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Judgment
Barin Ghosh, C. J.
There is no dispute inter se the parties that there is a Police Regulation and clause (2) of Regulation 541 thereof provides as follows:
(2) In any case in which either during or at the end of the period of probation, the Superintendent of Police is of opinion that a recruit is unlikely to make a good police officer, he may dispense with his service. Before, however, this is done, the recruit must be supplied with specific complaints and grounds on which it is proposed to discharge him and, then, he should be called upon to show cause as to why he should not be discharged. The recruit must furnish his representation in writing and it will be duly considered by the Superintendent of Police before passing the orders of discharge.
While, during the probation of the respondent, his services were dispensed with; admittedly, before the same was done, respondent was not supplied with specific complaints and grounds on which it was proposed to discharge him, nor he was called upon to show cause as to why he should not be discharged and, accordingly, no occasion arose for the respondent to furnish his representation.
That was the basic reason for which the Tribunal has interfered with the order that was passed to dispense with the services of the respondent.
There is one more aspect of the matter, for which, certain facts are needed to be taken into account. In the order, dispensing with the services of the respondent, it was stated that, at the time when the said order was passed, respondent was a probationer for two months. It was alleged that, on the date mentioned in the said order, respondent was asked to discharge his duties at a place, but, leaving the place of his duty, respondent went to a house situated about 100 paces away from the place of his duty and molested / tried to molest a lady residing in the said house. It was also alleged that, in connection with the said incident, a First Information Report was lodged and, in course of investigation pursuant to the said First Information Report, respondent was arrested. Those were the allegations by which specific complaints and grounds, on which it was proposed to discharge the respondent, were highlighted in the order dispensing with the services of the respondent. The Tribunal noted that the investigation, pursuant to the First Information Report, resulted in filing of a charge-sheet, whereon, a charge was framed and the respondent was exonerated by the court of such charge.
In the present writ petition, the State is contending that, having regard to the facts and circumstances of the case as are admitted on record, the Tribunal erred in directing reinstatement of the respondent. The learned counsel for the respondent submitted that clause (2) of Regulation 541 of the Police Regulations has a statutory flavour and, admittedly, there was non-compliance of that part of clause (2) of Regulation 541, which mandated compliance of natural justice. It was submitted that, without giving a show cause and permitting the respondent to make a representation against the same, the power to dispense with the services of the respondent could not be exercised, inasmuch as, requirement to comply with the direction to issue a show cause and to consider the representation against such show cause is a pre-condition for exercise of power to dispense with services. The learned counsel further submitted that, in the body of the petition itself, the State has sought for an opportunity to deal with the matter departmentally. The learned counsel, accordingly, submitted that, in the circumstances, this Court should not interfere with the judgment of the Tribunal.
The allegations in the order dispensing with the services of the respondent were two fold; firstly, there was neglect on the part of the respondent in discharging his assigned duties as he left the place where he was to discharge his duties, and secondly, lodgment of a First Information Report by a private citizen against the respondent, a uniformed person, in respect of a crime of molestation, when, to protect society of, amongst others, such crimes, police personnel are engaged.
There cannot be any dispute that the order, dispensing with the services, did not record availability of any material, apart from the said First Information Report, to show that the respondent left his place of duty. However, the fact remains that such a First Information Report was lodged, as was alleged in the order dispensing with the services of the respondent, is not in dispute, inasmuch as, because of the said First Information Report, respondent faced trial. In the event, highlighting those two grounds as were indicated in the order dispensing with the services of the respondent, a show cause notice had been issued, respondent could not deny that such a First Information Report has been lodged. He could, however, have said that such First Information Report was lodged without there being any substance in the allegation contained therein. Later on, on conclusion of the trial, he could also establish that his contention that the First Information Report was a false report has been established. The fact, however, remains that the respondent, under no circumstances, can erase the fact of lodgment of the said First Information Report.
We have perused the First Information Report as well as the judgment rendered by the court, who exonerated the respondent of the charge that was framed on the basis of the investigation made pursuant to the First Information Report. The First Information Report was lodged by the husband of the lady, who was allegedly molested. In that, he had stated that what he is reporting has been gathered by him from the information supplied to him by his wife. In course of trial, he also repeated the same. In the circumstances, the person, who lodged the First Information Report, was not a witness to the incident as was alleged in the First Information Report. In order to prove the charge, the prosecution led evidence before the court through the lodger of the First Information Report and the alleged victim. The alleged victim, in course of her deposition, accepted the fact of molestation, but held out that she does not know the person, who molested her. She was, accordingly, declared hostile. In the circumstances, the charge against the respondent fell and he was exonerated.
The question is, in the background of the admitted facts as above, can it be said that, because the show cause was not given to the respondent entitling him to make a representation in respect thereof, the order dispensing with the services of the respondent could be interfered with? The purpose of giving a show cause is to enable the person, who has been shown cause, to give a representation against the show cause. As aforesaid, in the show cause, it was alleged that the First Information Report has been lodged against the respondent in respect of a crime as referred to above. At no stage, there was a denial of lodgment of such a First Information Report. Therefore, even if such a show cause was given, respondent could only hold out that the contents of the said First Information Report are untrue. The person, entitled to dispense with services, could not go into the question whether the contents of the said First Information Report were true or untrue. That could only be declared by the court and, as aforesaid, in the instant case at a later point of time, the court declared that the contents of the said First Information Report were untrue, inasmuch as, the victim could not say who molested her. It must be kept in mind that the power granted in clause (2) of Regulation 541 can be used during or at the end of the period of probation. Accordingly, the show cause as well as the representation in regard thereto must be had during or at the end of the period of probation. Whereas the First Information Report was lodged on 20th July, 2009, the judgment of the court was rendered on 26th August, 2010. The person entitled to dispense with the services of the respondent was, therefore, required to wait for over a year for the purpose of coming to the conclusion that the First Information Report against the respondent was unjustly recorded. In the meantime, the police department would have had to bear with the respondent at least for a period of one year, despite knowledge of the fact that there are allegations by a private citizen as regards the moral character of the respondent.
The criminal case, in the instant case, was decided within a period of almost one year from the date of lodgment of the First Information Report, which is something rare. Normally, these cases take much more than one year to conclude. In situations of this nature, the matter could not be kept in animated suspension for a long period of time. The obligation to give a show cause, in order to enable a representation to be given in respect thereof, is in relation to those matters, where the allegations are stemming out from the conduct of the person show caused and which conducts are within the knowledge of the person who is issuing the show cause, but not in relation to conduct which has been ascribed by a private citizen by filing a First Information Report.
In the circumstances, we find that, in the instant case, for non-issuance of a show cause and permitting the respondent to give a representation in respect thereof, the authority concerned was not bereft of power to dispense with the services of the respondent and, accordingly, the Tribunal ought not to have had interfered with the exercise of such power.
However, having regard to the prayer made in the writ petition to permit the State independently to enquire into the conducts highlighted in the order dispensing with the services of the respondent, we modify the order of the Tribunal by permitting the State to issue a show cause to the respondent, which must be issued within 30 days from today, to which a representation in writing must be given by the respondent within 30 days from the date of receipt thereof and, only thereafter, the authority mentioned in clause (2) of Regulation 541 of the Police Regulations shall exercise its power to dispense with the services of the respondent, if it so decides to exercise such power. But, while doing so, the order to be passed must disclose due consideration of the representation given by the respondent. Such power must be exercised within 30 days from the date of receipt of the representation of the respondent.
With the direction as above, we modify the judgment and order of the Tribunal and restore the order dispensing with the services of the respondent with the condition as above. We make it clear that, in the event, power to dispense with services is exercised in terms of the directions as above, the same shall relate back to the date of original order of dispensation with the services of the respondent; but, in the event, it is decided not to dispense with the services of the respondent and, accordingly, such power is not exercised in terms of the directions as above, it must be deemed that, by the order to be passed, the original order dispensing with the services of the respondent stands withdrawn. The writ petition is disposed of with the directions as above.