashiva Waishampayan - AIR 1961 SC 1623 SC 1623. The Respondent in that matter, who was a SC 1623 Police Officer, was dismissed from service on certain charges. The High court of Madhya Pradesh had quashed the order of dismissal on the ground that the statements of witnesses recorded in the preliminary enquiry were not supplied to the concerned officer and he could not effectively cross-examine the witnesses. The Apex Court relied upon the observation of Venkatarama Aiyar J. in - 16 - Union of India v. T.R. Varma - AIR 1957 SC the case of Union of India v. T.R. Varma - AIR 1957 SC Union of India v. T.R. Varma - AIR 1957 SC 832832832 that broadly speaking it may be observed that rules of natural justice require that the party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross-examining the witnesses examined by that party, and that no material should be relied upon against him without his being given an opportunity of explaining them.

In the present case, it is however clear that as far as the statement made by Shri Chavan before the Custom Authorities is concerned, the Police Authorities did not rely upon the same against the Petitioner. It is true that they did not produce the statement when called upon by the Petitioner, but they informed him in writing by a letter dated 22nd July 1986 that those documents do not form part of the evidence relied upon in the departmental enquiry against the Petitioner nor does the Enquiry Officer has any direct access on them.

That apart, from the narration of the facts above, it is clear that the Petitioner did know that Shri Chavan gave one statement to the Customer Officers on the date of the incident and another after 3-4 days. He is fully aware that in the second statement given on 25th October 1984, Shri Chavan implicated the - 17 - Petitioner. This is clear from the preliminary statement of the Petitioner referred to earlier and which was recorded on 29th October 1985. Shri Chavan has stated in his deposition in the enquiry that on the date of the incident, he was threatened by the Petitioner and Shri Prabhu, the other Sub-Inspector involved in the case, that the consequence will not be restricted only to them, but he will also suffer therefrom. He has stated that he was frightened and, therefore, on the date of the incident he did not give any particulars. However, later on, after 3 days when he gave his statement on 25th October 1984, he made a clean-breast of all the facts. In the departmental enquiry, Shri Chavan has accepted that on the earlier occasion he had not stated the correct position since he was under pressure. He has reiterated all these facts in his deposition in the departmental enquiry. Thus, the fact remains that Shri Chavan did make one statement earlier and retracted it three days later. However, this was way back in the year 1984. This is known to the Petitioner as can be seen from his preliminary statement. Thus, it cannot be said that any prejudice has been caused to him by not supplying any statement which was made by Shri Chavan on the second occasion before the Custom Officer. Even on the deposition, which was made during the departmental enquiry by Shri Chavan, there is hardly any cross-examination by the Petitioner. It has been laid down by the Apex Court in - 18 - State Bank of Patiala v. S.K. Sharma - (1996) 3 SCC State Bank of Patiala v. S.K. Sharma - (1996) 3 SCC State Bank of Patiala v. S.K. Sharma - (1996) 3 SCC 364364364 that it is for the delinquent to point out as to how each and every document was relevant to the charges or to the enquiry being held against him and whether and how non-supply will prejudice his case. This position State of Tamilnadu v. Thiru K.V. has been reiterated in State of Tamilnadu v. Thiru K.V. State of Tamilnadu v. Thiru K.V.