-: 1 :- HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Writ Petition No. 8632 of 2009 The State of Maharashtra Through The Addl. Commissioner of Police, Western Region Division. ..Petitioner. Versus Mr. Jitendra Vitthal Kadam. ..Respondent. Mr. C. R. Sonawane, AGP for the Petitioner - State. Mr. K. R. Jagdale for the Respondent. Coram : S. B. Mhase & R. M. Savant, JJ. Date : October 8, 2009. P. C. : 1. By this petition filed under Article 226 of the Constitution of India, the Petitioner, i.e., the State of Maharashtra through the Additional Commissioner of Police, Western Region takes exception to the order dated 7th May 2009 passed in Original Application No. 776 of 2008 and the order dated 9th September 2009 passed in Review Application No. 48 of 2009 passed by the Maharashtra Administrative Tribunal, by which order the Tribunal has allowed the Original -: 2 :- Application filed by the Respondent herein whereby the impugned suspension order passed by the Petitioner has been set aside. 2. The question which arose before the Tribunal was as regards the competency of the Additional Commissioner of Police, Western Region, Mumbai to pass the said impugned order of suspension. The Respondent herein was working in the constabulary in the Mumbai police. Pursuant to his selection by the MPSC, the respondent was appointed to the post of Police Sub Inspector on 1st April 2005. After undergoing the training and completing the same, the Respondent was posted at Nirmalnagar Police Station, Mumbai on 1st January 2006 and at the time when the suspension order came to be passed he was posted as Crime Investigating Officer in the said Police Station. The Respondent whilst working at the said Police Station was vide order dated 16th February 2008 placed under suspension pending enquiry into the alleged misconduct committed by him in connection with the seizure of a revolver found in possession of one Mohammed Abid Mohammed Khalid Salmani and acceptance of an alleged bribe of Rs.75,000/- from father of one Akhtar A. Khan for not being implicated in the said seizure case. The said suspension -: 3 :- order came to be passed by the Additional Commissioner of Police, Western Region, Mumbai. The said suspension order was passed as it was prima facie found that the Respondent had committed a misconduct and therefore it was necessary to hold departmental enquiry and since it was not desirable to allow the respondent to discharge his duties. 3. As indicated hereinabove, the said suspension order came to be challenged on the ground that the person who had issued the suspension order, namely, the Additional Commissioner of Police, had no authority to put the Respondent under suspension as the appointing authority of the Respondent was the Director General of Police. The Respondent also challenged the said suspension order on the ground that on the basis of the allegations made against him, his suspension was not warranted. On behalf of the Petitioner herein the reliefs sought in the said Original Application were opposed, primarily by contending that the powers of suspension have been delegated to the Additional Commissioner of Police by the Standing Order dated 6th June 2002 and therefore the officer competent had in fact passed the suspension order. According to the Petitioner herein, -: 4 :- the alleged misconduct as well as the illegal activities of the Respondent warranted his suspension. It was, therefore, the contention of the Petitioner that the suspension order was legal and correct and therefore there was no substance in the original application filed by the Respondent. 4. On behalf of the Petitioner two contentions were urged before the Tribunal, namely, that the Additional Commissioner of Police was not competent to pass the order of suspension as the appointing authority was the Director General of Police. The second contention was that there was no proper compliance of Rule 3(1-A)i of the Bombay Police (Punishment and Appeal) Rules, 1956 as well as Section 25(2) of the Bombay Police Act and as such the suspension order on the said ground was bad and illegal. The Tribunal on the basis of Section 3(1-A)i of the said Rules as well as taking into consideration the Standing Order dated 6th June 2002 came to a conclusion that the Additional Commissioner of Police was not competent to pass the said suspension order. In so far as the Standing Order dated 6th June 2002, on which much reliance was placed by the learned counsel appearing on behalf of the Petitioner, -: 5 :- the Tribunal found that there was absolutely no reference in the said Standing Order dated 6th June 2002 empowering any particular officer for suspending the officer of the rank of PSI. The said order according to the Tribunal empowers certain police officers to impose punishments on the police offers of the rank of Police Inspector and officers below the said rank. However, the Tribunal on a reading of the said Standing Order dated 6th June 2002, recorded a finding that the said standing order nowhere mentions the empowerment of the Additional Commissioner of Police to suspend a Police Inspector or Police Sub Inspector. The Tribunal also taking into consideration the said rule 3(1-A)i also came to a conclusion that since there is a specific rule there has to be a specific order delegating the power to the Additional Commissioner of Police. However, since there was no specific order delegating the powers to the Additional Commissioner of Police, the said Standing Order dated 6th June 2002 was of no avail to the Petitioner. The Tribunal also taking into consideration the fact that the appointing authority of the Respondent was not informed of the suspension of the Respondent herein, there was no compliance of the conditions mentioned in the proviso to the said Rule 3(1-A)(i) of the 1956 Rules. -: 6 :- 5. The Tribunal also considered the matter on merits, i.e., whether the suspension of the respondent was justified on the basis of the allegations as contained in the said suspension order. The Tribunal though was of the view that the Additional Commissioner of Police could not be faulted with for proceeding departmentally against the respondent herein, however in view of the fact that the suspension order having not been passed by the appointing authority, the said suspension order could not be sustained. The Tribunal therefore set aside the said suspension order dated 16th February 2008. However, the Tribunal granted liberty to the Petitioner to take necessary action against the Respondent in accordance with law. 6. The Petitioner herein thereafter filed Review Application being Review Application No. 48 of 2009 on the ground that the Affidavit- in-sur-rejoinder dated 24th March 2009 filed by the Petitioner herein was not referred to by the Tribunal in its final order dated 7th May 2009. According to the Petitioner in the said Affidavit-in-sur- rejoinder, it was mentioned that the Respondent herein was actually appointed by the Deputy Inspector General of Police (MS), and -: 7 :- therefore there was an error apparent on the face of record as the Tribunal has proceeded on the basis that the Respondent was appointed by the Director General of Police. The Review Application was considered by the Tribunal and in view of the fact that admittedly the suspension order was not issued by the appointing authority, the final decision of the matter would not have been changed even if it was to be taken that the Deputy Inspector General of Police was the appointing authority of the Respondent herein. 7. In so far as the above issue is concerned, we have already dealt with the same in Writ Petition No. 4050 of 2009 which involved the said identical issue. In the said Writ Petition the contention of the State was that the appointing authority of the Police Sub Inspector in the said case was the Deputy Inspector General of Police and hence the order of punishment issued by the Special Inspector General of Police was in compliance with Article 311(1) of the Constitution of India, we have upheld the order of the Maharashtra Administrative Tribunal setting aside the order of punishment on the ground that the the said order of punishment was not issued by the appointing authority, i.e., the Director General of Police. In view of the said -: 8 :- order in Writ Petition No. 4050 of 2009 delivered on 6th October 2009 the said issue stands concluded, in as much as the cadre of PSI is concerned which is a State cadre, the appointing authority is the Director General of Police and therefore the order of punishment has to be issued by the said authority. 8. We have perused the order dated 7th May 2009 in Original Application No. 776 of 2008 as well as the order dated 9th September 2009 passed in Review Application No. 48 of 2009. We have also considered the findings recorded by the Tribunal which we have reproduced hereinabove to the extent they are relevant. In our view, the Tribunal for good and cogent reasons has set aside the said suspension order dated 16th February 2008. The said reasons are, in our view, unexceptionable and do not call for any interference in our writ jurisdiction under Article 226 of the Constitution of India. The Writ Petition is accordingly rejected. [R.M.SAVANT, J] [S.B.MHASE, J]