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PETITIONER: BHAGAT SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT: 21/07/1960

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. GAJENDRAGADKAR, P.B. HIDAYATULLAH, M. GUPTA, K.C. DAS SHAH, J.C.

CITATION:  1960 AIR 1210

ACT: Government Servant--Dismissal--Member of subordinate rank of police        forces--Police       officer        committing Offence--Departmental              enquiry               and dismissal--Validity--Dismissal  from service  without  fresh show  cause notice--Legality--Police Act, 1861 (V of  1861), SS.  29, 35--Government of India Act, 1935 (25 & 26 Geo.  5, Ch. 42), SS. 240(3), 243.

HEADNOTE: The  appellant, who was employed in the Punjab  Police,  was found  while  working as a Police Censor  to  have  detained certain  letters  illegally and later to have  made  use  of copies  and photographs of the them for blackmail.   He  was consequently  reverted  to  his  substantive  post  of  head constable  on January 14, 1944.  Thereafter an  enquiry  was started  against  him by the Superintendent  of  Police  and eventually  he  was dismissed from service  on  January  25, 1944.   His  representations to  higher  authorities  having failed he instituted a-suit challenging the legality of  the order  of dismissal on the grounds, inter alia, (1) that  S. 240(3)  of the Government of India Act, 1935, had  not  been complied with, and (2) that as the appellant was alleged  to have  committed  a criminal offence  the  Superintendent  of Police  could not hold a departmental enquiry in respect  of such allegations in view of SS. 29 and 35 of the Police Act, 1861. Held : (1) that S. 243 of the Government of India Act, 1935, 65 which was a special provision with regard to the subordinate ranks  of police forces in India, excluded the operation  of S.  24G(3) of the Act to the appellant, who was,  therefore, governed by the conditions of service as provided under  the Police  Regulations,  and that the substance  of  s.  240(3) which  was brought into the Police Regulations in  September 1946  long  after the appellant had been dismissed  was  not applicable to him.  Accordingly, he was not entitled to  the second  notice,  under S. 240(3), giving  him  a  reasonable opportunity of showing cause against the action proposed  to

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be taken in regard to him. North-West  Frontier Province v. Suraj Narain  Anand  [1948] F.C.R. 103 and High Commissioner for India and High  Commis- sioner for Pakistan v. I. M. Lal, [1948] F.C.R. 44, referred to. (2)  that  the provisions of the Police Act, 1861,  relating to offences committed by a police officer above the rank  of a constable do not bar a departmental enquiry in respect  of a  matter  where it is also possible to  prosecute  such  an officer under that Act.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal  No. 349 of 1957. Appeal  by special leave from the judgment and decree  dated November  29,  1954,  of the Punjab High  Court  in  Regular Second Appeal No. 891 of 1951. Hardayal Hardy and N. N. Keswani, for the appellant. N. S. Bindra and D. Gupta, for the respondent. 1960.  July 21.  The Judgment of the Court was delivered by WANCHOO  J.-This is an appeal by special leave  against  the judgment of the Punjab High Court in a service matter.   The brief  facts  necessary for present purposes  are  that  the appellant was appointed as a foot- constable in 1931 in  the Punjab  Police  and  was  dismissed  on  January  25,  1944. Shortly before, he was acting as an Assistant  Sub-Inspector and actually working as a Police Censor.  The charge against him  was  that  while he was working as  Police  Censor,  he detained certain letters illegally and had copies and photo- graphs  made  of  them  and  later  used  these  copies  and photographs for blackmail.  He was consequently reverted  to his substantive post of head constable on 9 66 January  14,  1944.   Thereafter on  January  21,  1944,  an enquiry  was  started against him by the  Superintendent  of Police  and he was eventually dismissed.  He went in  appeal to  the  Deputy  Inspector  General  of  Police,  which  was dismissed.   He  then  went in  revision  to  the  Inspector General  of  Police,  which also failed.   Finally  he  made several   representations  and  memorials  to   the   Punjab Government but without avail.  Consequently the present suit was filed by the appellant in February 1949.  The plaint  as originally filed, after narrating the facts relating to  the appellant’s  service,  merely  stated  that  the  charge  of misconduct  was brought against the appellant on account  of enmity  and  that  the  departmental  enquiry  made  by  the Superintendent of Police was arbitrary and not according  to law, rules and regulations prescribed for the same.  Besides this  vague general allegation, the only specific  grievance made  out  by  the  appellant in the  plaint  was  that  the Superintendent of Police had dismissed him without recording his  defence evidence and without giving him an  opportunity to produce the same.  The appellant amended the plaint later and  added  one  more grievance, namely, that  he  had  been appointed  by  the Deputy Inspector General  of  Police  and could  only  have  been  dismissed by him  and  not  by  the Superintendent  of Police.  As to the Departmental  enquiry, certain further defects therein were pointed out besides the allegation already made that his defence had not been  taken and that he had not been given an opportunity to produce it. Those further defects were (i) that he was not permitted  to engage   counsel,  (ii)  that  he  was  not   allowed   full opportunity  to crossexamine the prosecution witnesses,  and

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(iii) that he was not asked by the enquiry officer to  state what  he had to say in answer to the charge against him  and was not permitted to file a written-statement explaining the alleged incriminating circumstances against him. The suit was opposed on behalf of the Punjab Government  and among others their main defence was that the enquiry was  in accordance with the 67 Regulations and was not arbitrary.  It was also denied  that no  opportunity  had  been given to the  appellant  to  lead defence  evidence or to cross-examine prosecution  witnesses or  to make his own statement in answer to the  charge.   It was  admitted  that  permission  was  refused  to  engage  a counsel; but it was finally averred that taking the  enquiry as  a  whole there was no such defect in its conduct  as  to invalidate it or call for interference by the courts. Three  issues, all of a general nature, were framed  by  the trial court, namely-- 1.   Whether  the  plaintiff’s dismissal is  void,  illegal, inoperative and wrongful and what is its effect ? 2.   Whether the Civil Courts have jurisdiction to entertain the  suit or to go into the question of the validity of  the departmental enquiry ? 3.   Whether  the  suit  for  a  declaration  lies  and   is competent and why ? It  is  unfortunate that the specific points raised  by  the appellant  whatever  they were were not  made  the  subject- matter of specific issues.  However, the trial court came to the  conclusion that the case of the appellant was  governed by  s. 240(3) of the Government India Act, 1935; and it  was reinforced  in  this conclusion by  the  Police  Regulations which, according to it, provided for the same safeguards  as were contained in s. 240(3). It  therefore held that as s. 240(3) had not  been  complied with,  the dismissal was void and illegal.. As to the  other two issues relating to the jurisdiction of civil courts they were decided in favour of the appellant. There  was  an appeal to the District Judge  by  the  Punjab Government.  The District Judge agreed with the  conclusions of the trial court on the applicability of s. 240(3) to  the case  of the appellant and further referred to an  amendment in  the  Police Regulations which required  that  before  an order of dismissal or reduction in rank is made, the officer to  be  punished  shall  be  produced  before  the   officer empowered to punish him and shall be informed of the charges 68 proved  against  him and called upon to show  cause  why  an order  of  dismissal  or reduction in  rank  should  not  be passed.    The  District  Judge  was  conscious  that   this amendment in the Regulations was made in September 1946 long after the dismissal of the appellant and therefore would not apply  to  the  appellant’s  case;  but  he  overruled  this contention   on  the  ground  that  the  rule   was   merely declaratory  of the law and only removed the ambiguity  that might  have  arisen because of s. 243 of the  Government  of India Act.  He therefore dismissed the appeal. Then  followed a second appeal by the Punjab  Government  to the High Court.  The High Court held that s. 240(3) did  Dot apply  to the case of the appellant and that s. 243 was  the governing  section.  In consequence the High  Court  further held  that the appellant was not entitled to the  protection of s. 240(3) and as the amendment to the Police  Regulations which brought in the substance of s. 240(3) therein was made after  the  dismissal of the appellant, he  could  not  take advantage  of  it.  As to the enquiry, the High  Court  held

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that  though there might have been minor procedural  defects in  the  enquiry  it  was  on  the  whole  substantially  in accordance  with the Regulations and principles  of  natural justice and could not therefore be held to be invalid.   The High Court pointed out that there was no serious  contraven- tion  of the Regulations and the witnesses who had  appeared were  cross-examined  by the appellant who was  also  called upon to produce his defence within 48 hours.  He however did not  choose  to do so and wanted a  postponement  which  was refused   and  thereafter  the  Superintendent   of   Police proceeded to dismiss him. Learned  counsel  for  the  appellant  challenges  the  cor- erectness  of  the view taken by the High  Court  and  three points have been urged on his behalf before us, namely,  (1) s.  240(3) of the Government of India Act applied to  police officers of subordinate rank and there was nothing in s. 243 which  took  away from such officers the  protection  of  s. 240(3)  ; (2) Even if the Police Regulations alone  applied, there  was such violation of the relevant regulations as  to vitiate the enquiry 69 proceedings; and (3) The Superintendent of Police could  not hold  a departmental enquiry as a criminal offence had  been committed, and reliance in this connection was placed on ss. 29 and 35 of the Police Act, No. V of 1861. Re. (1). Section  243  of  the Government of  India  Act  appears  in Chapter  11 of Part X dealing with ’Civil  Services’.   That Chapter begins with s. 240 and sub-s.   (3) thereof provides that no member of a civil service or    holding  any   civil post in India shall be dismissed 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.  Section 243 however is in these terms:- "  Notwithstanding anything in the foregoing  provisions  of this  chapter, the conditions of service of the  subordinate ranks of the various police forces in India shall be such as may  be  determined by or under the Act  relating  to  those forces respectively." Obviously  s.  243 was a special provision  with  regard  to subordinate ranks of police forces in India and it is not in dispute  that  the  appellant belonged  to  the  subordinate ranks.   Therefore  according to s. 243, the  conditions  of service  of the subordinate ranks are governed by  or  under the Acts relating to police forces and s. 240(3) can have no application  to  them.  The non obstante clause  of  s.  243 makes  it  clear  that so far as the  subordinate  ranks  of police forces in India are concerned, a. 243 will apply  and not  the  earlier provisions including s.  240(3).   We  are therefore of opinion that in view of the special  provisions in s. 243 relating to the subordinate ranks of police forces in  India (to which the appellant undoubtedly belonged),  s. 240(3) would have no application.  We may in this connection refer  to the judgment of the Privy Council in  North-  West Frontier  Province v. Suraj Narain Anand (1), where  it  was held  that  the non obstante clause in s. 243  excluded  the operation  of s. 240(2) in the case of subordinate ranks  of police  forces  in  India and  that  conditions  of  service included the right of dismissal. (1)  [1948] F.C.R. 103. 70 That case dealt with s. 240(2) but the same reasoning  would in  our  opinion apply to s. 240(3).  As  has  already  been pointed out by the learned District Judge, the substance  of s.  240(3)  was  brought  into  the  Police  Regulations  in

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September  1946 long after the appellant had been  dismissed and would therefore not apply to   the appellant.  He  would therefore not be entitled to  the  second  notice  under  s. 240(3) as explained in I.     M.  Lall’s case by  the  Privy Council:   (See   High  Commissioner  for   India   &   High Commissioner for Pakistan v. I. M. Lall (1)).  Nor was  such notice  necessary  under  the  Police  Regulations  as  they existed at the time of the appellant’s dismissal.  The  view taken by the High Court under the circumstances is correct. Re.  (2). So far as violation of the material provisions of r.   16.24 of  the Police Regulations is concerned, we find  that  only three specific allegations material for the purpose were set out by the appellant, namely, (i) that he was not given  the chance  to defend himself, (ii) that he was not  allowed  to cross-examine  the prosecution Witnesses, and (iii) that  he was  not  allowed  to explain  the  circumstances  appearing against him and was not allowed to file a written statement. It is enough in this connection to say that he was certainly given a chance to produce defence but did not himself  avail of  it. It also appears as found by the High Court that  the witnesses were cross-examined by the appellant at length and on  the  whole  there is nothing to show  that  he  was  not allowed to explain the circumstances appearing against  him. We therefore agree with the High Court that there is no such serious  contravention  of the Regulations as  to  call  for interference by the Courts. Re. (3). Reliance  in this connection is placed on ss. 29 and  35  of the  Police  Act.   Section 29 provides  for  penalties  for neglect  of duty etc. by police officers and lays  down  the extent of punishment on conviction by a magistrate.  Section 35 defines what magistrate can try a (1)  [1948] F.C.R. 44. 71 charge  against  a police officer above the rank of  a  con- stable under the Police Act and such a magistrate has to  be a  First Class Magistrate.  These sections  nowhere  exclude departmental enquiry.  All that they lay down is that  where an offence punishable under the Police Act is committed by a police  officer above the rank of a constable and is  to  be tried  by a court of law it has to go before a  First  Class Magistrate.    That,   however,  does  not  mean   that   no departmental  enquiry can be held with respect to  a  matter where  it  is also possible to prosecute  a  police  officer under the Police Act.  There is no force in this  contention also and it is hereby rejected. The  appeal therefore fails and is hereby dismissed, but  in the circumstances of this case we pass no order as to costs.                                     Appeal dismissed.