MOHAMMAD ABDUL SALAM KHAN

SARFARAZ AHMAD KHAN & OTHERS

March 5, 1975 [A. N. RAY, CJ., K. K. MATHEW, v. R. KRISHNA IYER,

AND A c. GUPTA., JJ.]

U.P. Town Areas Act, (II of 1914) s, 6K-.Scope of-Dismissed Govem- .111mt serwmr-Jf could be elected as Chairman of Town Area Commillee-

Di.tmissal-Mea11i11g of.

Punjab Police Rules-Rule 16(2) (iii)-Scope of-Publication of dismissal i11 Police Gazette--Ef]ect of.

Section 6K of the U.P. Town Areas Act proviqes that a person, notwith standing that he is otherwise qualied, sbaH be disq1:1alifie? for. being. ch.osen .as, and f'or being a member or Chairman of a Committee 1f he 1s 3: dts!lllssed

servant of a local authority, the State or Central Government and 1s debarred fr.om reemployment therein.

Rule 16(2) (iii) of the Punjab Police Rul7s, which apply to respondent No. 1 at the relvant t'me, states that when a pohce officer is convicted judicially and dismissed, or dismissed as .a result of a departmental enquiry, the conviction and dismissal and lls cause shall be publisher! in the PoEce Gazette. In other cases of dismissal when it is desired to ensure that the officer dismissed shall not be re.employed elsewhere, a full descriptive roll, with particul:irs of the punishments. shall be sent for publication in the "Police Gazett~. ·

The first respondent, a dismissed police' constable. was elected as Chairman of the Town Arca Committee. The appellant. who was the defeated cand:date, assailed the election of the respondent. 'The Election. Tribunal constituted under th'e U.P. Town Areas Act set aside the election and declared the appellant as the Chairman. Jn a writ petition under Art. 226, a single Judge of the High Court affirmed the order of the Tribunal as regards the election of the respondent No. I but in relation. to the relief directed against the declaration of the appellant as Chairman.

A Division Bench of the H:gh Court allowed the appeal of respondent No. I holdinl!: that s. 6-K spoke of two components, namely, (a) dismissal and (b) being debarred from re-employment and since the second ingredient was not priesent in the order of termination against the constable, the formula for disqualificat'on was not fulfilled. ' Allowinl!: the appeal,

HEL~ : (I) There is no escape from the conclusion that the hrst respond1:nt was punished under the former part of r. 16(2) (iii) and incurred the extreme wrath of the law i.nclud!ng isbarment from re-employment.

Logically, therefore, he suffered d1squahficahon under s. 6-K of the Act and the Tr:bunal in Temoving him from Chairmanship, acted legally. [866 F] ·

ction 7 of the Polici: Act speks of dismissal as a single category of pumsh!11ent, not as two twigs from the same branc)l, that is, dism'ssal wit/rout

?~:I 'fl!llh , en:ibargo on re-entry mto State service. When s. 7 uses the express10n

d1sm1ssal • 1t ust be deemed to have conveyed the official semantics attached .10 that express10n, namely, removal from §ervice plus a ban on re-employment

by, the State. 'f!le non-enumeat!on of 'rC'!Joval' as a distinct form of punbhmt.n! oes not divest the appo:ntmg authonty from exercising, subject to legal

rest~1cl!ons, the i; io111:er to remove from service without inflicting the more serious punishment of d1sm1ssal. [864 C; F]

ABDUL SALAM V. AHMAD ~N 861

(2) The words 'dismissal' and 'r<:moval' h.ave one distinction, namely, tbat the former di5qualifies from futme employment while the latter does not.

Therefore, dismissal is removal with .i prohibtion super-added. [864 H; 865 DJ

Kliem Chand v. Union of India [1958) S.C.R. 1080, 1089 and Shyamlal's case, A.I.R. 1954 S.C. 369, 374, referred to.

(3) (a) "Dismissal" removes the man from his office and super-adds debar- ent from re-employmet. Such being its meaning in the Indian ConsUution,

~~ . the. rel~, vant rules whch have been in force in this country over the decades

. d1sm1ssal has to be )Jnderstood, as punishment imposed upon the constable. m this case, as one which embodies the latent penalty of disability from being re-e_mployed. [866 BJ

(b) Rule 16(2) (iii) does not state "in other cases of dismissal" the bar against re-<:mployment operates only where there is publication in the Police, Gazette to that effect. Dismissal, as such, carries with it this additional penalty in both. classes of cases but in the first category covered by the rule, publication is a duty cast upon the author, ty while in the second category the euthority is left with the option to publish or not to publish. If the dismilislng authority. desires to ensure itself that unwittingly some other department may not employ ihe dismissed official, it may, by way of abundant caut.on, resort to publication of the punishment in the Police Gazett~. The language is clear that to ensure Lhat the officer dismissed shall not be re-<:mployed the concerned authority. shall send for publication the relevant particulars. Not that without $Uch publication a right to re-<:mployment inheres in the dismissed official, but that tl> make sure that any unknowing slip may not be committed by another depart ment, the dismissing officer may take care to forward the particulars of punishment for proper publication. It is enabling, so far as the dismissin~ authority is concerned, and iS legally unnecessary to spell the two-in-one pumshment or dismissal. (866 C-El

ARGUMENTS

Fr•r the Appellant :

From a plain reading of s. 6-K of the U.P. Town Areas Act it is clear that if a man is dismissed from service of a local authority, Central Government or State Government by way of punishment and is debarred from re-employment thereunder, he cannot contest the elecLon for the Chairman of the Town Area_ Committee. From a plain reading of s. 6-K it becomes clear that the intention of the legisla:ure in enacting this law was that the persons who have been dismissed from service by way of punishment will not be qualified for elect:on to. the post of Chairman. Town Area Committee. This section contemplates only such dismissed servants who have been dismissed from service by Way of punishment for mis-conduct. and indiscipline.

For Respondelll No. 1 :

Respondent no. I was removed from the Delhi Police Service and was not a dismissed servant within the meaning of s. 6-K of the U.P. Town Area Act.

The words 'dismissed servant' used in s. 6-K in that Act were used in a broader sense and meant a servant whose services were terminated. The words 'and is debarred from re-employment therein used in that section clearly indicate that the election petitioner will have to prove that the services of respondent No. 1 were terminated and he was debarred from re-<:mployment.

Section 7 of the Indian Police Act and r. 16(2)(iii) of th.e Punjab Poliee Rules were applicable to Delhi.

If a Police Officer is convicted by a Court of law and is dismissed as a result of the departmental enquiry in consequence of corrupt practices, such a dismissal would ipso facto mean dism'ssal by way of punishment. However. if the terminatin <?f service w_as on ccount of anv other reason, then if the authority termmatmg the services desires to ensure that the officer dismissed shall not be re.employed elsewhere, a full descriptive roll with particulars of the pun'shment shall be sent for publication in the Police Gazette. In the present case the iervices of the respondent no. I were terminated in dep; irtrp.ental inquiries, the dismissal wus not on account of corrupt practice falling undr the first part of r. !6(2)(iii) of the Punjab Police .R11Jc;.

Secondl.Y there was no publication in the Police Gazette. It must therefore follow tlrnl it was a case of removal anJ not dismissal.

Crv1L APPELLATE JURISDICTION : Civil Appeal No. 1200 of 1974.

Appcdl by special leave from the judgment and order dateJ the 4th April, J 973 of the Allahubad High Court in Special Appeal No. 34 of 1973.

R. K. Jain, N. R. Choudhary, Rajesh l'rns<1d Singh and

K K.

Mohan, for the npp1:1lant.

J. P. Goyal and G. S. Chatterjee for respondent No. 1.

The Jdgmcmt o.f. the Court was dclivcml by

KRISHNA IYER, J .-A single legal issue presents itself for solution in this appeal.

The question i& whether n public servant dismissed for misconduct is 1.10t ipso jure disbarred from employment .uinder the State. 1f 'yes', the 1st respondent is ineligible for the public.

office of Chairmanship of Town Area Bugrasi from where he has been removed on the ground of dismissal from government service, resulting in the eruption of this election dispute. If 'no', restoratron to the lost office inevitably follows.

The appellant and 1st respondent were rivals for Chairmanshio of Town Area Uugrasi in U.P.

The latter, a dismissed police constable, was returned by the electorate and the former, chagrined by the defeat, successfully pctiti'oned the Election Tribunal.

The Ground

The appellant and the 1st respondent were two of the three candidates for Chairmanship of the Town Area of Bugrasi. The .1st respondent secured the highest number of votes and was declared elected by the Returning Officer. Thereupon the appellant moved the statutory trib\.tnal by an election petition which was allowed on the scare of disqualification for being chosen as Chairmll'.1 by virtue of s. 6-K of tho U.P. Town Areas Act (Act 11 of 1914). The disqualification

stemmed from dismissal of the 1st respondent on September 26, 1963 from the Delhi Police Force.

When the Election Tribunal set aside the l st respondent's election and declared the appellant as the Chairman, the unseated candidate invoked the writ jurisdiction of the

High Court. The learned Single Judge who heard the petition affirmed the order of the Tribunal substantially but in relation to the relief directed against the declaration of the appellant as Chairman, the order was vacated.

That question was left to be decided afresh in tho light of certain "Observations of the learned Judge. Dissatisfied hy th, e result, of both the appellant and the 1st respondent filed Writ Appeals before a Division Bench of the High Court which ended in the allowance of the claim of the 1st respondent to be Chairman a!1.d consequential dismissal of the appeal of the other.

The aggrieved appellant has, therefore, come up to this Omrt by special leave for relief based on the construction of two slightly aJ.J1blguous rules havin some impact on this village election. '

AilDUL SALAM \!, AHMAD Kl{AN (Krishna Iyer, ]. ) 863

Before opening a political chapter, respondent No. 1 had ended his official career as police constable under dismissal order dated

sptembcr 26, 1963:

"Constabie No. 3048 Sarfraz Ahmad Khan is dismissed from the forenoon of 25-9-1963 of having been in illicit relation with Mrs. Chatterjee and her daughter.

The conduct of the constable is most reprehensible, adulterous and unworthy of a Police Officer who is supposed to protect the Society from such vices."

He ran for Panchayat Chairmanship and won, defeatini; the appellan-t and the 2nd respondent.

The disability ir election in the present irystancc is said to sping from the dismissal of the lst respondent from government service as aforesaid.

let us examine the relevant legal texts.

The pertinent part of

~. 6-K .• relied on by the appellant as fatal disqu•a!ification, reads :

"6-K. Disq1wlificatio11 for members and Cluiirman-

A person notwithstanding that he is otherwise qualified, shall be disqualified for being chosen l).S, and for being, a nJc•mber or Chairman of a Committee, if hc-

(a) is a dismissed servant of. a local authority, the State or Central Government and is debarred from re-employment therein,

Is the contesting respondent 'a dismissed servant of the State Government and is debarred from re-employment therein'? That is the question. The statute is of 1914 vintage, but amended from time to time, and we have to interpret it in the light of legal provisions and constitutional developments.

Does 'dismissal' automatically spell.

'dibarment fm re-employment' ? The argument . which weig.hed witb the High Court is that s. 6-K speaks of two compon.:nls (a) dismissal; (b) and being debarred from re-employment. The second ingredient is not present in the terminal order against the constable and so the formula for disqualification is not fulfilled.

We are not impressed with this dualism. If dismissal simpliciter carries within it the ban on re-employment as a necessary jural iocidcr.t, then both the elements are present implicitly in the order.

It is not as if the interdict against re-employment should be separate.ly stated in the rule or order if by force of Jaw an effective bar in that behalf can be read into the order cashiering the constable.

So we 11re thrown back on the order itself which, admittedly, is silent on pruhibition of re-employment.

Counsel for the contestant, Shri Goyal, strenuously argud that the Police Act and the relevant rules bearing on disciplinary action are telling and must be treated as decisive.

Brushing aside the ripples of confusion raised in the course of arguments about the source of vawer for framing these rule!r-no party, at any stage, has challenged

lthe vires of the rules-we may reproduce r. 16(2)(iii) which gvverns th; situation. Before that, a glance at s. 7 of the Police Act : 'Subject to the provisions of Article 311 of the Constitution and to such rules as the State Government may from time to time makt: under this Act, the Inspectur General, Deputy Inspectors--General, Assistant Inspectors-General and District Superintendents, of Police may at any time dismiss, suspend or reduce any police-officer of the subordinate ranks whom they shall think remiss or negligent in the discharge of his ctuty or unfit for the same."

It is clear that s. 7 speaks of dismissal as a sh1glc category of punishment, not as two twigs from the same branch i.e., dismissal without and with embargo on re-e.1try into State service.

It may, however, be noticed that there is no specific reference to removal from service, a recognised form of punishment sanctified by the Constitution Acts, including Art. 311. Since s. 7 expressly subjects itself to the paramount law of the Constitution it is obvious that the power to remove is not eroded and vests in the appointing authority apart from the power to dismiss.

Indeed, the Central and State rules regulating disciplinary control, all over the country, have, for a long period, made distinction between dismissal and removal, the former carrying the more injurious incident of removal plus refusal of future re-employment.

Anyone conversant with disciplinary control of government servants in India will agree that this fundamental differe'ace between mere removal and dismissul exists. Art. 311 enumerates dismissal and removal as two different punishments, one more serious than the other. It is perfectly plain that, unders!ood in this environment of legal control of government servants prevalent historically in this country, s. 7 of the Police Act, when 1t use~ the expression 'dismissal' must be deemed ro have conveyed the offidal S<!mantics attached to that expression, viz., remm"'al from service plus a ban on re-employment by the State.

The non-enumeration of 'removal' as a distinct form of punishment does not divest the appointing authority from exercising, subject ro legal restrictions, the power to remove from service without inflicting the more serious punishment of dismissal.

The expressions 'dismissal' and 'removal' laok alike fo'r the laity but fo. law they have acquired technical meanings sanctified by h:mg

usage in Service Rules.

In Khem Chand v. Union of India(!) t!is Court observed :

" ... the expressions 'dismissed', 'removed' and 'reduced' in rank' are technical words taken from the service rules where they are used to denote the three major categories of punishment."

A5 has been rightly pointed. out fo. a recent book(2), the words 'dismissal' and 'removal' have one distinction, viz., that the former dis- --------

(I) [1958] S.C.R. 1080, 1089.

(2) The Civil Srvant under the L1w and th, Co:.stitution-by Dr. N. Narlyanan Nair-"". The Academy of Legal Publications. Trivandrum-1 Kcrala (1973). - •

ABDUL SALAM v. AHMAD KHAN (Krishna Iyer, J.) 865

qualifies from future employment while the latter does not Likewise, there is reference to this distinctioL in Shyamlal's Case(1) wherein it was said :

"'The position, therefore, is that both under the rules and according to the last mentioned decision of the Judicial Committee (J.M. Lal's Case: AIR 1948 PC 121) there is no distinction between a dismissal and a removal except that the former disqualifies from future employment while the latter does not . . . and it may be safely be taken, for reasons stated above, that . . . . removal and dismissal stand on the same footing except as to future employment. In . this sense removal is but a species of dismisal."

C Rule 49 of the Civil Services (Classification, Control & Appeal) Rules,

J 930 provides inter alia :

"Removal is termination of service which does not disqualify fyom future employment.

Dis)nissal is :remov\al from service which ordinarily disqualifies from future employment."

It follows that 'dismissal' is 'removal with a prohibition super-added'.

Against this background, here is r. 16(2) (iii) of the Punjab Police Rules which applied during the relevant time to the 1st respondent:

"16(2)(iii). When a Police Officer is convicted judicially and dismissed, .or dismissed as a result of a departmental enquiry, in consequence of corrupt practice, the conviction and dismissal and its cause shall be published in the Police Gazette.

In other cases of dismissal, when it is desired to rnsure that the Officer dismissed shall not be re-c:mployed elsewhere, a full descriptive roll, with particulars of the punishments, shall be sent for publication in the Police . Gazette".

The submission made with some attractiveness! by Shri Goyal receives verbal support from the text of the rule.

It speaks of a police officer being dismissed in consequence of 'corrupt practice' in which case there is a mandate to the State Government that 'its cause shall be published in the Police Gazette'. 'In other cases of dismissal' the provision for publication in the Police Gazette is facultative.

Counsel spins out the argument that if 'in other cases of dismissal' the authority intends to inflict the additional penalty of non-reemployment, it should also publish the punishment iil the Police Gazette.

In the present case there is no indication of any such publication and so the dismissal does not carry with it the forbidding factor regarding re-employment. Read with s. 6-K, which refers to dismissal together with debam1ent from re-employment, the conclusion is sought to be drawn that the 1st respondent's case does not attract the disqualification in s. 6-K.

(1) A.I.R. 1954 S.C. 369, 374,

9-564SCT/75

866 StJPREME COURT REPORTS [19751 3 s.c.R.

We do not agrei~. The reasons are two-fold. As earlie~ eplained, every 'dismissal' has . a double consequence undrstood m its cop.- textual connotation. It removes the man from his office and sup¢radds debarment from re-employment. Such being its meaning in te Indian Constitution, in the refevant rules which have been in force m the c:ountry over the decades and indeed has become part o, f our ofiicialt.se, we have to understand the dismissal as punishment imposed upon the constable in this case as one which embodies the latent penalty of disability from being re-employed.

Secondly, even r. 16(2) (iii) carefully scanned, refuses to yield the helpful inference drawn from it by counsel for the 1st respondent.

That rule does not state 'in other cases of dismissal' the bar against re-employment operates only where there is publi-; ation in the Police gazette to that effect.

Dismissal, as such, carries with it this additional penalty in both classes of 'cases but in the first category covernd by the rule, publication is a duty cast upon the authority while in the second type of cases the authority is left with the option to publish or not to publish. If the dismissing authority desires to ensure itself that unwittingly some other department may no~ employ the dismissed official., he may, by way of abundant caution, resort to publication of the punishment in the Police Gazette.

The language is clear that to ensure that the officer dismissed shall not be reemployed the concerned authority shall send for publication the relevant particulars.

Not that without such publication a right to re-c!mployment inheres in the dismissed official, but that to make sure that any unknowing slip may not be committed by another department; the dismissing officer may take care to forward the particula; s of punishment for proper publication. It is enabling so far as the dismissing authority is concerned and is legally. unnecessary to spell the two-in-one punishment of dismissal.

In this view of the matter there is no escape from the conclusion that the 1st responde11t was punished under the former part of r. 16

(2) (iii) and incurred the extreme wrath of the law including disbarment from re-employment. Logically therefore he suffered disqualification under s. 6-K of the Act and the Tribunal, in removing hint froru Chairmanship, acted legally.

No other point h11s been urged before us a11d therefore we allow the appeal and affirm the learned Single Judge's judgment.

In the circumstances of the case we direct that the parties will bear their costs in this Court.

The costs of the appellant in the courts below' will be paid by the 1st respondent.

P.B.R.

Appeal allowed.