Case: The State Of Assam And Another Vs. Mahendra Kumar Das And Others

1. This appeal, by special leave, is directed against the judgment, dated January 20, 1966 of the High Court of Assam and Nagaland, in Civil Rule No. 184 of 1964 by which the High Court quashed the inquiry proceedings conducted by the 4th respondent herein and the order, dated December 3, 1958 passed by the 3rd respondent dismissing the first respondent (hereinafter shortly referred to as the respondent) from service and the orders of the appellate authorities confirming the same2. The respondent joined the Assam Police Service as a constable in 1933 and was promoted to the post of Assistant Sub-Inspector of Police in 1936. He was then promoted as Sub-Inspector of Police in 1944. He was made permanent as Sub-Inspector of Police in 1952. In 1955, when the respondent was the Officer in charge of the Sorbhog Police Station, certain allegations appear to have been made against him in consequence of which a confidential enquiry was conducted by the Superintendent of Police, Anti-Corruption Branch, who submitted a report to the Government on December 21, 1957. In view of the complaints received against him, the respondent had already been placed under suspension with effect from July 24, 19573. The Sub-Divisional Police Officer, Barpeta, having been authorised under Section 7 ofthe Police Act, 1861 framed charges against the respondent on March 22, 1958. It is not really necessary to enumerate the various items of charges, but they can be grouped under three broad heads. Under Charge No. 1, the respondent was alleged not to have taken cognisance of the items of cognizable offences reported to him and enumerated under that charge and, as such, he had neglected to perform his duty as a police-officer in charge of a Police Station. The second charge related to his having accumulated assets in his name as well as in the name of his wife, far beyond his known sources of income. Items of assets purchased by the respondent were again given in detail. The third charge related to the respondent having concealed the items, enumerated therein, and given false statements regarding his assets in the declaration of assets submitted to the authorities on July 22, 19574. The respondent submitted his explanation controverting the allegations made against him. The enquiry was conducted by the Sub-Divisional Police Officer, Barpeta (shortly referred to as the Enquiry Officer) and, as many as 14 witnesses were examined on the side of the prosecution. The respondent cross-examined those witnesses and he also examined four witnesses on his side5. The Enquiry Officer, by his report dated September 11, 1958 found the respondent guilty of the various charges, excepting regarding one item under the first charge. He declined to place any reliance on the evidence adduced by the respondent and rejected the explanation furnished by him. Ultimately, the Enquiry Officer, after finding the respondent guilty, submitted his report to the Superintendent of Police, Kamrup. The Superintendent of Police, after referring to the charges framed against the respondent, the nature of the evidence adduced before the Enquiry Officer as well as the finding recorded by the said Officer, issued a memo dated October 18, 1958 asking the respondent to submit his explanation. A copy of the report of the Enquiry Officer had already been given to the respondent. Still the Superintendent of Police also sent a copy along with his memo6. On receipt of this memo, the respondent requested the Superintendent of Police, by his letter dated October 29, 1958 for being furnished with copies of the depositions of the prosecution and defence witnesses recorded by the Enquiry Officer to enable him to submit his explanation. But this request was rejected by the Superintendent of Police stating that there was no rule for giving copies of statements7. The respondent submitted a fairly long explanation, dated November 21, 1958. He disputed the correctness of the findings recorded against him by the Enquiry Officer and, ultimately stated that he was innocent and was not guilty of any offence. He prayed that if in case he was found guilty, he should not be awarded the extreme punishment of dismissal from service. But he added a request to the effect that he should be allowed to examine witnesses and submit documents and he should be exonerated by the Superintendent of Police after a perusal and consideration of the same8. On receipt of the explanation, the Superintendent of Police, by his order dated December 3, 1958 rejected the explanation of the respondent, accepted the findings of the Enquiry Officer and holding that the charges had been proved beyond all reasonable doubt, dismissed the respondent from service with immediate effect. In the said order, the Superintendent of Police had referred to the charges framed against the respondent, the explanation furnished by him as well as the evidence recorded during the enquiry and the findings recorded by the Officer and the explanation sent by the respondent to the show cause notice and ultimately held that the charges had all been proved and that the findings recorded by the Enquiry Officer were correct. With regard to the request made by the respondent in his explanation dated November 21, 1958 the disciplinary authority stated that the respondent was afforded a full and fair opportunity to adduce all evidence that he desired to be placed before the Enquiry Officer and that opportunity had also been fully utilised by the respondent. Therefore there was no further necessity for giving the respondent an opportunity to furnish documentary or oral evidence. Regarding the punishment to be awarded, the Superintendent of Police stated that the charges proved against the respondent, who was a member of the Police force, were very serious and hence no leniency could be shown9. The respondent filed an appeal before the Deputy Inspector-General of Police, Range, Assam, who, by his order dated May 11, 1960 dismissed the same10. The respondent thereupon filed a revision before the Inspector-General of Police, Assam, which, again, was rejected on June 30, 1961. A further revision, filed before the State Government was also dismissed on January 21, 196411. On August 17, 1964 the respondent filed the writ petition in question, challenging the disciplinary proceedings initiated against him and the orders of dismissal passed on the basis of the enquiry conducted by the Enquiry Officer. He had taken several grounds of attack as against the disciplinary proceedings. He alleged that no reasonable opportunity was afforded to him during the enquiry proceedings. During the enquiry, the Enquiry Officer was in frequent consultation and contact with the Deputy Superintendent of Police of the Anti Corruption Branch, regarding the charges which were being tried by him. In particular he referred to the record made by the Enquiry Officer in his proceedings that on July 14 and 15, 1958 he consulted the Deputy Superintendent of Police Anti Corruption Branch about the proceedings and went through his records relating to the charges. He averred that the nature of the consultation and the materials collected by the Enquiry Officer from the Deputy Superintendent, Anti Corruption Branch, were not made known to him and those materials had been taken into account in recording the findings against him. He also alleged that copies of the report of the Anti Corruption Department, on the basis of which disciplinary proceedings had been initiated, had not been furnished to him nor were the copies of the evidence recorded during the enquiry given to him, though a specific request was made in that behalf. On all these grounds, he sought to have all the orders quashed on the ground that there had been a gross violation of the principles of natural justice. He took a further ground of attack that he had been appointed by the Inspector General of Police and the order of dismissal by a subordinate authority, viz., the Superintendent of Police, was illegal and void12. The allegations made by the respondent in the writ petition were controverted by the appellants. They averred that the respondent was not entitled to a copy of the report of the Anti Corruption Branch, which was only in the nature of a preliminary investigation into the complaints received against the respondent to enable the disciplinary authority to consider whether disciplinary action against the respondent should be initiated or not. It was further stated that the respondent was given a full and fair opportunity to participate in the enquiry and the witnesses were all examined in his presence and, apart from cross-examining the prosecution witnesses, he had also adduced defence evidence on his behalf. The State further averred that the mere circumstances that the Enquiry Officer consulted the Deputy Superintendent of Police, Anti Corruption Branch, did not vitiate the enquiry proceedings as no information or material gathered therein had been used by the Enquiry Officer when he recorded findings against the respondent. According to the State, the findings had been recorded on the basis of the evidence adduced during the actual enquiry. It was also pointed out that the disciplinary authority, viz., the Superintendent of Police, after receipt of the Enquiry Officer, had himself gone into the various items of evidence and, after a due consideration of the explanation submitted by the respondent, had agreed with the findings recorded by the Enquiry Officer and, after further consideration of the explanation submitted by the respondent to the show cause notice, ultimately passed the order of dismissal. The appellate authority, the Deputy Inspector General of Police had also considered the matter in great detail and had upheld the order of the Superintendent of Police13. The State further averred that the appointing authority of persons like the respondent, was the Superintendent of Police and not the Inspector General of Police, and, as such, the order of dismissal passed by the former was perfectly legal. On these grounds the State maintained that the enquiry proceedings were valid and legal and did not suffer from any infirmity14. Though, as pointed out above, several grounds of attack against the disciplinary proceedings initiated against the respondent were taken in the writ petition, it is seen from the judgment of the High Court under appeal that the order of dismissal was ultimately assailed only on two grounds: (1) The request of the respondent, made on October 29, 1958 after receipt of the second show cause notice dated October 18, 1958 issued by the Superintendent of Police, for supply of copies of the statements of the witnesses recorded at the enquiry, was arbitrarily rejected on the ground that there was no rule under which copies could be given and hence the respondent did not have any reasonable opportunity to show cause against the action proposed against him. (2) The Enquiry Officer, during the course of the enquiry was keeping himself in regular contact with the Anti Corruption Branch and had utilised the material so gathered by him, behind the back of the respondent, against the respondent in the enquiry proceedings. The respondents request for being furnished with a copy of the report of the Anti Corruption Branch had also refused and therefore there had been a violation of the principles of natural justice in the conduct of the enquiry15. So far as the first ground of objection is concerned, the High Court did not accept the same as it was satisfied that the witnesses were all examined in the enquiry in the presence of the respondent and that he had a full and fair opportunity of cross-examining the prosecution witnesses and also of examining witnesses on his behalf. Though the request of the respondent, made on October 29, 1958 for being furnished with copies of the evidence recorded during the enquiry was rejected, the High Court was of the view that as the respondent was fully aware of the nature of the evidence adduced in his presence during the enquiry, his grievance that he had no reasonable opportunity to show cause to the notice issued by the Superintendent of Police was unfounded16. So far as the second ground of objection was concerned, the High Court was impressed by the fact that the Enquiry proceedings showed that on July 14, 1958 and July 15, 1958 the Enquiry Officer consulted the Deputy Superintendent of Police of the Anti Corruption Branch about the proceedings and went through his records relating to those charges. Based upon those entries found in the record of the enquiry proceedings, the High Court came to the conclusion that it was abundantly clear that the Enquiry Officer had discussion with the Anti Corruption Branch, the report of which had not been furnished to the respondent. The High Court was further of the view that the Enquiry Officer had taken into consideration the materials gathered from the records of the Anti Corruption Branch. It was the further view of the High Court that inasmuch as a copy of the report of the Anti Corruption Branch as well as the materials that were gathered by the Enquiry Officer during his consultation with that Branch had not been furnished to the respondent, the enquiry held under such circumstances was in clear violation of the principles of natural justice and hence the order dismissing the respondent from service was void. In this view the High Court set aside the order of dismissal and allowed the writ petition.

Reasoning: 28. Mr. Mukherejee, learned Counsel for the respondent, raised the contention that the materials on record disclose that the respondent was appointed permanent Sub-Inspector by the Inspector-General of Police whereas the order of dismissal has been passed by a subordinate authority, the Superintendent of Police and therefore the order of dismissal is illegal and void. Normally, this contention should not be entertained, because it is stated by the High Court that apart from the two points considered by it, no other grounds of objection were raised by the respondent against the order of dismissal. But, if really the records support this contention of Mr. Mukherjee, that will make the order of dismissal illegal and so we permitted the counsel to raise this contention. But, after a reference to the material on record, we are satisfied that this contention is devoid of merit29. The respondent, no doubt, averred in his writ petition that he was appointed to the substantive post of Sub-Inspector of Police by order of the Inspector-General of Police, Assam, and therefore the order of dismissal passed by a subordinate authority, viz., the Superintendent of Police, is illegal and ultra vires. In the counter-affidavit filed before the High Court, the State maintained that the Superintendent of Police was the appointing authority of a Sub-Inspector of Police and it placed reliance upon R. 66, as corrected by the Correction Slip No. 150, dated June 1, 1938 of the Assam Police Manual, Pat III. The State further categorically stated that the Superintendent of Police is the appointing and punishing authority of the Sub-Inspector of Police and the respondent has been properly and validly dismissed by the competent authority. Rule 66, referred to above, clearly supports the contention of the State in this regard30. Annexure I to the counter-affidavit of the State in the High Court is the order of the Inspector-General-of-Police, Assam, dated December 16, 1952. That refers to the selection for confirmation as Sub-Inspectors of Police of the persons mentioned therein. The respondent is serial number 5 in the said order. Note No. 2 to this order specifically directs the Superintendents of Police to send to the Inspector-General of Police, Assam, copies of confirmation orders issued by them in respect of the officers. In accordance with the order of the Inspector-General of Police dated December 16, 1952 the Superintendent of Police passed an order D. O. No. 3777 dated December 31, 1952 that among other officers, the respondent, who was officiating as Sub-Inspector, has been selected for confirmation as Sub-Inspector of Police (Unarmed Branch) with effect from September 1, 1951 and that he has been confirmed as Sub-Inspector of Police (Unarmed Branch) from the same date and absorbed against an exiting substantive vacancy in the district. These orders clearly show that the respondent was appointed permanent Sub-Inspector of Police not by the Inspector-General of Police but by the Superintendent of Police. Obviously because of these records, such a contention, as is nowtaken on behalf of the respondent, was not raised before the High Court.