M.P.Thakkar:-

(1) New situations pose new challenges and demand new answers. Such a situation has arisen in the present petition by a dismissed govt. Servant which has thrown up a very vital question namely : can an employee satisfactorily explain whether he had a good and sufficient cause for reporting late on a particular day one and a hellfires ago and show cause for the lapse ? would or would not the delay of one and half years to initiate disciplinary proceedings by itself constitute denial of reasonable opportunity to defend and thus violate principles of natural justice ?

(2) On the allegation that on one occasion the petitioner a police constable had remained absent in the morning parade and on some other occasions he was found absent when roll call was taken during the course of one month between november is 1971 and december 15 1971 departmental proceeding were initiated against tale said constable about 1 1/2 years thereafter by a chargesheet dated may 18 1973 at the conclusion of the departmental proceedings the petitioner was removed from service by an order passed shri y. B. Jhala district superintendent of police mehsana as per annexure f dated october 31 1973 the appeal and revision preferred to the higher authorities having failed petitioner has approached this court by way of the present petition under article 226 of the constitution of india and has challenged the impugned order of removal from service on the following grounds :

(a) institution of disciplinary proceedings after an inordinate delay of about 1 1/2 years in the contest of the charge as regards failure to attend a parade or to answer a roll call in itself constitutes denial of principles of natural justice inasmuch as it would not be possible to dig out from the store of memory the cause for the failure and to explain and justify the failure.

(b) even though a definite allegation of bias was in terms made against shri jhala (opponent no. 1 herein) in the written statement filed by the petitioner shri jhala had proceeded to record a finding of guilt and to impose the penalty of removal from service without even dealing with the allegation made by him and that even the averment made in the petition in this behalf had remained uncontroverted on the part of her. Jhala;

(c) the impugned order has been passed in vioiation of principles of natural justice as also in disregard of the requirements of the relevant rules without considering any evidence and without even taking note if the defence raised by the petitioner. The order under the circumstances betrays lack on application of mind and being violative of the requirements of principles of natural justice is rendered void and

(d) the disciplinary has not taken into account the relevant departmental instructions in regard to the imposition of penalty contained in the bombay police manual in re. Ground a.

(3) It is an admitted position that the alleged absence from parade occurred on november 15 1971 and the alleged absence at the time of taking roil call actuated on some occasion between november 15 1971 and december 15 1971 that is to say during the course of eye month in 1971. It is also not in dispute that charge sheet in this behalf was served for the first time on may 18 1973 that is to say about 1 1/2 years after the aforesaid lapses are said to have occured. Th learned counsel for the petitioner has argued that this inordinate delay be itself constitutes denial of reasonable opportunity to defend inasmuch as after 1 1/2 years it would be humanly impossible for any one with average memory and recollection to explain under what circumstances he was under to attend the parade or to remain present at the time then roll call was tackle. The allegation appears to be that at the position of time of roll call the petitioner was not found present. It does not clean that he had not turned up at all. It means that be had turned top late. It is not possible for any one after a lapse of 1 1/2 years to explain under what circumstances he was late or unable to attend the parade or had remained present at the tire of the taken of the roll call. No doubt in the police force the authorities would be justified in expecting strict discipline from the police constables. Even so it cannot be overlooked that they are human beings. Nor can it be overlooked that they may have good grounds for not being able to report for the parade or roll call at the stroke of the hour. One can conceive of several reasons. May be he was indisposed. May be there was some unexpected occurrence in the family. May be something occurred on his way to the parade ground which held him up. A mere lapse in regard to such a small matter by itself regardless of the underlying cause for the lapse cannot constitute negligence or dereliction from duty. A police constable must be given an opportunity to effectively explain the circumstances in which the lapse occurred in order to satisfy the disciplinary authority that the lapse was neither intentional or deliberate nor on account of indifference or negligence but was occasioned by circumstances beyond his control. If he can satisfy the disciplinary authority on this point the charge cannot be established. Can he however at all offer a satisfactory explanation on the basis of his memory when the charge is leveled one and half years after the occurrence ? having regard to the very nature and content of the charge a delay of about 1 1/2 years must be considered fatal from the point of view of affording reasonable opportunity to the constable concerned to show cause against the charge leveled against him. It would be asking for the impossible to expect the constable concerned to explain satisfactorily the reason which occasioned the delay in reporting for duty. If the charge or accusation had been leveled very soon after the lapse the constable concerned could have rendered an appropriate explanation regardless of whether it was or was not considered satisfactory by the competent authority. Not having done so for more than 1 1/2 years after the occurrence the constable cannot be penalized for not being able to show cause to the satisfaction of the disciplinary authority. Under the circumstances the very delay in initiating proceedings must be held to constitute a denial of reasonable opportunity to defend himself for one cannot reasonably expect an employee to have a computer like memory or to maintain a day to day diary in which every small matter is meticulously recorded in anticipation of future eventualities of which he cannot have a provision. Nor can he be expected to adduce evidence to establish his innocence for after inordinate delay he would not recall the identity of the witness who could support him. Delay by itself therefore will constitute denial of reasonable opportunity to show cause. This would amount to violation of principles of natural justice and the impugned order must be struck down on this ground alone. In re. Ground d.

(4) Counsel for the petitioner has submitted that instructions had been issued in regard to imposition of punishment on police constables who were found guilty of any fault. These instructions are contained in the bombay police manual 1959 vol. I paragraph 449 of the manual at pages 403 and 404 which deserves to be quoted : -

"449 suitability of punishments. - (1) suitability of a punishment should be carefully considered. Punishment should fit the default be sufficiently deterrent without being harsh and above all prompt in its application i. E. Immediately felt.

(2) they should not be erratic and unjustifiable. Petty and trival defaults committed by policemen should not be met with severe punishment. For instance a constable who has a clean record and earned two or three rewards for good work should not be punished with extra drill for attending parade or some miscellaneous duty late by a few minutes. An officer should not ordinarily resort to extra drill or proceedings unless the delinquent has been cautioned warned and reprimanded.

(3) the best method of correcting a policemen is to inflict upon him all types of departmental punishments increasing their intensity step by step. If minor punishments such as reprimand extra drill etc. Have no effect on a delinquent a major punishment such as reduction in pay is called for. If however even this has no effect on him then he must be removed from service. Removing a man from service without first awarding him senior punishments and lastly a major punishment will mean that proper steps were not taken to correct him in time and make him a useful member of the force. The degree of seventy of punishment should depend upon the seriousness of the default and incorrigibility of the man and should aim as for as circumstances permit at improving and giving a chance to delinquents concerned.

(4) stop page of an increment not due for several months would not be a suitable punishment in a majority of cases since it would not come into operation until the default has become a thing of the past and so night seem unreasonable and unjust at the time of its incidence.

(5) in inflicting punishment the general character of the officer affected and his past service should be taken into consideration. Removal from service for instance in the case of a police officer of indifferent character with one or two years service is scarcely a punishment where as to a police officer of 15 or more years service and good character it means ruin

(6) it is not correct to convict and punish a police officer. However high of low merely on suspicion or insufficient evidence. The procedure should be quasijudicial. If an offence is proved beyond doubt and it happens to be serious obviously a several penalty is called for but on the other hand if an offence is not proved and the papers demand that benefit of doubt must be given to the delinquent officers should state their opinion clearly and acquit the delinquent of the charges levelled against him. Xx xx xx xx.

It was incumbent on the disciplinary authority to take into account these instructions and to impose the punishment in the light of these instructions. It was not open to him to follow these instructions in the case of one and to disregard the same in the case of others. He was bound to take into account these instructions in regard to the question of penalty whenever the occasion arose. The impugned order passed by him which has been quoted verbatim hereinabove shows that the competent authority has not applied his and at all to this aspect. He has not given any reasons for imposing the maximum penalty of removal from service which could result in the petitioner losing his source of livelihood and render his entire family destitute. This is another ground on which the impugned order must be struck down.

(5) In the result the petition succeeds. The impugned order of 5removal and set aside as being null and void on the ground of being violative of principles of natural justice and on the aforesaid grounds.

(6) Along with this order the appellate and the revisional orders as per annexures i j and k must also be quashed and set aside.

(7) It is declared that the petitioner continues in service. The petitioner shall be given a posting on or before october 3 1978 he shall also be paid all the back wages including increments due to him till the date of his reinstatement latest be october 20 1978

(8) The petition is allowed. Rule is made absolute to the aforesaid extent with costs.

(9) The learned assistant government pleader is directed to communicate the order to the department specifying the lime limit for compliance so that the directions issued by the court are complied with in time. Petition allowed.