• '

UNION OF INDIA

RAM KISHAN May 7, 1971

[S. M. SIKRI, c. I., G. K. MITTER, c. A. VAIDIALINGAM, P. JAGAN-

MOHAN REDDY AND I. D DUA, JJ.]

Punjab Police Rules, r. 16 38-Dismissal of foot constable-Order of dismissal by Superintendent of Police (Traffic) compelent-Order illegal f, Jr non-compliance wit~ first Part of r. 16, 38.

The respondent, a foot constable. filed a Suit challenging his dismissal on the main grounds (i) the Superintendent of Police (Traffic) was not competent to pass the order of dismissal; and (ii) the order v1as illegal as the provisions of Punjab Police Rule 16.38 were not complied with. The Sub-Judge upheld the first ground and decreed the suit.

On the second ground it was held_ that the necessary permission for taking departmental action was obtained from the District Magistrate. On appeal the High Court, following its earlier decision held that the Superintendent of Polke

(Traffic) was not competent to dismiss the respondent. Dismissing the appeal to this Court,

HELD : (i) The first ground is concluded against the plaintiff (respondent) by a decision of this Court in Union of India v. Jagjit Singh.

[754H]

(ii) However the appeal must fail on the ground that the provisions of r. 16.38 were not comp'lied with in this case. No in1mediate information was given to the District Magistrate in respect of the complaint received against the plaintiff nor did the District Magistrate decide whethrr the investigation shall be conducted by a police officer, or made over to a selected magistrate having 1st.Class powers. No doubt the District Magistrate purported to give permission under sub-r. 2 of r. 16.38, but as the first part of the rule was not complied with at all the departmental inquiry is vitiated and the order of dismissal must be declared jlJegal.

[754H, 7560]

U11io11 of India v. Jagjit Singh, [1970] I S.C.R. 163, 168 and Delhi Administration v. Chanan Shah, [1969]· 3 S.C.R. 658, referred to.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 571 of 1967 .

I 53

Appeal by special leave from the judgment and decree dated October 12, 1966 of the Punjab High Court. Circuit Bench at G Delhi in Regular Second Appeal No. 28-D of 1966.

R. N. Sachthey, for the appellanl

N. D. Bali and D. D. Sharma, for the respondent.

The Judgment of the Court was delivered by Sikri, C. J.-The respondent Ram Kishan, hereinafter ri> H ferred to as the plaintiff, a Foot Constable, filed a suit in the Court

48-1 S.C. lndia/71

SUPREME COURT REPORTS

(1971] SUPP.S.C.R

of Sub-Judge I st Oass, Delhi, challenging his dismissal from service by an order da.ted 25th October, 1960. This order was passed by Shri M. K. Saxena, Superintendent of Police (Traffic), Delhi.

It was alleged by the plaintiff that this order was bad and illegal on various grounds.

Two grounds , may be mentioned here : (!) ThBlt Shri M. K. Saxena, Superintendent of Police (Traffic), Delhi was not a District Superintendent of Police; (2) That the mandatory provisions of Punjab Police Rule 16.38 had been violated inasmuch as no information was given to the District Magistrate as laid down in the Punjab Police Rule 16.38(1) and the District Magistrate never decided whether the preliminary investigation was to be conducted by the police or by a selected Magistrate !st Qass.

It was further alleged that even the provisions of sub-Rule

(2) of Rule 16.38 were not observed. The learned Sub-Judge decreed the suit and gave a• declaration that the dismissal of the plantiff was void. A decree for Rs. 1151/- was passed in favour of the Foot Constable.

Among other issues framed, the following issues may be noticed :

(!) Whether the Superintendent of Police (Traffic) was not competent to pass the impugned order as alleged?

(2) Whether the provisions of Rules 16.38 and 16.24 of the Punjab Police Rules were complied with by the defenda0nt ? If not, to what effect ?

The learned Sub-Judge held and decided issue No. 1 against the Government and held the order of dismissal to be vitiated.

Regarding issue No. 2, however, he held that there was a complete compliance of Rule 16.24. He further held that even as regards Rule 16.38, the necessary permission of the District Magistrate, Delhi for taking the departmental action aga-inst the plaintiff was obtained from the District Magistrate vide Ex. P.9A.

The Government filed an appeal and the Additional Dist- Jict Judge dismissed the a.ppeal.

The Government then filed an appeal before the High Court.

Mehar Singh., J. following an earlier decision('\ "f the Division Bench of that Court dated March 4, 1964 held that Mr. M. K. • Saxena, Superintendent of Police (Traffic), Delhi, was not competent to dismiss the plaintiff.

The learned Judge did not give leave to file Letters Patent Appeal and the Government having obtained Special Leave, the appeal is now before us.

The first issue is now concluded against the plaintiff by a , decision of this Court in the case Union of India v. lagjit Singh ('). However, the appeal must fail on the ground that the

(!) Union ofln1ia v. RMI Kilhan-Rogu'ar Second Appeal No. 258-D of 1962.

(2) [1970] l S.C.R. 163, 168.

U'l!ON v. RAM KISHAN (Sikri, C.J.)

provisions of Rule 16.38 were not complied with in this case.

In a similar case Delhi Admn. v. Chanan Shah (') this Court observed :

"It is not necessary to decide in this case whether the provisions of Rule 16.38 of the Punjab Police Rules are maindatory or directory. Even assuming that the rule is directory we find that there has been no substantial compliance with its provisions. The complaint fell within rule 16.38, and it was for the District Magistrate to decide who should investigate the case. No investigation of any kind was made under his directions.

Without obtaining his directions, the Superintendent of Police held an inquiry and passed an order of censure.

The order was set aside by the Deputy Inspector-General.

Thereafter by D. 0. letter No. 2165-C. the Superintendent of Police, asked for the sanction of the District Magistraite to proceed departmentally. Even at this stage, the District Magistrate was not informed that the Superintendent of Police held an inquiry and passed an order of censure and that his order was set aside by the Deputy Inspector-General. The inquiry held by the Superintendent of Police wa"' not authorised by the District Magistrate nor did it receive his approval.

The District Magistrate gave his sanction without recording any reasons and without applying his mind to the requirement of r. 16.38. In the circumstances, we are constrained to hold thait the departmental action taken against the respondent is invalid."

In this case the permission relied on by the Government is in following terms :

"MEMO

Referring your memorandum No. 4425 /T dated the 8th February, 1960 on the subject noted above.

I agree to departmental action being taken against F. C. Ram Kishan No. 4494."

We may hare reproduce relevant part of Rule 16.38;

"16.38. (1). Immediate information shall be given to the District Magistrate of any complaint received by

(1) [1969] 3 S.C.11,. 658.

SUPREME COUR.T REPORTS [1971) SUPP. s.c.a.

the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in con nection with his official relations with the public. The District !Magistrate will decide whether the investiga,. tion of the complaint shall be conducted by a police officer, or made over to a selected Magistrate having 1st class powers.

(2). When investigation of such a complait establishes a pn'ma facie case, a judicial prosecution shali normally follow ; the matter shall be disposed of departmentally only if the District Magistrate so orders for reasons to be recorded.

When it is decided to proceed de partmentally the procedure prescribed in rule 16.24 shall be followed.

An officer found guilty on a charge of the nature referred to in this rule shall ordinarily be dismissed."

In the present case no immediate information was given to the District Magistrate in respect of the complaint received against the plaintiff nor did the District Magistrate decide whether the investigation of the complaint shall be conducted by a police officer, or made over to a selected magistrate having 1st class powers. It is true that the District Magistrate purported to give permission under sub-Rule 2 of Rule 16.38 but as the Jst part of the Rule was not complied with at all the departmel!tal

inquiry is vitiated and the order of dismissal must be declared illegal. In the result we dismiss the appeal with costs.

K.B.N.

Appeal dismissed.