Appeal No 349 of 1957
Appeal by special leave from the judgment and decree dated November 29 1954 of the Punjab High Court in Regular Second Appeal No 891 of 1951
Hardayal Hardy and N N Keswani for the appellant
N section Bindra and D Gupta for the respondent
July 21
The Judgment of the Court was delivered by WANCHOO J
This is an appeal by special leave against the judgment of the Punjab High Court in a service matter
The brief facts necessary for present purposes are that the appellant was appointed as a foot constable in 1931 in the Punjab Police and was dismissed on January 25 1944
Shortly before he was acting as an Assistant Sub Inspector and actually working as a Police Censor
The charge against him was that while he was working as Police Censor he detained certain letters illegally and had copies and photo graphs made of them and later used these copies and photographs for blackmail
He was consequently reverted to his substantive post of head constable on 9 66 January 14 1944
Thereafter on January 21 1944 an enquiry was started against him by the Superintendent of Police and he was eventually dismissed
He went in appeal to the Deputy Inspector General of Police which was dismissed
He then went in revision to the Inspector General of Police which also failed
Finally he made several representations and memorials to the Punjab Government but without avail
Consequently the present suit was filed by the appellant in February 1949
The plaint as originally filed after narrating the facts relating to the appellant s service merely stated that the charge of misconduct was brought against the appellant on account of enmity and that the departmental enquiry made by the Superintendent of Police was arbitrary and not according to law rules and regulations prescribed for the same
Besides this vague general allegation the only specific grievance made out by the appellant in the plaint was that the Superintendent of Police had dismissed him without recording his defence evidence and without giving him an opportunity to produce the same
The appellant amended the plaint later and added one more grievance namely that he had been appointed by the Deputy Inspector General of Police and could only have been dismissed by him and not by the Superintendent of Police
As to the Departmental enquiry certain further defects therein were pointed out besides the allegation already made that his defence had not been taken and that he had not been given an opportunity to produce it
Those further defects were i that he was not permitted to engage counsel ii that he was not allowed full opportunity to crossexamine the prosecution witnesses and iii that he was not asked by the enquiry officer to state what he had to say in answer to the charge against him and was not permitted to file a written statement explaining the alleged incriminating circumstances against him
The suit was opposed on behalf of the Punjab Government and among others their main defence was that the enquiry was in accordance with the 67 Regulations and was not arbitrary
It was also denied that no opportunity had been given to the appellant to lead defence evidence or to cross examine prosecution witnesses or to make his own statement in answer to the charge
It was admitted that permission was refused to engage a counsel but it was finally averred that taking the enquiry as a whole there was no such defect in its conduct as to invalidate it or call for interference by the courts
Three issues all of a general nature were framed by the trial court namely 1
Whether the plaintiff s dismissal is void illegal inoperative and wrongful and what is its effect  2
Whether the Civil Courts have jurisdiction to entertain the suit or to go into the question of the validity of the departmental enquiry  3
Whether the suit for a declaration lies and is competent and why  It is unfortunate that the specific points raised by the appellant whatever they were were not made the subject matter of specific issues
However the trial court came to the conclusion that the case of the appellant was governed by section 2403 of the Government India Act 1935 and it was reinforced in this conclusion by the Police Regulations which according to it provided for the same safeguards as were contained in section 2403
It therefore held that as section 2403 had not been complied with the dismissal was void and illegal
As to the other two issues relating to the jurisdiction of civil courts they were decided in favour of the appellant
There was an appeal to the District Judge by the Punjab Government
The District Judge agreed with the conclusions of the trial court on the applicability of section 2403 to the case of the appellant and further referred to an amendment in the Police Regulations which required that before an order of dismissal or reduction in rank is made the officer to be punished shall be produced before the officer empowered to punish him and shall be informed of the charges 68 proved against him and called upon to show cause why an order of dismissal or reduction in rank should not be passed
The District Judge was conscious that this amendment in the Regulations was made in September 1946 long after the dismissal of the appellant and therefore would not apply to the appellant s case but he overruled this contention on the ground that the rule was merely declaratory of the law and only removed the ambiguity that might have arisen because of section 243 of the Government of India Act
He therefore dismissed the appeal
Then followed a second appeal by the Punjab Government to the High Court
The High Court held that section 2403 did Dot apply to the case of the appellant and that section 243 was the governing section
In consequence the High Court further held that the appellant was not entitled to the protection of section 2403 and as the amendment to the Police Regulations which brought in the substance of section 2403 therein was made after the dismissal of the appellant he could not take advantage of it
As to the enquiry the High Court held that though there might have been minor procedural defects in the enquiry it was on the whole substantially in accordance with the Regulations and principles of natural justice and could not therefore be held to be invalid
The High Court pointed out that there was no serious contraven tion of the Regulations and the witnesses who had appeared were cross examined by the appellant who was also called upon to produce his defence within 48 hours
He however did not choose to do so and wanted a postponement which was refused and thereafter the Superintendent of Police proceeded to dismiss him
Learned counsel for the appellant challenges the cor erectness of the view taken by the High Court and three points have been urged on his behalf before us namely 1 section 2403 of the Government of India Act applied to police officers of subordinate rank and there was nothing in section 243 which took away from such officers the protection of section 2403  2 Even if the Police Regulations alone applied there was such violation of the relevant regulations as to vitiate the enquiry 69 proceedings and 3 The Superintendent of Police could not hold a departmental enquiry as a criminal offence had been committed and reliance in this connection was placed on sections 29 and 35 of the  No V of 1861
Section 243 of the Government of India Act appears in Chapter 11 of Part X dealing with Civil Services 
That Chapter begins with section 240 and sub section
3 thereof provides that no member of a civil service or holding any civil post in India shall be dismissed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him
Section 243 however is in these terms  Notwithstanding anything in the foregoing provisions of this chapter the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Act relating to those forces respectively
 Obviously section 243 was a special provision with regard to subordinate ranks of police forces in India and it is not in dispute that the appellant belonged to the subordinate ranks
Therefore according to section 243 the conditions of service of the subordinate ranks are governed by or under the Acts relating to police forces and section 2403 can have no application to them
The non obstante clause of section 243 makes it clear that so far as the subordinate ranks of police forces in India are concerned a 243 will apply and not the earlier provisions including section 2403
We are therefore of opinion that in view of the special provisions in section 243 relating to the subordinate ranks of police forces in India to which the appellant undoubtedly belonged section 2403 would have no application
We may in this connection refer to the judgment of the Privy Council in North West Frontier Province vs Suraj Narain Anand 1 where it was held that the non obstante clause in section 243 excluded the operation of section 2402 in the case of subordinate ranks of police forces in India and that conditions of service included the right of dismissal
1 70 That case dealt with section 2402 but the same reasoning would in our opinion apply to section 2403
As has already been pointed out by the learned District Judge the substance of section 2403 was brought into the Police Regulations in September 1946 long after the appellant had been dismissed and would therefore not apply to the appellant
He would therefore not be entitled to the second notice under section 2403 as explained in I M Lall s case by the Privy Council See High Commissioner for India  High Commissioner for Pakistan vs I M Lall 1
Nor was such notice necessary under the Police Regulations as they existed at the time of the appellant s dismissal
The view taken by the High Court under the circumstances is correct
So far as violation of the material provisions of r 1624 of the Police Regulations is concerned we find that only three specific allegations material for the purpose were set out by the appellant namely i that he was not given the chance to defend himself ii that he was not allowed to cross examine the prosecution Witnesses and iii that he was not allowed to explain the circumstances appearing against him and was not allowed to file a written statement
It is enough in this connection to say that he was certainly given a chance to produce defence but did not himself avail of it
It also appears as found by the High Court that the witnesses were cross examined by the appellant at length and on the whole there is nothing to show that he was not allowed to explain the circumstances appearing against him
We therefore agree with the High Court that there is no such serious contravention of the Regulations as to call for interference by the Courts
Reliance in this connection is placed on sections 29 and 35 of the 
Section 29 provides for penalties for neglect of duty etc
by police officers and lays down the extent of punishment on conviction by a magistrate
Section 35 defines what magistrate can try a 1 71 charge against a police officer above the rank of a con stable under the and such a magistrate has to be a First Class Magistrate
These sections nowhere exclude departmental enquiry
All that they lay down is that where an offence punishable under the is committed by a police officer above the rank of a constable and is to be tried by a court of law it has to go before a First Class Magistrate
That however does not mean that no departmental enquiry can be held with respect to a matter where it is also possible to prosecute a police officer under the 
There is no force in this contention also and it is hereby rejected
The appeal therefore fails and is hereby dismissed but in the circumstances of this case we pass no order as to costs
Appeal dismissed


Summary:
A Hindu father speculating in gold and silver lost heavily and sought to recoup by borrowing on a mortgage
The mort gagee obtained a decree and sought to execute it by sale of the mortgaged property
The sons and the wife sued for a declaration that the decree was not binding since the debt though antecedent was immoral avyavaharik
The trial court found in their favour and on appeal the District judge affirmed its decision
On second appeal the High Court held that it was for the plaintiff s to prove not merely that the antecedent debt was immoral but also that the mortgagee had notice of the said character of the debt and since they had led no evidence to discharge that onus they were not entitled to a decree
The plaintiffs came up on appeal by special leave Held that the High Court took the correct view of the law and the appeal must fail
Any attempt to test the correctness of the principles laid down by the Privy Council in the case of Suraj Bunsi Koer which have held the field for more than three quarters of a century purely in the light of ancient Sanskrit texts would now not merely be hit by the principle of state decisis which must inevitably come into operation but would also be inexpedient and futile
Suraj Bunsi Koer vs Sheo Proshad Singh 1879 LR 6 IA 88 and Brij Narain vs Mangla Prasad 1923 Lk
51 IA 129 applied
The principles laid down in those two cases make no distinc tion between an alienation made for the payment of the father s antecedent debt and an alienation made in execution of a decree passed against him and in both cases the sons must prove not only the immoral character of the antecedent debt but also the knowledge of the alience
Case law considered