http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 33  

PETITIONER: THE STATE OF UTTAR PRADESH AND OTHERS

       Vs.

RESPONDENT: BABU RAM UPADHYA

DATE OF JUDGMENT: 25/11/1960

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. GAJENDRAGADKAR, P.B. SARKAR, A.K. WANCHOO, K.N. MUDHOLKAR, J.R.

CITATION:  1961 AIR  751            1961 SCR  (2) 679  CITATOR INFO :  F          1961 SC 773  (5,7)  RF         1964 SC 600  (57,63,18)  F          1965 SC 868  (4)  R          1967 SC 356  (7)  RF         1968 SC 224  (3)  RF         1969 SC 903  (30)  RF         1969 SC1108  (8)  D          1970 SC 122  (12)  D          1970 SC1244  (29)  RF         1971 SC1403  (7)  F          1971 SC2111  (7)  E          1973 SC 883  (19)  RF         1974 SC 794  (13)  O          1974 SC2192  (50,51,53)  R          1975 SC 446  (10)  RF         1976 SC2433  (6)  R          1977 SC 747  (6)  R          1979 SC  52  (13)  R          1979 SC1149  (19)  RF         1980 SC2181  (104)  RF         1981 SC 711  (11)  F          1982 SC1407  (24)  R          1983 SC 494  (8)  RF         1983 SC 558  (20)  O          1985 SC1416  (43,56, TO 58)  RF         1986 SC 555  (6)  RF         1988 SC 805  (10)  D          1989 SC 811  (3,10)  RF         1989 SC1160  (30)  RF         1990 SC 820  (31)  RF         1992 SC1033  (54)

ACT: Public Servant--Police Officer, dismissal of--Police Regula- tions,  whether  mandatory--Disregard  of,  if   invalidates disciplinary    action--Authorities   empowered   to    take action--If exercise Powers of Governor--Police Act, 1861  (V of   1861),   s.  7--U.   P.   Police   Regulations,   para. 486--Constitution of India, Arts. 154, 309, 310, 311.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 33  

HEADNOTE: The  respondent was a sub-Inspector of Police.  A  complaint was  received by the Superintendent of Police that the  com- plainant was carrying currency notes of Rs. 650 in a  bundle when  he  was stopped by the respondent and his  person  was searched, that the respondent opened the bundle of notes and handed over the notes one by one to one Lalji, who was  with him and that Lalji returned the notes to him but on reaching home he found the notes short by Rs. 250.  Proceedings under s. 7 of the Police Act were taken against the respondent  on the  charge  of  misappropriation  of Rs.  250  and  he  was dismissed  from service by an order of the Deputy  Inspector General  of  Police.  The respondent filed a  writ  petition before the High Court challenging the order of the dismissal on the ground that the authorities had acted in violation of Rule  I of Para. 486 of the U. P. Police  Regulation.   This rule required that every information received by the  police relating  to  the commission of a cognizable  offence  by  a Police Officer shall be dealt with in the first place  under Ch.   XIV, Code of Criminal Procedure.  The High Court  held that  the provisions of para. 486 of the Police  Regulations had  not been observed and that the proceedings taken  under S.  7  of  the  Police Act  were  invalid  and  illegal  and accordingly  quashed the order of dismissal.  The  appellant contended  (i)  that  the complaint did  not  make  out  any cognizable offence against the respondent and r. I of  Para. 486  was  not applicable in this case, (ii) that r.  III  of Para.  486 enabled the authorities to initiate  departmental proceedings  without complying with the provisions of r.  I, (iii)  that the Police Regulations made in exercise  of  the power  conferred  on  the Government under  the  Police  Act delegating the power of the Governor to dismiss at  pleasure to a subordinate officer were only administrative directions for the exercise of the pleasure in a reasonable manner  and any  breach of the regulations did not confer any  right  or give a cause of action to the public servant, and (iv)  that the  regulations were only directory and the  non-compliance with the rules did not invalidate the order of dismissal. 680 Held,  (per Sarkar, Subba Rao and Mudholkar, JJ.)  that  the order  of  dismissal  was illegal as it was  based  upon  an enquiry  held in violation of r. I of Para 486 of the Police Regulations. The  facts  alleged in the complaint made out  a  cognizable offence   under  s.  405  Indian  Penal  Code  against   the respondent,  and the provisions of r. I of Para .  486  were applicable  to  it.  A Police Officer making a search  of  a person  was  ’entrusted’ with the money handed over  by  the person searched. Rule III of Para. 486 did not deal with cognizable offences, it  dealt with offences falling only under s. 7  Police  Act and to non-cognizable offences.  Rule III did not provide an alternative procedure to that prescribed under r. I. The  position with regard to the tenure of  public  servants and to the taking of disciplinary action against them  under the present Constitution was as follows: (i)  Every  person  who was a member  of  a  public  service described in Art. 310 of the Constitution held office during the pleasure of the President or the Governor. (ii)  The power to dismiss a public servant at pleasure  was outside the scope of Art.  I54 and, therefore, could not  be delegated  by  the Governor to a  subordinate  officer,  and could  be exercised by him only in the manner prescribed  by the Constitution.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 33  

(iii) This tenure was subject to the limitations or qualifi- cations mentioned in Art. 311. (iv )Parliament or the Legislature of States could not  make a  law abrogating or modifying this tenure so as to  impinge upon  the overriding power conferred upon the  President  or the Governor under Art. 310, as qualified by Art. 311. (v)  Parliament or the Legislatures of States could  make  a law  regulating the conditions of service of such  a  member which  included proceedings by way of  disciplinary  action, without  affecting  the  powers  of  the  President  or  the Governor under Art. 310 read with Art. 311. (vi) Parliament  and the Legislatures also could  makea  law laying  down  and regulating the scope and  content  of  the doctrine  of "reasonable opportunity" embodied in  Art.  311 but the said law was subject to judicial review. (vii) If a statute could be made by Legislatures within  the foregoing permissible limits, the rules made by an authority in exercise of the power conferred thereunder would likewise be efficacious within the said limits. N.  W. F. Province v. Suraj Narain, A.I.R. 1949 P.  C.  112, Shenton  v. Smith, (1895) A.C. 229, Gould v. Stuart,  (1896) A.C.  575, Reilly v. The King, (1934) A.C. 176,  Terrell  v. Secretary of State, (1953) 2 All E.R. 490, State of Bihar v. Abdul  Majid,  [1954] S.C.R. 786, Parshotam Lal  Dhingra  v. Union of India, [1958] 681 S.C.R.  828,  R.  T. Rangachari v. Secretary  of  State  for India,  (1936)  L.R. 64 I.A. 40 and  High  Commissioner  for India  and  High Commissioner for Pakistan v.  I.  M.  Lall, (1948) L.R. 75 I.A. 225, referred to. The  Police Act and the rules made thereunder constituted  a self-contained code providing for the appointment of  police officers  and prescribing the procedure for  their  removal. Any  authority  taking action under the Police  Act  or  the rules made thereunder must conform to the provisions thereof and  if  there  was any violation of  those  provisions  the public  servant  had a right to challenge the order  of  the authority  if the rules were mandatory Paragraph 486 of  the Police  Regulations  was mandatory and not  directory.   The rules were made in the interests of both the department  and the police officers.  The word used in para 486 was  "shall" and in the context it could not be read as "may". Hari Vishnu Kamath v. Syed Ahmed Ishaque, [1958] S.C.R. 104, State  of U. P. v. Manbodhan Lal Srivastava,  [1958]  S.C.R. 533  and Montreal Street Railway Company v  Noymandin,  L.R. (1917) A.C. 170, referred to. Subject  to  the overriding power of the  President  or  the Governor  under  Art. 310, as qualified by Art.  311,  rules governing  disciplinary proceeding could not be  treated  as administrative  directions, but had the same effect  as  the provisions  of the statute whereunder they were made, in  so far  as  they  were not  inconsistent  with  the  provisions thereof.  The Governor did not exercise his pleasure through the  officers specified in S. 7 of the Police Act,  and  the Governor’s pleasure. could not be equated with the statutory power of the officers specified An inquiry under the Act had to be made in accordance with the provisions of the Act  and the rules made thereunder. R.  T. Rangachari v. Secretary of State for India,  L.R.  64 I.A.  40, High Commissioner for India and High  Commissioner for  Pakistan  v. I. M.  Lall, (1948) L.R. 75 I.A.  225,  R. Venkata Rao v. Secretary of State for India, (1936) L.R.  64 I.A. 55, S. A. Venkataraman V. Union of India, [1954] S.C.R. 1150  and  Khem Chand v. The Union of India,  [1958]  S.C.R. 1080, referred to.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 33  

Per  Gajendragadkar and Wanchoo, JJ.-The provisions of  para 486 were merely directory and a non-compliance therewith did not  invalidate  the disciplinary action taken  against  the respondent. All public servants, other than those excepted expressly  by the  Constitution,  held office during the pleasure  of  the President  or the Governor, and no law or rule framed  under Art.  300 or Art.  I54(2)(b) could cut down the  content  of the  pleasure tenure in Art. 310 subject to Art.  31i.   The Police  Act could not stand higher than a law  passed  under Art.  309  or  Art. 154(2)(b) and could  not  cut  down  the content of the pleasure tenure in Art. 310 682 The  Police officers held office during the pleasure of  the Governor  and the only protection they could claim  was  the two  guarantees contained in Art. 311. The  rules  framed  under s. 7 Police Act would  be  of  two kinds,  namely (1) those which defined the  jurisdiction  of the  four  grades of officers specified in s. 7  to  inflict particular kind of punishment on particular police  officers of  the subordinate ranks-such rules would be mandatory  but they  could not go against the provisions of Art.  311,  and (2) procedural rules.  The procedural rules could be of  two kinds:  (i)  those that prescribed the manner in  which  the guarantee  contained in Art. 311(2) May be carried  out-such rules  would be mandatory, and (ii) other merely  procedural rules-they could only be directory. The power of the Governor to dismiss was executive power  of the  State and could be exercised under Art. 154(i)  by  the Governor  himself  directly or indirectly  through  officers subordinate to him. The  officers  specified  in s. 7 of  the  Police  Act  were exercising the powers of the Governor to dismiss at pleasure and  their  powers were subject to the same  limitations  to which  the Governor was subject.  Whether it was  delegation by the Governor himself or whether it was delegation by  law under  Art. 154(2)(b) or by the existing law, which must  be treated  as  analogous to a law under  Art.  154(2)(b),  the officer   exercising  the  power  of  dismissal   was   only indirectly  exercising  the Governor’s power to  dismiss  at pleasure.   His  order also was subject to the  two  fetters under  Art.  311  and could not be  subjected  to  any  more fetters  by  procedural rules other than  those  framed  for carrying out the objects of Art. 311(2). R.   Venkata Rao v. Secretary of State for India in Council, [1936] 64 I.A. 55, referred to. Paragraph 486 was not meant for the purpose of carrying  out the  object  of Art. 311(2) and could not be  mandatory  and could not add a further fetter on the exercise of the  power to  dismiss at the pleasure of the Governor over  and  above the fetters contained in Art. 311.  This rule was only meant to  gather materials for the satisfaction of  the  authority concerned, whether to take action or not.  As such para  486 was  merely  directory  and a failure  to  comply  therewith strictly  or  otherwise  did not  vitiate  the  disciplinary action.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 119 of 1959. Appeal  by special leave from the judgment and  order  dated January  9,  1958,  of the  Allahabad  High  Court  (Lucknow Bench),  Lucknow,  in Civil Misc.  Application  No.  115  of 1955.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 33  

683 C. B. Agarwala and C. P. Lal, for the appellants. G. S. Pathak, Achru Ram, S. N. Andley, Rameshwar Nath, J. B. Dadachanji and P. L. Vohra for the respondent. 1960.  November, 25.  The Judgment of Sarkar, Subba Rao  and Mudholkar, JJ., was delivered by Subba Rao, J., and that  of Gajendragadkar  and Wanchoo, JJ., was delivered by  Wanchoo, J. SUBBA RAO, J.-This is an appeal by special leave against the judgment  of  the  High Court of  Judicature  at  Allahabad, Lucknow Bench, allowing the petition filed by the respondent under Art. 226 of the Constitution. The  respondent was appointed a Sub-Inspector of  Police  in December, 1948, and was posted at Sitapur in June, 1953.  On September 6, 1953, the respondent went to village  Madhwapur in connection with an investigation of a case of theft.   On the  evening  of  the  said  date  when  he  was  returning, accompanied by one Lalji, an ex-patwari of Mohiuddinpur,  he saw  one Tika Ram coming from the side of a canal and  going hurriedly  towards  a field.  As the movements of  Tika  Ram appeared  to be suspicious and as he was carrying  something in  the folds of his dhoti, the respondent searched him  and found  a bundle containing currency notes.   The  respondent counted the currency notes and handed them over to Lalji for being  returned to Tika Ram, who subsequently got  them  and went  his  way.   Subsequently when  Tika  Ram  counted  the currency  notes at his house, he found that they were  short by  Rs. 250.  Tika Ram’s case is that the bundle when  taken by  the respondent contained notes of the value of Rs.  650, but when he counted them in his house they were only of  the value  of  Rs. 400.  On September 9, 1953 Tika Ram  filed  a complaint  to the Superintendent of Police, Sitapur, to  the effect that the respondent and one Lalji had misappropriated a  sum  of  its. 250.  There is dispute  in  regard  to  the interpretation  of  the complaint.  On receipt of  the  said complaint, the Superintendent of Police made enquiries 684 and  issued a notice to the respondent to show cause     why his  integrity  certificate should not  be  withheld,   upon which the respondent submitted his explanation on October 3, 1953.  Thereafter the Superintendent of Police forwarded the file of the case to the Deputy Inspector General of  Police, Central  Range,  U. P., who directed the  Superintendent  of Police  to  take proceedings under s. 7 of  the  Police  Act against  the respondent.  The departmental proceedings  were started  against  the  respondent; on November  2,  1953,  a charge-sheet  was served upon the respondent under s.  7  of the  Police  Act stating that there were strong  reasons  to suspect that the respondent misappropriated a sum of Rs. 250 from  the  purse  of  Tika Ram;  the  respondent  filed  his explanation  to the charge made against him; and  ultimately the  Superintendent of Police held an enquiry and  found  on the  evidence that the respondent was guilty of the  offence with which he was charged.  On January 2, 1954, the Superin- tendent of Police issued another notice to the respondent to show cause why he should not be reduced to the lowest  grade of Sub-Inspector for a period of three years.  In due course the  respondent showed cause against the action proposed  to be  taken  against  him  on a  consideration  of  which  the Superintendent  of  Police,  Sitapur,  by  his  order  dated January 16, 1954 reduced the respondent to the lowest  grade of  Sub-Inspector  for a period of three years.   When  this order  came  to  the notice of the D. 1. G.,  U.  P.,  on  a consideration  of  the entire record, he came  to  the  con- clusion that the respondent-should be dismissed from service

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 33  

and on October 19, 1954 he made an order to that effect.  On February 28, 1955 the Inspector General of Police  confirmed that order; and the revision filed by the respondent against that  order  to the State Government was also  dismissed  in August  1955.   Thereafter the respondent filed  a  petition under Art. 226 of the Constitution before the High Court  of Judicature  at  Allahabad, Lucknow Bench, for  quashing  the said  orders  and  the same was heard by  a  division  bench consisting  of Randhir Singh and Bhargava, JJ.  The  learned judges held that the provisions of para. 685 486  of  the Police Regulations had not been  observed  and, therefore,  the proceedings taken under s. 7 of  the  Police Act were invalid and illegal.  On that finding, they quashed the  impugned  orders;  with  the  result  that  the   order dismissing  the respondent from service was set aside.   The State  Government, the Deputy Inspector General  of  Police, Lucknow, and the Inspector General of Police, Uttar Pradesh, Lucknow, have preferred the present appeal against the  said order of the High Court. We  shall  now proceed to consider the  various  contentions raised by learned counsel in the order they were raised  and argued before us. At  the outset Mr. C. B. Agarwala, learned counsel  for  the appellants,  contended  that  there was  no  breach  of  the provisions of para. 486 of the Police Regulations.  If  this contention  be accepted, no other question arises  ’in  this case; therefore, we shall deal with the same. The  material  part of para. 486 of the  Police  Regulations reads thus: "When  the offence alleged against a police officer  amounts to an offence only under section 7 of the Police Act,  there can  be no magisterial inquiry under the Criminal  Procedure Code.  In such cases, and in other cases until and unless  a magisterial  inquiry is ordered, inquiry will be made  under the direction of the Superintendent of Police in  accordance with the following rules: I.Every  information received by the police relating to  the commission of a cognizable offence by a police officer shall be dealt with in the first place under Chapter XIV, Criminal Procedure   Code,  according  to  law,  a  case  under   the appropriate  section being registered in the police  station concerned.................  This  provision  expressly  lays down that every information received by the police  relating to  the  commission  of a cognizable  offence  by  a  police officer  shall  be dealt with in the first place  under  Ch. XIV of the Criminal Procedure Code.  This provision will not apply if the information received by the police does not 87 686 relate  to the commission of a cognizable offence.   Learned counsel  contends  that  the  information  received  in  the present case does not relate to any offence committed by the respondent,  much less to a cognizable offence.  This  is  a point  raised before us for the first time.  This  does  not find  a  place even in the statement of case  filed  by  the appellants.  In the High Court it was not contended that the information  did not disclose any offence committed  by  the respondent.  Indeed, it was common case that the information disclosed an offence committed by the respondent, but it had been  contended by the appellants that the  misappropriation of the part of the money amounted to an offence under s. 403 of the Indian Penal Code, which is not a cognizable offence; and  it  was  argued on behalf of  the  respondent  that  it amounted  to  an offence under s. 409 of  the  Indian  Penal

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 33  

Code.   The  learned judges accepted the contention  of  the respondent.   Even so, it is said that whatever  might  been the  contentions  of the parties, the information  given  by Tika  Ram to the Superintendent of Police clearly  disclosed that  no offence was alleged to have been committed  by  the respondent   and  that  this  Court  would,  therefore,   be justified,  even  at  this very late stage,  to  accept  the contention of the appellants.  But the contents of the  said information  do  not  in  any  way  support  the  assertion. Paragraph  3  of the application given by Tika  Ram  to  the Superintendent of Police, Sitapur, reads thus: "That on Sunday last dated 6th September, 1953 the applicant had  with him the currency notes of Rs. 650.   The  opposite party as well as Shri Babu Ram met the applicant on the west of  Rampur near the Canal.  The opposite-party said  to  the Sub-Inspector  "This man appears to be clad in rags  but  is possessed  of  considerable money." After  saying  this  the person  of the applicant was searched.   The  Sub-Inspector, having  opened the bundle of notes, handed over the  (notes) one  by one to the opposite party." This  statement  clearly indicates that either the Sub-.  Inspector or both the  Sub- Inspector  and Lalji searched the person of Tika  Ram,  that the Sub-Inspector took 687 the bundle of notes and handed the same over, one by one, to Lalji  for being returned to the applicant, and that out  of Rs. 650 a sum of Rs. 250 was not returned to him.  The facts alleged  make out an offence against both the  Sub-Inspector as well as Lalji.  The mere fact that the respondent is  not shown as one of the opposite parties in the application does not  affect the question, for the information given  in  the application imputed the commission of an offence to both the respondent  and  Lalji.   The notice  issued  by  the  Supe- rintendent  of Police on November 2, 1953 to the  respondent also charges him with an offence of misappropriation.  It is stated   that   the   said  notice  only   says   that   the Superintendent  of Police had good reasons to  suspect  that the respondent misappropriated the sum of money and that  it does   not   aver   that  he  committed   the   offence   of misappropriation.    But   what   matters   is   ’that   the Superintendent   of   Police  also   understood   from   the information given and the enquiry conducted by him that  the respondent  had committed the offence.  Reliance  is  placed upon paragraph 3 of the writ petition wherein the respondent herein stated that Tika Ram filed a complaint against  Lalji and  not against the respondent.  As a fact that is  correct in  the  sense  that the respondent was not  shown  in  that application  as  the opposite -party though in the  body  of that application definite allegations were made against  the respondent.    In   the  counter-affidavit  filed   by   the Superintendent  of  Police  on behalf of the  State  it  was clearly averred that on September 9, 1953 Tika Ram  appeared before him and filed a petition to the effect fiat one Lalji and  the  respondent had misappropriated a sum of  Rs.  250. Whatever ambiguity there might have been in the  information -we do not find any-this allegation dispels it and it is not open  to  the appellants at this stage to contend  that  the petition   did   not  disclose  any  offence   against   the respondent.   In  the circumstances, we must hold  that  the information received by the police related to the commission of an offence by the respondent. Even  so,  it is contended that the said offence  is  not  a cognizable offence.  It is said that there was no 688 entrustment  made by Tika Ram to the respondent  and   that,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 33  

therefore,  the  offence did not fall under s. 409  of   the Indian Penal Code, which is a cognizable offence, but only under s. 403 of the Indian Penal Code, which is not a cognizable offence.  Section 405 of the Indian Penal  Code defines  "criminal  breach  of trust"  and  s.  409  thereof prescribes  the punishment for the criminal breach of  trust by a public servant.  Under s. 405 of the Indian Penal Code, "Whoever,  being in any manner entrusted with  property,  or with any dominion over property, dishonestly misappropriates or  converts  to his own use that property,  or  dishonestly uses  or  disposes  of that property  in  violation  of  any direction of law prescribing the mode in which such trust is to  be  discharged,  or of any legal  contract,  express  or implied,  which he has made touching the discharge  of  such trust,  or  wilfully suffers any person so  to  do,  commits "criminal breach of trust".  To constitute an offence  under this  section, there must be an entrustment of property  and dishonest  misappropriation of it. The person entrusted  may misappropriate it himself, or he may wilfully suffer another person to do so.  In the instant case the respondent,  being a  police officer, was legally entitled to search  a  person found  under  suspicious  circumstances;  and  Tika  Ram  in handing over the bundle of notes to the police officer  must have  done so in the confidence that he would get  back  the notes  from  him when the suspicion was cleared.   In  these circumstances,  there  cannot be any difficulty  in  holding that  the  currency notes were alleged to have  been  handed over  by Tika Ram to the respondent for a specific  purpose, but  were dishonestly misappropriated by the  respondent  or at,  any rate he wilfully suffered Lalji  to  misappropriate the  same.  We, therefore, hold that if the  currency  notes were  taken by the respondent in discharge of his  duty  for inspection  and return, he was certainly entrusted with  the notes within the meaning of s. 405 of the Indian Penal Code. If  so, the information discloses a cognizable offence.   We reject the first contention. The  second objection of learned counsel for the  appellants is that sub-para. (3) of para. 486 of the 689 Police Regulations enables the appropriate police  authority to  initiate the departmental proceeding  without  complying with  the  provisions of sub-para. (1) of  para.  486.   The -relevant  portion  of para. 486 of the  Police  Regulations reads: "When the offence amounts to an offence only under section 7 of the Police Act, there can be no magisterial inquiry under the  Criminal Procedure Code.  In such cases, and  in  other cases  until  and unless a magisterial inquiry  is  ordered, inquiry   will   be  made  under  the   direction   of   the Superintendent  of Police in accordance with  the  following rules:......... " Rule  I  relates to a cognizable offence, r. II  to  a  non- cognizable. offence, including an offence under s. 29 of the Police  Act,  and  r. III to an offence under s.  7  of  the Police Act or a non-cognizable offence, including an offence under s. 29 of the Police Act.  Rule III says: "When a Superintendent of Police sees reason to take  action on  information  given to him, or on his  own  knowledge  or suspicion,  that  a police officer subordinate  to  him  has committed an offence under section 7 of the Police Act or  a non-cognizable  offence (including an offence under  section 29  of the Police Act) of which he considers it  unnecessary at that stage to forward a report in writing to the District Magistrate under rule II above, he will make or cause to  be made by an officer senior in rank to the officer charged,  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 33  

departmental  inquiry  sufficient to test the truth  of  the charge.   On the conclusion of this inquiry he  will  decide whether further action is necessary, and if so, whether  the officer  charged should be departmentally tried, or  whether the  District Magistrate should be moved to take  cognizance of the case under the Criminal Procedure Code..." The argument is that the words "an offence under s. 7 of the Police   Act"  take  in  a  cognizable  offence  and   that, therefore, this rule provides for a procedure alternative to that  prescribed  under  r. I. We do  not  think  that  this contention  is sound.  Section 7 of the Police Act  empowers certain officers to dismiss, suspend 690 or  reduce any police officer of the subordinate  rank  whom they shall think remiss or negligent in the discharge of his duty, or unfit for the same.  The grounds for punishment are comprehensive:  they may take in offences under  the  Indian Penal Code or other penal statutes.  The commission of  such offences  may  also be a ground to hold that an  officer  is unfit  to hold his office.  Action under this  section  can, therefore,  be taken in respect of, (i) offences only  under s.  7 of the Police Act without involving any cognizable  or noncognizable offences, that is, simple remissness or negli- gence  in the discharge of duty, (ii)  cognizable  offences, and  (iii)  non-cognizable offences.  Paragraph 486  of  the Police Regulations makes this clear.  It says that when  the offence  alleged  against  a police officer  amounts  to  an offence  only under s. 7 of the Police Act, there can be  no magisterial inquiry under the Criminal Procedure Code.  This part  of the rule applies to an offence only under s.  7  of the  Police Act i. e., the first category  mentioned  above. Rule  I  refers to a cognizable offence i.  e.,  the  second category,  rule  11 to a non-cognizable offence i.  e.,  the third category, and rule III applies to an offence under  s. 7 of the Police Act and to a noncognizable offence.   Though the  word "only" is not mentioned in rule 111,  the  offence under  s. 7 of the Police Act can, in the context,  mean  an offence  only  under s. 7 of the said Act i.e.,  an  offence falling under the first category.  So understood, the  three rules  can be reconciled.  We, therefore, hold that, as  the offence  complained of in the present case is  a  cognizable offence, it falls under rule I and not under rule 111.   We, therefore, reject this contention. The  third  contention advanced by learned counsel  for  the appellants  raises  a constitutional point  of  considerable importance.  The gist of the argument may be stated thus: In England, the service under the Crown is held at the  Crown’s pleasure, unless the employment is for good behaviour or for a cause.  But if there is a statute prescribing the terms of service  and  the mode of dismissal of the  servant  of  the Crown, the statute would control the pleasure of the  Crown. In India, the Constitution as well as the 691 earlier  Constitution Acts of 1915, as amended in 1919,  and 1935  embodied the incidents of "tenure at pleasure" of  His Majesty,  or the President or the Governor, as the case  may be,  but did not empower the Legislatures under the  earlier Acts  and  the  Parliament and the  Legislatures  under  the Constitution to make a law abrogating or modifying the  said tenure;  therefore, any law made by appropriate  authorities conferring  a power on any subordinate officer to dismiss  a servant  must  be construed not to limit the  power  of  His Majesty, the President or the Governor, as the case may  be, but only to indicate that they would express their  pleasure only through the said officers.  The rules made in  exercise

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 33  

of  a  power conferred on a Government-under  a  statute  so delegating  the power to a subordinate officer can  only  be administrative  directions  to enable the  exercise  of  the pleasure by the concerned authorities in a reasonable manner and  that  any breach of those regulations  cannot  possibly confer  any  right  on, or give a cause of  action  to,  the aggrieved  Government  servant to go to a court of  law  and vindicate his rights. Mr.   Pathak,  learned  counsel  for  the   respondent,   in countering this argument contends that the constitution Acts in India embodied the incidents of the tenure of the Crown’s pleasure in the relevant provisions and what the  Parliament can  do  in England, the appropriate Legislatures  in  India also  can do, that is, "the tenure at pleasure"  created  by the Constitution Acts can be abrogated, limited or  modified by  law  enacted  by  the  appropriate  legislative  bodies. Alternatively  he contends that even if the Police Act  does not curtail the tenure at pleasure, the Legislature  validly made  that  law and the Government  validly  made  statutory rules in exercise of the powers confered under that Act  and that,  therefore,  the  appropriate  authorities  can   only dismiss  the  respondent  in  strict  compliance  with   the provisions of the Act and the Rules made thereunder. To  appreciate  the  problem  presented  and  to  afford   a satisfactory  answer it would be convenient to consider  the relevant provisions.  The Act we are concerned with in  this case is the Police Act, 1861 (Act V 692 of  1861).  Its constitutional validity at the time  it  was ,made was not questioned.  Under s. 7 of the Police Act,  as it originally stood, "the appointment of all police officers other than those mentioned in B. 4 of this Act shall,  under such  rules as the local Government shall from time to  time sanction,   rest   with   the   Inspector-General,    Deputy Inspectors-General,    Assistant   Inspectors-General    and District  Superintendents  of Police, who  may,  under  such rules as aforesaid, at any time, dismiss, suspend or  reduce any  police-officer."  That section was substituted  by  the present section in 1937 and later on some appropriate amend- ments  were  made  to  bring  it  in  conformity  with   the Constitution.   Under the amended section, "Subject to  such rules  as  the State Government may from time to  time  make under  this Act, the Inspector-General,  Deputy  Inspectors- General,    Assistant   Inspectors-General   and    District Superintendent 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 duty,  or  unfit for the same".  In exercise of  the  powers conferred  on  the  Government  by s. 46  of  the  Act,  the Government made the U. P. Police Regulations prescribing the procedure  for  investigation and inquiry.  We  shall’  deal with the Regulations at a later stage. In the Government of India Act, 1915, as amended by the  Act of  1919,  for the first time, the doctrine  of  "tenure  at pleasure"  was  introduced by s. 96-B.  In exercise  of  the power  conferred  under sub-s.  (2)  certain  classification rules  were  framed by the local Government.  This  Act  was repealed  by  the  Government of India Act,  1935,  and  the section corresponding to s. 96-B was s. 240(1) in the latter Act.  Section 241(2) empowered, except as expressly provided by  the  Act,  the  Governor-General  and  the  Governor  to prescribe  the  conditions of service of the  servants  they were empowered to appoint. The main difference between the Act of 1919 and that of 1935 was that in the former Act there was only one limitation  on

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 33  

the Crown’s pleasure, namely, that no person in the  service might be dismissed by 693 an authority subordinate to that by which he was  appointed, whereas  in the latter Act a second limitation was  imposed, namely, that no such person should’ be dismissed or  reduced in rank until he had been given a reasonable opportunity  of showing  cause  against the action proposed to be  taken  in regard  to  him: see s. 240, sub-ss. (2) and  (3).   Another difference  between the said two Acts was that  while  under the  former  Act all the services were placed  in  the  same position,  -under the latter Act special provision was  made for  the  police force prescribing that  the  conditions  of service  of  the  subordinate ranks of  the  various  police forces should be such as might be determined by or under the Acts relating to those forces respectively-vide s. 243.   By the  Constitution, the Act of 1935 was repealed,  and,  with certain changes in phraseology, cls. (1) and (2) of Art. 310 took   the  place  of  sub-ss.  (1)  and  (4)  of   s.   240 respectively,  and  Art. 309 took the place  of  s.  241(2). Under  Art.  313,  "Until other provision is  made  in  this behalf  under  this  Constitution, all  the  laws  in  force immediately before the commencement of this Constitution and applicable to any public service or any post which continues to exist after the commencement of this Constitution, as  an all-India service or as service or post under the Union or a State shall continue in force so far as consistent with  the provisions  of this Constitution".  The result is  that  the Police  Act and the Police Regulations, made in exercise  of the  powers  conferred  on the Government  under  that  Act, which  .were  preserved under s. 243 of  the  Government  of India  Act,  1935, continue to be in force  after  the  Con- stitution so far as they are consistent with the  provisions of the Constitution. It  is  common case, as the contentions of  learned  counsel disclose, that the Act and the Regulations framed thereunder were  constitutionally valid at the inception and that  they are also consistent with the provisions of the Constitution. The difference between the two contentions lies in the  fact that  according  to  one His Majesty’s  pleasure  cannot  be modified 88 694 by  a  statute,  according to the other  it  is  subject  to statutory  provisions.   The  relevant  provisions  of   the Constitution read thus: Article   309:   "Subject   to  the   provisions   of   this Constitution,  Acts  of  the  appropriate  Legislature   may regulate  the  recruitment,  and conditions  of  service  of persons   appointed,  to  public  services  and   posts   in connection with the affairs of the Union or of any State: Provided  that  it shall be competent for the  President  or such  person  as he may direct in the case of  services  and posts  in connection with the affairs of the Union, and  for the  Governor of a State or such person as he may direct  in the  case  of  services and posts  in  connection  with  the affairs   of  the  State,  to  make  rules  regulating   the recruitment,  and  the  conditions  of  service  of  persons appointed,  to  such services and posts until  provision  in that  behalf is made by or under an Act of  the  appropriate Legislature under this article, and any rules so made  shall have effect subject to the provisions of any such Act." Article   310:  "Except  as  expressly  provided   by   this Constitution,  every  person who is a member  of  a  defence service  or of a civil service or holds any  post  connected with defence or any Civil Post under the Union holds  office

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 33  

during  the pleasure of the President, and every person  who is a member of a civil service of a State or holds any civil post  under a State holds office during the pleasure of  the Governor of the State." Under Art. 309 the appropriate Legislature may regulate  the recruitment  and conditions of service of persons  appointed to  public services.  Under Art. 310 every person who is  EC member  of a public service described therein  holds  office during the pleasure of the President or the Governor, as the case may be.  The words "conditions of service" in Art.  309 in  their comprehensive sense take in the tenure of a  civil servant:  see  N.  W.  F.  Province  v.  Suraj  Narain  (1). Therefore,  "the  tenure  at pleasure" is also  one  of  the conditions of service.  But Art. 309 opens out with a (i)  A.I.R. (1949) P.C. 112. 695 restrictive  clause, namely, "Subject to the  provisions  of this  Constitution", and if there is no restrictive,  clause in Art. 310, there cannot be any difficulty in holding  that Art. 309 is subject to the provisions of’ Art 310; with  the result  that  the power of the Legislature to lay  down  the conditions  of  service  of  persons  appointed  to   public services would be subject to "the tenure at pleasure"  under Art.  310.  In that event, any law made by  the  Legislature could  not affect the over-riding power of the President  or the  Governor, as the case may be, in putting an end to  the tenure  at their pleasure.  Would the opening words  of  the clause in Art. 310, namely, "Except as expressly provided by this  Constitution",  make any difference in the  matter  of interpretation?   It should be noticed that the  phraseology of  the  said clause in Art. 310 is different from  that  in Art. 309.  If there is a specific provision in some part  of the  Constitution  giving to a Government servant  a  tenure different   from  that  provided  for  in  Art.  310,   that Government  servant is excluded from the operation  of  Art. 310.   The said words refer, inter alia, to Arts. 124,  148, 218  and  324 which provide that the Judges of  the  Supreme Court,  the Auditor General, the Judges of the  High  Courts and  the  Chief Election Commissioner shall not  be  removed -from their offices except in the manner laid down in  those Articles.    If   the   provisions   of   the   Constitution specifically  prescribing  different tenures  were  excluded from Art. 310, the purpose of that clause would be exhausted and  thereafter  the Article would be free  from  any  other restrictive  operation.   In that event, Arts. 309  and  310 should be read together, excluding the opening words in  the latter  Article,  namely, "Except as expressly  provided  by this  Constitution".   Learne counsel seeks to  confine  the operation of the opening words in Art. 309 to the provisions of the Constitution which empower other authorities to  make rules  relating  to  the conditions of  service  of  certain classes of public servants, namely, Arts. 146(2), 148(5) and 229(2).  That may be so, but there is no reason why Art. 310 should  be excluded therefrom.  It follows that  while  Art. 310 provides for a tenure at pleasure 696 of  the  President  or the Governor, Art.  309  enables  the Legislature or the executive, as the case maybe, to make any law or rule in regard, inter alia, to conditions of  service without impinging upon the overriding power recognized under Art. 310. Learned  counsel  for  the  respondent  contends  that  this construction  is  inconsistent with that prevailing  in  the English  law  and that the intention of the framers  of  the Constitution could not have been to make a radical departure

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 33  

from the law of England.  The law of England on the doctrine of "tenure at pleasure" has now become fairly  crystallized. In England, all servants of the Crown hold office during the pleasure  of the Crown; the right to dismiss at pleasure  is an  implied  term  in every contract of  employment  of  the Crown,  this doctrine is not based upon any  prerogative  of the Crown, but on public policy; if the terms of appointment definitely   prescribe  a  tenure  for  good  behaviour   or expressly  provide  for a power, to determine for  a  cause, such  an  implication of a power to dismiss at  pleasure  is excluded, and an Act of Parliament can abrogate or amend the said doctrine of public policy in the same way as it can  do in  respect  of  any other part of  common  law.   The  said propositions  are  illustrated in the  following  decisions: Shenton  v.  Smith (1), Gould v. Stuart (2), Reilly  v.  The King(3),  Terrell v. Secretary of State (4).   This  English doctrine was not incorporated in its entirety in the  Indian enactments-vide State of Bihar v. Abdul Majid (5), Parshotam Lal  Dhingra  v. Union of India (6).  Section  96-B  of  the Government  of India Act, 1915, for the first time in  1919, by  amendment, statutorily recognized this doctrine, but  it was made subject to a condition or s qualification,  namely, that  no  person in that service might be dismissed  by  any authority  subordinate  to that by which he  was  appointed. Section  240 of the Act of 1935 imposed another  limitation, namely,  that  a  reasonable opportunity  of  showing  cause against the action proposed to be taken in (i)   [1895] A.C. 229. (3)  [1934] A.C. 176. (5)  [1954] S.C.R. 786. (2)  [1896] A.C. 575. (4)  (1953) 2 All E R. 490. (6)  [1958] S.C.R. 828. 697 regard to a person must be given to him.  But neither of the two Acts empowered the appropriate Legislature to make a law abolishing or amending the said doctrine.  The  Constitution of India practically incorporated the provisions of ss.  240 and  241 of the Act of 1935 in Arts. 309 and 310.   But  the Constitution  has not made "the tenure at pleasure"  subject to  any  law made by the appropriate  Legislature.   On  the other  hand, as we have pointed out, Art. 309  is  expressly made subject to "the tenure at pleasure" in Art. 310. Nor  the  attempt of learned counsel for the  respondent  to discover  such a power in the Legislature in the Entries  of the  appropriate  Lists  of  the  Seventh  Schedule  to  the Constitution  can be legally sustained.  He referred,  inter alia, to Entry 70 of List I and Entry 41 of List II.  It  is not   disputed  that  Parliament  can  make  law   for   the organization  of  the  police and  for  the  prevention  and detection of crime.  But under Art. 245 of the  Constitution such   a  power  is  subject  to  the  provisions   of   the Constitution and, therefore, is subject to the provisions of Art. 310. Nor  can  we  imply  such  a  power  in  Parliament  or  the Legislatures from Art. 154(2)(b) of the Constitution.  Under Art. 154, "the executive power of the State shall be  vested in  the  Governor  and  shall be  exercised  by  him  either directly   or  through  officers  subordinate  to   him   in accordance  with  this  Constitution", and  under  el.  2(b) thereof,  "nothing in this Article shall prevent  Parliament or  the  Legislature  of the State from  conferring  by  law functions on any authority subordinate to the Governor." The argument  is  that  a  power to  terminate  the  service  at pleasure under Art. 310 is a part of the executive power  of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 33  

the State, that power under Art. 154 can be exercised by the Governor  directly or through officers subordinate  to  him, and  that  under  Art.  154(2)(b)  the  Parliament  or   the Legislature  of the State can confer the same power  on  any authority  subordinate to the Governor or, at any rate,  can make a law prescribing that the Governor shall exercise  the said pleasure through a particular officer. 698 We  cannot agree either with the premises or the  conclusion sought to be based on it.  The first question is whether the power  of  the  Governor under Art.  310  to  terminate  the services of a Government servant at pleasure is part of  the executive  power  of  the  State  under  Art.  154  of   the Constitution.  Article 154 speaks of the executive power  of the State vesting in the Governor; it does not deal with the constitutional powers of the Governor which do not form part of the executive power of the State.  Article 162 says that, subject to the provisions of the Constitution, the executive power  of the State shall extend to matters with respect  to which  the Legislature of the State has power to make  laws. If  the Legislature of the State has no power to make a  law affecting  the tenure at pleasure of the Governor, the  said power  must  necessarily  fall  outside  the  scope  of  the executive  power of the State.  As we will  presently  show, the Legislature has no such power and, therefore, it  cannot be a part of the executive power of the State.  That  apart, if  the  said power is part of the executive  power  in  its general  sense, Art. 162 imposes another limitation on  that power,  namely, that the said executive power is subject  to the provisions of the Constitution and therefore, subject to Art.  310  of the Constitution.  In either  view,  Art.  310 falls  outside  the scope of Art. 154 of  the  Constitution. That  power  may  be  analogous to  that  conferred  on  the Governor  under  Arts.  174, 175  and  176.   Doubtless  the Governor  may  have to exercise the said power  whenever  an occasion   arises,   in  the  manner   prescribed   by   the Constitution, but that in itself does not make it a part  of the  executive power of the State or enable him to  delegate his power. Even  on  the assumption that the power under  Art.  310  is executive power within the meaning of Art. 154, it does  not make  any  difference in the legal position so  far  as  the present case is concerned.  Article 310 of the  Constitution says that unless expresssly provided by the Constitution  to the  contrary, every civil servant holds office  during  the pleasure   of  the  Governor  subject  to  the   limitations prescribed under 699 Art.  311.   Can it be said that  Art.  154(2)(b)  expressly provides  for a different tenure?  Can it be said  that  the said Article confers on the Parliament or the Legislature  a power  higher than that conferred on them under Art. 245  of the  Constitution  ?  It only preserves  the  power  of  the Legislature, which it has under the Constitution, to make  a law conferring functions on an authority subordinate to  the Governor.   That power under Art. 245 is not unlimited,  but is subject to the provisions of the Constitution and  there- fore subject to Art. 310 thereof. It is then said that if the appellants’ contention were  not accepted,  it would lead to conflict of jurisdiction:  while the  Governor  has  the power under Art. 310  to  dismiss  a public servant at his pleasure, a statute may confer a power on  a subordinate officer to dismiss a servant only  subject to  conditions; a subordinate officer functioning  under  an Act  may not be able to dismiss a servant, but the  Governor

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 33  

may be able to do so under similar circumstances; a subordi- nate  officer  may dismiss a servant, but the  Governor  may order his continuance in office. This argument is based upon the misapprehension of the scope of  Art.  309  of  the Constitution.   A  law  made  by  the appropriate  Legislature or the rules made by the  President or the Governor, as the case may be, under the said  Article may  confer a power upon a particular authority to remove  a public  servant from service; but the conferment of  such  a power  does  not amount to a delegation  of  the  Governor’s pleasure.  Whatever the said authority does is by virtue  of express power conferred on it by a statute or rules made  by competent authorities and not by virtue of any delegation by the Governor of his power.  There cannot be conflict between the  exercise of the Governor’s pleasure under Art. 310  and that  of  an authority under a statute,  for  the  statutory power would be always subject to the overriding pleasure  of the Governor. This conclusion, the argument proceeds, would throw a public servant  in India to the mercy of the  executive  Government while their compeers in England 700 can be protected by legislation against arbitrary actions of the  State.   This  apprehension has no  real  .basis,  for, unlike  in England, a member of the public service in  India is  constitutionally protected at least in  two  directions: (i)  he cannot be dismissed by an authority  subordinate  to that by which he was appointed; (ii) he cannot be dismissed, removed  or  reduced  in  rank until he  has  been  given  a reasonable  opportunity of showing cause against the  action proposed to be taken in regard to him.  A condition  similar to  the first condition in Art. 311 found in s. 96-B of  the Government  of  India Act, 1919, was hold  by  the  Judicial Committee  in  R. T. Bangachari v. Secretary  of  State  for India  (1)  to  have  a  statutory  force,  and  the  second condition,  which  is only a reproduction of that  found  in sub-section  (2) of s. 240 of the Government of  India  Act, 1935,  was  held  in High Commissioner for  India  and  High Commissioner  for  Pakistan v. I. M. Lall (2)  as  mandatory qualifying  the  right of the employer  recognized  in  sub- section (1) thereof.  These two statutory protections to the Government  servant are now incorporated in Art. 311 of  the Constitution.   This Article imposes two  qualifications  on the  exercise  of  the  pleasure of  the  President  or  the Governor  and they quite clearly restrict the  operation  of the  rule embodied in Art. 310(1)-vide the  observations  of Das,  C.J.,  in Dhingra’s case (3).  The most  important  of these  two limitations is the provision prescribing  that  a civil  servant  shall be given a reasonable  opportunity  of showing  cause against the -action proposed to be  taken  in regard  to  him.  As this condition is a limitation  on  the "tenure  at  pleasure",  a  law can  certainly  be  made  by Parliament defining the content of "reasonable  opportunity" and   prescribing   the  procedure  for  giving   the   said opportunity.   The  appropriate High Court and  the  Supreme Court can test the validity of such a law on the basis  whe- ther   the  -provisions  prescribed  provide  for  such   an opportunity,  and, if it is valid, to ascertain whether  the reasonable  opportunity so prescribed is really given  to  a particular officer.  It may be that the (1) (1936) L.R. 64 I.A. 40.  (2) (1948) L.R. 75 1.A. 225. (3) [1958] S.C.R. 828, 839. 701 framers  of  the Constitution, having  incorporated  in  our Constitution   the  "tenure  at  pleasure"   unhampered   by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 33  

legislative interference, thought that the said  limitations and qualifications would reasonably protect the interests of the civil servants against arbitrary actions. The  discussion yields the following results: (1)  In  India every  person who is a member of a public service  described in  Art.  310 of the Constitution holds  office  during  the pleasure  of the President or the Governor, as the case  may be, subject to the express provisions therein. (2) The power to dismiss a public servant at pleasure is outside the scope of  Art.  154  and, therefore, cannot be  delegated  by  the Governor  to a subordinate officer, and can be exercised  by him  only in the manner prescribed by the Constitution.  (3) This tenure is subject to the limitations or  qualifications mentioned  in  Art.  311  of  the,  Constitution.  (4)   The Parliament  or the Legislatures of States cannot make a  law abrogating  or modifying this tenure so as to  impinge  upon the  overriding  power conferred upon the President  or  the Governor  under Art. 310, as qualified by Art. 311. (5)  The Parliament  or  the Legislatures of States can  make  a  law regulating the conditions of service of such a member  which includes proceedings by way of disciplinary action,  without affecting the powers of the President or the Governor  under Art. 310 of the Constitution read with Art. 311 thereof. (6) The  Parliament  and the Legislatures also can  make  a  law laying  down  and regulating the scope and  content  of  the doctrine of "reasonable opportunity" embodied in Art. 311 of the  Constitution;  but  the said law would  be  subject  to judicial  review.  (7)  If  a  statute  could  be  made   by Legislatures  within the foregoing permissible  limits,  the rules  made  by  an  authority  in  exercise  of  the  power conferred  thereunder would likewise be  efficacious  within the said limits. What  then is the effect of the said propositions  in  their application  to  the provisions of the Police  Act  and  the rules made thereunder?  The Police Act of 89 702 1861  continues  to  be good  law  under  the  Constitution. Paragraph  477  of the Police Regulations  shows  that   the rules  in Chapter XXXII thereof have been framed under s.  7 of  the Police Act.  Presumably, they were also made by  the Government  in exercise of its power under s. 46(2)  of  the Police  Act.   Under para. 479(a) the  Governor’s  power  of punishment with reference to all officers is preserved; that is  to say, this provision expressly saves the power of  the Governor  under Art. 310 of the Constitution.   "Rules  made under  a  statute  must  be  treated  for  all  purposes  of construction  or obligation exactly as if they were  in  the Act and are to be of the same effect as if contained in  the Act,  and are to be judicially noticed for all  purposes  of construction   or   obligation":   see   Maxwell   "On   the Interpretation  of  Statutes",  10th  edn.,  pp.  5051.  The statutory  rules  cannot be described as, or  equated  with, administrative  directions.  If so, the Police Act  and  the rules  made  thereunder  constitute  a  self-contained  code providing  for’  the  appointment. of  police  officers  and prescribing  the  procedure for their removal.   It  follows that  where  the appropriate  authority  takes  disciplinary action under the Police Act or the rules made thereunder, it must  conform to the provisions of the statute or the  rules which  have  conferred upon it the power to  take  the  said action.   If there is any violation of the said  provisions, subject  to  the question which we will  presently  consider whether  the  rules are directory or mandatory,  the  public servant would have a right to challenge the decision of that

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 33  

authority. Learned counsel for the appellants relied upon the following decisions of the Privy Council and this Court in support  of his  contention  that  the  said  rules  are  administrative directions: R. T. Rangachari v. Secretary of State for India (1),  R.  Venkata Rao v. Secretary of State for  India  (2), High  Commissioner  for  India  and  High  Commissioner  for Pakistan v. I. M. Lall (3), S. A. Venkataraman v. The  Union of  India(4), and Khem Chand v. The Union of  India(5).   In Venkata Rao’s (1)  (1936) L.R. 64 I.A. 40. (3)  (1948) L.R. 75 I.A. 225. (2)   (1936) L.R. 64 I.A. 55. (4)  [1954] S.C.R. 1150. (5)   [1958] S.C.R. 1080. 703 case (1) a reader of the Government Press was dismissed  and in the suit filed by him against the Secretary, of State for India  he  complained, inter alia, that  the  dismissal  was contrary  to the statute inasmuch as it was not preceded  by any such inquiry as was prescribed by rule XIV of the  Civil Services  Classification Rules made under s. 96B(2)  of  the Government  of  India Act.  Under s. 96B of  the  said  Act, every  person  in  civil service  holds  office  during  the pleasure  of His Majesty.  Sub-section (2) of  that  section empowers  the  Secretary of State for India  to  make  rules laying  down, among others, the conditions of  service,  and sub-s. (5) declares that no rules so made shall be construed to  limit or abridge the power of the Secretary of State  in Council  to  deal with the case of any person in  the  civil service  of the Crown in India in such manner as may  appear to  him  to be just and equitable. - On  a  construction  of these  provisions  the  Judicial  Committee  held  that  His Majesty’s  pleasure was paramount and could not  legally  be controlled or limited by the rules.  Two reasons were  given for  the  conclusion, namely, (i) s. 96B  in  express  terms stated  that  the office was held during  the  pleasure  and there was no room for the implication of a contractual  term that  the rules were to be observed; and (ii) sub-s. (2)  of s. 96B and the rules made careful provisions for redress  of grievances  by  administrative process and that  sub-s.  (5) reaffirmed the superior authority of the Secretary of  State in  Council over the civil service.  It may be noticed  that the  rules framed in exercise of the power conferred by  the Act was to regulate the exercise of His Majesty’s  pleasure. The observations were presumably coloured by the doctrine of "tenure  at pleasure" obtaining in England, namely, that  it could only be modified by statute, influenced by the princi- ple that the rules made under a statute shall be  consistent with  its  provisions  and,  what  is  more,  based  upon  a construction  of the express provisions of the  Act.   These observations  cannot, in our opinion, be taken out of  their context  and applied to the provisions of  our  Constitution and  the Acts of our Legislatures in derogation of the  well settled principles of (1) (1936) L. R. 64 I. A. 55. 704 statutory  construction.  In Bangachari’s case (1) a  police officer was dismissed by an authority subordinate to    that by which he had been appointed.  The appeal was heard  along with  that  in Venkata Rao’s case (2) and the  judgments  in both  the  appeals  were delivered on  the  same  day.   The Judicial Committee distinguished Venkata Rao’s case (2) with the following observations at p. 53: "It  is  manifest  that the stipulation  or  proviso  as  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 18 of 33  

dismissal  is  itself  of statutory force and  stands  on  a footing  quite other than any matters of rule which  are  of infinite variety and can be changed from time to time." These  observations do not carry the matter further  an  our remarks made in connection with Venkata Rao’s case (2) would equally apply to this case.  I.M. Lall’s case (3) turns upon sub-s.  (3) of s. 240 of the Government of India Act,  1935. Again the Judicial Committee made a distinction between  the rules  and the provisions of the Act and ruled that  sub-ss. (2) and (3) of s. 240 indicated a qualification or exception to the antecedent provisions in sub-s. (1) of s. 240.   This decision only adopted the reasoning in the earlier decision. The remarks made by us in connection with Venkata Rao’s case (2) would equally apply to this decision.  This Court in  S. A.   Venkataraman’s  case  (4)  incidentally   noticed   the observations of the Judicial Committee in Venkata Rao’s case (2) and observed that the rules, which were not incorporated in a statute, did not impose any legal restriction upon  the right  of  the Crown to dismiss its  servants  at  pleasure. This Court was not laying down any general proposition,  but was only stating the gist of the reasoning in Venkata  Rao’s case (2).  Das, C.J., if we may say so, correctly stated the scope of the rule in Venkata Rao’s case (2) in the  decision in Khem Chand’s case (5), when he stated at p. 1091- "The  position  of the Government  servant  was,  therefore, rather  insecure,  for  his office  being  held  during  the pleasure  of  the Crown under the Government of  India  Act, 1915, the rules could not override (1)  (1936) L.R. 64 I.A. 40. (3)  (1948) L.R. 75 I.A. 225. (2)  (1936) L.R. 64 I.A. 55. (4)  [1954] S.C.R. 1150. (5)   [1958] S.C.R. 1080. 705 or derogate from the statute and the protection of the rules could not be enforced by action so as to nullify the statute itself." To state it differently, the Government of India Act,  1915, as  amended in 1919, and that of 1935 expressly and  clearly laid down that the tenure was at pleasure and therefore  the rules framed under that Act must be consistent with the  Act and  not  in  derogation of it.   These  decisions  and  the observations made therein could not be understood to mark  a radical   departure  from  the  fundamental   principle   of construction that rules made under a statute must be treated as  exactly as if they were in the Act and are of  the  same effect  as  if  contained  in the  Act.   There  is  another principle equally fundamental to the rules of  construction, namely,  that  the  rules  shall  be  consistent  with   the provisions  of  the  Act.  The  decisions  of  the  Judicial Committee on the provisions of the earlier Constitution Acts can  be  sustained  on the ground that  the  rules  made  in exercise  of power conferred under the Acts cannot  override or  modify the tenure at pleasure provided by s. 96B  or  s. 240  of the said Acts, as the case may be.  Therefore,  when the paramountcy of the doctrine was conceded or declared  by the  statute,  there  might  have  been  justification   for sustaining  the rules made under that statute in  derogation thereof  on  the ground that they were  only  administrative directions, for otherwise the rules would have to be  struck down as inconsistent with the Act.  In such a situation,  if the statute was valid-it would be valid in so far as it  did not derogate from the provisions of Art. 310, read with Art. 311-the rules made thereunder would be as efficacious as the Act  itself.   So  long as the statute and  the  rules  made

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 19 of 33  

thereunder  do not affect the power of the  Governor-in  the present case the Governor’s pleasure is expressly preserved- they  should  be legally enforceable.  In this  context  the decisions of the different High Courts in India are cited at the  Bar.  It would not serve any purpose to consider  every one  of them in detail.  It would suffice if  their  general trend  be  noticed.  They express two divergent  views:  one line relies upon the observations 706 of the Privy Council in Venkata Rao’s case (1) and lays down that   all  statutory  rules  vis-a-vis   the   disciplinary proceedings   taken   against  a  Government   servant   are administrative  directions, and the other applies  the  well settled rules of construction and holds that the appropriate authority  is bound to comply with the mandatory  provisions of  the  rules  in  making an  inquiry  under  a  particular statute.   A  close  scrutiny  of  some  of  the   decisions discloses  a  distinction  implied,  though  not  expressed, between  statutory  rules defining the scope  of  reasonable opportunity  and those governing other procedural  steps  in the  disciplinary  process.   In our view,  subject  to  the overriding power of the President or the Governor under Art. 310,  as qualified by the provisions of Art. 311, the  rules governing  disciplinary  proceedings cannot  be  treated  as administrative directions, but shall have the same effect as the  provisions of the statute whereunder they are made,  in so  far a,-, they are not inconsistent with  the  provisions thereof We have already negatived the contention of  learned counsel that the Governor exercises his pleasure through the officers specified in s. 7 of the Police Act, and therefore, it  is not possible to equate the Governor’s  pleasure  with that of the specified officers’ statutory power.  If so,  it follows  that  the inquiry under the Act shall  be  made  in accordance   with   its  provisions  and  the   rules   made thereunder. Then  learned counsel contends that even if the  said  rules have  statutory force, they are only directory and the  non- compliance  with the rules will not invalidate the order  of dismissal made by the appropriate authority. Before  we  consider the principles governing  the  question whether  the rules are mandatory or directory, it  would  be convenient at this stage to notice broadly the scope and the purpose of the inquiry contemplated by the rules. Section   2  of  the  Police  Act  constitutes  the   police establishment; s. 7 empowers specified officers to (1)  [1936] L.R. 64 I.A. 55. 707 punish  specified  subordinate officers who  are  remiss  or negligent  in  discharge of their duties or  unfit  for  the same;  s.  46  enables  the Government  to  make  rules.  to regulate the procedure to be followed by the magistrate  and police officers in discharge of any duty imposed on them  by or under the Act; under s. 7, read with s. 46 of the  Police Act,  the Police Regulations embodied in chapter XXXII  were framed.   Paragraph  477 of the Regulations  says  that  the rules  in  that  chapter have been made under s.  7  of  the Police  Act and apply only to officers appointed under s.  2 of  the Police Act and that no officer appointed under  that section shall be punished by executive order otherwise  than in  the  manner  provided in that  chapter.   Paragraph  478 prescribes the nature of the punishment that can be  imposed on   the  delinquent  officers.   Paragraph   479   empowers specified officers to punish specified subordinate officers. Paragraph  483  gives the procedure to be  followed  in  the matter of the inquiry against a police officer.  It reads:

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 20 of 33  

"Subject to the special provision contained in paragraph 500 and  to  any  special  orders which may  be  passed  by  the Governor  in particular cases a proceeding against a  police officer will consist of- A-A magisterial or police inquiry, followed, if this inquiry shows the need for further action, by B-A  judicial  trial, or C-A departmental trial, or both,  consecutively." Paragraph 484 declares that the nature of the inquiry in any particular  -case will vary according to the nature  of  the offence.   If the offence is cognizable  or  non-cognizable, the inquiry will be according to Schedule II of the Criminal Procedure  Code.   If  the information is  received  by  the District Magistrate, he may in exercise of his powers  under the  Criminal  Procedure Code either, (1) make  or  order  a magisterial  inquiry; or (2) order an investigation  by  the Police.  Paragraph 485 reads:  "When  a magisterial inquiry is ordered it will be made  in accordance   with  the  Criminal  Procedure  Code  and   the Superintendent of Police will have no direct 708 concern with it until the conclusion of judicial proceedings or until and unless the case is referred to him for  further disposal,  but he must give any assistance to the  inquiring magistrate that he may legally be called upon to give and he must suspend the accused should this become necessary  under paragraph  496."  Paragraph 486 says that there  can  be  no magisterial  inquiry under the Criminal Procedure Code  when the  offence alleged against a police officer amounts to  an offence  only under s. 7 of the Police Act, and it  provides further  that in such cases, and in, other cases  until  and unless  a  magisterial inquiry is ordered, inquiry  will  be made under the direction of the Superintendent of Police  in accordance  with the rules given thereunder.  Under  rule  I thereof, "Every information received by the police  relating to  the  commission  of a cognizable  offence  by  a  police officer shall be dealt with in the first place under Chapter XIV, Criminal Procedure Code, according to law, a case under the  appropriate  section  being registered  in  the  police station  concerned".  There are six provisos to  that  rule. Rule  II  provides  for  the  inquiry  of  a  non-cognizable offence; and rule III prescribes the procedure in regard  to an  offence  only  under s. 7 of the Police Act  or  a  non- cognizable  offence  of which the Superintendent  of  Police considers  unnecessary at that stage to forward a report  in writing  to  the District Magistrate.  Paragraph  488  deals with  a  judicial trial and para. 489  with  a  departmental trial.  Paragraph 489 says: "A police officer may be departmentally tried under  section 7 of the Police Act- (1)  after he has been tried judicially; (2)  after a magisterial inquiry under the Criminal Procedure Code; (3)    after  a  police  investigation  under  the  Criminal Procedure  Code  or a departmental enquiry  under  paragraph 486,III above." There  are  other  provisions dealing  with  the  manner  of conducting  the inquiries and other connected matters.   The rules  provide  for  the  magisterial  and  police   inquiry followed, if the inquiry showed the need for further action, by a judicial trial or a departmental 709 trial,  or both, consecutively.  In the case  of  cognizable offences  the  Superintendent  of  Police  is  directed   to investigate under chapter XIV of the Criminal Pro- p, cedure

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 21 of 33  

Code  and  in  the case of non-cognizable  offences  in  the manner provided in rule II of para. 486, and in the case  of an  offence  only  under s. 7 of the Police Act  or  a  non- cognizable offence in the manner provided under rule III  of para. 486.  After one or other of the relevant procedure  is followed, the Superintendent of Police is empowered to try a police officer departmentally. The  question is whether rule I of para. 486  is  directory. The  relevant  rule says that the police  officer  shall  be tried  in the first place under chapter XIV of the  Criminal Procedure Code.  The word "shall" in its ordinary import  is "obligatory";  but  there  are many  decisions  wherein  the courts under different situations construed the word to mean "may".   This  Court  in Hari Vishnu Kamath  v.  Syed  Ahmad Ishaque (1) dealt with this problem at p. 1125 thus: "It is well established that an enactment in form  mandatory might in substance be directory and that the use of the word "shall" does not conclude the matter." It is then observed: "They  (the rules) are well-known, and there is no  need  to repeat  them.   But  they  are all of  them  only  aids  for ascertaining the true intention of the legislature which  is the  determining factor, and that must ultimately depend  on the context." The  following quotation from Crawford "On the  Construction of Statutes", at p. 516, is also helpful in this connection: "The  question  as  to whether a  statute  is  mandatory  or directory depends upon the intent of the legislature and not upon  the  language  in which the intent  is  clothed.   The meaning  and intention of the legislature must  govern,  and these  are to be ascertained, not only from the  phraseology of  the provision, but also by considering its  nature,  its design, and the (1) [1955] 1 S.C.R. 1104. 90 710 consequences  which would follow from construing it the  one way or the other......"  This  passage was approved by this Court in State of U.  P. v. Manbodhan Lal Srivastava (1).  In Craies on Statute  Law, 5th edition, the following passage appears at p. 242: "No universal rule can be laid down as to whether  mandatory enactments shall be considered directory only or  obligatory with  an implied nullification for disobedience.  It is  the duty  of  Courts  of  Justice to try  to  get  at  the  real intention  of the Legislature by carefully attending to  the whole scope of the statute to be construed." A  valuable  guide  for ascertaining the  intention  of  the Legislature  is found in Maxwell on "The  Interpretation  of Statutes", 10th edition, at p. 381 and it is: "On  the  other hand, where the prescriptions of  a  statute relate  to  the performance of a public duty and  where  the invalidation  of  acts done in neglect of  them  would  work serious  general inconvenience or injustice to  persons  who have  no control over those entrusted with the duty  without promoting  the  essential  aims  of  the  legislature,  such prescriptions  seem  to  be  generally  understood  as  mere instructions  for  the guidance and government of  those  on whom  the duty is imposed, or, in other words, as  directory only.  The neglect of them may be penal, indeed, but it does not  affect  the validity of the act done  in  disregard  of them." This  passage was accepted by the Judicial Committee of  the Privy Council in the case of Montreal Street Railway Company v.  Normandin  (2 ) and by this Court in State of U.  P.  v.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 22 of 33  

Manbodhan Lal Srivastava (1). The  relevant rules of interpretation may be briefly  stated thus: When a statute uses the word "shall", prima facie,  it is mandatory, but the Court may ascertain the real intention of the legislature by carefully attending to the whole scope of the statute.  For ascertaining the real intention of  the Legislature  the Court may consider, inter alia, the  nature and the design of the statute, and the consequences which (1) [1958] S.C.R. 533, 545. (2) L.R. [1917] A.C.770. 711 would  follow from construing it the one way or  the  other, the  impact  of other provisions whereby  the  necessity  of complying  with the provisions in question is  avoided,  the circumstance,  namely,  that  the  statute  provides  for  a contingency  of the non-compliance with the provisions,  the fact  that the non-compliance with the provisions is  or  is not  visited  by  some  penalty,  the  serious  or   trivial consequences  that flow therefrom, and, above  all,  whether the object of the legislation will be defeated or furthered. Now what is the object of rule I of para. 486 of the  Police Regulations?   In our opinion, it is conceived not  only  to enable  the Superintendent of Police to  gather  information but  also to protect the interests of  subordinate  officers against whom departmental trial is sought to be held.  After making the necessary investigation under chapter XIV of  the Criminal Procedure Code, the Superintendent of Police may as well  come to the conclusion that the officer  concerned  is innocent, and on that basis drop the entire proceedings.  He may   also  hold  that  it  is  a  fit  case  for   criminal prosecution,  which, under certain circumstances, an  honest officer against whom false charges are framed may prefer  to face  than  to  submit  himself  to  a  departmental  trial. Therefore,the  rules  are conceived in the interest  of  the department as well as the officer.  From the stand point  of the  department  as  -well  as  the  officer  against   whom departmental   inquiry  is  sought  to  be   intiated,   the preliminary  inquiry is very important and it serves a  real purpose.   Here the setting aside of the order of  dismissal will  not  affect  the  public  in  general  and  the   only consequence  will  be  that  the officer  will  have  to  be proceeded  against  in the manner prescribed by  the  rules. What  is  more, para. 487 and para. 489 make  it  abundantly clear  that  the  police investigation  under  the  Criminal Procedure Code is a condition precedent for the departmental trial.   Paragraph 477 emphasizes that no officer  appointed under s. 2 of the Police Act shall be punished by  executive order  otherwise than in the manner provided  under  chapter XXXII  of  the Police Regulations.  This  is  an  imperative injunction prohibiting 712 inquiry  in  non-compliance with the rules.   Paragraph  489 only empowers the holding of a departmental  trial in regard to a police officer only after a police investigation  under the  Criminal  Procedure  Code.  When a  rule  says  that  a departmental   trial  can  be  held  only  after  a   police investigation, it is not permissible to hold that it can  be held  without  such investigation.  For  all  the  foregoing reasons,  we hold that para. 486 is mandatory and  that,  as the investigation has not been held under chapter XIV of the Criminal  Procedure  Code, the subsequent  inquiry  and  the order of dismissal are illegal. For  the foregoing reasons we hold that, as  the  respondent was dismissed without complying with the provisions of para. 486(1), the order of dismissal is illegal and that the  High

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 23 of 33  

Court is right in setting aside the order of dismissal. In the result, the appeal fails and is dismissed with costs. WANCHOO, J.-We regret we are unable to agree that the appeal be dismissed. Babu Ram Upadhya (respondent) was a sub-inspector of  police who was appointed in December, 1948.  In 1953, he was posted at  Sitapur.  On September 6, 1953, he was returning from  a village  called  Madhwapur,  when  he  saw  a  man  who  was subsequently found to be Tika Ram coming from the side of  a canal  and going hurriedly into a field.  The  movements  of Tika  Ram roused his suspicion.  One Lalji,  an  ex-patwari, was  also with the sub-inspector.  Tika Ram was  called  and searched, and a bundle containing currencynotes was found on him.   The  sub-inspector took the bundle  and  counted  the notes  and  handed them over to Lalji.  Lalji  in  his  turn handed over the notes to Tika Ram.  Thereafter Tika Ram, who is an old-man, almost blind, went away.  When he reached his house,  he found that there was a shortage of Rs.  250.   He then  made  a complaint to the Superintendent of  Police  on September  9,  1953, in which he gave the above  facts.   An inquiry  was  made  by  the  Superintendent  of  Police  and ultimately,  departmental  proceedings  under s.  7  of  the Police Act were taken 713 against  the respondent.  These proceedings resulted in  his dismissal  and thereupon the respondent applied to the  High Court under Art. 226 of the Constitution. The main contention of the respondent was that r. 486 of the Police  Regulations framed under s. 7 of the Police Act  was not  observed  and therefore  the  departmental  proceedings taken against him were illegal.  The reply of the  appellant was  two-fold: in the first place, it was urged that r.  486 did not apply as there was no report of a cognizable offence against  the  sub-inspector; and in the next place,  it  was urged  that  the rules contained in the  Police  Regulations were  only administrative rules and even if there  was  non- compliance  with  any  of  them, it  would  not  affect  the departmental  proceedings  taken  against  the   respondent, provided there was no breach of the guarantees contained  in Art. 311 of the Constitution. The High Court held that there was a report of a  cognizable offence  under s. 409 of the Indian Penal Code  against  the respondent  and therefore the procedure provided by  r.  486 ought  to have been followed.  It further held that  r.  486 had  been  framed  under s. 7 of the Police Act  and  was  a statutory  provision, which had the force of law.  As  such, following  the earlier view taken by the High Court  in  two other  cases  it  held  that a  dismissal  as  a  result  of departmental proceedings which took place without  complying with  r.  486 would be illegal.  In  consequence,  the  writ petition  was  allowed.  The appellant then  applied  for  a certificate to enable it to appeal to this Court, which  was refused.   Thereupon special leave was prayed for from  this Court,  which  was granted; and that is how the  matter  has come up before us. Mr.  C.  B. Aggarwala on behalf of the appellant  urges  the same  two  points before us.  So far as the first  point  is concerned,  we are of opinion that there is no force in  it. There  is no doubt that in the complaint made by  Tika  Ram, the name of the respondent was not shown in the heading; but from the facts disclosed in the body of the complaint it  is clear that the sub-inspector searched the person of Tika Ram and recovered a bundle containing currency-notes.  He 714 did  so  obviously under the authority vested in  him  as  a

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 24 of 33  

police officer.  When therefore he was satisfied that  there was  no reason to take any further action against Tika  Ram, it  was his duty to see that the entire amount taken by  him from Tika Ram on search was returned to him (Tika Ram).  The High  Court  was right in the view that  where  property  is taken  away with the intention that it will continue  to  be the property of the person from whose possession it has been taken away, there will be an entrustment of the property  to the  person taking it away, and if. subsequently the  person taking  it away converts it to his own use or  suffers  some other  person  to do so, there will be  criminal  breach  of trust  and  not merely criminal misappropriation.   Thus  an offence  under  s. 409 of the Indian Penal Code  appears  to have  been committed prima facie on the facts of this  case. As  an offence under s. 409 is a cognizable offence, r.  486 of  the Police Regulations would apply.  This brings  us  to the main point in the present appeal. Sec. 7 of the Police Act under which r. 486 has been  framed is in these terms:- "Subject to such rules as the State Government may from time to  time make under this Act, the Inspector-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 duty or unfit for the same; or  may award any one or more, of the following  punishments to  any police-officer of the subordinate ranks,  who  shall discharge  his  duty in a careless or negligent  manner,  or who,  by any act of his own shall render himself  unfit  for the discharge thereof, name- (a) fine to any amount not exceeding one month’s pay;  (b) confinement to quarters for a term  not  exceeding fifteen  days,  with  or without  punishment,  drill,  extra guard, fatigue or other duty; (c)  deprivation of good-conduct pay; 715     (d)   removal from any office of distinction or  special emolument;". It gives power to four grades of police officers to dismiss, suspend  or  reduce any police officer  of  the  subordinate ranks  whom they think remiss or negligent in the  discharge of  his  duty or unfit for the same.  It also  provides  for infliction  of four other kinds of punishment by these  four grades of officers on any police officer of the  subordinate ranks  who  discharges his duty in a careless  or  negligent manner  or who by any act of his own renders  himself  unfit for  the  discharge  thereof.  In the present  case  we  are concerned  with  dismissal and what we shall  say  hereafter should be taken to be confined to a case of dismissal.  Sec- tion 7 shows that the power of dismissal conferred by it  on the  four  grades  of police officers  is  to  be  exercised subject to such rules as the State Government may from  time to time make under the Police Act.  The contention on behalf of  the respondent is that the power of dismissal has to  be exercised subject to rules and therefore, when r. 486 of the Police  Regulations (framed under s. 7) provided  a  certain procedure  to be followed with respect to cases in  which  a cognizable  offence  was  involved it was not  open  to  the authority concerned to disregard that procedure.  In effect, it  is urged that r. 486 is a mandatory provision  and  non- compliance   with  it  would  invalidate  the   departmental proceedings.   It  is not in dispute in this case  that  the procedure  provided  by  r.  486  was  not  followed.   That procedural provision is that where a report of a  cognizable

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 25 of 33  

crime  is  made against a police officer  belonging  to  the subordinate  ranks, it has to be registered as  provided  in Chapter   XIV  of  the  Code  of  Criminal   Procedure   and investigated   as  provided  thereunder.    Thereafter   the authority  concerned has to decide whether to send the  case for  trial  before a court of law or  to  take  departmental proceedings.   In  this  case no report  was  registered  as provided under Chapter XIV of the Code of Criminal Procedure and  no investigation was made as provided in that  Chapter. All  that happened was that the Superintendent of Police  to whom Tika Ram had complained inquired into the 716 complaint  of  Tika  Ram and thereafter decided  to  hold  a departmental  inquiry under s. 7 of the Police  Act  against the respondent. The  main contention on behalf of the appellant is that  the Rules framed under s. 7 of the Police Act are administrative rules  and  in  any case they are only  directory  and  non- compliance  with  them  would  not  vitiate  the  subsequent proceedings  unless  there  is a  breach  of  the  guarantee contained  in  Art. 311 of the Constitution, as  all  public servants hold their office at the pleasure of the  President or  the  Governor,  as the case may  be,  other  than  those expressly excepted under the Constitution.  Reliance in this connection  is  placed  on the case of  R.  Venkata  Rao  v. Secretary of State for India in Council (1). This  brings  us to a consideration of the tenure  on  which public  servants  hold office.  The position in  England  is that all public servants hold office at the pleasure of  His Majesty, that is to say, their service was terminable at any time  without  amuse: (see Shenton v. Smith (2 )).  By  law, however,  it is open to Parliament to prescribe a  different tenure and the King being a party to every Act of Parliament is understood to have accepted the change in the tenure when he  gives  assent to such law: (see Gould  v.  Stuart  (3)). This  principle applied in India also before the  Government of  India Act, 1915, was amended by the addition of s.  96-B therein.   Section  96-B  for the  first  time  provided  by statute that every person in the civil service of the  Crown held  office during His Majesty’s pleasure, subject  to  the provisions of the Government of India Act and the rules made thereunder  and  the  only protection to  a  public  servant against  the exercise of pleasure was that he could  not  be dismissed  by any authority subordinate to that by which  he was  appointed.   It  was  this  section,  which  came   for consideration before the Privy Council in Venkata Rao’s case (1)  and the Privy Council held that in spite of  the  words ".subject  to the rules made under the Government  of  India Act," Venkata Rao’s employment was not of a (1) (1936) L.R. 64 I.A. 55        (2) [1895] A.C. 229. (3)  [1896] A.C. 575. 717 limited  and  special  kind during pleasure  with  an  added contractual term that the procedure prescribed, by the Rules must  be  observed; it was by the express terms of  s.  96-B held "during His Majesty’s pleasure" and no right of  action as  claimed  by  Venkata Rao  existed.   The  Privy  Council further  held  that the terms of s. 96-B  assured  that  the tenure  of office, though at pleasure, would not be  subject to capricious or arbitrary action but would be regulated  by the  rules  which were manifold in number,  most  minute  in particularity  and all capable of change; but there  was  no right  in the -public servant enforceable by action to  hold his  office  in  accordance with those rules  and  he  could therefore  be  dismissed  notwithstanding  the  failure   to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 26 of 33  

observe  the procedure prescribed by them.  The  main  point which was urged in Venkata Rao’s case (1) was that under  r. XIV  of  the Civil Services Classification Rules  no  public servant  could  be  dismissed, removed or  reduced  in  rank except  after a properly recorded departmental inquiry.   In Venkata  Rao’s case (1) the departmental inquiry  prescribed by the rules was found not to have been held.  Even so,  the Privy Council held that the words used in s. 96-B could  not and  did not cut down the pleasure of His Majesty  by  rules though  it  was  observed  that the  terms  of  the  section contained a statutory and solemn assurance, that the  tenure of  office,  though at pleasure., would not  be  subject  to capricious  or arbitrary, action, but would be regulated  by rule.   It  was further added that supreme  care  should  be taken  that this assurance is carried out in the letter  and in the spirit.  The Privy Council further held that in’  the case  before  it,  there had been  a  serious  and  complete failure to adhere to important and indeed fundamental rules, and mistakes of a serious kind had been made and wrongs  had been  done which called for redress; even so; they  were  of the  view  that  as a matter of law  that  redress  was  not obtainable from courts by action..,. This  was  the position under the Government  of  India  Act 1915.  There was however a material change in the Government of India Act, 1935.  So far, there (1)  (1936) L.R. 64 I. A. 55. 91 718 was  one  protection to a public servant, namely,  that   he could not be dismissed by an authority subordinate   to that by which he was appointed.  In the Government of India  Act, 1935, s. 240(1) laid down that-- " except as expressly provided by this Act, every person who is  a member of a civil service of the Crown in  India...... holds office during His Majesty’s pleasure." The words of this section are different from those of s. 96- B  and  the tenure of all public servants other  than  those expressly  provided  for  was to  be  during  His  Majesty’s pleasure.   There were, however, two safeguards provided  by sub-ss.  (2)  and  (3) of s. 240.  The first  was  the  same (namely,  that  no public servant will be  dismissed  by  an officer  subordinate  to  that who  appointed  him);  but  a further exception was added to the pleasure tenure,  namely, no public servant shall be dismissed until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him.  This protection came to  be considered by the Privy Council in High  Commissioner for  India and High Commissioner for Pakistan v. 1. M.  Lall (1)  and it was held that it was a mandatory  provision  and qualified  the  pleasure  tenure and  provided  a  condition precedent  to the exercise of power by His Majesty  provided by  sub-s. (1) of s. 240.  Thus by the Government  of  India Act,  1935,  there were two statutory guarantees  to  public servants  against  the  exercise  of  the  pleasure  of  his Majesty;  but it is clear from s. 240 of the  Government  of India Act, 1935, that the pleasure of His Majesty to dismiss was  not  otherwise  subject  to  rules  framed  under   the subsequent  provisions  of  the  Government  of  India   Act appearing  in  Chapter  11 of Part  X  dealing  with  public services. This  position continued till we come to  the  Constitution. Article  310(1)  of the Constitution provides for  what  was contained in s. 240(1) of the Government of India Act, 1935, and is in these terms: "(1)  Except  as expressly provided  by  this  Constitution,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 27 of 33  

every person who -is a member of a defence (1)  (1948) L.R. 75 I.A. 225. 719 service  or  of a civil service of the Union or  of  an  all India  service or holds any post connected with defence,  or any  civil  post under the Union, holds  office  during  the pleasure of the President, and every person who is a  member of a civil service of a State or holds any civil post  under a State holds office during the pleasure of the Governor  of the State." It  will be clear therefore that all public servants  except as expressly provided by the Constitution hold their  office during the pleasure of the President or the Governor, as the case  may be.  Article 311 then provides for two  guarantees and  is  similar  in  terms to s.  240(2)  and  (3)  of  the Government of India Act, 1935 and the two guarantees are the same,  (namely,  (i) that no person shall  be  dismissed  or removed by an authority subordinate to that by which he  was appointed,  and  (ii) no such person shall be  dismissed  or removed or reduced in rank until he has been given a reason- able  opportunity  of  showing  cause  against  the   action proposed  to be taken in regard to him).  In  Parshotam  Lal Dhingra v. Union of India (1), this Court held that Art. 311 was in the nature of a proviso to Art. 310, that it provides two  constitutional guarantees cutting down the pleasure  of the President or the Governor, as the case may be, and  that it  was a mandatory provision which had to be complied  with before the pleasure provided in Art. 310 can be exercised. Mr.  Pathak  for the respondent urges that in  view  of  the words  of Art. 310 statute or statutory rules can  also  cut down the nature of the pleasure tenure provided by Art.  310 in the same way as in England an Act of Parliament cuts down the  ambit  of  His  Majesty’s pleasure  in  the  matter  of dismissal.  He relies on the words "as expressly provided by this Constitution" and urges that it is open to the legisla- ture  to cut down the pleasure tenure by law or  to  provide for  its  being  affected  by  statutory  rules.   In   this connection he relies on Art. 309 as well as Art. 154 of  the Constitution.  Now, Art. 309 begins with the words  "subject to the provisions of this Constitution" land lays down  that "Acts  of  the  appropriate  Legislature  may  regulate  the recruitment, and conditions of (1) [1958] S.C.R. 828. 720 service of person appointed, to public services and posts in connection  with the affairs of the Union or of any  State". The  proviso  to  Art.  309 lays  down  that  "it  shall  be competent for the President or the Governor as the case  may be  to make rules relating to recruitment and conditions  of service  until provision in that behalf is made by or  under an  Act of the appropriate Legislature".  It will  be  clear immediately  that Art. 309 is subject to the  provisions  of the  Constitution  and  therefore subject to  Art.  310  and therefore,  any  law passed or rules framed under  Art.  309 must be subject to Art. 310 and cannot in any way affect the pleasure-tenure laid down in Art. 310.  The words "except as expressly  provided by this Constitution" appearing in  Art. 310  clearly show that the only exceptions to  the  pleasure tenure are those expressly contained in the Constitution and no more.  These exceptions, for example, are contained inter alia  in  Arts. 124. 148, 280 and 324 and also in  Art.  310 (2).  Therefore, unless there is an express provision in the Constitution cutting down the pleasure tenure, every  public servant holds office during the pleasure of the President or the  Governor,  as the case may be.  We  cannot  accept  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 28 of 33  

argument  that  a  law passed  under  Art.  309  prescribing conditions  of service would become an express provision  of the Constitution and would thus cut down the pleasure tenure contained  in  Art. 310.  As the Privy  Council  pointed  in Venkata  Rao’s case (1), the rules framed under Art. 309  or the laws passed thereunder amount to a statutory and  solemn assurance that the tenure of office though at pleasure  will not be subject to capricious or arbitrary action but will be regulated  by rule.  But if the rules or the law define  the content of the guarantee contained in Art. 311 (2) they  may to that extent be mandatory but only because they carry  out the  guarantee contained in Art. 311 (2).   Excepting  this, any  law or rule framed under Art. 309 cannot cut  down  the pleasure tenure as provided in Art. 310. The  same in our opinion applies to a law passed under  Art. 154 (2)(b) which authorises Parliament or the legislature of a State to confer functions on any (1) (1936) L.R. 64 I.A. 55. 721 authority subordinate to the Governor.  If any law is passed conferring  on any authority the power to dismiss or  remove or  reduce in rank, that law cannot cut down the content  of the pleasure tenure as contained in Art. 310; that law would be  passed under Art. 245 and that article also begins  with the words "subject to the provisions of this  Constitution". Therefore, the law passed under Art. 154 (2) (b) would  also in the same way as the law under Art. 309 be subject to  the pleasure  tenure contained in Art. 310 and cannot  cut  down the content of that tenure or impose any further fetters  on it  except  those  contained  in  Art.  311.   The  position therefore that emerges from the examination of the  relevant Articles  of  the Constitution is that all  public  servants other   than  those  who  are  excepted  expressly  by   the provisions  of  the  Constitution  hold  office  during  the pleasure  of the President or the Governor, as the case  may be, and that no law or rule passed or framed under Art.  309 or Art. 154 (2) (b) can cut down the content of the pleasure tenure as contained in Art. 310 subject to Art. 311. With this basic position in our Constitution, let us turn to the  Police  Act  with which we are  concerned.   Section  7 thereof  lays  down that four grades of officers  will  have power  to dismiss, suspend or reduce any  police-officer  of the  subordinate  ranks subject to such rules as  the  State Government may from time to time make under the Police  Act. Though the Police Act is a pre-constitutional law which  has continued  under Art. 372 of the Constitution, it cannot  in our opinion stand higher than a law passed under Art. 309 or Art.  154 (2) (b) and out down the content of  the  pleasure tenure as contained in Art. 310.  The police officers of the subordinate  ranks  are  not  expressly  excluded  from  the operation  of  the pleasure tenure by any provision  of  the Constitution;  they,  therefore,  hold  office  during   the pleasure  of the Governor and the only protection that  they can claim are the two guarantees contained in Art. 311.   It is true that s. 7 lays down that the four grades of officers empowered  to dismiss will act according to rules framed  by the State Government; but that does not in our opinion  mean that 722 these  rules  could  introduce any  further  fetter  on  the pleasure  tenure  under  which the police  officers  of  the subordinate  ranks  are  in service.  It  was  necessary  to provide  for  the  framing  of  rules  because  the  section envisages  conferment  of, powers of punishment  of  various kinds on four grades of officers relating to various  cadres

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 29 of 33  

of police officers in the subordinate ranks.  It was left to the  rules  to provide which four grades of  officers  would dismiss  police officers of which subordinate rank or  would give   which  punishment  to  a  police  officer  of   which subordinate  rank.   Such  rules would  in  our  opinion  be mandatory as they go to the root of the jurisdiction of  the four grades of police officers empowered to act under s.  7. But  further rules may be framed under s. 7 to  guide  these police  officers how to act when they proceed to dismiss  or inflict  any  other  punishment on police  officers  of  the subordinate  ranks.   These  rules  of  procedure,  however, cannot  all be mandatory, for if they were so they would  be putting  further fetters than those provided in Art. 311  on the  pleasure of the Governor to dismiss a  public  servant. of  course, if any of the rules framed under s. 7 carry  out the  purposes  of Art. 311(2), to that extent they  will  be mandatory  and  in that sense their contravention  would  in substance  amount to contravention of Art. 311  itself.   If this  were  not so, it would be possible  to  forge  further fetters on the pleasure of the Governor to dismiss a  public servant and this in the light of what we have said above  is clearly  not  possible  in view of  the  provisions  of  the Constitution.  On the other hand, it will not be possible by means of rules framed under s. 7 to take away the  guarantee provided  by  Art. 311(1), which lays down  that  no  public servant  shall be dismissed by an authority  subordinate  to that by which he was appointed.  If any rule under s. 7, for example, lays down otherwise it will clearly be ultra  vires in view of Art. 311(1).  The rules therefore that are framed under  s.  7 would thus be of two kinds,  namely  (1)  those which define the jurisdiction of four grades of officers  to inflict  a  particular kind of punishment  on  a  particular police   officer  of  the  subordinate  rank-they  will   be mandatory 723 for  they go to the root of the jurisdiction of the  officer exercising the power, but even these rules cannot go against the  provisions of Art. 31 1 (1); and (2) procedural  rules, which again may be of two kinds.  Some of them may prescribe the manner in which the guarantee contained in Art. 311  (2) may be carried out and if there are any such rules they will be  mandatory.  The rest will be merely procedural  and  can only  be directory as otherwise if they are  also  mandatory further  fetters on the power of the Governor to dismiss  at his pleasure contained in Art. 310 would be forged and  this is not permissible under the Constitution.  It is from  this angle that we shall have to consider 486. Before, however, we come to r. 486 itself, we may dispose of another  argument, namely, that the four grades of  officers who have the power to dismiss under s. 7 are exercising  the statutory  authority vested in them and are  not  exercising the  Governor’s  pleasure of dismissal under  Art.  310  and therefore  their action in dismissing an officer is  subject to  all  the  rules framed for their guidance.   We  are  of opinion  that  this  argument is  fallacious.   Article  310 defines  the  pleasure tenure and by  necessary  implication gives  power  to  the Governor to dismiss  at  pleasure  any public  servant subject to the exceptions contained in  Art. 310  and  also subject to the guarantees contained  in  Art. 311.      This power of the Governor to dismiss is executive power of the State and can be exercised under Art.     154(1) by  the  Governor  himself directly  or  indirectly  through officers  subordinate  to  him.   Thus it  is  open  to  the Governor  to  delegate his power of  dismissal  to  officers subordinate  to him; but even when those  officers  exercise

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 30 of 33  

the   power  of  dismissal,  the  Governor   is   indirectly exercising it through those to whom he has delegated it  and it  is still the pleasure of the Governor to dismiss,  which is  being exercised by the subordinate officers to  whom  it may be delegated.  Further though the Governor may  delegate his executive power of dismissal at pleasure to  subordinate officers he still retains in himself the power to dismiss at pleasure if he thinks fit in a particular case in spite 724 of  the delegation.  There can be no question that  where  a delegation  is  made, the authority  making  the  delegation retains in itself what has been delegated.  Therefore,  even where  a  subordinate  officer is exercising  the  power  to dismiss  he  is  indirectly  exercising  the  power  of  the Governor  to  dismiss  at  pleasure  and  so  his  power  of dismissal  can  only be subject to the same  limitations  to which  the  power  of the Governor would be  subject  if  he exercised it directly. But  it is said that in the present case the power  has  not been delegated by the Governor under Art. 154(1) and that it had been conferred on those police officers by law.  In  our opinion,  that  makes  no difference to the  nature  of  the power,  which  is being exercised by these  four  grades  of officers under the Police Act.  As we have already said Art. 154(2)(b) gives power to Parliament or the legislature of  a State   by  law  to  confer  functions  on   any   authority subordinate to the Governor.  When the function of dismissal is  conferred  by law on any authority  subordinate  to  the Governor   it  is  nothing  more  than  delegation  of   the Governor’s  executive power to dismiss at pleasure by  means of law and stands in no better position than a delegation by the  Governor  himself  under Art. 154(1).   Whether  it  is delegation  by  the  Governor  himself  or  whether  it   is delegation  by  law under Art. 154(2)(b) or by  an  existing law, which must be treated as analogous to a law under  Art. 154(2)(b), the officer exercising the power of dismissal  is only indirectly exercising, the Governor’s power to  dismiss at  pleasure and his order of dismissal has the same  effect as  the  order  of  the Governor  to  dismiss  at  pleasure. Therefore, his order also is only subject to the two fetters provided  in  Art.  311 of the Constitution  and  cannot  be subjected to any more fetters by procedural rules other than those  framed  for carrying out the object of  Art.  311(2). Therefore,  when  the  four grades of  officers  proceed  to dismiss any police officer of the subordinate rank under  s. 7  of the Police Act, they are merely exercising. the  power of  the Governor to dismiss at pleasure indirectly; and  the only  fetters  that can be placed on that  power  are  those contained in the Constitution, namely,  Art. 311. 725 We  may in this connection refer once again to the  case  of Venkata  Rao  (1)  where the dismissal was  by  an,  officer subordinate  to the Governor of Madras; but’ that  dismissal was also held to be an indirect exercise I of His  Majesty’s pleasure to dismiss, and that is why it was held that if  r. XIV  of  the Classification Rules was not complied  with,  a public  servant  had  no right of action  against  an  order dismissing  him  at  His  Majesty’s  pleasure.    Therefore, whenever  a  subordinate  officer  exercises  the  power  to dismiss, whether that power is delegated by the Governor, or is delegated under a law made under Art. 154(2)(b) or  under an  existing law analogous to that, he is merely  exercising indirectly the power of the Governor to dismiss at  pleasure and  his  action  -is subject only  to  the  two  guarantees contained  in Art. 311.  The fact therefore that the  police

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 31 of 33  

officer  in this case made the order of dismissal by  virtue of s. 7 will make no difference and he will be deemed to  be exercising the power of the Governor to dismiss at  pleasure by delegation to him by law of that power.  We may add  that even  where there is delegation by law of the power  of  the Governor  to dismiss at pleasure, the power of the  Governor himself  to act directly and dismiss at pleasure  cannot  be taken away by that law, for that power he derives from  Art. 310 of the Constitution.  The present case therefore must be judged  on the same basis as any case of dismissal  directly by  the  Governor  and  would only be  subject  to  the  two limitations contained in Art. 311. We  now  come  to r. 486.  This rule,  as  we  have  already indicated,  provides that if there is any complaint  of  the commission  of any cognizable crime by a police officer,  it must  be  registered in the relevant police  station,  under Chapter   XIV  of  the  Code  of  Criminal   Procedure   and investigated in the manner provided by that Chapter.   After the  investigation is complete, it is open to the  authority concerned,  be  it  the  Superintendent  of  Police  or  the District Magistrate, to decide whether to proceed in a court of law (1) (1936) L.R. 64 I.A. 55. 92 726 or to hold a departmental inquiry or do both, though in  the last  case  the departmental inquiry must  take  place  only after  the judicial trial is over.  The first question  then that  arises  is whether r. 486 is meant to  carry  out  the purpose  of Art. 311(2).  As we read r. 486, we  cannot  see that  it is meant for that purpose; it only provides  for  a police  investigation  under  Chapter XIV  of  the  Code  of Criminal   Procedure.    The  police   officer   making   an investigation under Chapter XIV is not bound to examine  the person  against  whom he is investigating, though  there  is nothing  to  prevent him from doing so.  Nor is  the  person against whom an investigation is going on under Chapter  XIV bound  to make a statement to the police officer.  In  these circumstances, the purpose of an investigation under Chapter XIV  is  not relevant under Art. 311(2) which  says  that  a public  servant shall not be dismissed without giving him  a reasonable  opportunity of showing cause against the  action proposed  to be taken in regard to him.  Therefore,  r.  486 not  being meant for the purpose of carrying out the  object of Art. 311 (2) cannot be mandatory and cannot add a further fetter on the exercise of the power to dismiss or remove  at the  pleasure of the Governor over and above the  guarantees contained in Art. 311. It  appears  to  us that the object of r. 486  is  that  the authority concerned should first make a preliminary  inquiry to  find  out  if  there  is  a  case  against  the  officer complained  against either to proceed in a court or to  take departmental action.  The investigation prescribed by r. 486 is only for this purpose.  Incidentally it may be that after such  an investigation, the authority concerned may come  to the  conclusion  that there in no case either’ to  send  the case  to court or to hold a departmental inquiry.  But  that in our opinion is what would happen in any case of complaint against  a public servant in any department  of  Government. No  authority  entitled  to take  action  against  a  public servant would straightaway proceed to put the case in  court or to hold a departmental inquiry.  It seems to us axiomatic if a complaint is received against any public servant of any department, that the authority 727

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 32 of 33  

concerned would first always make some kind of a preliminary inquiry  to  satisfy itself whether there is  any  case  for taking  action  at all; but that is in our opinion  for  the satisfaction of the authority and has nothing to do with the protection  afforded  to a public servant  under  Art.  311. Rule  486 of the Police Regulations also in our  opinion  is meant  for this purpose only and not meant to carry out  the object contained in Art. 311(2).  The opportunity  envisaged by Art. 311(2) will be given to the public servant after the the  authority has satisfied itself by  preliminary  inquiry that  there is a case for taking action.  Therefore, r.  486 which is only meant to gather materials for the satisfaction of  the authority concerned, whether to take action or  not, even  though  a statutory rule cannot be  considered  to  be mandatory  as  that would be forging a further  fetter  than those contained in Art. 311 on the power of the Governor  to dismiss  at pleasure.  We are therefore of opinion  that  r. 486 is only directory and failure to comply with it strictly or otherwise will not vitiate the subsequent proceedings. We  may  incidentally indicate two further  aspects  of  the matter.   In  the first place, if the argument is  that  the Governor must exercise the pleasure himself so that only the two limitations provided in Art. 311 may come into play;  it appears that the Governor has exercised his pleasure in this case  inasmuch  as he dismissed the  revisional  application made  to him by the respondent.  There appears no reason  to hold  that the Governor exercises his pleasure only when  he passes  the original order of dismissal but  not  otherwise. Secondly  the fact that r. 486 contains the word "shall"  is not  decisive  on  the  point that  it  is  mandatory:  (see Crawford on Statutory Construction, p. 519, para. 262).   In view of what we have said already, the context shows that r. 486  can  only be directory.  If so, failure to  observe  it strictly  or  otherwise will not invalidate  the  subsequent departmental proceedings. This  brings  us to the last point which has been  urged  in this  case;  and  that  is  whether  there  was  substantial compliance with r. 486.  We have already 728 pointed out that there was no strict compliance with r.  486 as  no case wag registered on the complaint of      Tika Ram and no investigation was made under Chapter XIV of the  Code of  Criminal Procedure.  But there is no doubt in this  case that  before the Superintendent of Police gave  the  charge- sheet  to  the respondent in November, 1953, which  was  the beginning  of  the  departmental  proceedings  against   the respondent, he made a preliminary inquiry into the complaint of  Tika  Ram and was satisfied that there was  a  case  for proceeding against the respondent departmentally.  In  these circumstances it appears to us that the spirit of r. 486 was substantially  complied  with  and  action  was  only  taken against  the  respondent when on a preliminary  inquiry  the Superintendent  of  Police was satisfied  that  departmental action  was  necessary.  Even if r. 486  had  been  strictly complied  with,  this is all that could have  happened.   In these  circumstances we are of opinion that r. 486 which  in our opinion is directory was substantially complied with  in spirit and therefore the subsequent departmental proceedings cannot  be held to be illegal, simply because there  was  no strict compliance with r. 486.  The High Court therefore  in our  opinion  was  wrong  in  holding  that  the  subsequent departmental inquiry was illegal and its order quashing  the order of dismissal on this ground alone cannot be sustained. We would therefore allow the appeal. BY  COURT-In  accordance with the opinion of  the  majority,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 33 of 33  

this appeal is dismissed with costs. 729