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PETITIONER: MAKESHWAR NATH SRIVASTAVA

       Vs.

RESPONDENT: STATE OF BIHAR & ORS.

DATE OF JUDGMENT02/03/1971

BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SIKRI, S.M. (CJ) VAIDYIALINGAM, C.A.

CITATION:  1971 AIR 1106            1971 SCR  (3) 863  1971 SCC  (1) 662  CITATOR INFO :  RF         1980 SC 326  (16)  D          1983 SC 990  (5,13)

ACT: Police  Act 5 of 1861 Rules under s. 46 of  Act embodied  in Bihar  and  Orissa Police Manual  1930-Order  by  Inspector- General  under  s. 7 of Act-Appellate powers  of  Government under  r.  851(b)-Revisional Powers under  s.  853-Power  of Superintendence under s. 3-Scope of.

HEADNOTE: 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 s. 7 of the Police  Act,  1861 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  was,any  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

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issued  oh the strength of rr. 851(b) 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. HELD:(1)  The  Act  itself confers  on  the  Inspector- General  power  to impose in suitable cases the  penalty  of dismissal, suspension and reduc -L1100Sup.Cl/71 864 tion,subject  to  the provisions of Art.  311  and  the rules made under the Act. The  power of  superintendence conferred, on the State Government by s.3         must, therefore,  be read in the light of the provisions of  S.  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  s.  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] (ii)Under r. 851(b) 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  i.e., 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 s. 7 of the Act [868 E-G] (iii)The  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.]

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JUDGMENT: CIBVIL APPELLATE JURISDICTION: Civil Appeal No. 23 of 1967. Appeal  by special leave from the judgment and  order  dated October 9, 1963 of the Patna High Court in M.J.C. No. 824 of 1963. S.   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 ss. 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

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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 Police Act, 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.  Sec. 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  s.  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. Sec. 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

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             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 Art. 311 and the rules made under the Act. The   power  of  superintendence  conferred  on  the   State Government by S. 3 must, therefore, be read in the light  of the  provisions  of S., 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 s. 3  with an order passed by any  one of the officers mentioned in S.    7  in  exercise  of   the power  conferred  on them by that section, unless  there  is some   provision   which  authorises   or   envisages   such interference.  Under S. 46(2), 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;               (c)generally,  for  giving  effect  to  the               provisions of this Act." It  would  seem that in pursuance of the rule  making  power under  S. 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.   Bihar(1).   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  original(order  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

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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,  i.e. 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  S.  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 S. 3 of the Act.  The (1)  A.I.R. 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 r.853 A had been framed,  it  cannot operate because so far it has, not      been  published   in the  official gazette as required by S. 46(2).  Counsel  for

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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 s. 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. G.C. Appeal allowed. 871