Bhagat Singh Vs. The State of Punjab
[1960] INSC 111 (21 July 1960)
WANCHOO, K.N.
GAJENDRAGADKAR, P.B.
HIDAYATULLAH, M.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1960 AIR 1210
ACT:
Government Servant--Dismissal--Member of
subordinate rank of police forces--Police officer committing
Offence--Departmental enquiry and dismissal--Validity--Dismissal from service
without fresh show cause notice--Legality--Police Act, 1861 (V of 1861), SS.
29, 35--Government of India Act, 1935 (25 & 26 Geo. 5, Ch. 42), SS. 240(3),
243.
HEADNOTE:
The appellant, who was employed in the Punjab
Police, was found while working as a Police Censor to have detained certain
letters illegally and later to have made use of copies and photographs of the
them for blackmail. He was consequently reverted to his substantive post of
head constable on January 14, 1944. Thereafter an enquiry was started against
him by the Superintendent of Police and eventually he was dismissed from
service on January 25, 1944. His representations to higher authorities having
failed he instituted a-suit challenging the legality of the order of dismissal
on the grounds, inter alia, (1) that S. 240(3) of the Government of India Act,
1935, had not been complied with, and (2) that as the appellant was alleged to
have committed a criminal offence the Superintendent of Police could not hold a
departmental enquiry in respect of such allegations in view of SS. 29 and 35 of
the Police Act, 1861.
Held : (1) that S. 243 of the Government of
India Act, 1935, 65 which was a special provision with regard to the
subordinate ranks of police forces in India, excluded the operation of S.
24G(3) of the Act to the appellant, who was, therefore, governed by the
conditions of service as provided under the Police Regulations, and that the
substance of s. 240(3) which was brought into the Police Regulations in
September 1946 long after the appellant had been dismissed was not applicable
to him. Accordingly, he was not entitled to the second notice, under S. 240(3),
giving him a reasonable opportunity of showing cause against the action
proposed to be taken in regard to him.
North-West Frontier Province v. Suraj Narain
Anand [1948] F.C.R. 103 and High Commissioner for India and High Commissioner
for Pakistan v. I. M. Lal, [1948] F.C.R. 44, referred to.
(2) that the provisions of the Police Act,
1861, relating to offences committed by a police officer above the rank of a
constable do not bar a departmental enquiry in respect of a matter where it is
also possible to prosecute such an officer under that Act.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 349 of 1957.
Appeal by special leave from the judgment and
decree dated November 29, 1954, of the Punjab High Court in Regular Second
Appeal No. 891 of 1951.
Hardayal Hardy and N. N. Keswani, for the
appellant.
N. S. Bindra and D. Gupta, for the
respondent.
1960. July 21. The Judgment of the Court was
delivered by WANCHOO J.-This is an appeal by special leave against the judgment
of the Punjab High Court in a service matter. The brief facts necessary for
present purposes are that the appellant was appointed as a foot constable in
1931 in the Punjab Police and was dismissed on January 25, 1944.
Shortly before, he was acting as an Assistant
Sub-Inspector and actually working as a Police Censor. The charge against him
was that while he was working as Police Censor, he detained certain letters
illegally and had copies and photographs made of them and later used these
copies and photographs for blackmail. He was consequently reverted to his
substantive post of head constable on 9 66 January 14, 1944. Thereafter on
January 21, 1944, an enquiry was started against him by the Superintendent of
Police and he was eventually dismissed. He went in appeal to the Deputy
Inspector General of Police, which was dismissed. He then went in revision to
the Inspector General of Police, which also failed. Finally he made several
representations and memorials to the Punjab Government but without avail.
Consequently the present suit was filed by the appellant in February 1949. The
plaint as originally filed, after narrating the facts relating to the
appellant's service, merely stated that the charge of misconduct was brought
against the appellant on account of enmity and that the departmental enquiry
made by the Superintendent of Police was arbitrary and not according to law,
rules and regulations prescribed for the same. Besides this vague general
allegation, the only specific grievance made out by the appellant in the plaint
was that the Superintendent of Police had dismissed him without recording his
defence evidence and without giving him an opportunity to produce the same. The
appellant amended the plaint later and added one more grievance, namely, that
he had been appointed by the Deputy Inspector General of Police and could only
have been dismissed by him and not by the Superintendent of Police. As to the
Departmental enquiry, certain further defects therein were pointed out besides
the allegation already made that his defence had not been taken and that he had
not been given an opportunity to produce it.
Those further defects were (i) that he was
not permitted to engage counsel, (ii) that he was not allowed full opportunity
to cross examine the prosecution witnesses, and (iii) that he was not asked by
the enquiry officer to state what he had to say in answer to the charge against
him and was not permitted to file a written-statement explaining the alleged
incriminating circumstances against him.
The suit was opposed on behalf of the Punjab
Government and among others their main defence was that the enquiry was in
accordance with the 67 Regulations and was not arbitrary. It was also denied
that no opportunity had been given to the appellant to lead defence evidence or
to cross-examine prosecution witnesses or to make his own statement in answer
to the charge. It was admitted that permission was refused to engage a counsel;
but it was finally averred that taking the enquiry as a whole there was no such
defect in its conduct as to invalidate it or call for interference by the
courts.
Three issues, all of a general nature, were
framed by the trial court, namely-
1. Whether the plaintiff's dismissal is void,
illegal, inoperative and wrongful and what is its effect ?
2. Whether the Civil Courts have jurisdiction
to entertain the suit or to go into the question of the validity of the
departmental enquiry ?
3. Whether the suit for a declaration lies
and is competent and why ? It is unfortunate that the specific points raised by
the appellant whatever they were not made the subject matter of specific
issues. However, the trial court came to the conclusion that the case of the
appellant was governed by s. 240(3) of the Government India Act, 1935; and it
was reinforced in this conclusion by the Police Regulations which, according to
it, provided for the same safeguards as were contained in s. 240(3).
It therefore held that as s. 240(3) had not
been complied with, the dismissal was void and illegal.. As to the other two
issues relating to the jurisdiction of civil courts they were decided in favour
of the appellant.
There was an appeal to the District Judge by
the Punjab Government. The District Judge agreed with the conclusions of the
trial court on the applicability of s. 240(3) to the case of the appellant and
further referred to an amendment in the Police Regulations which required that
before an order of dismissal or reduction in rank is made, the officer to be
punished shall be produced before the officer empowered to punish him and shall
be informed of the charges 68 proved against him and called upon to show cause
why an order of dismissal or reduction in rank should not be passed. The
District Judge was conscious that this amendment in the Regulations was made in
September 1946 long after the dismissal of the appellant and therefore would
not apply to the appellant's case; but he overruled this contention on the
ground that the rule was merely declaratory of the law and only removed the
ambiguity that might have arisen because of s. 243 of the Government of India
Act. He therefore dismissed the appeal.
Then followed a second appeal by the Punjab
Government to the High Court. The High Court held that s. 240(3) did Dot apply
to the case of the appellant and that s. 243 was the governing section. In
consequence the High Court further held that the appellant was not entitled to
the protection of s. 240(3) and as the amendment to the Police Regulations
which brought in the substance of s. 240(3) therein was made after the
dismissal of the appellant, he could not take advantage of it. As to the
enquiry, the High Court held that though there might have been minor procedural
defects in the enquiry it was on the whole substantially in accordance with the
Regulations and principles of natural justice and could not therefore be held
to be invalid. The High Court pointed out that there was no serious contravention
of the Regulations and the witnesses who had appeared were cross-examined by
the appellant who was also called upon to produce his defence within 48 hours.
He however did not choose to do so and wanted a postponement which was refused
and thereafter the Superintendent of Police proceeded to dismiss him.
Learned counsel for the appellant challenges
the correctness of the view taken by the High Court and three points have been
urged on his behalf before us, namely, (1) s. 240(3) of the Government of India
Act applied to police officers of subordinate rank and there was nothing in s.
243 which took away from such officers the protection of s. 240(3) ; (2) Even
if the Police Regulations alone applied, there was such violation of the
relevant regulations as to vitiate the enquiry 69 proceedings; and (3) The
Superintendent of Police could not hold a departmental enquiry as a criminal
offence had been committed, and reliance in this connection was placed on ss. 29
and 35 of the Police Act, No. V of 1861.
Re. (1).
Section 243 of the Government of India Act
appears in Chapter 11 of Part X dealing with 'Civil Services'. That Chapter
begins with s. 240 and sub-s. (3) thereof provides that no member of a civil
service or holding any civil post in India shall be dismissed or reduced in
rank until he has been given a reasonable opportunity of showing cause against
the action proposed to be taken in regard to him. Section 243 however is in
these terms:" Notwithstanding anything in the foregoing provisions of this
chapter, the conditions of service of the subordinate ranks of the various
police forces in India shall be such as may be determined by or under the Act
relating to those forces respectively." Obviously s. 243 was a special
provision with regard to subordinate ranks of police forces in India and it is
not in dispute that the appellant belonged to the subordinate ranks. Therefore
according to s. 243, the conditions of service of the subordinate ranks are
governed by or under the Acts relating to police forces and s. 240(3) can have
no application to them. The non obstante clause of s. 243 makes it clear that
so far as the subordinate ranks of police forces in India are concerned, a. 243
will apply and not the earlier provisions including s. 240(3). We are therefore
of opinion that in view of the special provisions in s. 243 relating to the
subordinate ranks of police forces in India (to which the appellant undoubtedly
belonged), s. 240(3) would have no application. We may in this connection refer
to the judgment of the Privy Council in North West Frontier Province v. Suraj
Narain Anand (1), where it was held that the non obstante clause in s. 243
excluded the operation of s. 240(2) in the case of subordinate ranks of police
forces in India and that conditions of service included the right of dismissal.
(1) [1948] F.C.R. 103.
70 That case dealt with s. 240(2) but the
same reasoning would in our opinion apply to s. 240(3). As has already been
pointed out by the learned District Judge, the substance of s. 240(3) was
brought into the Police Regulations in September 1946 long after the appellant
had been dismissed and would therefore not apply to the appellant. He would
therefore not be entitled to the second notice under s. 240(3) as explained in
I. M. Lall's case by the Privy Council: (See High Commissioner for India &
High Commissioner for Pakistan v. I. M. Lall (1)). Nor was such notice
necessary under the Police Regulations as they existed at the time of the
appellant's dismissal. The view taken by the High Court under the circumstances
is correct.
Re. (2).
So far as violation of the material
provisions of r. 16.24 of the Police Regulations is concerned, we find that
only three specific allegations material for the purpose were set out by the
appellant, namely, (i) that he was not given the chance to defend himself, (ii)
that he was not allowed to cross-examine the prosecution Witnesses, and (iii)
that he was not allowed to explain the circumstances appearing against him and
was not allowed to file a written statement.
It is enough in this connection to say that
he was certainly given a chance to produce defence but did not himself avail of
it. It also appears as found by the High Court that the witnesses were
cross-examined by the appellant at length and on the whole there is nothing to
show that he was not allowed to explain the circumstances appearing against
him.
We therefore agree with the High Court that
there is no such serious contravention of the Regulations as to call for
interference by the Courts.
Re. (3).
Reliance in this connection is placed on ss.
29 and 35 of the Police Act. Section 29 provides for penalties for neglect of
duty etc. by police officers and lays down the extent of punishment on
conviction by a magistrate. Section 35 defines what magistrate can try a (1)
[1948] F.C.R. 44. 71 charge against a police officer above the rank of a constable
under the Police Act and such a magistrate has to be a First Class Magistrate.
These sections nowhere exclude departmental enquiry. All that they lay down is
that where an offence punishable under the Police Act is committed by a police
officer above the rank of a constable and is to be tried by a court of law it has
to go before a First Class Magistrate. That, however, does not mean that no
departmental enquiry can be held with respect to a matter where it is also
possible to prosecute a police officer under the Police Act. There is no force
in this contention also and it is hereby rejected.
The appeal therefore fails and is hereby
dismissed, but in the circumstances of this case we pass no order as to costs.
Appeal dismissed.
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