Appeal No 23 of 1967
Appeal by special leave from the judgment and order dated October 9 1963 of the Patna High Court in MJC No 824 of 1963
section 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 Sub Inspector 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 an officiating 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 relatng to certain cloth recovered at Katihar Police Station in a Police Case under sections 379 and 414 of the Penal Code
The appellant submitted his reply denying any misapropriation 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 followd 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 cause 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 Govern  ment 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  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
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 section 4 the admistration 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 InspectorsGeneral as the State Government shall deem fit
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 InspectorGeneral 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 article 311 and the rules made under the Act
The power of superintendence conferred on the State Government by section 3 must therefore be read in the light of the provisions of section 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 section 3 with an order passed by any one of the officers mentioned in section 7 in exercise of the power conferred on them by that section unless there is some provision which authorises or envisages such interference
Under section 462 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 cgenerally for giving effect to the provisions of this Act
 It would seem that in pursuance of the rule making power under section 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 Bihar1
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 peri odical 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 originalorder 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 any one 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 ie 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 section 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 section 3 of the Act
The 1 AIR 1962 Pat
276 869 exercise of such a power is ordinarily possible when there is no provision for an 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 any one 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 shold 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 r853 A had been framed it cannot operate because so far it has not been published in the official gazette as required by section 462
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 revisional power or any such similar power under section 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 Ins pector 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
GC Appeal allowed


Summary:
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 section 7 of the 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 wasany 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 rr
851b 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 Inspect 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
HELD1 The Act itself confers on the Inspector General power to impose in suitable cases the penalty of dismissal suspension and reduc L1100Sup
Cl71 864 tionsubject to the provisions of article 311 and the rules made under the Act
The power of superintendence conferred on the State Government by s3 must therefore be read in the light of the provisions of section 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 section 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 D 869 A iiUnder r 851b 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 ie 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 section 7 of the Act 868 E G iiiThe order of the Govertunent 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 appeuate authority felt that the order was so unjust or unreasonable that it should act under its revisional power
That wae 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