Makeshwar Nath Srivastava Vs. State of
Bihar & Ors [1971] INSC 69 (2 March 1971)
SHELAT, J.M.
SHELAT, J.M.
SIKRI, S.M. (CJ) VAIDYIALINGAM, C.A.
CITATION: 1971 AIR 1106 1971 SCR (3) 863 1971
SCC (1) 662
CITATOR INFO :
RF 1980 SC 326 (16) D 1983 SC 990 (5,13)
ACT:
Police Act 5 of 1861 Rules under s. 46 of Act
embodied in Bihar and Orissa Police Manual 1930-Order by Inspector General
under s. 7 of Act-Appellate powers of Government under r. 851(b)-Revisional
Powers under s. 853-Power of Superintendence under s. 3-Scope of.
HEADNOTE:
At the relevant time the appellant was in the
service of the State of Bihar as officiating Inspector of police. After a
departmental inquiry against him the report of the enquiry officer was
submitted to the Inspector General of Police with the recommendation that the
appellant should be given exemplary punishment. Under s. 7 of the Police Act,
1861 the Inspector General had power to impose in suitable cases penalty of
dismissal, suspension and reduction. The Inspector General exonerated the
appellant, from the charges laid against him but on the basis of certain
adverse remarks in the confidential character roll of the appellant he passed
an order reverting the appellant to the substantive rank of sub-inspector of
police for a period of one year.
These adverse remarks had never been notified
to the appellant nor was any opportunity to explain them ever offered to him
before the order of reversion was passed. In appeal the State Government set
aside the order of reversion passed by the Inspector General on the ground that
no opportunity had been given to the appellant to explain the adverse remarks,
but the Government instead passed an order of dismissal disagreeing with the
findings of the Inspector General and agreeing with the findings given by the
enquiry officer by whom the appellant had been found guilty. On further appeal
to the Governor having been dismissed by the Government the appellant filed a
writ petition in the High Court. The High Court allowed the writ petition but
directed that the appellant's appeal should go back to the government for
disposal according to law. The Government thereupon served notices on the
appellant to show cause why he should not be dismissed from service. The notice
was issued oh the strength of r. 851(b) and 853 of the Bihar and Orissa Police
Manual, 1930. The appellant thereupon gave his reply. About a year after the
High Court's order quashing the Government's order of dismissal, the Government
issued an order reinstating the appellant but at the same time suspending him
from service. This was followed by an order dismissing the appellant from
service. The appellant once more filed a petition in the High Court which was
dismissed in liming. By special leave the present appeal, was filed. The
question for consideration was, whether it was competent for the Government, in
an appeal filed by the appellant against the order of reversion passed by the
Inspector* General of Police to set aside the findings of that officer by which
he exonerated the appellant from charges against him, which findings were not
appealed against by the department, and then pass an order of dismissal
accepting the findings of the enquiry officer.
HELD:(1) The Act itself confers on the
Inspector General power to impose in suitable cases the penalty of dismissal,
suspension and reduction, subject to the provisions of Art. 311 and the rules
made under the Act. The power of superintendence conferred, on the State
Government by s.3 must, therefore, be read in the light of the provisions of S.
7 under which the legislature has conferred specified powers to the officers
mentioned therein. Further, an appeal before the Government having been provided
for under r. 851 (b), presumably both by the delinquent police officer, as also
the department, if aggrieved by an order passed by the Inspector-General, there
would also be no question of the Government exercising its general power of
superintendence under s. 3 of the Act. The exercise of such a power is
ordinarily possible when there is no provision for an appeal unless there are
other provisions providing for it. [867 D869 A] (ii)Under r. 851(b) the only
question before the Government was whether the order of revision should be
sustained or not. There was no other matter by way of an appeal before the
Government by the department or by anyone else being aggrieved against the
order of the Inspector-General by which he held that the charges against the
appellant had not been established. That being so, the Government could pass in
exercise of its appellate power, under r. 851 (b) such an order as it' thought
fit in the appeal filed by the appellant i.e., either upholding the order of
reversion or setting it aside. In the absence of any other appeal, the
Government could not sit in judgment over the findings of the Inspector General
given by him under the power conferred on him by s. 7 of the Act [868 E-G]
(iii)The order of the Government could not also be defended under r. 853.
Assuming that under r. 853 the Government could suo moto revise the order of
the Inspector General, on appeal having been filed before it, it could not so
act. The fact that the power of revision is conferred on the authority possessed
of appellate power indicates that the power of revision is intended to be used
when an appeal could not for some reason be filed and the appease authority
felt that the order was so unjust or unreasonable that it should act under its
revisional power. That was not the case of the Government in the present case.
[869 D E] [whether the order of the Government could be defended under r. 853A
could not be considered because the existence of the rule was not proved.]
CIBVIL APPELLATE JURISDICTION: Civil Appeal
No. 23 of 1967.
Appeal by special leave from the judgment and
order dated October 9, 1963 of the Patna High Court in M.J.C. No. 824 of 1963.
S. N. Prasad and R. B. Datar, for the
appellant.
B. P. Jha, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by
Shelat, J,-This appeal, by special leave, is against the judgment of the High
Court of Pitna dismissing in limine the writ petition Med by the appellant
challenging the order of his dismissal from service passed by the Government of
Bihar.
865 The appellant was first appointed as a
stenographer, SubInspector of Police in 1940 in the Police Service of the
State. After the requisite training in the Police Training College at
Hazaribagh, he was posted as a-Sub-Inspector in 1950 in Champaran District. In
1954, he was promoted to officiate as an Inspector of Police. In June 1955, he
worked in Saharsa District as anofficiating Inspector of Police.
In July 1955, he received a notice to show
cause why disciplinary proceedings should not be taken against him in a matter
relating to certain cloth recoveredat Katihar Police Station in a Police Case
under ss. 379 and 414 of the Penal Code. The appellant submitted his reply
denying any mis appropriation by him. On September 26, 1955, he was served with
a charge sheet heet alleging misappropriation and connivance by him of
misappropriation by two constables named therein . This was followed by an
enquiry held by the Deputy Superintendent of Railway police at Samastipur. The
appellant alleged that the enquiry was held at partially behind his back and
was, therefore, bad.' In April 1956, the Deputy Superintendent of Police
submitted his findings to the Superintendent of Railway Police, Samastipur
holding that the charges against the appellant had been established.
These findings were than submitted to the
Inspector General of Police with a recommendation that the appellant should be
awarded exemplary punishment. In September 1957, the Inspector-General served a
second show cause notice on the appellant to show case why he should not be
dismissed. The appellant submitted his reply and also appeared in person.
By his order dated September 30, 1958, the
Inspector-General exonerated the appellant from the said charges. But on the
basis of certain adverse remarks in the confidential character roll of the
appellant, he passed an order reverting the appellant to his substantive rank
of Sub Inspector of Police for a period of one year. This order clearly was one
of penalty. Admittedly, there was no charge against the appellant founded on
the said adverse remarks.
The adverse remarks on the basis of which the
order of reversion was passed were, as the said order itself pointed out, never
notified to the appellant. Nor was--any opportunity to explain those remarks
ever afforded to the appellant before the order of reversion was passed.
Aggrieved by the said order the appellant
filed an appeal before the Government. On November 7, 1959, the Government set
aside the order of reversion passed by the Inspector General. That was the
relief prayed for by the appellant in his said appeal. The order was set aside
on the ground that no opportunity had been given to the appellant to explain
the said adverse remarks, 866 and that therefore, it was legally unsustainable.
But the Government passed instead an order of dismissal disagreeing with the
findings of the Inspector-General and agreeing with the findings given by the
enquiry officer, by whom the appellant had been found guilty.
On a further appeal to the Governor having
been dismissed by the Government, the. appellant filed a writ petition in the
High Court. On January 18, 1962, the High Court allowed the writ petition
setting aside the Government's order of dismissal, but directed that the
appellant's appeal should go back to the Government for disposal according to
law.', The Government thereupon served a notice on the appellant to show cause
why he should not be dismissed from service.
That notice was issued on, the strength of
rr. 851 (b) and 853-A of the Bihar & Orissa Manual, 1930. The appellant
thereupon gave his reply and requested for a personal hearing. The request for
personal hearing was rejected.
About a year after the High Court's order
quashing the Government's order of dismissal, the Government issued an order
dated March 5, 1963 reinstating the appellant, but at the same time suspending
him from service. On June. 15, 1963, the Government passed the order dismissing
the appellant from service. Hence, the appellant filed once more the present
petition which the High Court dismissed in limine.
The question is whether it was competent for
the Government, in an appeal filed by the appellant against the said order of
reversion passed by the Inspector-General Police, to set aside the findings of
that officer by which he exonerated the appellant from the said charges against
him, which findings were not appealed against by the department, and then pass
an order of dismissal accepting the findings of the enquiry officer.
The appellant was governed by the Police Act,
5 of 1861.
Sec. 2 of the Act deals with the constitution
of the police force and provides that the entire police establishment under a
State Government shall, for the purposes of the Act, be deemed to be one police
force, and shall be constituted is such manner as shall from the to time be
ordered by the State Government. Sec. 3 provides that "The superintendence
of the police throughout a general police district shall vest in and, shall be
exercised by the State Government to which such district is subordinate."
Under s. 4, the administration of the police throughout a general police
district is vested in the Inspector-General of Police, and in such Deputy
Inspectors-General of Police and Assistant Inspectors General as the State
Government shall deem fit.
Sec. 7 runs as follows "Subject to the
provisions of article 3 1 1 of the Constitution, and to such rules as the State
Government may 867 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 sub-ordinate 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 rank 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."
The section then sets out the punishments which the said officers can impose,
namely, fine, confinement to quarters, deprivation of good-conduct pay and
removal from any office of distinction or special emolument.
It is clear that the Act itself confers on
the Inspector General power to impose in suitable cases the penalty of
dismissal, suspension and reduction, subject of course, to the provisions of
Art. 311 and the rules made under the Act.
The power of superintendence conferred on the
State Government by S. 3 must, therefore, be read in the light of the
provisions of S., 7 under which the Legislature has conferred specific powers
to the officers mentioned therein.
Therefore, the State Government cannot
interfere with, under the purported exercise of the general power of
superintendence under s. 3 with an order passed by any one of the officers
mentioned in S. 7 in exercise of the power conferred on them by that section,
unless there is some provision which authorises or envisages such interference.
Under S. 46(2), the State Government has been given the power to make rules
from time to time by notification in the official gazette consistent with the
Act, Inter alia :
"(a) to regulate the procedure to be
followed by Magistrates and police-officers in the discharge of any duty
imposed-upon them by or under this Act;
(c)generally, for giving effect to the
provisions of this Act." It would seem that in pursuance of the rule
making power under S. 46 (2) rules have been made which are to be found in the
Bihar & Orissa Police Manual, 1930. The Manual has not been produced before
us. But we find r. 851 set out by the High Court 868 in its judgment in the
first writ, petition filed by the appellant, reported in Makeshwar Nath vs.
Bihar(1). The rule so set out reads 'as follows :
"General rules as to appeals
(a)............
(b) Against an order of, dismissal, removal
reduction, withholding of promotion or periodical increment...... there shall
be one appeal in each case as follows;
Against an order passed by a Superintendent,
to the Deputy Inspector General;
Against an original order passed by a Deputy
Inspector General, to the Inspector General;
Against an original(order passed by the
Inspector-General, to the Local Government.
(c) The order of the appellate authority on
any such appeal shall be final." Under this rule an appeal would lie
before the Government against the order of the Inspector-General reverting the
appellant to his substantive post of Sub-Inspector for one year. Such an appeal
was in fact filed by the appellant.
But no appeal was filed by the department
against the order of the Inspector-General exonerating the appellant of the
charges of misappropriation and connivance of misappropriation by the two
constables. Under r. 851 (b), therefore, the only question before the
Government was whether the order of reversion should be sustained or not.
There was no other matter by way of an appeal
before the Government by the department or by anyone else being aggrieved against
the order of the Inspector-General by which he held that the charges. against
the appellant had not been established. That being so, the Government could
pass in exercise of its appellate power under r. 851 (b) such an order as it
thought fit in the appeal filed by the appellant, i.e. either upholding the
order of reversion or setting it aside. In the absence, of any other appeal,
the Government could not sit in judgment over the findings of the
Inspector-General given by him under the power conferred upon him by S. 7 of
the Act. An appeal before the Government having been provided for under r. 851
(b), presumably both by the delinquent police officer, as also by the
department, if aggrieved by an order passed by the Inspector-General, there
would also be no question of the Government exercising, its general power of
superintendence under S. 3 of the Act. The (1) A.I.R. 1962 Pat. 276.
869 exercise of such a power is ordinarily
possible when there is no provision for appear unless there are other provisions
providing for it. The order of dismissal passed by the Government in the appeal
filed by the appellant therefore, was not sustainable.
We are, however, informed by counsel that the
Government of Bihar has framed two rules, r. 853 and r. 853-A. Rule 853, a
copy, of which has been furnished to us, provides "Memorials and
Revision.-No petition or memorial which is a representation against an order
passed in a disciplinary case shall be submitted to any authority other than
the authority which under the rule for the time being in force is empowered to
enter am the appeal.
No memorial or revision was filed either by
the appellant or anyone else before the Government, which was the appellate
authority which could-entertain such a memorial or revision. Assuming that
under r. 853 the Government could suo moto revise the order of the Inspector General,
an appeal having been filed before I it, it could not so act. The fact that the
power of revision is con feared on the authority possessed of appellate power
indicates that the power of revision is intended to be used when an appeal
could not for some reason be filed and the appellate authority felt that the
order was so unjust or unreasonable that it should act under its revisional
power. That was not the case of the Government before us. Nor did the
Government say so in the impugned order. Therefore, there was no occasion for
the Government to revise the order passed by the Inspector General exonerating
the appellant of the charges preferred against him.
In its order, dated January 31, 1963, the
Government, no doubt, has referred to rr. 8 5 1 (b) and 8 5 3 A as being the
rules under which it purported to act for the purpose of making the impugned
order of dismissal. Rule 851 (b), as already pointed out, however, confers no
such power. As regards r. 853-A, it is neither set out in the impugned order,
nor in the statement of case of the respondent-State. We called for its
production, or even its copy but counsel for the State expressed his inability
to produce the same. Further, counsel for the appellant told us that even if
r.853 A had been framed, it cannot operate because so far it has, not been
published in the official gazette as required by S. 46(2). Counsel for the
State was not in a position to throw any light whether the said rule has been
framed or not and if framed whether it was notified in the Gazette. In these
circumstance he could not rely upon that rule to sustain the order of dismissal
passed by the Government. We have, therefore, to go upon r. 851 (b), which
clearly does not empower the Government to pass an order such as the one
impugned by the appellant on the ground 870 of its revision power or any such
similar power under s. 3 of the Act. In the absence of any other provision of
law or any rule conferring on the State Government the, power to pass an order
of dismissal in exercise of its revisional power or power of general
superintendence, the general principle must prevail, namely, that an appellate
authority in an appeal by an aggrieved party may either dismiss his appeal or
allow it either wholly or partly and uphold or set aside or modify the order
challenged in such appeal. It cannot surely impose on such an appellant a
higher penalty and condemn him to a position worse than the one he would be in
if he had not hazarded to file an appeal. Since under r. 851 (b) an appeal to
the Government has been provided for and the Government had under that rule the
appellate authority to dispose of appeals filed before it against the original
order passed by the Inspector-General, it could not resort to any general power
of superintendence except in cases where there is a provision conferring such a
power in addition to its appellate authority and in the manner envisaged by
such a provision.
In our view, the High Court was not right in
dismissing the appellant's writ petition. The appeal has, therefore, to be
allowed and the order of the State Government quashed as being without
jurisdiction. The consequence is as if the appellant was never dismissed, and
continued to remain in the, police force to which he was attached. The
respondent State will pay to the appellant the costs both of this appeal and
also of the writ petition filed by him in the High Court.
G.C.
Appeal allowed.
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