The State of Uttar Pradesh & Ors Vs.
Babu Ram Upadhya [1960] INSC 227 (25 November 1960)
SUBBARAO, K.
GAJENDRAGADKAR, P.B.
SARKAR, A.K.
WANCHOO, K.N.
MUDHOLKAR, J.R.
CITATION: 1961 AIR 751 1961 SCR (2) 679
CITATOR INFO :
F 1961 SC 773 (5,7) RF 1964 SC 600 (57,63,18)
F 1965 SC 868 (4) R 1967 SC 356 (7) RF 1968 SC 224 (3) RF 1969 SC 903 (30) RF
1969 SC1108 (8) D 1970 SC 122 (12) D 1970 SC1244 (29) RF 1971 SC1403 (7) F 1971
SC2111 (7) E 1973 SC 883 (19) RF 1974 SC 794 (13) O 1974 SC2192 (50,51,53) R
1975 SC 446 (10) RF 1976 SC2433 (6) R 1977 SC 747 (6) R 1979 SC 52 (13) R 1979
SC1149 (19) RF 1980 SC2181 (104) RF 1981 SC 711 (11) F 1982 SC1407 (24) R 1983
SC 494 (8) RF 1983 SC 558 (20) O 1985 SC1416 (43,56, TO 58) RF 1986 SC 555 (6)
RF 1988 SC 805 (10) D 1989 SC 811 (3,10) RF 1989 SC1160 (30) RF 1990 SC 820
(31) RF 1992 SC1033 (54)
ACT:
Public Servant--Police Officer, dismissal
of--Police Regulations, whether mandatory--Disregard of, if invalidates
disciplinary action--Authorities empowered to take action--If exercise Powers
of Governor--Police Act, 1861 (V of 1861), s. 7--U. P. Police Regulations,
para. 486--Constitution of India, Arts. 154, 309, 310, 311.
HEADNOTE:
The respondent was a sub-Inspector of Police.
A complaint was received by the Superintendent of Police that the complainant
was carrying currency notes of Rs. 650 in a bundle when he was stopped by the
respondent and his person was searched, that the respondent opened the bundle
of notes and handed over the notes one by one to one Lalji, who was with him
and that Lalji returned the notes to him but on reaching home he found the
notes short by Rs. 250. Proceedings under s. 7 of the Police Act were taken
against the respondent on the charge of misappropriation of Rs. 250 and he was
dismissed from service by an order of the Deputy Inspector General of Police.
The respondent filed a writ petition before the High Court challenging the
order of the dismissal on the ground that the authorities had acted in
violation of Rule I of Para. 486 of the U. P. Police Regulation. This rule
required that every information received by the police relating to the
commission of a cognizable offence by a Police Officer shall be dealt with in
the first place under Ch. XIV, Code of Criminal Procedure. The High Court held
that the provisions of para. 486 of the Police Regulations had not been
observed and that the proceedings taken under S. 7 of the Police Act were
invalid and illegal and accordingly quashed the order of dismissal. The appellant
contended (i) that the complaint did not make out any cognizable offence
against the respondent and r. I of Para. was not applicable in this case, (ii)
that r. III of Para. 486 enabled the authorities to initiate departmental
proceedings without complying with the provisions of r. I, (iii) that the
Police Regulations made in exercise of the power conferred on the Government
under the Police Act delegating the power of the Governor to dismiss at
pleasure to a subordinate officer were only administrative directions for the
exercise of the pleasure in a reasonable manner and any breach of the
regulations did not confer any right or give a cause of action to the public
servant, and (iv) that the regulations were only directory and the
non-compliance with the rules did not invalidate the order of dismissal.
680 Held, (per Sarkar, Subba Rao and
Mudholkar, JJ.) that the order of dismissal was illegal as it was based upon an
enquiry held in violation of r. I of Para 486 of the Police Regulations.
The facts alleged in the complaint made out a
cognizable offence under s. 405 Indian Penal Code against the respondent, and
the provisions of r. I of Para . 486 were applicable to it. A Police Officer
making a search of a person was 'entrusted' with the money handed over by the
person searched.
Rule III of Para. 486 did not deal with
cognizable offences, it dealt with offences falling only under s. 7 Police Act
and to non-cognizable offences. Rule III did not provide an alternative
procedure to that prescribed under r. I.
The position with regard to the tenure of
public servants and to the taking of disciplinary action against them under the
present Constitution was as follows:
(i) Every person who was a member of a public
service described in Art. 310 of the Constitution held office during the
pleasure of the President or the Governor.
(ii) The power to dismiss a public servant at
pleasure was outside the scope of Art. I54 and, therefore, could not be
delegated by the Governor to a subordinate officer, and could be exercised by
him only in the manner prescribed by the Constitution.
(iii) This tenure was subject to the
limitations or qualifications mentioned in Art. 311.
(iv )Parliament or the Legislature of States
could not make a law abrogating or modifying this tenure so as to impinge upon
the overriding power conferred upon the President or the Governor under Art.
310, as qualified by Art. 311.
(v) Parliament or the Legislatures of States
could make a law regulating the conditions of service of such a member which
included proceedings by way of disciplinary action, without affecting the
powers of the President or the Governor under Art. 310 read with Art. 311.
(vi) Parliament and the Legislatures also
could make a law laying down and regulating the scope and content of the
doctrine of "reasonable opportunity" embodied in Art. 311 but the
said law was subject to judicial review.
(vii) If a statute could be made by
Legislatures within the foregoing permissible limits, the rules made by an
authority in exercise of the power conferred there under would likewise be
efficacious within the said limits.
N. W. F. Province v. Suraj Narain, A.I.R.
1949 P. C. 112, Shenton v. Smith, (1895) A.C. 229, Gould v. Stuart, (1896) A.C.
575, Reilly v. The King, (1934) A.C. 176, Terrell v. Secretary of State, (1953)
2 All E.R. 490, State of Bihar v. Abdul Majid, [1954] S.C.R. 786, Parshotam Lal
Dhingra v. Union of India, [1958] 681 S.C.R. 828, R. T. Rangachari v. Secretary
of State for India, (1936) L.R. 64 I.A. 40 and High Commissioner for India and
High Commissioner for Pakistan v. I. M. Lall, (1948) L.R. 75 I.A. 225, referred
to.
The Police Act and the rules made there under
constituted a self-contained code providing for the appointment of police
officers and prescribing the procedure for their removal.
Any authority taking action under the Police
Act or the rules made there under must conform to the provisions thereof and if
there was any violation of those provisions the public servant had a right to
challenge the order of the authority if the rules were mandatory Paragraph 486
of the Police Regulations was mandatory and not directory. The rules were made
in the interests of both the department and the police officers. The word used
in para 486 was "shall" and in the context it could not be read as
"may".
Hari Vishnu Kamath v. Syed Ahmed Ishaque,
[1958] S.C.R. 104, State of U. P. v. Manbodhan Lal Srivastava, [1958] S.C.R. 533
and Montreal Street Railway Company v Noymandin, L.R. (1917) A.C. 170, referred
to.
Subject to the overriding power of the
President or the Governor under Art. 310, as qualified by Art. 311, rules
governing disciplinary proceeding could not be treated as administrative
directions, but had the same effect as the provisions of the statute whereunder
they were made, in so far as they were not inconsistent with the provisions
thereof. The Governor did not exercise his pleasure through the officers
specified in S. 7 of the Police Act, and the Governor's pleasure. could not be
equated with the statutory power of the officers specified An inquiry under the
Act had to be made in accordance with the provisions of the Act and the rules
made there under.
R. T. Rangachari v. Secretary of State for
India, L.R. 64 I.A. 40, High Commissioner for India and High Commissioner for
Pakistan v. I. M. Lall, (1948) L.R. 75 I.A. 225, R.
Venkata Rao v. Secretary of State for India,
(1936) L.R. 64 I.A. 55, S. A. Venkataraman V. Union of India, [1954] S.C.R.
1150 and Khem Chand v. The Union of India,
[1958] S.C.R.
1080, referred to.
Per Gajendragadkar and Wanchoo, JJ.-The
provisions of para 486 were merely directory and a non-compliance therewith did
not invalidate the disciplinary action taken against the respondent.
All public servants, other than those
excepted expressly by the Constitution, held office during the pleasure of the
President or the Governor, and no law or rule framed under Art. 300 or Art.
I54(2)(b) could cut down the content of the pleasure tenure in Art. 310 subject
to Art. 31i. The Police Act could not stand higher than a law passed under Art.
309 or Art. 154(2)(b) and could not cut down the content of the pleasure tenure
in Art. 310 682 The Police officers held office during the pleasure of the
Governor and the only protection they could claim was the two guarantees
contained in Art. 311.
The rules framed under s. 7 Police Act would
be of two kinds, namely (1) those which defined the jurisdiction of the four
grades of officers specified in s. 7 to inflict particular kind of punishment
on particular police officers of the subordinate ranks-such rules would be
mandatory but they could not go against the provisions of Art. 311, and (2)
procedural rules. The procedural rules could be of two kinds: (i) those that
prescribed the manner in which the guarantee contained in Art. 311(2) May be
carried out-such rules would be mandatory, and (ii) other merely procedural
rules-they could only be directory.
The power of the Governor to dismiss was
executive power of the State and could be exercised under Art. 154(i) by the
Governor himself directly or indirectly through officers subordinate to him.
The officers specified in s. 7 of the Police
Act were exercising the powers of the Governor to dismiss at pleasure and their
powers were subject to the same limitations to which the Governor was subject.
Whether it was delegation by the Governor himself or whether it was delegation
by law under Art. 154(2)(b) or by the existing law, which must be treated as
analogous to a law under Art. 154(2)(b), the officer exercising the power of
dismissal was only indirectly exercising the Governor's power to dismiss at
pleasure. His order also was subject to the two fetters under Art. 311 and
could not be subjected to any more fetters by procedural rules other than those
framed for carrying out the objects of Art. 311(2).
R. Venkata Rao v. Secretary of State for
India in Council, [1936] 64 I.A. 55, referred to.
Paragraph 486 was not meant for the purpose
of carrying out the object of Art. 311(2) and could not be mandatory and could
not add a further fetter on the exercise of the power to dismiss at the
pleasure of the Governor over and above the fetters contained in Art. 311. This
rule was only meant to gather materials for the satisfaction of the authority
concerned, whether to take action or not. As such para 486 was merely directory
and a failure to comply therewith strictly or otherwise did not vitiate the
disciplinary action.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 119 of 1959.
Appeal by special leave from the judgment and
order dated January 9, 1958, of the Allahabad High Court (Lucknow Bench),
Lucknow, in Civil Misc. Application No. 115 of 1955.
683 C. B. Agarwala and C. P. Lal, for the
appellants.
G. S. Pathak, Achru Ram, S. N. Andley,
Rameshwar Nath, J. B. Dadachanji and P. L. Vohra for the respondent.
1960. November, 25. The Judgment of Sarkar,
Subba Rao and Mudholkar, JJ., was delivered by Subba Rao, J., and that of
Gajendragadkar and Wanchoo, JJ., was delivered by Wanchoo, J.
SUBBA RAO, J.-This is an appeal by special leave
against the judgment of the High Court of Judicature at Allahabad, Lucknow
Bench, allowing the petition filed by the respondent under Art. 226 of the
Constitution.
The respondent was appointed a Sub-Inspector
of Police in December, 1948, and was posted at Sitapur in June, 1953. On
September 6, 1953, the respondent went to village Madhwapur in connection with
an investigation of a case of theft. On the evening of the said date when he
was returning, accompanied by one Lalji, an ex-patwari of Mohiuddinpur, he saw
one Tika Ram coming from the side of a canal and going hurriedly towards a
field. As the movements of Tika Ram appeared to be suspicious and as he was
carrying something in the folds of his dhoti, the respondent searched him and
found a bundle containing currency notes. The respondent counted the currency
notes and handed them over to Lalji for being returned to Tika Ram, who
subsequently got them and went his way. Subsequently when Tika Ram counted the
currency notes at his house, he found that they were short by Rs. 250. Tika
Ram's case is that the bundle when taken by the respondent contained notes of
the value of Rs. 650, but when he counted them in his house they were only of
the value of Rs. 400. On September 9, 1953 Tika Ram filed a complaint to the
Superintendent of Police, Sitapur, to the effect that the respondent and one
Lalji had misappropriated a sum of its. 250. There is dispute in regard to the
interpretation of the complaint. On receipt of the said complaint, the
Superintendent of Police made enquiries 684 and issued a notice to the
respondent to show cause why his integrity certificate should not be withheld,
upon which the respondent submitted his explanation on October 3, 1953.
Thereafter the Superintendent of Police forwarded the file of the case to the
Deputy Inspector General of Police, Central Range, U. P., who directed the
Superintendent of Police to take proceedings under s. 7 of the Police Act
against the respondent. The departmental proceedings were started against the
respondent; on November 2, 1953, a charge-sheet was served upon the respondent
under s. 7 of the Police Act stating that there were strong reasons to suspect
that the respondent misappropriated a sum of Rs. 250 from the purse of Tika
Ram; the respondent filed his explanation to the charge made against him; and
ultimately the Superintendent of Police held an enquiry and found on the
evidence that the respondent was guilty of the offence with which he was
charged. On January 2, 1954, the Superintendent of Police issued another notice
to the respondent to show cause why he should not be reduced to the lowest
grade of Sub-Inspector for a period of three years. In due course the
respondent showed cause against the action proposed to be taken against him on
a consideration of which the Superintendent of Police, Sitapur, by his order
dated January 16, 1954 reduced the respondent to the lowest grade of
Sub-Inspector for a period of three years. When this order came to the notice
of the D. 1. G., U. P., on a consideration of the entire record, he came to the
conclusion that the respondent-should be dismissed from service and on October
19, 1954 he made an order to that effect. On February 28, 1955 the Inspector
General of Police confirmed that order; and the revision filed by the
respondent against that order to the State Government was also dismissed in
August 1955. Thereafter the respondent filed a petition under Art. 226 of the
Constitution before the High Court of Judicature at Allahabad, Lucknow Bench,
for quashing the said orders and the same was heard by a division bench
consisting of Randhir Singh and Bhargava, JJ. The learned judges held that the
provisions of para.
685 486 of the Police Regulations had not
been observed and, therefore, the proceedings taken under s. 7 of the Police
Act were invalid and illegal. On that finding, they quashed the impugned
orders; with the result that the order dismissing the respondent from service
was set aside. The State Government, the Deputy Inspector General of Police,
Lucknow, and the Inspector General of Police, Uttar Pradesh, Lucknow, have
preferred the present appeal against the said order of the High Court.
We shall now proceed to consider the various
contentions raised by learned counsel in the order they were raised and argued
before us.
At the outset Mr. C. B. Agarwala, learned
counsel for the appellants, contended that there was no breach of the
provisions of para. 486 of the Police Regulations. If this contention be
accepted, no other question arises 'in this case; therefore, we shall deal with
the same.
The material part of para. 486 of the Police
Regulations reads thus:
"When the offence alleged against a
police officer amounts to an offence only under section 7 of the Police Act,
there can be no magisterial inquiry under the Criminal Procedure Code. In such
cases, and in other cases until and unless a magisterial inquiry is ordered,
inquiry will be made under the direction of the Superintendent of Police in
accordance with the following rules:
I.Every information received by the police
relating to the commission of a cognizable offence by a police officer shall be
dealt with in the first place under Chapter XIV, Criminal Procedure Code,
according to law, a case under the appropriate section being registered in the
police station concerned................. This provision expressly lays down
that every information received by the police relating to the commission of a
cognizable offence by a police officer shall be dealt with in the first place
under Ch. XIV of the Criminal Procedure Code. This provision will not apply if
the information received by the police does not 87 686 relate to the commission
of a cognizable offence. Learned counsel contends that the information received
in the present case does not relate to any offence committed by the respondent,
much less to a cognizable offence. This is a point raised before us for the
first time. This does not find a place even in the statement of case filed by
the appellants. In the High Court it was not contended that the information did
not disclose any offence committed by the respondent. Indeed, it was common
case that the information disclosed an offence committed by the respondent, but
it had been contended by the appellants that the misappropriation of the part of
the money amounted to an offence under s. 403 of the Indian Penal Code, which
is not a cognizable offence;
and it was argued on behalf of the respondent
that it amounted to an offence under s. 409 of the Indian Penal Code. The
learned judges accepted the contention of the respondent. Even so, it is said
that whatever might been the contentions of the parties, the information given
by Tika Ram to the Superintendent of Police clearly disclosed that no offence
was alleged to have been committed by the respondent and that this Court would,
therefore, be justified, even at this very late stage, to accept the contention
of the appellants. But the contents of the said information do not in any way
support the assertion.
Paragraph 3 of the application given by Tika
Ram to the Superintendent of Police, Sitapur, reads thus:
"That on Sunday last dated 6th
September, 1953 the applicant had with him the currency notes of Rs. 650. The
opposite party as well as Shri Babu Ram met the applicant on the west of Rampur
near the Canal. The opposite-party said to the Sub-Inspector "This man
appears to be clad in rags but is possessed of considerable money." After
saying this the person of the applicant was searched. The Sub-Inspector, having
opened the bundle of notes, handed over the (notes) one by one to the opposite
party." This statement clearly indicates that either the Sub-. Inspector
or both the SubInspector and Lalji searched the person of Tika Ram, that the
Sub-Inspector took 687 the bundle of notes and handed the same over, one by
one, to Lalji for being returned to the applicant, and that out of Rs. 650 a
sum of Rs. 250 was not returned to him. The facts alleged make out an offence
against both the Sub-Inspector as well as Lalji. The mere fact that the
respondent is not shown as one of the opposite parties in the application does
not affect the question, for the information given in the application imputed
the commission of an offence to both the respondent and Lalji. The notice
issued by the Superintendent of Police on November 2, 1953 to the respondent
also charges him with an offence of misappropriation. It is stated that the
said notice only says that the Superintendent of Police had good reasons to
suspect that the respondent misappropriated the sum of money and that it does
not aver that he committed the offence of misappropriation. But what matters is
'that the Superintendent of Police also understood from the information given
and the enquiry conducted by him that the respondent had committed the offence.
Reliance is placed upon paragraph 3 of the writ petition wherein the respondent
herein stated that Tika Ram filed a complaint against Lalji and not against the
respondent. As a fact that is correct in the sense that the respondent was not
shown in that application as the opposite -party though in the body of that
application definite allegations were made against the respondent. In the
counter-affidavit filed by the Superintendent of Police on behalf of the State
it was clearly averred that on September 9, 1953 Tika Ram appeared before him
and filed a petition to the effect fiat one Lalji and the respondent had
misappropriated a sum of Rs. 250.
Whatever ambiguity there might have been in
the information -we do not find any-this allegation dispels it and it is not
open to the appellants at this stage to contend that the petition did not
disclose any offence against the respondent. In the circumstances, we must hold
that the information received by the police related to the commission of an
offence by the respondent.
Even so, it is contended that the said
offence is not a cognizable offence. It is said that there was no 688
entrustment made by Tika Ram to the respondent and that, therefore, the offence
did not fall under s. 409 of the Indian Penal Code, which is a cognizable
offence, but only under s. 403 of the Indian Penal Code, which is not a
cognizable offence. Section 405 of the Indian Penal Code defines "criminal
breach of trust" and s. 409 thereof prescribes the punishment for the
criminal breach of trust by a public servant. Under s. 405 of the Indian Penal
Code, "Whoever, being in any manner entrusted with property, or with any
dominion over property, dishonestly misappropriates or converts to his own use
that property, or dishonestly uses or disposes of that property in violation of
any direction of law prescribing the mode in which such trust is to be
discharged, or of any legal contract, express or implied, which he has made
touching the discharge of such trust, or wilfully suffers any person so to do,
commits "criminal breach of trust". To constitute an offence under
this section, there must be an entrustment of property and dishonest
misappropriation of it. The person entrusted may misappropriate it himself, or
he may wilfully suffer another person to do so. In the instant case the
respondent, being a police officer, was legally entitled to search a person
found under suspicious circumstances; and Tika Ram in handing over the bundle
of notes to the police officer must have done so in the confidence that he
would get back the notes from him when the suspicion was cleared. In these
circumstances, there cannot be any difficulty in holding that the currency
notes were alleged to have been handed over by Tika Ram to the respondent for a
specific purpose, but were dishonestly misappropriated by the respondent or at,
any rate he wilfully suffered Lalji to misappropriate the same. We, therefore,
hold that if the currency notes were taken by the respondent in discharge of
his duty for inspection and return, he was certainly entrusted with the notes
within the meaning of s. 405 of the Indian Penal Code.
If so, the information discloses a cognizable
offence. We reject the first contention.
The second objection of learned counsel for
the appellants is that sub-para. (3) of para. 486 of the 689 Police Regulations
enables the appropriate police authority to initiate the departmental
proceeding without complying with the provisions of sub-para. (1) of para. 486.
The -relevant portion of para. 486 of the Police Regulations reads:
"When the offence amounts to an offence
only under section 7 of the Police Act, there can be no magisterial inquiry
under the Criminal Procedure Code. In such cases, and in other cases until and
unless a magisterial inquiry is ordered, inquiry will be made under the
direction of the Superintendent of Police in accordance with the following
rules:......... " Rule I relates to a cognizable offence, r. II to a noncognizable.
offence, including an offence under s. 29 of the Police Act, and r. III to an
offence under s. 7 of the Police Act or a non-cognizable offence, including an
offence under s. 29 of the Police Act. Rule III says:
"When a Superintendent of Police sees
reason to take action on information given to him, or on his own knowledge or
suspicion, that a police officer subordinate to him has committed an offence
under section 7 of the Police Act or a non-cognizable offence (including an
offence under section 29 of the Police Act) of which he considers it
unnecessary at that stage to forward a report in writing to the District
Magistrate under rule II above, he will make or cause to be made by an officer
senior in rank to the officer charged, a departmental inquiry sufficient to
test the truth of the charge. On the conclusion of this inquiry he will decide
whether further action is necessary, and if so, whether the officer charged
should be departmentally tried, or whether the District Magistrate should be
moved to take cognizance of the case under the Criminal Procedure Code..."
The argument is that the words "an offence under s. 7 of the Police
Act" take in a cognizable offence and that, therefore, this rule provides
for a procedure alternative to that prescribed under r. I. We do not think that
this contention is sound. Section 7 of the Police Act empowers certain officers
to dismiss, suspend 690 or reduce any police officer of the subordinate rank
whom they shall think remiss or negligent in the discharge of his duty, or
unfit for the same. The grounds for punishment are comprehensive: they may take
in offences under the Indian Penal Code or other penal statutes. The commission
of such offences may also be a ground to hold that an officer is unfit to hold
his office. Action under this section can, therefore, be taken in respect of,
(i) offences only under s. 7 of the Police Act without involving any cognizable
or noncognizable offences, that is, simple remissness or negligence in the
discharge of duty, (ii) cognizable offences, and (iii) non-cognizable offences.
Paragraph 486 of the Police Regulations makes this clear. It says that when the
offence alleged against a police officer amounts to an offence only under s. 7
of the Police Act, there can be no magisterial inquiry under the Criminal
Procedure Code. This part of the rule applies to an offence only under s. 7 of
the Police Act i. e., the first category mentioned above.
Rule I refers to a cognizable offence i. e.,
the second category, rule 11 to a non-cognizable offence i. e., the third
category, and rule III applies to an offence under s.
7 of the Police Act and to a noncognizable
offence. Though the word "only" is not mentioned in rule 111, the
offence under s. 7 of the Police Act can, in the context, mean an offence only
under s. 7 of the said Act i.e., an offence falling under the first category.
So understood, the three rules can be reconciled. We, therefore, hold that, as
the offence complained of in the present case is a cognizable offence, it falls
under rule I and not under rule 111. We, therefore, reject this contention.
The third contention advanced by learned
counsel for the appellants raises a constitutional point of considerable
importance. The gist of the argument may be stated thus: In England, the
service under the Crown is held at the Crown's pleasure, unless the employment
is for good behaviour or for a cause. But if there is a statute prescribing the
terms of service and the mode of dismissal of the servant of the Crown, the
statute would control the pleasure of the Crown.
In India, the Constitution as well as the 691
earlier Constitution Acts of 1915, as amended in 1919, and 1935 embodied the
incidents of "tenure at pleasure" of His Majesty, or the President or
the Governor, as the case may be, but did not empower the Legislatures under
the earlier Acts and the Parliament and the Legislatures under the Constitution
to make a law abrogating or modifying the said tenure; therefore, any law made
by appropriate authorities conferring a power on any subordinate officer to
dismiss a servant must be construed not to limit the power of His Majesty, the
President or the Governor, as the case may be, but only to indicate that they
would express their pleasure only through the said officers. The rules made in
exercise of a power conferred on a Government-under a statute so delegating the
power to a subordinate officer can only be administrative directions to enable
the exercise of the pleasure by the concerned authorities in a reasonable
manner and that any breach of those regulations cannot possibly confer any
right on, or give a cause of action to, the aggrieved Government servant to go
to a court of law and vindicate his rights.
Mr. Pathak, learned counsel for the
respondent, in countering this argument contends that the constitution Acts in
India embodied the incidents of the tenure of the Crown's pleasure in the
relevant provisions and what the Parliament can do in England, the appropriate
Legislatures in India also can do, that is, "the tenure at pleasure"
created by the Constitution Acts can be abrogated, limited or modified by law
enacted by the appropriate legislative bodies.
Alternatively he contends that even if the
Police Act does not curtail the tenure at pleasure, the Legislature validly
made that law and the Government validly made statutory rules in exercise of
the powers conferred under that Act and that, therefore, the appropriate
authorities can only dismiss the respondent in strict compliance with the
provisions of the Act and the Rules made there under.
To appreciate the problem presented and to
afford a satisfactory answer it would be convenient to consider the relevant
provisions. The Act we are concerned with in this case is the Police Act, 1861
(Act V 692 of 1861). Its constitutional validity at the time it was, made was
not questioned. Under s. 7 of the Police Act, as it originally stood, "the
appointment of all police officers other than those mentioned in B. 4 of this
Act shall, under such rules as the local Government shall from time to time sanction,
rest with the Inspector-General, Deputy Inspectors-General, Assistant
Inspectors-General and District Superintendents of Police, who may, under such
rules as aforesaid, at any time, dismiss, suspend or reduce any
police-officer." That section was substituted by the present section in
1937 and later on some appropriate amendments were made to bring it in
conformity with the Constitution. Under the amended section, "Subject to
such rules as the State Government may from time to time make under this Act,
the Inspector-General, Deputy Inspectors General, Assistant Inspectors-General
and District Superintendent of Police may at any time dismiss, suspend or
reduce any police officer of the subordinate ranks whom they shall think remiss
or negligent in the discharge of his duty, or unfit for the same". In
exercise of the powers conferred on the Government by s. 46 of the Act, the
Government made the U. P. Police Regulations prescribing the procedure for
investigation and inquiry. We shall' deal with the Regulations at a later
stage.
In the Government of India Act, 1915, as
amended by the Act of 1919, for the first time, the doctrine of "tenure at
pleasure" was introduced by s. 96-B. In exercise of the power conferred
under sub-s. (2) certain classification rules were framed by the local
Government. This Act was repealed by the Government of India Act, 1935, and the
section corresponding to s. 96-B was s. 240(1) in the latter Act. Section
241(2) empowered, except as expressly provided by the Act, the Governor-General
and the Governor to prescribe the conditions of service of the servants they
were empowered to appoint.
The main difference between the Act of 1919
and that of 1935 was that in the former Act there was only one limitation on
the Crown's pleasure, namely, that no person in the service might be dismissed
by 693 an authority subordinate to that by which he was appointed, whereas in
the latter Act a second limitation was imposed, namely, that no such person
should' be dismissed or reduced in rank until he had been given a reasonable
opportunity of showing cause against the action proposed to be taken in regard
to him: see s. 240, sub-ss. (2) and (3). Another difference between the said
two Acts was that while under the former Act all the services were placed in
the same position, -under the latter Act special provision was made for the
police force prescribing that the conditions of service of the subordinate
ranks of the various police forces should be such as might be determined by or
under the Acts relating to those forces respectively-vide s. 243. By the
Constitution, the Act of 1935 was repealed, and, with certain changes in
phraseology, cls. (1) and (2) of Art. 310 took the place of sub-ss. (1) and (4)
of s. 240 respectively, and Art. 309 took the place of s. 241(2).
Under Art. 313, "Until other provision
is made in this behalf under this Constitution, all the laws in force
immediately before the commencement of this Constitution and applicable to any
public service or any post which continues to exist after the commencement of
this Constitution, as an all-India service or as service or post under the
Union or a State shall continue in force so far as consistent with the
provisions of this Constitution". The result is that the Police Act and
the Police Regulations, made in exercise of the powers conferred on the
Government under that Act, which .were preserved under s. 243 of the Government
of India Act, 1935, continue to be in force after the Constitution so far as
they are consistent with the provisions of the Constitution.
It is common case, as the contentions of
learned counsel disclose, that the Act and the Regulations framed there under
were constitutionally valid at the inception and that they are also consistent
with the provisions of the Constitution.
The difference between the two contentions
lies in the fact that according to one His Majesty's pleasure cannot be
modified 88 694 by a statute, according to the other it is subject to statutory
provisions. The relevant provisions of the Constitution read thus:
Article 309: "Subject to the provisions
of this Constitution, Acts of the appropriate Legislature may regulate the
recruitment, and conditions of service of persons appointed, to public services
and posts in connection with the affairs of the Union or of any State:
Provided that it shall be competent for the
President or such person as he may direct in the case of services and posts in
connection with the affairs of the Union, and for the Governor of a State or
such person as he may direct in the case of services and posts in connection
with the affairs of the State, to make rules regulating the recruitment, and
the conditions of service of persons appointed, to such services and posts
until provision in that behalf is made by or under an Act of the appropriate
Legislature under this article, and any rules so made shall have effect subject
to the provisions of any such Act." Article 310: "Except as expressly
provided by this Constitution, every person who is a member of a defence
service or of a civil service or holds any post connected with defence or any
Civil Post under the Union holds office during the pleasure of the President,
and every person who is a member of a civil service of a State or holds any
civil post under a State holds office during the pleasure of the Governor of
the State." Under Art. 309 the appropriate Legislature may regulate the
recruitment and conditions of service of persons appointed to public services.
Under Art. 310 every person who is EC member of a public service described
therein holds office during the pleasure of the President or the Governor, as
the case may be. The words "conditions of service" in Art. 309 in
their comprehensive sense take in the tenure of a civil servant: see N. W. F.
Province v. Suraj Narain (1).
Therefore, "the tenure at pleasure"
is also one of the conditions of service. But Art. 309 opens out with a (i)
A.I.R. (1949) P.C. 112.
695 restrictive clause, namely, "Subject
to the provisions of this Constitution", and if there is no restrictive,
clause in Art. 310, there cannot be any difficulty in holding that Art. 309 is
subject to the provisions of' Art 310; with the result that the power of the
Legislature to lay down the conditions of service of persons appointed to
public services would be subject to "the tenure at pleasure" under
Art. 310. In that event, any law made by the Legislature could not affect the
over-riding power of the President or the Governor, as the case may be, in
putting an end to the tenure at their pleasure. Would the opening words of the
clause in Art. 310, namely, "Except as expressly provided by this
Constitution", make any difference in the matter of interpretation? It
should be noticed that the phraseology of the said clause in Art. 310 is
different from that in Art. 309. If there is a specific provision in some part
of the Constitution giving to a Government servant a tenure different from that
provided for in Art. 310, that Government servant is excluded from the
operation of Art.
310. The said words refer, inter alia, to
Arts. 124, 148, 218 and 324 which provide that the Judges of the Supreme Court,
the Auditor General, the Judges of the High Courts and the Chief Election
Commissioner shall not be removed -from their offices except in the manner laid
down in those Articles. If the provisions of the Constitution specifically
prescribing different tenures were excluded from Art. 310, the purpose of that
clause would be exhausted and thereafter the Article would be free from any
other restrictive operation. In that event, Arts. 309 and 310 should be read
together, excluding the opening words in the latter Article, namely,
"Except as expressly provided by this Constitution". Learne counsel
seeks to confine the operation of the opening words in Art. 309 to the
provisions of the Constitution which empower other authorities to make rules
relating to the conditions of service of certain classes of public servants,
namely, Arts. 146(2), 148(5) and 229(2). That may be so, but there is no reason
why Art. 310 should be excluded therefrom. It follows that while Art.
310 provides for a tenure at pleasure 696 of
the President or the Governor, Art. 309 enables the Legislature or the
executive, as the case maybe, to make any law or rule in regard, inter alia, to
conditions of service without impinging upon the overriding power recognized
under Art. 310.
Learned counsel for the respondent contends
that this construction is inconsistent with that prevailing in the English law
and that the intention of the framers of the Constitution could not have been
to make a radical departure from the law of England. The law of England on the
doctrine of "tenure at pleasure" has now become fairly crystallized.
In England, all servants of the Crown hold
office during the pleasure of the Crown; the right to dismiss at pleasure is an
implied term in every contract of employment of the Crown, this doctrine is not
based upon any prerogative of the Crown, but on public policy; if the terms of
appointment definitely prescribe a tenure for good behaviour or expressly
provide for a power, to determine for a cause, such an implication of a power
to dismiss at pleasure is excluded, and an Act of Parliament can abrogate or
amend the said doctrine of public policy in the same way as it can do in
respect of any other part of common law. The said propositions are illustrated
in the following decisions:
Shenton v. Smith (1), Gould v. Stuart (2),
Reilly v. The King(3), Terrell v. Secretary of State (4). This English doctrine
was not incorporated in its entirety in the Indian enactments-vide State of
Bihar v. Abdul Majid (5), Parshotam Lal Dhingra v. Union of India (6). Section
96-B of the Government of India Act, 1915, for the first time in 1919, by
amendment, statutorily recognized this doctrine, but it was made subject to a
condition or s qualification, namely, that no person in that service might be
dismissed by any authority subordinate to that by which he was appointed.
Section 240 of the Act of 1935 imposed
another limitation, namely, that a reasonable opportunity of showing cause
against the action proposed to be taken in (i) [1895] A.C. 229.
(3) [1934] A.C. 176.
(5) [1954] S.C.R. 786.
(2) [1896] A.C. 575.
(4) (1953) 2 All E R. 490.
(6) [1958] S.C.R. 828.
697 regard to a person must be given to him.
But neither of the two Acts empowered the appropriate Legislature to make a law
abolishing or amending the said doctrine. The Constitution of India practically
incorporated the provisions of ss. 240 and 241 of the Act of 1935 in Arts. 309
and 310. But the Constitution has not made "the tenure at pleasure"
subject to any law made by the appropriate Legislature. On the other hand, as
we have pointed out, Art. 309 is expressly made subject to "the tenure at
pleasure" in Art. 310.
Nor the attempt of learned counsel for the
respondent to discover such a power in the Legislature in the Entries of the
appropriate Lists of the Seventh Schedule to the Constitution can be legally
sustained. He referred, inter alia, to Entry 70 of List I and Entry 41 of List
II. It is not disputed that Parliament can make law for the organization of the
police and for the prevention and detection of crime. But under Art. 245 of the
Constitution such a power is subject to the provisions of the Constitution and,
therefore, is subject to the provisions of Art. 310.
Nor can we imply such a power in Parliament
or the Legislatures from Art. 154(2)(b) of the Constitution. Under Art. 154,
"the executive power of the State shall be vested in the Governor and
shall be exercised by him either directly or through officers subordinate to
him in accordance with this Constitution", and under el. 2(b) thereof,
"nothing in this Article shall prevent Parliament or the Legislature of the
State from conferring by law functions on any authority subordinate to the
Governor." The argument is that a power to terminate the service at
pleasure under Art. 310 is a part of the executive power of the State, that
power under Art. 154 can be exercised by the Governor directly or through
officers subordinate to him, and that under Art. 154(2)(b) the Parliament or
the Legislature of the State can confer the same power on any authority
subordinate to the Governor or, at any rate, can make a law prescribing that
the Governor shall exercise the said pleasure through a particular officer.
698 We cannot agree either with the premises
or the conclusion sought to be based on it. The first question is whether the
power of the Governor under Art. 310 to terminate the services of a Government
servant at pleasure is part of the executive power of the State under Art. 154
of the Constitution. Article 154 speaks of the executive power of the State
vesting in the Governor; it does not deal with the constitutional powers of the
Governor which do not form part of the executive power of the State. Article
162 says that, subject to the provisions of the Constitution, the executive
power of the State shall extend to matters with respect to which the
Legislature of the State has power to make laws.
If the Legislature of the State has no power
to make a law affecting the tenure at pleasure of the Governor, the said power
must necessarily fall outside the scope of the executive power of the State. As
we will presently show, the Legislature has no such power and, therefore, it
cannot be a part of the executive power of the State. That apart, if the said
power is part of the executive power in its general sense, Art. 162 imposes
another limitation on that power, namely, that the said executive power is
subject to the provisions of the Constitution and therefore, subject to Art.
310 of the Constitution. In either view, Art. 310 falls outside the scope of
Art. 154 of the Constitution.
That power may be analogous to that conferred
on the Governor under Arts. 174, 175 and 176. Doubtless the Governor may have
to exercise the said power whenever an occasion arises, in the manner
prescribed by the Constitution, but that in itself does not make it a part of
the executive power of the State or enable him to delegate his power.
Even on the assumption that the power under
Art. 310 is executive power within the meaning of Art. 154, it does not make
any difference in the legal position so far as the present case is concerned.
Article 310 of the Constitution says that unless expressly provided by the
Constitution to the contrary, every civil servant holds office during the
pleasure of the Governor subject to the limitations prescribed under 699 Art.
311. Can it be said that Art. 154(2)(b) expressly provides for a different
tenure? Can it be said that the said Article confers on the Parliament or the
Legislature a power higher than that conferred on them under Art. 245 of the
Constitution ? It only preserves the power of the Legislature, which it has
under the Constitution, to make a law conferring functions on an authority
subordinate to the Governor. That power under Art. 245 is not unlimited, but is
subject to the provisions of the Constitution and therefore subject to Art. 310
thereof.
It is then said that if the appellants'
contention were not accepted, it would lead to conflict of jurisdiction: while
the Governor has the power under Art. 310 to dismiss a public servant at his
pleasure, a statute may confer a power on a subordinate officer to dismiss a
servant only subject to conditions; a subordinate officer functioning under an
Act may not be able to dismiss a servant, but the Governor may be able to do so
under similar circumstances; a subordinate officer may dismiss a servant, but
the Governor may order his continuance in office.
This argument is based upon the
misapprehension of the scope of Art. 309 of the Constitution. A law made by the
appropriate Legislature or the rules made by the President or the Governor, as
the case may be, under the said Article may confer a power upon a particular
authority to remove a public servant from service; but the conferment of such a
power does not amount to a delegation of the Governor's pleasure. Whatever the
said authority does is by virtue of express power conferred on it by a statute
or rules made by competent authorities and not by virtue of any delegation by
the Governor of his power. There cannot be conflict between the exercise of the
Governor's pleasure under Art. 310 and that of an authority under a statute,
for the statutory power would be always subject to the overriding pleasure of
the Governor.
This conclusion, the argument proceeds, would
throw a public servant in India to the mercy of the executive Government while
their compeers in England 700 can be protected by legislation against arbitrary
actions of the State. This apprehension has no real .basis, for, unlike in
England, a member of the public service in India is constitutionally protected
at least in two directions:
(i) he cannot be dismissed by an authority
subordinate to that by which he was appointed; (ii) he cannot be dismissed,
removed 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. A
condition similar to the first condition in Art. 311 found in s. 96-B of the
Government of India Act, 1919, was hold by the Judicial Committee in R. T.
Bangachari v. Secretary of State for India (1) to have a statutory force, and
the second condition, which is only a reproduction of that found in sub-section
(2) of s. 240 of the Government of India Act, 1935, was held in High
Commissioner for India and High Commissioner for Pakistan v. I. M. Lall (2) as
mandatory qualifying the right of the employer recognized in subsection (1)
thereof. These two statutory protections to the Government servant are now
incorporated in Art. 311 of the Constitution. This Article imposes two
qualifications on the exercise of the pleasure of the President or the Governor
and they quite clearly restrict the operation of the rule embodied in Art.
310(1)-vide the observations of Das, C.J., in Dhingra's case (3). The most
important of these two limitations is the provision prescribing that a civil
servant shall be given a reasonable opportunity of showing cause against the
-action proposed to be taken in regard to him. As this condition is a
limitation on the "tenure at pleasure", a law can certainly be made
by Parliament defining the content of "reasonable opportunity" and
prescribing the procedure for giving the said opportunity. The appropriate High
Court and the Supreme Court can test the validity of such a law on the basis
whether the -provisions prescribed provide for such an opportunity, and, if it
is valid, to ascertain whether the reasonable opportunity so prescribed is
really given to a particular officer. It may be that the (1) (1936) L.R. 64
I.A. 40. (2) (1948) L.R. 75 1.A. 225.
(3) [1958] S.C.R. 828, 839.
701 framers of the Constitution, having
incorporated in our Constitution the "tenure at pleasure" unhampered
by legislative interference, thought that the said limitations and
qualifications would reasonably protect the interests of the civil servants
against arbitrary actions.
The discussion yields the following results:
(1) In India every person who is a member of a public service described in Art.
310 of the Constitution holds office during the pleasure of the President or
the Governor, as the case may be, subject to the express provisions therein.
(2) The power to dismiss a public servant at pleasure is outside the scope of
Art. 154 and, therefore, cannot be delegated by the Governor to a subordinate
officer, and can be exercised by him only in the manner prescribed by the
Constitution. (3) This tenure is subject to the limitations or qualifications
mentioned in Art. 311 of the, Constitution. (4) The Parliament or the
Legislatures of States cannot make a law abrogating or modifying this tenure so
as to impinge upon the overriding power conferred upon the President or the
Governor under Art. 310, as qualified by Art. 311. (5) The Parliament or the
Legislatures of States can make a law regulating the conditions of service of
such a member which includes proceedings by way of disciplinary action, without
affecting the powers of the President or the Governor under Art. 310 of the
Constitution read with Art. 311 thereof. (6) The Parliament and the
Legislatures also can make a law laying down and regulating the scope and
content of the doctrine of "reasonable opportunity" embodied in Art.
311 of the Constitution; but the said law would be subject to judicial review.
(7) If a statute could be made by Legislatures within the foregoing permissible
limits, the rules made by an authority in exercise of the power conferred there
under would likewise be efficacious within the said limits.
What then is the effect of the said
propositions in their application to the provisions of the Police Act and the
rules made there under? The Police Act of 89 702 1861 continues to be good law
under the Constitution.
Paragraph 477 of the Police Regulations shows
that the rules in Chapter XXXII thereof have been framed under s. 7 of the Police
Act. Presumably, they were also made by the Government in exercise of its power
under s. 46(2) of the Police Act. Under para. 479(a) the Governor's power of
punishment with reference to all officers is preserved; that is to say, this
provision expressly saves the power of the Governor under Art. 310 of the
Constitution. "Rules made under a statute must be treated for all purposes
of construction or obligation exactly as if they were in the Act and are to be
of the same effect as if contained in the Act, and are to be judicially noticed
for all purposes of construction or obligation": see Maxwell "On the
Interpretation of Statutes", 10th edn., pp. 5051. The statutory rules
cannot be described as, or equated with, administrative directions. If so, the Police
Act and the rules made there under constitute a self-contained code providing
for' the appointment. of police officers and prescribing the procedure for
their removal. It follows that where the appropriate authority takes
disciplinary action under the Police Act or the rules made there under, it must
conform to the provisions of the statute or the rules which have conferred upon
it the power to take the said action. If there is any violation of the said
provisions, subject to the question which we will presently consider whether
the rules are directory or mandatory, the public servant would have a right to
challenge the decision of that authority.
Learned counsel for the appellants relied
upon the following decisions of the Privy Council and this Court in support of
his contention that the said rules are administrative directions: R. T.
Rangachari v. Secretary of State for India (1), R. Venkata Rao v. Secretary of
State for India (2), High Commissioner for India and High Commissioner for
Pakistan v. I. M. Lall (3), S. A. Venkataraman v. The Union of India(4), and
Khem Chand v. The Union of India(5). In Venkata Rao's (1) (1936) L.R. 64 I.A.
40.
(3) (1948) L.R. 75 I.A. 225.
(2) (1936) L.R. 64 I.A. 55.
(4) [1954] S.C.R. 1150.
(5) [1958] S.C.R. 1080.
703 case (1) a reader of the Government Press
was dismissed and in the suit filed by him against the Secretary, of State for
India he complained, inter alia, that the dismissal was contrary to the statute
inasmuch as it was not preceded by any such inquiry as was prescribed by rule
XIV of the Civil Services Classification Rules made under s. 96B(2) of the
Government of India Act. Under s. 96B of the said Act, every person in civil
service holds office during the pleasure of His Majesty. Sub-section (2) of
that section empowers the Secretary of State for India to make rules laying
down, among others, the conditions of service, and sub-s. (5) declares that no
rules so made shall be construed to limit or abridge the power of the Secretary
of State in Council to deal with the case of any person in the civil service of
the Crown in India in such manner as may appear to him to be just and
equitable. On a construction of these provisions the Judicial Committee held
that His Majesty's pleasure was paramount and could not legally be controlled
or limited by the rules. Two reasons were given for the conclusion, namely, (i)
s. 96B in express terms stated that the office was held during the pleasure and
there was no room for the implication of a contractual term that the rules were
to be observed; and (ii) sub-s. (2) of s. 96B and the rules made careful
provisions for redress of grievances by administrative process and that sub-s.
(5) reaffirmed the superior authority of the Secretary of State in Council over
the civil service. It may be noticed that the rules framed in exercise of the
power conferred by the Act was to regulate the exercise of His Majesty's
pleasure.
The observations were presumably coloured by
the doctrine of "tenure at pleasure" obtaining in England, namely,
that it could only be modified by statute, influenced by the principle that the
rules made under a statute shall be consistent with its provisions and, what is
more, based upon a construction of the express provisions of the Act. These
observations cannot, in our opinion, be taken out of their context and applied
to the provisions of our Constitution and the Acts of our Legislatures in
derogation of the well settled principles of (1) (1936) L. R. 64 I. A. 55.
704 statutory construction. In Bangachari's
case (1) a police officer was dismissed by an authority subordinate to that by
which he had been appointed. The appeal was heard along with that in Venkata
Rao's case (2) and the judgments in both the appeals were delivered on the same
day. The Judicial Committee distinguished Venkata Rao's case (2) with the
following observations at p. 53:
"It is manifest that the stipulation or
proviso as to dismissal is itself of statutory force and stands on a footing
quite other than any matters of rule which are of infinite variety and can be
changed from time to time." These observations do not carry the matter
further an our remarks made in connection with Venkata Rao's case (2) would
equally apply to this case. I.M. Lall's case (3) turns upon sub-s. (3) of s.
240 of the Government of India Act, 1935.
Again the Judicial Committee made a
distinction between the rules and the provisions of the Act and ruled that
sub-ss. (2) and (3) of s. 240 indicated a qualification or exception to the
antecedent provisions in sub-s. (1) of s. 240. This decision only adopted the
reasoning in the earlier decision.
The remarks made by us in connection with
Venkata Rao's case (2) would equally apply to this decision. This Court in S. A.
Venkataraman's case (4) incidentally noticed the observations of the Judicial
Committee in Venkata Rao's case (2) and observed that the rules, which were not
incorporated in a statute, did not impose any legal restriction upon the right
of the Crown to dismiss its servants at pleasure.
This Court was not laying down any general
proposition, but was only stating the gist of the reasoning in Venkata Rao's
case (2). Das, C.J., if we may say so, correctly stated the scope of the rule
in Venkata Rao's case (2) in the decision in Khem Chand's case (5), when he
stated at p. 1091"The position of the Government servant was, therefore,
rather insecure, for his office being held during the pleasure of the Crown
under the Government of India Act, 1915, the rules could not override (1)
(1936) L.R. 64 I.A. 40.
(3) (1948) L.R. 75 I.A. 225.
(2) (1936) L.R. 64 I.A. 55.
(4) [1954] S.C.R. 1150.
(5) [1958] S.C.R. 1080.
705 or derogate from the statute and the
protection of the rules could not be enforced by action so as to nullify the
statute itself." To state it differently, the Government of India Act,
1915, as amended in 1919, and that of 1935 expressly and clearly laid down that
the tenure was at pleasure and therefore the rules framed under that Act must
be consistent with the Act and not in derogation of it. These decisions and the
observations made therein could not be understood to mark a radical departure
from the fundamental principle of construction that rules made under a statute
must be treated as exactly as if they were in the Act and are of the same
effect as if contained in the Act. There is another principle equally
fundamental to the rules of construction, namely, that the rules shall be
consistent with the provisions of the Act. The decisions of the Judicial
Committee on the provisions of the earlier Constitution Acts can be sustained
on the ground that the rules made in exercise of power conferred under the Acts
cannot override or modify the tenure at pleasure provided by s. 96B or s. 240
of the said Acts, as the case may be. Therefore, when the paramountcy of the
doctrine was conceded or declared by the statute, there might have been
justification for sustaining the rules made under that statute in derogation
thereof on the ground that they were only administrative directions, for
otherwise the rules would have to be struck down as inconsistent with the Act.
In such a situation, if the statute was valid-it would be valid in so far as it
did not derogate from the provisions of Art. 310, read with Art.
311-the rules made there under would be as
efficacious as the Act itself. So long as the statute and the rules made there
under do not affect the power of the Governor-in the present case the
Governor's pleasure is expressly preserved they should be legally enforceable.
In this context the decisions of the different High Courts in India are cited
at the Bar. It would not serve any purpose to consider every one of them in
detail. It would suffice if their general trend be noticed. They express two
divergent views: one line relies upon the observations 706 of the Privy Council
in Venkata Rao's case (1) and lays down that all statutory rules vis-a-vis the
disciplinary proceedings taken against a Government servant are administrative
directions, and the other applies the well settled rules of construction and
holds that the appropriate authority is bound to comply with the mandatory
provisions of the rules in making an inquiry under a particular statute. A
close scrutiny of some of the decisions discloses a distinction implied, though
not expressed, between statutory rules defining the scope of reasonable
opportunity and those governing other procedural steps in the disciplinary
process. In our view, subject to the overriding power of the President or the
Governor under Art.
310, as qualified by the provisions of Art.
311, the rules governing disciplinary proceedings cannot be treated as
administrative directions, but shall have the same effect as the provisions of
the statute whereunder they are made, in so far a,-, they are not inconsistent
with the provisions thereof We have already negatived the contention of learned
counsel that the Governor exercises his pleasure through the officers specified
in s. 7 of the Police Act, and therefore, it is not possible to equate the
Governor's pleasure with that of the specified officers' statutory power. If
so, it follows that the inquiry under the Act shall be made in accordance with
its provisions and the rules made there under.
Then learned counsel contends that even if
the said rules have statutory force, they are only directory and the noncompliance
with the rules will not invalidate the order of dismissal made by the
appropriate authority.
Before we consider the principles governing
the question whether the rules are mandatory or directory, it would be
convenient at this stage to notice broadly the scope and the purpose of the
inquiry contemplated by the rules.
Section 2 of the Police Act constitutes the
police establishment; s. 7 empowers specified officers to (1) [1936] L.R. 64
I.A. 55.
707 punish specified subordinate officers who
are remiss or negligent in discharge of their duties or unfit for the same; s.
46 enables the Government to make rules. to regulate the procedure to be
followed by the magistrate and police officers in discharge of any duty imposed
on them by or under the Act; under s. 7, read with s. 46 of the Police Act, the
Police Regulations embodied in chapter XXXII were framed. Paragraph 477 of the
Regulations says that the rules in that chapter have been made under s. 7 of
the Police Act and apply only to officers appointed under s. 2 of the Police
Act and that no officer appointed under that section shall be punished by
executive order otherwise than in the manner provided in that chapter.
Paragraph 478 prescribes the nature of the punishment that can be imposed on
the delinquent officers. Paragraph 479 empowers specified officers to punish
specified subordinate officers.
Paragraph 483 gives the procedure to be
followed in the matter of the inquiry against a police officer. It reads:
"Subject to the special provision
contained in paragraph 500 and to any special orders which may be passed by the
Governor in particular cases a proceeding against a police officer will consist
ofA-A magisterial or police inquiry, followed, if this inquiry shows the need
for further action, by B-A judicial trial, or C-A departmental trial, or both,
consecutively." Paragraph 484 declares that the nature of the inquiry in
any particular -case will vary according to the nature of the offence. If the
offence is cognizable or non-cognizable, the inquiry will be according to Schedule
II of the Criminal Procedure Code. If the information is received by the
District Magistrate, he may in exercise of his powers under the Criminal
Procedure Code either, (1) make or order a magisterial inquiry; or (2) order an
investigation by the Police. Paragraph 485 reads:
"When a magisterial inquiry is ordered
it will be made in accordance with the Criminal Procedure Code and the
Superintendent of Police will have no direct 708 concern with it until the
conclusion of judicial proceedings or until and unless the case is referred to
him for further disposal, but he must give any assistance to the inquiring
magistrate that he may legally be called upon to give and he must suspend the
accused should this become necessary under paragraph 496." Paragraph 486
says that there can be no magisterial inquiry under the Criminal Procedure Code
when the offence alleged against a police officer amounts to an offence only
under s. 7 of the Police Act, and it provides further that in such cases, and
in, other cases until and unless a magisterial inquiry is ordered, inquiry will
be made under the direction of the Superintendent of Police in accordance with
the rules given there under. Under rule I thereof, "Every information
received by the police relating to the commission of a cognizable offence by a
police officer shall be dealt with in the first place under Chapter XIV,
Criminal Procedure Code, according to law, a case under the appropriate section
being registered in the police station concerned". There are six provisos
to that rule.
Rule II provides for the inquiry of a
non-cognizable offence; and rule III prescribes the procedure in regard to an
offence only under s. 7 of the Police Act or a noncognizable offence of which
the Superintendent of Police considers unnecessary at that stage to forward a
report in writing to the District Magistrate. Paragraph 488 deals with a
judicial trial and para. 489 with a departmental trial. Paragraph 489 says:
"A police officer may be departmentally
tried under section 7 of the Police Act(1) after he has been tried judicially;
(2) after a magisterial inquiry under the
Criminal Procedure Code;
(3) after a police investigation under the
Criminal Procedure Code or a departmental enquiry under paragraph 486,III
above." There are other provisions dealing with the manner of conducting
the inquiries and other connected matters. The rules provide for the
magisterial and police inquiry followed, if the inquiry showed the need for
further action, by a judicial trial or a departmental 709 trial, or both,
consecutively. In the case of cognizable offences the Superintendent of Police
is directed to investigate under chapter XIV of the Criminal Procedure Code and
in the case of non-cognizable offences in the manner provided in rule II of
para. 486, and in the case of an offence only under s. 7 of the Police Act or a
noncognizable offence in the manner provided under rule III of para. 486. After
one or other of the relevant procedure is followed, the Superintendent of
Police is empowered to try a police officer departmentally.
The question is whether rule I of para. 486
is directory.
The relevant rule says that the police
officer shall be tried in the first place under chapter XIV of the Criminal
Procedure Code. The word "shall" in its ordinary import is
"obligatory"; but there are many decisions wherein the courts under
different situations construed the word to mean "may". This Court in
Hari Vishnu Kamath v. Syed Ahmad Ishaque (1) dealt with this problem at p. 1125
thus:
"It is well established that an
enactment in form mandatory might in substance be directory and that the use of
the word "shall" does not conclude the matter." It is then
observed:
"They (the rules) are well-known, and
there is no need to repeat them. But they are all of them only aids for
ascertaining the true intention of the legislature which is the determining
factor, and that must ultimately depend on the context." The following
quotation from Crawford "On the Construction of Statutes", at p. 516,
is also helpful in this connection:
"The question as to whether a statute is
mandatory or directory depends upon the intent of the legislature and not upon
the language in which the intent is clothed. The meaning and intention of the
legislature must govern, and these are to be ascertained, not only from the
phraseology of the provision, but also by considering its nature, its design,
and the (1) [1955] 1 S.C.R. 1104.
90 710 consequences which would follow from
construing it the one way or the other......" This passage was approved by
this Court in State of U. P.
v. Manbodhan Lal Srivastava (1). In Craies on
Statute Law, 5th edition, the following passage appears at p. 242:
"No universal rule can be laid down as
to whether mandatory enactments shall be considered directory only or
obligatory with an implied nullification for disobedience. It is the duty of
Courts of Justice to try to get at the real intention of the Legislature by
carefully attending to the whole scope of the statute to be construed." A
valuable guide for ascertaining the intention of the Legislature is found in
Maxwell on "The Interpretation of Statutes", 10th edition, at p. 381
and it is:
"On the other hand, where the
prescriptions of a statute relate to the performance of a public duty and where
the invalidation of acts done in neglect of them would work serious general
inconvenience or injustice to persons who have no control over those entrusted
with the duty without promoting the essential aims of the legislature, such
prescriptions seem to be generally understood as mere instructions for the
guidance and government of those on whom the duty is imposed, or, in other
words, as directory only. The neglect of them may be penal, indeed, but it does
not affect the validity of the act done in disregard of them." This
passage was accepted by the Judicial Committee of the Privy Council in the case
of Montreal Street Railway Company v. Normandin (2 ) and by this Court in State
of U. P. v. Manbodhan Lal Srivastava (1).
The relevant rules of interpretation may be
briefly stated thus: When a statute uses the word "shall", prima
facie, it is mandatory, but the Court may ascertain the real intention of the
legislature by carefully attending to the whole scope of the statute. For
ascertaining the real intention of the Legislature the Court may consider, inter
alia, the nature and the design of the statute, and the consequences which (1)
[1958] S.C.R. 533, 545.
(2) L.R. [1917] A.C.770.
711 would follow from construing it the one
way or the other, the impact of other provisions whereby the necessity of
complying with the provisions in question is avoided, the circumstance, namely,
that the statute provides for a contingency of the non-compliance with the
provisions, the fact that the non-compliance with the provisions is or is not
visited by some penalty, the serious or trivial consequences that flow there from,
and, above all, whether the object of the legislation will be defeated or
furthered.
Now what is the object of rule I of para. 486
of the Police Regulations? In our opinion, it is conceived not only to enable
the Superintendent of Police to gather information but also to protect the
interests of subordinate officers against whom departmental trial is sought to
be held. After making the necessary investigation under chapter XIV of the
Criminal Procedure Code, the Superintendent of Police may as well come to the
conclusion that the officer concerned is innocent, and on that basis drop the
entire proceedings. He may also hold that it is a fit case for criminal
prosecution, which, under certain circumstances, an honest officer against whom
false charges are framed may prefer to face than to submit himself to a
departmental trial.
Therefore, the rules are conceived in the
interest of the department as well as the officer. From the stand point of the
department as -well as the officer against whom departmental inquiry is sought
to be initiated, the preliminary inquiry is very important and it serves a real
purpose. Here the setting aside of the order of dismissal will not affect the
public in general and the only consequence will be that the officer will have
to be proceeded against in the manner prescribed by the rules.
What is more, para. 487 and para. 489 make it
abundantly clear that the police investigation under the Criminal Procedure
Code is a condition precedent for the departmental trial. Paragraph 477
emphasizes that no officer appointed under s. 2 of the Police Act shall be
punished by executive order otherwise than in the manner provided under chapter
XXXII of the Police Regulations. This is an imperative injunction prohibiting
712 inquiry in non-compliance with the rules. Paragraph 489 only empowers the
holding of a departmental trial in regard to a police officer only after a
police investigation under the Criminal Procedure Code. When a rule says that a
departmental trial can be held only after a police investigation, it is not
permissible to hold that it can be held without such investigation. For all the
foregoing reasons, we hold that para. 486 is mandatory and that, as the
investigation has not been held under chapter XIV of the Criminal Procedure
Code, the subsequent inquiry and the order of dismissal are illegal.
For the foregoing reasons we hold that, as
the respondent was dismissed without complying with the provisions of para.
486(1), the order of dismissal is illegal and
that the High Court is right in setting aside the order of dismissal.
In the result, the appeal fails and is
dismissed with costs.
WANCHOO, J.-We regret we are unable to agree
that the appeal be dismissed.
Babu Ram Upadhya (respondent) was a
sub-inspector of police who was appointed in December, 1948. In 1953, he was
posted at Sitapur. On September 6, 1953, he was returning from a village called
Madhwapur, when he saw a man who was subsequently found to be Tika Ram coming
from the side of a canal and going hurriedly into a field. The movements of
Tika Ram roused his suspicion. One Lalji, an ex-patwari, was also with the
sub-inspector. Tika Ram was called and searched, and a bundle containing
currencynotes was found on him. The sub-inspector took the bundle and counted
the notes and handed them over to Lalji. Lalji in his turn handed over the
notes to Tika Ram. Thereafter Tika Ram, who is an old-man, almost blind, went
away. When he reached his house, he found that there was a shortage of Rs. 250.
He then made a complaint to the Superintendent of Police on September 9, 1953,
in which he gave the above facts. An inquiry was made by the Superintendent of
Police and ultimately, departmental proceedings under s. 7 of the Police Act
were taken 713 against the respondent. These proceedings resulted in his
dismissal and thereupon the respondent applied to the High Court under Art. 226
of the Constitution.
The main contention of the respondent was
that r. 486 of the Police Regulations framed under s. 7 of the Police Act was
not observed and therefore the departmental proceedings taken against him were
illegal. The reply of the appellant was two-fold: in the first place, it was
urged that r. 486 did not apply as there was no report of a cognizable offence
against the sub-inspector; and in the next place, it was urged that the rules
contained in the Police Regulations were only administrative rules and even if
there was noncompliance with any of them, it would not affect the departmental
proceedings taken against the respondent, provided there was no breach of the
guarantees contained in Art. 311 of the Constitution.
The High Court held that there was a report
of a cognizable offence under s. 409 of the Indian Penal Code against the
respondent and therefore the procedure provided by r. 486 ought to have been
followed. It further held that r. 486 had been framed under s. 7 of the Police
Act and was a statutory provision, which had the force of law. As such,
following the earlier view taken by the High Court in two other cases it held
that a dismissal as a result of departmental proceedings which took place
without complying with r. 486 would be illegal. In consequence, the writ
petition was allowed. The appellant then applied for a certificate to enable it
to appeal to this Court, which was refused. Thereupon special leave was prayed
for from this Court, which was granted; and that is how the matter has come up
before us.
Mr. C. B. Aggarwala on behalf of the
appellant urges the same two points before us. So far as the first point is
concerned, we are of opinion that there is no force in it.
There is no doubt that in the complaint made
by Tika Ram, the name of the respondent was not shown in the heading; but from
the facts disclosed in the body of the complaint it is clear that the
sub-inspector searched the person of Tika Ram and recovered a bundle containing
currency-notes. He 714 did so obviously under the authority vested in him as a
police officer. When therefore he was satisfied that there was no reason to
take any further action against Tika Ram, it was his duty to see that the
entire amount taken by him from Tika Ram on search was returned to him (Tika
Ram). The High Court was right in the view that where property is taken away with
the intention that it will continue to be the property of the person from whose
possession it has been taken away, there will be an entrustment of the property
to the person taking it away, and if. subsequently the person taking it away
converts it to his own use or suffers some other person to do so, there will be
criminal breach of trust and not merely criminal misappropriation. Thus an
offence under s. 409 of the Indian Penal Code appears to have been committed
prima facie on the facts of this case.
As an offence under s. 409 is a cognizable
offence, r. 486 of the Police Regulations would apply. This brings us to the
main point in the present appeal.
Sec. 7 of the Police Act under which r. 486
has been framed is in these terms:"Subject to such rules as the State
Government may from time to time make under this Act, the Inspector-General,
Deputy Inspectors-General, Assistant Inspectors-General and District
Superintendents of Police may at any time dismiss, suspend or reduce any
police-officer -of the subordinate ranks whom they shall think remiss or
negligent in the discharge of his duty or unfit for the same;
or may award any one or more, of the
following punishments to any police-officer of the subordinate ranks, who shall
discharge his duty in a careless or negligent manner, or who, by any act of his
own shall render himself unfit for the discharge thereof, name(a) fine to any
amount not exceeding one month's pay; (b) confinement to quarters for a term
not exceeding fifteen days, with or without punishment, drill, extra guard,
fatigue or other duty;
(c) deprivation of good-conduct pay;
715 (d) removal from any office of
distinction or special emolument;".
It gives power to four grades of police
officers to dismiss, suspend or reduce any police officer of the subordinate
ranks whom they think remiss or negligent in the discharge of his duty or unfit
for the same. It also provides for infliction of four other kinds of punishment
by these four grades of officers on any police officer of the subordinate ranks
who discharges his duty in a careless or negligent manner or who by any act of
his own renders himself unfit for the discharge thereof. In the present case we
are concerned with dismissal and what we shall say hereafter should be taken to
be confined to a case of dismissal. Section 7 shows that the power of dismissal
conferred by it on the four grades of police officers is to be exercised
subject to such rules as the State Government may from time to time make under
the Police Act. The contention on behalf of the respondent is that the power of
dismissal has to be exercised subject to rules and therefore, when r. 486 of
the Police Regulations (framed under s. 7) provided a certain procedure to be
followed with respect to cases in which a cognizable offence was involved it
was not open to the authority concerned to disregard that procedure. In effect,
it is urged that r. 486 is a mandatory provision and noncompliance with it
would invalidate the departmental proceedings. It is not in dispute in this
case that the procedure provided by r. 486 was not followed. That procedural
provision is that where a report of a cognizable crime is made against a police
officer belonging to the subordinate ranks, it has to be registered as provided
in Chapter XIV of the Code of Criminal Procedure and investigated as provided there
under. Thereafter the authority concerned has to decide whether to send the
case for trial before a court of law or to take departmental proceedings. In
this case no report was registered as provided under Chapter XIV of the Code of
Criminal Procedure and no investigation was made as provided in that Chapter.
All that happened was that the Superintendent
of Police to whom Tika Ram had complained inquired into the 716 complaint of
Tika Ram and thereafter decided to hold a departmental inquiry under s. 7 of
the Police Act against the respondent.
The main contention on behalf of the
appellant is that the Rules framed under s. 7 of the Police Act are
administrative rules and in any case they are only directory and noncompliance
with them would not vitiate the subsequent proceedings unless there is a breach
of the guarantee contained in Art. 311 of the Constitution, as all public
servants hold their office at the pleasure of the President or the Governor, as
the case may be, other than those expressly excepted under the Constitution.
Reliance in this connection is placed on the case of R. Venkata Rao v. Secretary
of State for India in Council (1).
This brings us to a consideration of the
tenure on which public servants hold office. The position in England is that
all public servants hold office at the pleasure of His Majesty, that is to say,
their service was terminable at any time without amuse: (see Shenton v. Smith
(2 )). By law, however, it is open to Parliament to prescribe a different
tenure and the King being a party to every Act of Parliament is understood to
have accepted the change in the tenure when he gives assent to such law: (see
Gould v. Stuart (3)).
This principle applied in India also before
the Government of India Act, 1915, was amended by the addition of s. 96-B
therein. Section 96-B for the first time provided by statute that every person
in the civil service of the Crown held office during His Majesty's pleasure,
subject to the provisions of the Government of India Act and the rules made there
under and the only protection to a public servant against the exercise of
pleasure was that he could not be dismissed by any authority subordinate to
that by which he was appointed. It was this section, which came for
consideration before the Privy Council in Venkata Rao's case (1) and the Privy
Council held that in spite of the words ".subject to the rules made under
the Government of India Act," Venkata Rao's employment was not of a (1)
(1936) L.R. 64 I.A. 55 (2) [1895] A.C. 229.
(3) [1896] A.C. 575.
717 limited and special kind during pleasure
with an added contractual term that the procedure prescribed, by the Rules must
be observed; it was by the express terms of s. 96-B held "during His
Majesty's pleasure" and no right of action as claimed by Venkata Rao
existed. The Privy Council further held that the terms of s. 96-B assured that
the tenure of office, though at pleasure, would not be subject to capricious or
arbitrary action but would be regulated by the rules which were manifold in
number, most minute in particularity and all capable of change; but there was
no right in the -public servant enforceable by action to hold his office in
accordance with those rules and he could therefore be dismissed notwithstanding
the failure to observe the procedure prescribed by them. The main point which
was urged in Venkata Rao's case (1) was that under r.
XIV of the Civil Services Classification
Rules no public servant could be dismissed, removed or reduced in rank except
after a properly recorded departmental inquiry. In Venkata Rao's case (1) the
departmental inquiry prescribed by the rules was found not to have been held.
Even so, the Privy Council held that the words used in s. 96-B could not and
did not cut down the pleasure of His Majesty by rules though it was observed
that the terms of the section contained a statutory and solemn assurance, that
the tenure of office, though at pleasure., would not be subject to capricious
or arbitrary, action, but would be regulated by rule. It was further added that
supreme care should be taken that this assurance is carried out in the letter
and in the spirit. The Privy Council further held that in' the case before it,
there had been a serious and complete failure to adhere to important and indeed
fundamental rules, and mistakes of a serious kind had been made and wrongs had
been done which called for redress; even so; they were of the view that as a
matter of law that redress was not obtainable from courts by action..,.
This was the position under the Government of
India Act 1915. There was however a material change in the Government of India
Act, 1935. So far, there (1) (1936) L.R. 64 I. A. 55.
91 718 was one protection to a public servant,
namely, that he could not be dismissed by an authority subordinate to that by
which he was appointed. In the Government of India Act, 1935, s. 240(1) laid
down that-" except as expressly provided by this Act, every person who is
a member of a civil service of the Crown in India......
holds office during His Majesty's
pleasure." The words of this section are different from those of s. 96B
and the tenure of all public servants other than those expressly provided for
was to be during His Majesty's pleasure. There were, however, two safeguards
provided by sub-ss. (2) and (3) of s. 240. The first was the same (namely, that
no public servant will be dismissed by an officer subordinate to that who
appointed him); but a further exception was added to the pleasure tenure,
namely, no public servant shall be dismissed until he has been given a
reasonable opportunity of showing cause against the action proposed to be taken
in regard to him. This protection came to be considered by the Privy Council in
High Commissioner for India and High Commissioner for Pakistan v. 1. M. Lall
(1) and it was held that it was a mandatory provision and qualified the
pleasure tenure and provided a condition precedent to the exercise of power by
His Majesty provided by sub-s. (1) of s. 240. Thus by the Government of India
Act, 1935, there were two statutory guarantees to public servants against the
exercise of the pleasure of his Majesty; but it is clear from s. 240 of the
Government of India Act, 1935, that the pleasure of His Majesty to dismiss was
not otherwise subject to rules framed under the subsequent provisions of the
Government of India Act appearing in Chapter 11 of Part X dealing with public
services.
This position continued till we come to the
Constitution.
Article 310(1) of the Constitution provides
for what was contained in s. 240(1) of the Government of India Act, 1935, and
is in these terms:
"(1) Except as expressly provided by
this Constitution, every person who -is a member of a defence (1) (1948) L.R.
75 I.A. 225.
719 service or of a civil service of the
Union or of an all India service or holds any post connected with defence, or
any civil post under the Union, holds office during the pleasure of the
President, and every person who is a member of a civil service of a State or
holds any civil post under a State holds office during the pleasure of the
Governor of the State." It will be clear therefore that all public
servants except as expressly provided by the Constitution hold their office
during the pleasure of the President or the Governor, as the case may be.
Article 311 then provides for two guarantees and is similar in terms to s.
240(2) and (3) of the Government of India Act, 1935 and the two guarantees are
the same, (namely, (i) that no person shall be dismissed or removed by an
authority subordinate to that by which he was appointed, and (ii) no such
person shall be dismissed or removed 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). In Parshotam Lal Dhingra v. Union of India (1), this
Court held that Art. 311 was in the nature of a proviso to Art. 310, that it
provides two constitutional guarantees cutting down the pleasure of the
President or the Governor, as the case may be, and that it was a mandatory
provision which had to be complied with before the pleasure provided in Art.
310 can be exercised.
Mr. Pathak for the respondent urges that in
view of the words of Art. 310 statute or statutory rules can also cut down the
nature of the pleasure tenure provided by Art. 310 in the same way as in
England an Act of Parliament cuts down the ambit of His Majesty's pleasure in
the matter of dismissal. He relies on the words "as expressly provided by
this Constitution" and urges that it is open to the legislature to cut
down the pleasure tenure by law or to provide for its being affected by
statutory rules. In this connection he relies on Art. 309 as well as Art. 154
of the Constitution. Now, Art. 309 begins with the words "subject to the
provisions of this Constitution" land lays down that "Acts of the
appropriate Legislature may regulate the recruitment, and conditions of (1)
[1958] S.C.R. 828.
720 service of person appointed, to public
services and posts in connection with the affairs of the Union or of any
State".
The proviso to Art. 309 lays down that
"it shall be competent for the President or the Governor as the case may
be to make rules relating to recruitment and conditions of service until
provision in that behalf is made by or under an Act of the appropriate
Legislature". It will be clear immediately that Art. 309 is subject to the
provisions of the Constitution and therefore subject to Art. 310 and therefore,
any law passed or rules framed under Art. 309 must be subject to Art. 310 and
cannot in any way affect the pleasure-tenure laid down in Art. 310. The words
"except as expressly provided by this Constitution" appearing in Art.
310 clearly show that the only exceptions to
the pleasure tenure are those expressly contained in the Constitution and no
more. These exceptions, for example, are contained inter alia in Arts. 124.
148, 280 and 324 and also in Art. 310 (2). Therefore, unless there is an
express provision in the Constitution cutting down the pleasure tenure, every
public servant holds office during the pleasure of the President or the
Governor, as the case may be. We cannot accept the argument that a law passed
under Art. 309 prescribing conditions of service would become an express
provision of the Constitution and would thus cut down the pleasure tenure
contained in Art. 310. As the Privy Council pointed in Venkata Rao's case (1),
the rules framed under Art. 309 or the laws passed there under amount to a
statutory and solemn assurance that the tenure of office though at pleasure
will not be subject to capricious or arbitrary action but will be regulated by
rule. But if the rules or the law define the content of the guarantee contained
in Art. 311 (2) they may to that extent be mandatory but only because they
carry out the guarantee contained in Art. 311 (2). Excepting this, any law or
rule framed under Art. 309 cannot cut down the pleasure tenure as provided in
Art. 310.
The same in our opinion applies to a law
passed under Art.
154 (2)(b) which authorises Parliament or the
legislature of a State to confer functions on any (1) (1936) L.R. 64 I.A. 55.
721 authority subordinate to the Governor. If
any law is passed conferring on any authority the power to dismiss or remove or
reduce in rank, that law cannot cut down the content of the pleasure tenure as
contained in Art. 310; that law would be passed under Art. 245 and that article
also begins with the words "subject to the provisions of this
Constitution".
Therefore, the law passed under Art. 154 (2)
(b) would also in the same way as the law under Art. 309 be subject to the
pleasure tenure contained in Art. 310 and cannot cut down the content of that
tenure or impose any further fetters on it except those contained in Art. 311.
The position therefore that emerges from the examination of the relevant
Articles of the Constitution is that all public servants other than those who
are excepted expressly by the provisions of the Constitution hold office during
the pleasure of the President or the Governor, as the case may be, and that no
law or rule passed or framed under Art. 309 or Art. 154 (2) (b) can cut down
the content of the pleasure tenure as contained in Art. 310 subject to Art.
311.
With this basic position in our Constitution,
let us turn to the Police Act with which we are concerned. Section 7 thereof
lays down that four grades of officers will have power to dismiss, suspend or
reduce any police-officer of the subordinate ranks subject to such rules as the
State Government may from time to time make under the Police Act.
Though the Police Act is a pre-constitutional
law which has continued under Art. 372 of the Constitution, it cannot in our
opinion stand higher than a law passed under Art. 309 or Art. 154 (2) (b) and
out down the content of the pleasure tenure as contained in Art. 310. The police
officers of the subordinate ranks are not expressly excluded from the operation
of the pleasure tenure by any provision of the Constitution; they, therefore,
hold office during the pleasure of the Governor and the only protection that
they can claim are the two guarantees contained in Art. 311. It is true that s.
7 lays down that the four grades of officers empowered to dismiss will act
according to rules framed by the State Government; but that does not in our
opinion mean that 722 these rules could introduce any further fetter on the
pleasure tenure under which the police officers of the subordinate ranks are in
service. It was necessary to provide for the framing of rules because the
section envisages conferment of, powers of punishment of various kinds on four
grades of officers relating to various cadres of police officers in the
subordinate ranks. It was left to the rules to provide which four grades of
officers would dismiss police officers of which subordinate rank or would give
which punishment to a police officer of which subordinate rank. Such rules
would in our opinion be mandatory as they go to the root of the jurisdiction of
the four grades of police officers empowered to act under s. 7.
But further rules may be framed under s. 7 to
guide these police officers how to act when they proceed to dismiss or inflict
any other punishment on police officers of the subordinate ranks. These rules
of procedure, however, cannot all be mandatory, for if they were so they would
be putting further fetters than those provided in Art. 311 on the pleasure of
the Governor to dismiss a public servant.
of course, if any of the rules framed under
s. 7 carry out the purposes of Art. 311(2), to that extent they will be
mandatory and in that sense their contravention would in substance amount to
contravention of Art. 311 itself. If this were not so, it would be possible to
forge further fetters on the pleasure of the Governor to dismiss a public
servant and this in the light of what we have said above is clearly not possible
in view of the provisions of the Constitution. On the other hand, it will not
be possible by means of rules framed under s. 7 to take away the guarantee
provided by Art. 311(1), which lays down that no public servant shall be
dismissed by an authority subordinate to that by which he was appointed. If any
rule under s. 7, for example, lays down otherwise it will clearly be ultra
vires in view of Art. 311(1). The rules therefore that are framed under s. 7
would thus be of two kinds, namely (1) those which define the jurisdiction of
four grades of officers to inflict a particular kind of punishment on a
particular police officer of the subordinate rank-they will be mandatory 723
for they go to the root of the jurisdiction of the officer exercising the power,
but even these rules cannot go against the provisions of Art. 31 1 (1); and (2)
procedural rules, which again may be of two kinds. Some of them may prescribe
the manner in which the guarantee contained in Art. 311 (2) may be carried out
and if there are any such rules they will be mandatory. The rest will be merely
procedural and can only be directory as otherwise if they are also mandatory
further fetters on the power of the Governor to dismiss at his pleasure
contained in Art. 310 would be forged and this is not permissible under the
Constitution. It is from this angle that we shall have to consider 486.
Before, however, we come to r. 486 itself, we
may dispose of another argument, namely, that the four grades of officers who
have the power to dismiss under s. 7 are exercising the statutory authority
vested in them and are not exercising the Governor's pleasure of dismissal
under Art. 310 and therefore their action in dismissing an officer is subject
to all the rules framed for their guidance. We are of opinion that this
argument is fallacious. Article 310 defines the pleasure tenure and by
necessary implication gives power to the Governor to dismiss at pleasure any
public servant subject to the exceptions contained in Art.
310 and also subject to the guarantees
contained in Art.
311. This power of the Governor to dismiss is
executive power of the State and can be exercised under Art. 154(1) by the
Governor himself directly or indirectly through officers subordinate to him.
Thus it is open to the Governor to delegate his power of dismissal to officers
subordinate to him; but even when those officers exercise the power of
dismissal, the Governor is indirectly exercising it through those to whom he
has delegated it and it is still the pleasure of the Governor to dismiss, which
is being exercised by the subordinate officers to whom it may be delegated.
Further though the Governor may delegate his executive power of dismissal at
pleasure to subordinate officers he still retains in himself the power to
dismiss at pleasure if he thinks fit in a particular case in spite 724 of the
delegation. There can be no question that where a delegation is made, the
authority making the delegation retains in itself what has been delegated.
Therefore, even where a subordinate officer is exercising the power to dismiss
he is indirectly exercising the power of the Governor to dismiss at pleasure
and so his power of dismissal can only be subject to the same limitations to
which the power of the Governor would be subject if he exercised it directly.
But it is said that in the present case the
power has not been delegated by the Governor under Art. 154(1) and that it had
been conferred on those police officers by law. In our opinion, that makes no
difference to the nature of the power, which is being exercised by these four
grades of officers under the Police Act. As we have already said Art.
154(2)(b) gives power to Parliament or the
legislature of a State by law to confer functions on any authority subordinate
to the Governor. When the function of dismissal is conferred by law on any
authority subordinate to the Governor it is nothing more than delegation of the
Governor's executive power to dismiss at pleasure by means of law and stands in
no better position than a delegation by the Governor himself under Art. 154(1).
Whether it is delegation by the Governor himself or whether it is delegation by
law under Art. 154(2)(b) or by an existing law, which must be treated as
analogous to a law under Art.
154(2)(b), the officer exercising the power
of dismissal is only indirectly exercising, the Governor's power to dismiss at
pleasure and his order of dismissal has the same effect as the order of the
Governor to dismiss at pleasure.
Therefore, his order also is only subject to
the two fetters provided in Art. 311 of the Constitution and cannot be
subjected to any more fetters by procedural rules other than those framed for
carrying out the object of Art. 311(2).
Therefore, when the four grades of officers
proceed to dismiss any police officer of the subordinate rank under s. 7 of the
Police Act, they are merely exercising. the power of the Governor to dismiss at
pleasure indirectly; and the only fetters that can be placed on that power are
those contained in the Constitution, namely, Art. 311.
725 We may in this connection refer once
again to the case of Venkata Rao (1) where the dismissal was by an, officer
subordinate to the Governor of Madras; but' that dismissal was also held to be
an indirect exercise I of His Majesty's pleasure to dismiss, and that is why it
was held that if r.
XIV of the Classification Rules was not
complied with, a public servant had no right of action against an order
dismissing him at His Majesty's pleasure. Therefore, whenever a subordinate
officer exercises the power to dismiss, whether that power is delegated by the
Governor, or is delegated under a law made under Art. 154(2)(b) or under an
existing law analogous to that, he is merely exercising indirectly the power of
the Governor to dismiss at pleasure and his action -is subject only to the two
guarantees contained in Art. 311. The fact therefore that the police officer in
this case made the order of dismissal by virtue of s. 7 will make no difference
and he will be deemed to be exercising the power of the Governor to dismiss at
pleasure by delegation to him by law of that power. We may add that even where
there is delegation by law of the power of the Governor to dismiss at pleasure,
the power of the Governor himself to act directly and dismiss at pleasure
cannot be taken away by that law, for that power he derives from Art.
310 of the Constitution. The present case
therefore must be judged on the same basis as any case of dismissal directly by
the Governor and would only be subject to the two limitations contained in Art.
311.
We now come to r. 486. This rule, as we have
already indicated, provides that if there is any complaint of the commission of
any cognizable crime by a police officer, it must be registered in the relevant
police station, under Chapter XIV of the Code of Criminal Procedure and
investigated in the manner provided by that Chapter. After the investigation is
complete, it is open to the authority concerned, be it the Superintendent of
Police or the District Magistrate, to decide whether to proceed in a court of
law (1) (1936) L.R. 64 I.A. 55.
92 726 or to hold a departmental inquiry or
do both, though in the last case the departmental inquiry must take place only
after the judicial trial is over. The first question then that arises is
whether r. 486 is meant to carry out the purpose of Art. 311(2). As we read r.
486, we cannot see that it is meant for that purpose; it only provides for a
police investigation under Chapter XIV of the Code of Criminal Procedure. The
police officer making an investigation under Chapter XIV is not bound to
examine the person against whom he is investigating, though there is nothing to
prevent him from doing so. Nor is the person against whom an investigation is
going on under Chapter XIV bound to make a statement to the police officer. In
these circumstances, the purpose of an investigation under Chapter XIV is not
relevant under Art. 311(2) which says that a public servant shall not be
dismissed without giving him a reasonable opportunity of showing cause against
the action proposed to be taken in regard to him. Therefore, r. 486 not being
meant for the purpose of carrying out the object of Art. 311 (2) cannot be
mandatory and cannot add a further fetter on the exercise of the power to
dismiss or remove at the pleasure of the Governor over and above the guarantees
contained in Art. 311.
It appears to us that the object of r. 486 is
that the authority concerned should first make a preliminary inquiry to find
out if there is a case against the officer complained against either to proceed
in a court or to take departmental action. The investigation prescribed by r.
486 is only for this purpose. Incidentally it may be that after such an
investigation, the authority concerned may come to the conclusion that there in
no case either' to send the case to court or to hold a departmental inquiry.
But that in our opinion is what would happen in any case of complaint against a
public servant in any department of Government.
No authority entitled to take action against
a public servant would straightaway proceed to put the case in court or to hold
a departmental inquiry. It seems to us axiomatic if a complaint is received
against any public servant of any department, that the authority 727 concerned
would first always make some kind of a preliminary inquiry to satisfy itself
whether there is any case for taking action at all; but that is in our opinion
for the satisfaction of the authority and has nothing to do with the protection
afforded to a public servant under Art. 311.
Rule 486 of the Police Regulations also in
our opinion is meant for this purpose only and not meant to carry out the
object contained in Art. 311(2). The opportunity envisaged by Art. 311(2) will
be given to the public servant after the authority has satisfied itself by
preliminary inquiry that there is a case for taking action. Therefore, r. 486
which is only meant to gather materials for the satisfaction of the authority
concerned, whether to take action or not, even though a statutory rule cannot
be considered to be mandatory as that would be forging a further fetter than
those contained in Art. 311 on the power of the Governor to dismiss at
pleasure. We are therefore of opinion that r.
486 is only directory and failure to comply
with it strictly or otherwise will not vitiate the subsequent proceedings.
We may incidentally indicate two further
aspects of the matter. In the first place, if the argument is that the Governor
must exercise the pleasure himself so that only the two limitations provided in
Art. 311 may come into play; it appears that the Governor has exercised his
pleasure in this case inasmuch as he dismissed the revisional application made
to him by the respondent. There appears no reason to hold that the Governor
exercises his pleasure only when he passes the original order of dismissal but
not otherwise.
Secondly the fact that r. 486 contains the
word "shall" is not decisive on the point that it is mandatory: (see
Crawford on Statutory Construction, p. 519, para. 262). In view of what we have
said already, the context shows that r.
486 can only be directory. If so, failure to
observe it strictly or otherwise will not invalidate the subsequent
departmental proceedings.
This brings us to the last point which has
been urged in this case; and that is whether there was substantial compliance
with r. 486. We have already 728 pointed out that there was no strict compliance
with r. 486 as no case wag registered on the complaint of Tika Ram and no
investigation was made under Chapter XIV of the Code of Criminal Procedure. But
there is no doubt in this case that before the Superintendent of Police gave
the charge sheet to the respondent in November, 1953, which was the beginning
of the departmental proceedings against the respondent, he made a preliminary
inquiry into the complaint of Tika Ram and was satisfied that there was a case
for proceeding against the respondent departmentally. In these circumstances it
appears to us that the spirit of r. 486 was substantially complied with and
action was only taken against the respondent when on a preliminary inquiry the
Superintendent of Police was satisfied that departmental action was necessary.
Even if r. 486 had been strictly complied with, this is all that could have
happened. In these circumstances we are of opinion that r. 486 which in our
opinion is directory was substantially complied with in spirit and therefore
the subsequent departmental proceedings cannot be held to be illegal, simply
because there was no strict compliance with r. 486. The High Court therefore in
our opinion was wrong in holding that the subsequent departmental inquiry was
illegal and its order quashing the order of dismissal on this ground alone
cannot be sustained.
We would therefore allow the appeal.
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