State of Uttar Pradesh & Ors Vs.
Harish Chandra Singh [1969] INSC 11 (17 January 1969)
17/01/1969 SIKRI, S.M.
SIKRI, S.M.
BACHAWAT, R.S.
HEGDE, K.S.
CITATION: 1969 AIR 1020 1969 SCR (3) 392 1969
SCC (1) 403
ACT:
Constitution of India Art. 311(1)-Consideration
of past record Omission in show cause-Whether Justifies lesser penalty.
Police Act, 1861, ss. 7 and 29-Scope
of-Prosecution under s. 29, need not precede charges under s. 7.
HEADNOTE:
The respondent, was selected by the Deputy
Inspector General of Police for admission to the Police Training College, and
the result declaring him successful was issued by the order of the Inspector
General of Police, and his appointment announced in the police Gazette. While
the respondent was serving as a Sub-Inspector of Police, charges were framed
against him, under s. 7 of The Police Act, 1861. The Superintendent of Police
gave a report mentioning his past record, and recommended his removal from
service. Notice to show cause, enclosing the findings of the Superintendent of
Police was served on the respondent. The Deputy Inspector General, hold the
enquiry, and agreed with the findings of the Superintendent of Police. The
respondent filed an appeal to the Inspector General of Police, which was
rejected. In their order, both the Deputy Inspector General and Inspector
General, took into consideration the past record of the respondent. The
respondent filed a suit for a declaration that his removal was illegal and
ineffective.
The trial court dismissed the suit, but the
High Court decreed the suit holding that no opportunity was given to the
respondent to explain his past record which was taken into consideration. in
appeal to this Court, the State contended that the respondent had notice that
his past record would be taken into consideration, and alternatively, if the
past record was taken into consideration for imposing lesser penalty, it was
not necessary to mention in the show cause notice that the past record would be
considered. The respondent contended that there has been breach of Art.
311(1) of the Constitution as he was
appointed by the Inspector General of Police and removed by the Deputy
Inspector General of Police and that he should have been tried under s. 29 of
the Police Act, before he was charged under s. 7.
HELD : The suit must be dismissed.
(i) The respondent had notice that his past
record would be taken into consideration because the Superintendent of Police
had mentioned it 'in his, order, a copy of which was supplied to him. Further,
on the charges against the respondent, he had been dealt with leniently and if
the record was taken into consideration for the purpose of imposing a lesser
punishment and not for the purpose of increasing the quantum or nature of
punishment, then it was not necessary that it should be stated in the show
cause notice that his past 'record would be taken into consideration. [397A;
G-H] State of Mysore v. K. Manche Gowda, [1964] 4 S.C.R. 540, 548, referred to.
(ii) The first appellate court's conclusion
that the respondent had been appointed by the Deputy Inspector General of
Police, was a finding of fact and was binding on this Court. But apart from
that the only document relied on by the respondent was the result sheet
declaring him 393 successful after training and this had no relevance to his
appointment as. Sub-Inspector of Police. [398 A-G] (iii) A Police Officer may
also be liable to be prosecuted under s. 29 of the Police Act but it is not
necessary that in every case which falls within s. 7 the Police Officer should
first be prosecuted under s. 29 before he can be proceeded under under s. 7.
Section 7 deals with disciplinary Proceedings makes certain breaches criminal
offences. Section 29 does not in any way limit the operation of s. 7. [399 C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 834 of 1966.
Appeal by special leave from the judgment and
order dated March 2, 1965 of the Allahabad High Court in Second Appeal No. 1271
of 1962.
C. P. Agarwala and O. P. Rana, for the
appellants.
E. C. Agrawala, S. R. Agrawala and P. C.
Agrawala, for the, respondent.
The Judgment of the Court was delivered by
Sikri, J. This appeal by special leave is directed against the judgment of the
High Court of Judicature at Allahabad dismissing the appeal filed by the State
of Uttar Pradesh and Others, appellants before us, against the judgment and
decree passed by the Additional District Judge, Varanasi, setting aside the
judgment and decree passed by the Trial Court and decreeing the plaintiffs
suit.
The plaintiff,' Harish Chandra Singh, had
brought a suit against the State of Uttar Pradesh and some Police Officers for
a declaration that the order of removal of the plaintiff from the Police
Service was void, illegal, ineffective and inoperative, and that the plaintiff
still continued to be in Uttar Pradesh Police Service as Station Officer
in-Charge of a Police Station and that he was entitled to his full pay and
emoluments with increments as they fell due. He had also prayed for recovery of
Rs. 7,453 as full emoluments and s alary from June 27, 1956 up to the date of
the suit.
In order to appreciate the points raised
before us it is necessary to set out the relevant facts. On December 13, 1942,
the plaintiff was appointed as Platoon Commander in the Civil Guards. In 1945
there was a notification regarding the absorption of civil guards in the Police
and on November 6, 1945, the plaintiff was selected by the Deputy Inspector
General, Police Headquarters, Allahabad, for admission to the 1946 Session of
the Police Training College, Moradabad. On January 8, 1947, the result of the
Civil Police Cadets for 1946 Session was announced, and in the extract of the
Police Gazette it is stated in the last column 394 under the heading 'where
posted', against the name of the plaintiff, 'Azamgarh'. This result sheet was
issued by order of the Inspector General of Police, United Provinces.
We have mentioned these facts because the
learned counsel for the plaintiff contends that the plaintiff was in fact
appointed by the Inspector General of Police and not by the Deputy Inspector
General of Police.
Following three charges were framed against
the plaintiff under s. 7 of the Police Act,. 1861 on February, 6, 1956:
"1. A case Cr. No. 92 u/s 324 IPC was
registered at P. S. Mariahun which on receipt of the injury report on 6-11-55
at the P. S.
was found to fall within the purview of
section 326 IPC and yet this S.I. did not investigate the case in accordance
with law and failed even ,,to comply with the orders of the Dy. S.P. (then
acting as S.P.) given by him on 19-11-55.
2. On 21-11-55 a written report of burglary
was made over to him by one Lalji Singh r/o Jamua who came to the P.S.
alongwith Ramdeo and Ganesh but he failed to record that report and register a
case in contravention of the provision of paragraph 97 of the Police Regulations.
A case Cr. No. 101 u/s 457/380 PC was, 'however, registered by him on 5-1255'although
he had been to the scene of occurrence on 27-11-55 and had conducted some
investigation on that date. He did not prepare any case diary for the
investigation carried out ,on 27-11-55 and even after the registration of the
case on 5-12-55 he deferred proper investigation until 22-12-55.
3. A report of burglary on the night of
17/18-10-55' was handed over to this S.I.
personally by complainant Raj Bahadur Singh
but no action was taken on that report nor any entry was made in the General
Diary to this effect. On receipt of a complaint the C.I.
was asked to enquire into the matter whodirected
him to register a case and accordingly a case was registered on Cr. No. 100
u/s. 457/380 I.P.C. on 2-12-55. Even after the registration of this case this
S.I.
deferred proper investigation until 17-12-55."
The Superintendent of Police gave a report on February 27, 1956, but the
Inspector General ordered a fresh enquiry on March 6, 1956; On April 30, 1956,
the Superintendent of Police gave his report. He held the plaintiff guilty of
the charges framed against him. Towards the end of the report, the
Superintendent of Police observed:
395 "S.I. Harish Chandra Singh is an
enlistment of 29-1-47 when he seems to have started his service satisfactorily.
In 1950 he was placed under suspension and was dismissed from service from
2.1-6-1951 while he was in district Azamgarh. On subsequent consideration he
was reinstated and he reported for service in January 1952. He was, however,
reduced to the lowest scale of a S.I.
for a period of three years. His character
roll indicates that he was again placed under suspension from 20-8-54 but
reinstated on 30-9-54. Soon after he was again placed under suspension with
effect from 4-11-54 and was proceeded against u/s 7 of the Police Act as a
result of which he was reduced from Rs. 162 p.m. to Rs. 144 p.m. for a period
of one year from 8-2-55 and reinstated in service.
Subsequently he was awarded a misconduct
entry for a non-registration of dacoity case while posted in district Basti. On
the other hand he has also earned some rewards and is at present posted as II
Officer P.S. Mirganj.
This record of service does not appear
encouraging at all. In respect of the various items of charge u/s 7 of the Police
Act framed against him he has been. held guilty and considering the seriousness
of these charges I do not think any leniency is called for in his favour. He
has clearly disobeyed the lawful orders of his superior officers and has failed
to comply with the mandatory provisions of law and Police Regulations. A S.I.
acting in this manner is not in my opinion fit to discharge his
responsibilities as a police officer.
Since, however, no dishonesty has been
attributed to him in the various items of the charge framed against him, I
think it will meet the ends of justice if he is only removed from police
service. Accordingly finding him guilty u/s 7 of the Police Act I propose that
he may be removed from the Police Service and submit this finding to the D.I.G.
Eastern Range in accordance with paragraph 490 subparagraph 8(a) of the Police
Regulations." On May 16, 1956, a show-cause notice was served on the
plaintiff and a copy of the findings of the Superintendent of Police was
enclosed . In the show-cause notice it was stated that the plaintiff could send
his written representation within 10 days of the receipt of the showcause
notice, and after checking his explanation he would be called to appear before
the Deputy Inspector General of Police, E. Range. He appeared before the Deputy
Inspector General of Police and answered various questions put by the D.T.G.
Towards the end he stated that he had no complaint with regard to the
departmental proceedings against him.
396 The Deputy Inspector General agreed with
the findings of the Superintendent of Police, and at the end of his order he
observed:
" S.I. Sri Harish Chandra Singh was
enlisted on 29-1-1947. In 1950 he was placed under suspension and he was
dismissed from service from 21-6-51. He was, however, later reinstated and
joined his duty in January 1952. He, was also reduced to lowest Scale of
S.I.s,for a period of 3 years vide orders (torn) 'El dated 25-4-51. In 1955 he
was dealt with u/s 7 of the Police Act for having contracted illicit connection
with Shrimati Mina Devi who was ultimately recovered from (torn) the C.I. and
he was reduced for 2 years. He (torn) entry in 1955 for having failed to (torn)
of dacoity. Against this black record, the (torn) 15 rewards and commendations.
The party is undisciplined and unreliable and he does not deserve (torn) in the
police service. The charges proved against him (torn) very serious and there is
no room for me to show him any (torn) in the award of punishment. Agreeing with
the proposal of the S.I., I order that S.I. Harish Chandra Singh be removed
from service with effect from the date that this order is communicated to
him." The plaintiff then filed an appeal to the Inspector General Of
Police, who rejected the appeal, and after. taking into consideration his
previous record confirmed the order of removal. He observed :
"In fact the D.I.G. has taken a lenient
view in (torn) removing him from service especially in view of his past
(torn)." The High Court held that no opportunity was given to the
plaintiff to offer any explanation on the question of his past record which was
taken into consideration by the Deputy Inspector general of Police in arriving
at his decision to remove the plaintiff from service. The High Court relied on
the following passage from the judgment of this Court in State of Mysore v. K.
Manche Gowda (1) :
"We, therefore, hold that it is
incumbent upon the authority to give the Government servant at the second stage
reasonable opportunity to show cause I against the proposed punishment and if
the proposed punishment is also based on his previous punishment or his
previous bad record, this should-be included in the second notice so that he
may be able to give an explanation." (1) [1964] 4 S.C.R. 540, 548.
397 The learned counsel for the State,.
contends that on the facts of this case it is clear that, the Plaintiff 'had
notice that his record Would be taken into considerations because the
Superintendent of Police had mentioned it towards the end of his order, a copy
of which was supplied to the plaintiff. In the alternative he contends that-if
the record is taken into consideration for the purpose of imposing a lesser
punishment and not for the purpose of increasing the quantum or nature of
punishment, then it is not necessary that it should be stated in the show-cause
notice that his past record would be taken into consideration, It seems to us
that the learned counsel is right on both the points. The concluding para of
the report of the Superintendent of Police, which we have set out above,
clearly gave an indication to the plaintiff that his record would be considered
by the Deputy Inspector General of Police and we are unable to appreciate what
more, notice, was required. There is also force in the second point urged by
the learned counsel. In State of Mysore v. K. Manche Gowda(1) the facts were
that the Government servant was misled by the show-cause notice issued by the
Government, and but for the previous record of the Government servant them
Government might not have imposed the penalty of dismissal on him. This is
borne Out by the following observations of Subba Rao, J., as, he then was:
"In the present case the second show
cause notice does not mention that the Government intended to take his previous
punishments into consideration in proposing to dismiss him from service. On the
contrary, the said notice put him, on the wrong scent, for it told him that it
was proposed to dismiss him from service as the charges proved against him were
grave., But, a comparison of Paragraphs 3 and 4 of the order of dismissal shows
that but for the previous record of the,Government servant, the Government
might not have imposed the penalty of dismissal on him and might have accepted
the recommendations of, the Enquiry officer and, the public . Service
Commission. This order, therefore indicates that the show cause notice did not
give the only reason which influenced the Government to dismiss the respondent
from service." (P. 549) We may mention that on the charges against the
plaintiff and as observed by the Inspector General of Police, the plaintiff had
been dealt with leniently.
The learned counsel for the plaintiff, in
reply urges before us that there has been breach of Art. 31 1 (1) of the
Constitution because although the plaintiff was appointed by the Inspector
Gene..
(1) [1964]4 S. C.R. 540, 548.
8Sup.C.I./69-7 398 ral of Police he had been
removed by the Deputy Inspector General., Range E. The learned Additional
District Judge, after examine the evidence and para 406 of the Police
Regulations, came to the conclusion that-the plaintiff had been appointed by
the Deputy Inspector General of Police.
This is a finding. Of fact and binding on us.
But apart from that the only document relied on by the learned counsel for the
plaintiff is the result sheet dated January 8, 1947. This has no relevance to
the question of his appointment as Sub-Inspector. We must, therefore, overrule
this contention.
The last point urged by the learned counsel
for the plaintiff is that the plaintiff should have been tried under s. 29 of
the Police Act before he was charged under S. 7.
Sections 7 and 29 of the Police Act read
thus:
"7. Subject to the provisions of article
311 of the Constitution, and to such rules as the State Government may from
time to time make under this Act, the Inspector General, Deputy Inspector
General, Assistant Inspectors General and District Superintendents of Police
may at any time dismiss, suspended 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, namely:(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;
(d) removal from any office of distinction or
special emoluments.
S. 29. Every police-officer who shall be
guilty of any violation of duty or wilful breach or neglect of any rule or
regulation or lawful order made by competent authority, or who shall withdraw
from the duties of his office without permission, or without having given
previous notice for the period of two months or who, being absent on leave, shall
fail, without reasonable cause,, to report himself for duty on the expiration
of such leave, or who shall engage without authority in any employment ,other
than his 'police duty, or who shall be guilty of 399 cowardice, or who shall
offer any unwarrantable personal violence to any person in his custody, shall
be liable on conviction before a Magistrate to a penalty not exceeding three
months' pay, or to imprisonment, with or without hard labour, for a period not
exceeding three months, or to both." We are unable to appreciate why it is
necessary that a police officer should be prosecuted under S. 29 before
departmental, proceedings can be taken under s. 7 of the Police Act. It may be
that a police-officer is also liable to be prosecuted under s. 29, but it is
not necessary that in every case which falls within s. 7, the police-officer
should first be prosecuted under s. 29 before he can be proceeded against under
s. 7. Section 7 deals with disciplinary proceedings while S. 29 makes certain
breaches criminal offences. Section 29 does not in any way limit the operation
of s. 7.
In the result the appeal is allowed,
judgments and decrees of the High Court and the Additional District Judge set
aside and the suit dismissed with costs throughout.
Y.P. Appeal allowed.
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