K.R. Vyas, J.@mdashThe petitioner by way of this petition has prayed for quashing and setting aside the order of compulsory retirement passed by the respondents against her and for a direction to reinstate her in service with full back wages.
2. The petitioner was working as a Lady Police Constable at Adipur Police Station. It appears that an incident took place on 16-6-1989 between the petitioner and her nephew''s wife wherein it was alleged that the petitioner addressed her as "Dhedi" for which a criminal case being Criminal Case No. 3606 of 1989 was filed against the petitioner for having committed offences punishable under Sections 506(2) and 114 of the Indian Penal Code and Sections 3 and 7 of the Protection of Civil Rights Act. Pursuant to the aforesaid criminal proceedings, the petitioner was suspended by an order dated 1-7-1989 with effect from 21-6-1989. The petitioner was acquitted in the said criminal case by the learned Judicial Magistrate, First Class, vide his judgment and order dated 11th March 1991. However, on 3-5-1991, a charge-sheet was issued against the petitioner with respect to the said incident which took place between her and her nephew''s wife. The said charge-sheet contained the following allegations:
Charge Sheet:
Lady Police Constable Shakuntala Nanakram Buckle No. 1089 at present serving at Bhachau Police Station, during the year 1989 while she was posted at Adipur Police Station, improperly and indisciplinable behaved, that is:
(1) One Shri Mukesh, the nephew of Lady P.C. Shakuntala Nanakram performed love marriage with a lady, namely, Bharti for which Shakuntala Nanakram alleging her to be from Scheduled Caste community and calling her as "Dhedi" by this way she hooted out her and tortured her to take the divorce from Mukesh. But Bharti did not come under her influence, therefore, on 15-6-1989 at 18-45 hrs. at Adipur, she threatened to kill her and by that she improperly behaved.
(2) Adipur Police Station instituted legal action against the lady Police Constable Shakuntala Nanakram for alleged threat against which in the afternoon of 21-6-1989 she uttered abusive words to the different Police Officers at Adipur and behaved in indisciplined manner.
3. It appears that the petitioner had not participated at the inquiry though number of opportunities were given to her and for one or the other reason, she sought adjournments of the case. Therefore, the Inquiry Officer recorded the statements of the eye-witnesses and after considering the same and the material on record, recorded a finding that the charges are duly established against the petitioner. The District Superintendent of Police vide his order dated 9-2-1992, while accepting the inquiry report, passed an order of compulsory retirement of the petitioner from the services of the Police Department effective from the date of the service of the said order and the period of suspension from 1-7-1989 to 23-7-1990 was ordered to be treated as the period under suspension.
4. The petitioner thereafter preferred an appeal to the Deputy Inspector General of Police on 21-2-1992 who rejected the same on 22-12-1992. The petitioner also preferred a Revision Application before the Director General of Police which also came to be rejected on 24-6-1993. It appears that against the said order, the petitioner approached This Court by way of petition being Special Civil Application No. 11089 of 1993. This Court (Coram: N.J. Pandya, J.) vide its order dated 22nd March 1994 directed the petitioner to file an application u/s 27-A of the Bombay Police Act and the State Government was directed to consider the said application sympathetically bearing in mind the request for continuing the petitioner in service without back wages but with continuity of service and notional benefit. However, the Deputy Secretary, Home Department, on 4-2-1995 rejected the said revision application filed by the petitioner under the provisions of Section 27-A of the Bombay Police Act. Having failed at all stages, the petitioner has approached This Court for the reliefs stated hereinabove.
5. Mrs. Sangita Pahwa, learned Advocate, who was requested by This Court to act as amicus curiae and assist the cause of the petitioner, has submitted that as far as charge No. 1 is concerned, assuming that the same is proved, it can at best be considered as a family quarrel which has nothing to do with the performance of the duties of the petitioner with the police department and, in any case, since the petitioner has been acquitted in the criminal trial with respect to the same allegations which are made in Charge No. 1, the respondent-authorities were not at all justified in imposing the punishment of compulsory retirement upon the petitioner who has put in almost 23 years of service. As far as Charge No. 2 is concerned, Mrs. Pahwa submitted that even though the petitioner behaved in an indecent manner with the police officers when she was arrested and taken to the Court, in view of the incident which took place between the two members of the same family, the respondent-authorities ought not to have imposed such a harsh punishment of compulsory retirement. Mrs. Pahwa, therefore, submitted that considering the fact that the petitioner has put in long service as a Lady Police Constable, even if the charges are proved, some lesser punishment would meet the ends of justice.
6. Mr. Bambhania, learned Government Solicitor appearing for the respondents has submitted that This Court, while exercising powers under Article 226 of the Constitution of India, ought not to interfere in the matter especially when all the authorities have considered the material on record and found the charges duly proved, the punishment imposed upon the petitioner is quite proportionate to the misconduct committed by her.
7. Having gone through the inquiry report and the orders passed by the respondent authorities, it is clear that the Inquiry Officer has recorded the statements of Savitaben Jeramdas Jadwani, sister of the petitioner and Smt. Bhartiben Mukesh, the wife of the nephew of the petitioner, who have deposed against the petitioner about the incident which took place on 16-6-1989. These witnesses have been examined to prove Charge No. 1. The other three witnesses, who have been examined are Shri V.D. Gohil, P.S.I., Task Force Branch, Jamnagar, Shri C.G. Vyas, Reader P.I. to the Dy. Inspector General of Police, Rajkot and Shri K.N. Solanki, Reader P.S.I. office of the District Superintendent of Police, Kutch-Bhuj. They have been examined to prove Charge No. 2 about the allegations made about the indecent behaviour of the petitioner with the police officers.
8. I must frankly state that This Court has absolutely limited powers to reappreciate the evidence and to record a finding different from the one recorded by the authorities since This Court is not sitting in appeal over the decision of the appellate authority in a petition under 226 and 227 of the Constitution of India. The authorities in the instant case have held the charges having been proved on facts after appreciating the evidence on record. It is true that the charges levelled against the petitioner are proved but then the question that arises for consideration is whether the act committed by the petitioner constitutes a misconduct attracting the punishment of compulsory retirement.
9. As far as Charge No. 1 is concerned, it is alleged that the petitioner behaved in an indisciplined manner. The next question that arises for consideration is whether the misconduct of the petitioner has any connection in order to provide linkage between the alleged act of misconduct and the employment. On minute scrutiny of Charge No. 1, it reveals that Mukesh - the nephew of the petitioner performed love marriage with Bharti of Scheduled Caste community to whom the petitioner was addressing as "Dhedi" and thereby she hooted out her and tortured her to take divorce from Mukesh. However, as Bharti did not come under the influence of the petitioner, on 15-6-1989 the petitioner threatened Bharti to kill her. This was treated by the department as improper behaviour on the part of the petitioner. It is really a matter of surprise that this act of the petitioner has been treated by the department as improper behaviour. Such quarrels do take place in families. In such quarrels, when excitement is too high, persons do abuse by branding others as devils, animals and so on and so forth. Everything would calm down after their quarrel is over. It is a matter of common knowledge that persons do repent also for their behaviour and the use of words uttered in the heat of moment during quarrel. The petitioner called Bharti as "Dhedi". It at best can be described as an outburst of the petitioner in the family property dispute and nothing more in any case. This being a private quarrel and has no connection with the employment of the petitioner I am quite conscious of the fact that the petitioner was a Lady Police Constable and was expected to restrain herself from indulging herself into any offence, even if she was not on duty. However, at the same time, one cannot ignore the hard reality of life that an officer, irrespective of the duties he/she has to perform, is also a human being and is bound to have his likings and dislikings and is bound to involve himself/ herself in dispute and the petitioner is not an exception. Reading the evidence and record, it appears that in respect of the private quarrel which took place between the petitioner and her sister Savitri and Bharti, wife of the nephew of the petitioner, wherein she addressed Bharti as "Dhedi" and told her to take divorce from Mukesh otherwise she was threatened to put her on flame. Thus, it was a case of a private family dispute. The petitioner could have avoided this untoward incident if she had restrained herself. In any case, a complaint was registered against the petitioner and as the facts reveal she has been acquitted and after her acquittal with respect to the same incident the present inquiry was held against the petitioner. Taking the case on its face value, I am of the opinion that the petitioner had become the victim of circumstances. She could have avoided the incident being a Police Constable. However, her involvement in the incident in question is not such which would amount to any misconduct or an act not becoming of a police officer much less a behaviour of improper nature. This is particularly in view of the fact that the incident in question had taken place at the residence of the petitioner arising out of a family problem. It had merely a casual and remote connection with the employment of the petitioner and for that extreme penalty of compulsory retirement is totally uncalled for. In view of this finding, the punishment imposed by way of compulsory retirement under Rule 3(1)(a-1) of the Bombay Police (Punishment & Appeals) Rules, 1958 is not warranted.
10. As far as Charge No. 2 against the petitioner is concerned wherein it is alleged that when a legal action was instituted by Adipur Police Station with respect to the alleged incident as per the allegations contained in Charge No. 2, the petitioner uttered abusive words to the different police officers of Adipur Police Station and behaved in an indisciplined manner. Reading the evidence of the witnesses examined by the department, it appears that on 21-6-1989 the petitioner was arrested in connection with the incident in question by a lady P.S.I. Triveniben and lady Head Constable Rajiben and when she was asked to sit in the police jeep, she refused to do so and when all persuasions failed, the petitioner tried to take off her clothes; the police party controlled the situation and threw her in the police jeep and she was brought to the Court, she refused to be released on bail and when she was being sent to the police custody by the Magistrate, in the Court compound she started dancing and singing song "Chal Udja Re Panchhi...." Taking the entire incident to be true, only conclusion that can be drawn is that the unfortunate incident happened out of desperation and frustration on the part of the petitioner. Although the petitioner was working in the police department for more than 23 years and has not obtained any promotion, the arrest was effected for an incident for which, according to the petitioner, she was not responsible. As the evidence reveals, the petitioner did not abuse the police officers and she merely refused to board the jeep car; tried to take off her clothes and refused to be released on bail and when she was being sent to the police custody, she started dancing and singing song. These are the facts and even if they are held to be acts of indiscipline, they do not warrant the extreme penalty of compulsory retirement. Therefore, the extreme penalty for the proved Charge No. 2 is quite disproportionate. Rule 3(2) of the Bombay Police (Punishment & Appeals) Rules provides minor punishments which can be imposed upon a police officer, if found guilty of any breach of discipline or misconduct or of any act rendering him/her unfit for the discharge of his/her duty which does not require his/her suspension or dismissal or removal but which includes caution, a reprimand (to be entered in the service book), extra drill, fine not exceeding one month''s pay and stoppage of increment. In my view, since the case of the petitioner being Charge No. 2 proved, falls within Rule 3(2), the maximum punishment that can be imposed is by way of stoppage of increment.
11. In the result, this petition is partly allowed. The impugned order dated 9-2-1992 of compulsory retirement passed against the petitioner and as confirmed vide order dated 4-2-1995 is quashed and set aside and the matter is remanded to the Disciplinary Authority for imposing any of the punishments as enumerated in Rule 3(2) of the Bombay Police (Punishment and Appeals) Rules. The Disciplinary Authority shall decide the question within four weeks from the date of receipt of this order. The suspension of the petitioner from 1-7-1989 to 23-7-1990 is also declared illegal and bad.
12. Consequently, the respondents are directed to reinstate the petitioner on her original post with continuity of service and full back wages, and by way of punishment for other charge proved against her, the Disciplinary Authority shall decide the question of imposing any one of the punishments as stated above. The respondents are directed to pay back wages and other consequential benefits within four weeks from the date of the passing of the order by the Disciplinary Authority imposing punishment on the petitioner as stated above. Rule is made absolute to the aforesaid extent with no order as to costs.
