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PETITIONER: DELHI ADMINISTRATION

       Vs.

RESPONDENT: CHANAN SHAH

DATE OF JUDGMENT: 12/02/1969

BENCH: BACHAWAT, R.S. BENCH: BACHAWAT, R.S. SIKRI, S.M. HEGDE, K.S.

CITATION:  1969 AIR 1108            1969 SCR  (3) 653  1969 SCC  (1) 737  CITATOR INFO :  D          1970 SC 122  (12)  R          1971 SC1402  (4)  R          1971 SC1403  (13)  D          1988 SC 805  (10)  D          1989 SC 811  (10)

ACT: Punjab  Police  Rules, 1934, r. 16.38-sanction  of  District Magistrate for departmental inquiry under said  rule-Inquiry vitiated when requirements of rule not followed.

HEADNOTE: The  respondent  was recruited as a constable  in  undivided Punjab  in  1934  and  in  1946  became  an  Assistant  Sub- Inspector.  In 1950 he was posted at Delhi.  In 1955 he  was confirmed in the above rank by the Senior Superintendent  of Police, Delhi.  In 1957 there was an accusation against  him of  having received illegal gratification in a case  he  was investigating,   whereupon  after  a  summary  inquiry   the Superintendent  of  Police (City) Delhi passed an  order  of censure  against  him.  On a review of this order  under  r. 16.28 of the Punjab Police Rules, 1934 the Deputy  Inspector General  of Police passed an order cancelling the  order  of censure  and further ordered that the respondent  should  be dealt  with departmentally. The conduct of the  departmental inquiry  was  entrusted  to  the  Superintendent  of  Police Central  District, New Delhi who asked the  District  Magis- trate  for  the  necessary sanction under r.  16.38  of  the Punjab  Police  Rules 1934.  On receiving the  sanction  the Inquiry  Officer proceeded with the inquiry and  found  that the  allegations against the respondent  were  substantially true.  After a show cause notice he passed an order in  1958 dismissing  the respondent from service.  An appeal  against the order of dismissal was rejected by the Deputy  Inspector General  and  the subsequent revision was dismissed  by  the Inspector-General.  The respondent there upon filed  a  writ petition in the Punjab High Court for quashing the dismissal order.   The petition was dismissed by the Single Judge  but the  Division Bench held that the dismissal order could  not be  sustained in view of the fact that the inquiry was  made

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in  contravention  of Ch.  XVI r. 38 of  the  Punjab  Police Rules.  The Delhi Administration appealed to this Court.      HELD  : The provisions of sub-rr. (1) and (2) of r.  38 are  attracted  in  cases  of  complaint  received  by   the Superintendent  of  Police, indicating the commission  by  a police officer of a criminal offence in connection with  his official  relations  with the public.  In such  a  case  the superintendent of police is required to bring the  complaint to  the notice of the District Magistrate who is  to  decide whether the investigation of the complaint should be made by a selected Magistrate having first class powers or should be left to a police officer.  If the, investigation discloses a prima  facie  case a judicial  prosecution  should  normally follow  unless  for reasons to be recorded  in  writing  the District  Magistrate  directs  that  the  matter  should  be disposed of departmentally. [657 D-E] In   the  present  case  the  complaint  received   by   the Superintendent   of   Police  City)  Delhi   indicated   the commission  by  the  appellant  of  a  criminal  offence  in connection with his official relations was the public.   The complaint  fell within r. 38(1) and should have  been  dealt with accordingly. Nevertheless there was no investigation of the  kind prescribed by r. 38(1).  The  District  Magistrate did  not  direct any preliminary investigation nor  was  any prima facie case against the respondent as a result of  such an investigation, established.  The District Magistrate  was not in L10Sup/69-7 654 formed that the Superintendent of Police held an inquiry and passed an order of censure and that his order was set  aside by  the Deputy Inspector-General.  The inquiry held  by  the Superintendent of Police was not authorised by the  District Magistrate  nor did it receive his approval.   The  District Magistrate  gave his sanction without recording any  reasons and  without  applying  his mind to the  requirement  of  r. 16.38.  In the circumstances the departmental  action  taken against the respondent was invalid. [657 F; 658 C-D] State of Uttar Pradesh v. Babu Ram Upadhya, [1961] 2  S.C.R. 679,  711, 727-728 and Jagan Nath v. Sr.  Supdt. of  Police, Ferozepur, A.I.R. 1962 Punjab 38, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 277 of 1966. Appeal  by special leave from the judgment and  order  dated January 23, 1963 of the Punjab High Court, Circuit Bench  at Delhi in Letters Patent Appeal No. 68-D of 1961. V.   A. Seyid Muhammad, R. N. Sachthey and B. D. Sharma, for the appellants. Frank Anthony and Harbans Singh,for the respondent. The Judgment of the Court was delivered by Bachawat, J. The respondent was recruited as a constable  in the police service in the undivided Punjab on April 3, 1934. By April 1946 he was promoted to the rank of Assistant  Sub- Inspector.  In 1950, he was posted at Delhi.  On August  26, 1955   he  was  confirmed  in  this  rank  by   the   Senior Superintendent of Police, Delhi. In the beginning of 1957 an accusation was made against  him that  while investigating a case registered by  him  against one  Mohammad Jamil under First Information Report No.  1322 dated  November 25, 1956 he had taken one Rame Shah  to  the Lahori  Gate police post without formally arresting him  and received  from him by way of illegal gratification  Rs.  100

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which  was paid on his behalf by one Roshan Lal.  On  coming to   know   of  this  complaint  Sri   A.   C.   Chaturvedi, Superintendent of Police (City), Delhi, made some kind of  a summary  inquiry  into the matter and on February  28,  1957 passed the following order               "Reference  complaint  received  from   S.P.’s               Office  Vide  No. 1212/GB, dated the  12th  of               January 1957.               Integrity  of S.I. Chanan Shah No.  112/D  was               found  to be doubtful in connection with  case               F.I.R.  1322  dated 25-11-1956  under  section               20/11/78  of  P.S. Kotwali against  one  Mohd.               Jamil  a  Pakistani National.   He  is  hereby               censured."               On a review of this order under rule 16.28  of               the  Punjab  Police  Rules, 1934,  Sri  N.  S.               Saxena, the               655                     Deputy   Inspector  General  of   Police               passed the following order on June 12, 1957 :-               "I have gone through the inquiries made by the               city police as well as by the Crime Branch and               feel that the S.I. should have been dealt with               departmentally for his misconduct and by which               course the S.I. could     have  a  chance   to               prove  his innocence. I therefore order  under               P.R.   16-28  that  the  censure  awarded   to               officiating  Chanan Shah be cancelled  and  he               should  be  dealt  with  departmentally.   The               departmental  file will be prepared by Sri  B.               L.  Gulati, I.P.S., Superintendent  of  Police               (Traffic). The relevant papers may be sent  to               him."  The  conduct of the departmental inquiry  was               entrusted to Sri D. C. Sharma,  Superintendent               of Police, Central District, Delhi. On  August               20,  1957 Sri Sharma wrote the following  D.O.               letter No. 2165-e to Sri C. B. Dube,  District               Magistrate, Delhi :-                     "1.  On 25-11-56, S.I. Chanan  Shah  No.               112/D  while  posted as I/c  PP.  Lahori  Gate               recovered  a revolver with 6 rounds  from  the               possession of one Mohd. Jamil alias Mohan  Lal               of  Lahore  while the latter  was  staying  at               Regal Hotel. A case FIR No. 1322, dated 25-11-               56  u/s.  20-11-78 Arms  Act  was  accordingly               registered at P.S. Kotwali. The  investigation               of this    case was carried out by S.I. Chanan               Shah.  2.  During the course of  investigation,  the               S.I.raided,  the house of one Rame Shah  owner               of  shop No. 1387 Lajpat Rai Market.  Although               nothing  incriminating was found, yet he  took               Rame Shah to the P.P. where it is alleged,  he               (Rame  Shah)  was threatened with  arrest  and               later on let off at midnight after he had paid               a  sum of Rs. 100/- through one Roshan Lal  by               way of illegal gratification.               3.  In the course of inquiry it is  felt  that               there  is no sufficient evidence to  prosecute               the   S.I.  in  a  court  of  law  under   the               Prevention of corruption Act, though he can be               successfully dealt with departmentally.               4.    In view of the above it is proposed that               he may be dealt with departmentally instead of

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             filing   judicial  proceedings  against   him.               Necessary approval under P.P. Rule 16.38.  may               kindly be accorded."               A  copy  of the letter was  produced  in  this               Court.   On  August 21, 1957 Sri C.  B.  Dube,               District Magistrate, Delhi, sent the following               letter to Sri D. C. Sharma:-               656               "Please refer to your D.O. letter No.’ 2165-C,               dated the 20th August, 1967.               Sanction  is hereby accorded to the taking  of               departmental  action against S.I. Chanan  Shah               as required under Punjab Police Rule 16.38." On  November  15, 1957 Sri Sharma drew up  a  formal  charge sheet,  On the basis of the charge-sheet he held an  inquiry and found_ that the allegations against the. respondent were substantially  true.  On March.18, 1958 Sri Sharma served  a notice of the respondent to show cause why he should not  be dismissed.    After  considering  reply  and   hearing   him personally  Sri  Sharma passed an order on  April  12,  1958 dismissing him from service.  An appeal filed,by him against the  order was rejected by the Deputy Inspector  General  on February 14, 1959, and a revision petition filed by him  was rejected by the Inspector General on June 5, 1959. On  August 18, 1959 the respondent filed a writ petition  in the Punjab High Court for quashing the dismissal order.  One of  the  grounds  taken by him  was  that  the  departmental inquiry  was made in contravention of Chapter 16 rule 38  of the  Punjab  Police Rules, 1934.  Gosain, J.  dismissed  the petition.   The  respondent filed a  Letters  Patent  appeal against  this order.  A Divisional Bench of  the  High-Court allowed  the appeal and set aside the order  dismissing  the respondent from service.  The Divisional Bench held that the dismissal  order could not be sustained in view of the  fact that  the inquiry was made in contravention of  Chapter  XVI rule  38.   The present appeal has been filed by  the  Delhi Administration after obtaining special leave. Chapter  XVI of the Punjab Police Rules deals  with  punish- ments.  Rule 1 prescribes the punishments and provides  that "no   police  officer  shall  be   departmentally   punished otherwise than as provided in these rules." Rule 23 provides for  prompt record of, complaints against a  police  officer made by a member of the general public and the  transmission of  the  record  to the Superintendent of  Police  or  other gazetted  officer under whose immediate control the  officer who has recorded the complaint is serving.  If such  officer is of opinion that the allegations in the record  constitute a prima facie case for inquiry, a departmental inquiry as in rule 24 must be held.  Rule 38 specially deals with  certain types of complaint against a police officer.  Sub-Rules  (1) and (2)   of Rule 38 are as follows :-               " (1) Immediate information shall be given  to               the  District  Magistrate,  of  any  complaint               received  by  the  Superintendent  of  Police,               which  indicates  the commission by  a  police               officer of a criminal offence in connec-                             657               tion  with  his official, relations  with  the               public.  The District Magistrate, will  decide               whether  the  investigation of  the  complaint               shall  be  conducted by a police  officer,  or               made over to a selected magistrate having  1st               class powers.               (2)   When  investigation of such a  complaint               establishes  a  prima facie case,  a  judicial

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             prosecution shall normally follow; the  matter               shall  be disposed of departmentally  only  if               the District Magistrate so orders for  reasons               to be recorded.  When it is decided to proceed               departmentally  the  procedure  prescribed  in               rule  16.24  shall be  followed.   An  officer               found  guilty  on  a  charge  of  the   nature               referred  to in this rule shall ordinarily  be               dismissed." The  provisions  of  sub-rules  (1) and (2)  of  r.  38  are attracted   in   cases   of  complaint   received   by   the Superintendent  of  Police, indicating the commission  by  a police officer of a criminal offence in connection with  his official  relations  with the public.  In such a  case,  the Superintendent of Police is required to bring the  complaint to  the notice of the District Magistrate who is  to  decide whether  the investigation of the complaint, should be  made by a selected magistrate having first class powers or should be left to a police officer.  If the investigation discloses a  prima facie case, a judicial prosecution should  normally follow  unless  for reasons to be recorded  in  writing  the District  Magistrate  directs  that  the  matter  should  be disposed of departmentally. In the present case, the complaint received by the  Superin- tendent  of Police (City) Delhi indicated the commission  by the respondent of a criminal offence in connection with  his official  relations  with the public.   The  complaint  fell within r. 38(1) and should have been dealt with accordingly. Nevertheless   there  was  no  investigation  of  the   kind prescribed  by rule 38(1).  The District Magistrate did  not direct any preliminary investigation nor was any prima facie case  against  the  respondent  as  a  result  of  such   an investigation established. In  State of Uttar Pradesh v. Babu Ram Upadhya(1) the  Court by majority held that the provisions of paragraph 486 rule 1 of  the  U.P. Police Regulations were mandatory and  that  a departmental   action   against   the  police   officer   in disregard  thereof was invalid. The minority held  that  the paragraph was directory and as there    was      substantial compliance with its provisions the departmental   proceedings were not invalid.  In Jagan Nath v. Sr.  Supdt. of     Police, Ferozepur(2) the Punjab High Court held that the  provisions of rule 16.38 (1) and (2) were mandatory (1) [1961] 2 S.C.R, 679, 711, 727-728. (2) A.I.R. 1962 Punjab 38. 658 and  that a departmental inquiry held without following  its provisions was illegal. It  is  not  necessary to decide in this  case  whether  the provisions  of  Rule 16.38 of the Punjab  Police  Rules  are mandatory  or  directory.  Even assuming that  the  rule  is directory  we  find  that  there  has  been  no  substantial compliance  with its provisions.  The complaint fell  within rule 16.38, and it was for the District Magistrate to decide who  should investigate the case.  No investigation  of  any kind  was made under his directions.  Without obtaining  his directions, the Superintendent of Police held an inquiry and passed an order of censure.  The order was set aside by  the Deputy  Inspector-General.   Thereafter by D.O.  letter  No. 2165-C, the Superintendent of Police, asked for the sanction of the District Magistrate to proceed departmentally.   Even at this stage, the District Magistrate-was not informed that the  Superintendent of Police held an inquiry and passed  an order  of  censure and that his order was set aside  by  the Deputy   Inspector-General.    The  inquiry  held   by   the

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Superintendent of Police was not authorised by the  District Magistrate  nor did it receive his approval.   The  District Magistrate  gave his sanction without recording any  reasons and  without  applying  his mind to the  requirement  of  r. 16.38. In the circumstances, we are constrained to hold that the  departmental  action taken against  the  respondent  is invalid. In the result, the appeal is dismissed with costs. G.C.            Appeal dismissed. 659