Mohammad Abdul Salam Khan Vs. Sarfaraz
Ahmad Khan & Ors [1975] INSC 61 (5 March 1975)
KRISHNAIYER, V.R.
KRISHNAIYER, V.R.
RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN GUPTA,
A.C.
CITATION: 1975 AIR 1064 1975 SCR (3) 860 1975
SCC (1) 669
ACT:
U.P. Town Areas Act, (II of 1914) s.
6K--Scope of--Dismissed Government servant--If could be elected as Chairman of
Town Area Committee--Dismissal--Meaning of.
Punjab Police Rules--Rule 16(2)(iii)--Scope
of--Publication of dismissal in Police Gazette--Effect of.
HEADNOTE:
Section 6-K of the U.P. Town Areas Act
provides that a person I notwithstanding that he is otherwise qualified, shall
be disqualified for being chosen as, and for being a member or Chairman of a
Committee if he is a dismissed servant of a local authority, the State or
Central Government and is debarred from re-employment therein. Rule 16(2) (iii)
of the Punjab Police Rules, which apply to respondent No. 1 at the relevant time,
states that when a police officer is convicted judicially and dismissed. or dismissed
as a result of a departmental enquiry, the conviction and dismissal and its
cause shall be published in the Police Gazette. In other cases of dismissal
when it is desired to ensure that the officer dismissed shall not be
re-employed elsewhere, a full descriptive roll with particulars of the
punishments shall be sent for publication in the Police Gazette The first
respondent, a dismissed police constable was elected as Chairman of the Town
Area Committee. The appellant who was the defeated candidate, assailed the
election of the respondent. The Election Tribunal constituted under the U.P.
Town Areas Act set aside the election and declared the appellant as the
Chairman. In a writ petition under Art. 226, a single Judge of the High Court
affirmed the order of the Tribunal as regards the election of the respondent
No. 1 but in relation to the relief directed against the declaration of the
appellant as Chairman.
A Division Bench of the High Court allowed
the appeal of respondent No. 1 holding that s. 6-K spoke of two components,
namely, (a) dismissal and (b) being debarred from re-employment and since the
second ingredient was not present in the order of termination against the
constable, the formula for disqualification was not fulfilled.
Allowing the appeal,
HELD : (1) There is no escape from the
conclusion that the first respondent was punished under the former part of r. 16(2)
(iii) and incurred the extreme wrath of the law including disbarment from
re-employment. Logically. therefore. he suffered disqualification under s. 6-K
of the Act and the Tribunal. in removing him from Chairmanship, acted legally.
[866 F] Section 7 of the Police Act speaks of dismissal as 'a single category
of punishment, not as two twigs from the same branch, that is, dismissal
without and with embargo on reentry into State service. When s. 7 uses the
expression 'dismissal', it must be deemed to have conveyed the official
semantics attached to that expression, namely, removal from service plus a ban
on reemployment by the State. The non enumeration of 'removal' as a distinct
form of punishment does not divest the appointing authority from exercising,
subject to legal restrictions, the power to remove from service without
inflicting the more serious punishment of dismissal. [864 C; F] 861 (2) The
words 'dismissals and 'removal' have one distinction, namely, that the former
disqualifies from future employment while the latter does not. Therefore,
dismissal is removal with a prohibition super-added. [864 H;
865 D], Khem Chand v. Union of India [1958]
S.C.R. 1080, 1089 and Shyamlal's case, A.I.R. 1954 S.C. 369, 374, refer-red to.
(3) (a) "Dismissal" removes the man
from his office and super-adds debarment from re-employment. Such being its
meaning in the Indian Constitution, in the relevant rules which have been in
force in this country over the decades;
"dismissal" has to be understood,
as punishment imposed upon the constable in this case, as one which embodies
the latent penalty of disability from being. re-employed. [866 B] (b) Rule
16(2) (iii) does not state "in other cases of dismissal" the bat
against re-employment operates only where there is publication in the Police
Gazette to that effect.
Dismissal, as such, carries with it this
additional penalty in both classes of cases but in the first category covered
by the rule, publication is a duty cast upon the authority while in the second
category the authority is left with the option to publish or not to publish. If
the dismissing authority desires to ensure itself that unwittingly some other
department may not employ the dismissed official, it may, by way of abundant
caution, resort to publication of the punishment in the Police Gazette. The
language is clear that to ensure that the officer dismissed shall not be reemployed
the concerned authority shall send for publication the relevant particulars.
Not that without such publication a right to re-employment inheres in the
dismissed official, but that to make sure that any unknowing slip may not be
committed by another department. the dismissing officer may take care to
forward the particulars of punishment for proper publication. It is enabling,
so far as the dismissing authority is concerned, and is legally unnecessary to
spell the two-in-one punishment of' dismissal. [866 C-E.] ARGUMENTS For the
Appellant :
From a plain reading of s. 6-K of the U.P.
Town Areas Act it is clear that if a man is dismissed from service of a local
authority, Central Government or State Government by way of punishment and is
debarred from re-employment there under, he cannot contest the election for the
Chairman of the Town Area Committee. From a plain reading of s. 6-K it becomes
clear that the intention of the legislature in enacting this law was that the
persons who have been dismissed from service by way of punishment will not be
qualified for election to, the post of Chairman. Town Area Committee.
This section contemplates only such dismissed
servants who have been dismissed from service by way of Punishment for
misconduct. and Indiscipline.
For Respondent Vol. I Respondent no. 1 was
removed from the Delhi Police Service and was not a dismissed servant within
the meaning of s. 6-K of the U.P. Town Area Act. The words 'dismissed servant'
used in s. 6-K in that Act were used in a broader sense and meant a servant
whose services were terminated. The words 'and is debarred from re-employment
therein used in that section clearly indicate that the election petitioner will
have to prove that the services of respondent No. 1 were terminated and he was
debarred from re-employment. Section 7 of the, Indian Police Act and r.
16(2)(iii) of the Punjab Police Rules were applicable to Delhi.
If a Police Officer is convicted by a Court
of law and is dismissed as a result of the departmental enquiry in consequence
of corrupt practices, such dismissal would ipso facto mean dismissal by way of
punishment. However. if the termination of service was on account of any other
reason, then if die authority terminating the services desires. to ensure that
the officer dismissed shall not be re-employed elsewhere, a full descriptive
roll with particulars of the punishment hall be sent for publication in the
Police Gazette in the present case the ser862 vices of the respondent no. 1
were terminated in departmental inquiries, the dismissal was not on account of
corrupt practice failing under the first part of r.
16(2)(iii) of the Punjab Police Rules.
Secondly there was no publication in the Police Gazette. It must therefore
follow that it was a case of removal and not dismissal.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 1200 of 1974.
Appeal by special leave from the judgment and
order dated the 4th April, 1973 of the Allahabad High Court in Special Appeal
No. 34 of 1973.
R. K. Jain, N. R. Choudhary, Rajesh Prasad
Singh and K. K. Mohan, for the appellant.
J. P. Goyal and G. S. Chatterjee for
respondent No. 1.
The Judgment of the Court was delivered by
KRISHNA IYER, J.A single legal issue presents itself for ,solution in this
appeal. The question is whether a public servant dismissed for misconduct is
not ipso jure disbarred from employment under the State. If 'yes', the 1st
respondent is ineligible for the public. office of Chairmanship of Town Area
Bugirasi from where, he has been removed on the ground of dismissal from
government service, resulting in the eruption of this election dispute. If
'no', restoration to the lost office inevitably follows.
The appellant and 1st respondent were rivals
for Chairmanship of Town Area Bugrasi in U.P. The latter, a dismissed police
constable, was returned by the electorate and the former, chagrined by the
defeat, successfully petitioned the Election Tribunal.
The Ground The appellant and the 1st
respondent were two of the three candidates for Chairmanship of the Town Area
of Bugrasi.
The 1st respondent secured the highest number
of votes and was declared elected by the Returning Officer. Thereupon the
appellant moved the statutory tribunal by an election petition which was
allowed on the seore of disqualification for being chosen as Chairman by virtue
of S. 6 K of the U.P.
Town Areas Act (Act II of 1914). The
disqualification stemmed from dismissal of the 1st respondent on September 26,
1963 from the Delhi Police Force. When the Election Tribunal set aside the 1st
respondent's election and declared the appellant as the Chairman, the unseated
candidate invoked the writ jurisdiction of the High Court.
The learned Single Judge who heard the
petition affirmed the order of the Tribunal substantially but in relation to
the relief directed against the declaration of the appellant as Chairman, the
order was vacated. That question was left to be decided afresh in the light of
certain observations of the learned Judge. Dissatisfied' by the result, of both
the appellant and the 1st respondent filed Writ Appeals before a Division Bench
of the High Court which ended in the allowance, of the claim of the 1st
respondent to be Chairman and consequential dismissal of the appeal of the
other. The aggrieved appellant has, therefore, come up to this Court by special
leave for relief based on the construction of two slightly ambiguous rules
having some impact on this village election.
863 Before opening a political chapter,
respondent No. 1 had ended his official career as police constable under
dismissal order dated September 26, 1963 "Constable No. 3048 Sarfraz Ahmad
Khaa is dismissed from the forenoon of 25-9-1963 of having been in illicit
relation with Mrs.
Chatterjee and her daughter. The conduct of
the constable is most reprehensible, adulterous and unworthy of a Police
Officer who is supposed to protect the Society from such vices." He ran
for Panchayat Chairmanship and won, defeating the appellant and the 2nd
respondent. The disability for election in the present instance is said to spring
from the dismissal of the 1st respondent from government service as aforesaid.
Let us examine the relevant legal texts. The
pertinent part of 6-K, relied on by the appellant as fatal disqualification,
reads "6-K. Disqualification for members and ChairmanA person
notwithstanding that he is otherwise qualified, shall be disqualified for being
chosen as, and for being, a member or Chairman of a Committee, if he(a) is a
dismissed servant of a local authority, the State or Central Government and is
debarred from re-employment therein, Is the contesting respondent 'a dismissed
servant of the State Government and is debarred from re-employment therein'?
That is the question. The statute is of 1914 vintage, but amended from time to
time, and we have to interpret it in the light of legal provisions and
constitutional developments. Does 'dismissal' automatically spell, 'disbarment
from re-employment'? The argument which weighed with the High Court is that s.
6-K speaks of two components (a) dismissal; (b) and being debarred from
reemployment. The second ingredient is not present in the terminal order
against the constable and so the formula for disqualification is not fulfilled.
We are not impressed with this dualism. If
dismissal simpliciter carries within it the ban on re-employment as a necessary
jural incident then both the elements are present implicitly in theorder. It is
not as if the interdict against re-employment should be separately sated in the
rule or order if by force of law an effective bar in that behalf can be read
into the order cashiering the constable.
So we are thrown back on the order itself
which, admittedly, is silent on prohibition of reemployment.
Counsel for the contestant, Shri Goyal,
strenuously argued that he Police Act and the relevant rules bearing on
disciplinary action ire telling and must be treated as decisive. Brushing aside
the ripples of confusion raised in the course of arguments about the source of
power for framing these rules-no party, at any stage, has challenged 864 the
vires of the rules-we may reproduce r. 16(2)(iii) which governs the situation.
Before that, a glance at s. 7 of the Police Act :
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 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." It is clear that s. 7 speaks of dismissal as a single
category of punishment, not as two twigs from the same branch i.e., dismissal
without and with embargo on re-entry into State service. It may, however, be
noticed that there is no specific reference to removal from service, a
recognised form of punishment sanctified by the Constitution Acts, including
Art. 311. Since s. 7 expressly subjects itself to the paramount law of the
Constitution it is obvious that the power to remove is not eroded and vests in
the appointing authority apart from the power to dismiss.
Indeed, the Central and State rules
regulating disciplinary control, all over the country, have, for a long period,
made distinction between dismissal and removal, the former carrying the more
injurious incident of removal plus refusal of future re-employment. Anyone
conversant with disciplinary control of government servants in India will agree
that this fundamental difference between mere removal and dismissal exists.
Art. 311 enumerates dismissal and removal as two different punishments, one
more serious than the other. It is perfectly plain that, understood in this
environment of legal control of government servants prevalent historically in
this country, s. 7 of the Police Act, when it uses the expression 'dismissal,
must be deemed to have conveyed the official semantics attached to that
expression, viz., removal from set-vice plus a ban on reemployment by the
State. The non-enumeration of ,removal' as a distinct form of punishment does
not divest the appointing authority from exercising, subject to legal
restrictions the power to remove from service without inflicting the more
serious Punishment of dismissal.
The expressions 'dismissal' and 'removal'
look alike for the laity but in law they have acquired technical meanings
sanctified by long usage, in Service Rules. In Khem Chand v. Union of India(1)
this Court observed :
".. the expressions 'dismissed',
'removed' and 'reduced' in rank' are technical words taken from the service
rules where they, are used to denote the three major categories of
punishment'." As been rightly pointed out in a recent book(2), the words
'dismissal' and 'removal' have one distinction, viz., that the former dis(1)
[1958] S.C.R. 1080,1089.
(2) The Civil Servant under the Law and the
Constitution-by Dr. N. Narayanan Nair-The Academy of Legal Publications,
Trivandrum-1, Kerala (1973).
865 qualifies from future employment while
the latter does not.
Likewise, there is reference to this
distinction in Shyamlal's Case(1) wherein it was said:
"The position, therefore, is that both
under the rules and according to the last mentioned decision of the Judicial
Committee (I.M. Lal's Case: AIR 1948 PC 121) there is no distinction between a
dismissal and a removal except that the former disqualifies from future
employment while the latter does not... and it may be safely be taken, for
reasons stated above, that.... removal and dismissal stand on the same footing
except as to future employment.
In this sense removal is but a species of
dismissal." Rule 49 of the Civil Services (Classification, Control &
Appeal) Rules,.1930 provides inter alia :
"Removal is termination of service which
does not disqualify from future employment.
Dismissal is ;removal from service which
ordinarily disqualifies from future employment." It follows that
'dismissal' is 'removal with a prohibition super-added'.
Against this background, here is r. 16(2)
(iii) of the Punjab Police Rules which applied during the relevant time to the
1st respondent:
"16(2)(iii). When a Police Officer is
convicted judicially and dismissed, or dismissed as a result of a departmental
enquiry, in consequence of corrupt practice, the conviction and dismissal and
its cause shall be published in the Police Gazette. In other cases of
dismissal, when it is desired to ensure that the Officer dismissed shall not be
re-employed elsewhere, a full descriptive roll, with particulars of the
punishments, shall be sent for publication in the Police Gazette".
The submission made with some attractiveness,
by Shri Goyal receives verbal support from the text of the rule. It speaks of a
police officer being dismissed in consequence of 'corrupt practice' in which
case there is a mandate to the State Government that 'its cause shall be
published in the Police Gazette'. 'In other cases of dismissal' the provision
for publication in the Police Gazette is facultative. Counsel spins out the
argument that if 'in other cases of dismissal' the authority intends to inflict
the additional penalty of non-reemployment, it should also publish the
punishment in the Police Gazette. In the present case there is no indication of
any such publication and so the dismissal does not carry with it the forbidding
factor regarding re-employment. Read with s. 6-K, which refers to dismissal
together with debarment from reemployment, the conclusion is sought to be drawn
that the 1st respondent's case does not attract the disqualification in s. 6-K.
(1) A.I.R. 1954 S.C. 369, 374.
866 We do not agree. The reasons are
two-fold. As earlier explained every 'dismissal' has a double consequence
understood in its contextual connotation. It removes the man from his office
and super adds debarment from reemployment. Such being its meaning in the
Indian Constitution, in the relevant rules which have been in force in the
country over the decades and indeed has become part of our officialese, we have
to understand the dismissal as punishment imposed upon the constable in this
case as one which embodies the latent penalty of disability from being
re-employed.
Secondly, even r. 16(2) (iii) carefully
scanned, refuses to yield the helpful inference drawn from it by counsel for
the 1st respondent. That rule does not state 'in other cases of dismissal' the
bar against re-employment operates only where there is publication in the
Police gazette to that effect. Dismiss al, as such, carries with it this
additional penalty in both classes of cases but in the first category covered by
the rule, publication is a duty cast upon the authority while in the second
type of cases the authority is lift with the option to publish or not to
publish. If the dismissing authority desires to ensure itself that unwittingly
some other department may not employ the dismissed official, he may, by way of
abundant caution,-resort to publication of the punishment in the Police
Gazette. The language is clear that to ensure that the officer dismissed shall
not be reemployed the concerned authority shall send for publication the
relevant particulars. Not that without such publication a right to
re-employment inheres in the dismissed official, but that to make sure that any
unknowing slip may not be committed by another department, the dismissing
officer may take care to forward the particulars of punishment for proper
publication. It is enabling so far as the dismissing authority is concerned and
is legally unnecessary to spell the two-in-one punishment of dismissal.
In this view of the matter there is no escape
from the conclusion that the 1st respondent was punished under the former part
of r. 16 (2) (iii) and incurred the extreme wrath of the law including
disbarment from re-employment.
Logically therefore he suffered
disqualification under s. 6K of the Act and the Tribunal, in removing him from
Chairmanship, acted legally.
No other point has been urged before us and
therefore we allow the appeal and affirm the learned Single Judge's judgment.
In the circumstances of the case we direct that the parties will bear their
costs in this Court. The costs of the appellant in the courts below will be
paid by the 1st respondent.
P.B.R.
Appeal allowed.
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