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PETITIONER: INSPECTOR GENERAL OF POLICE AND ANR.

       Vs.

RESPONDENT: THAVASIAPPAN

DATE OF JUDGMENT:       25/01/1996

BENCH: NANAVATI G.T. (J) BENCH: NANAVATI G.T. (J) AGRAWAL, S.C. (J)

CITATION:  1996 AIR 1318            1996 SCC  (2) 145  JT 1996 (6)   450        1996 SCALE  (1)522

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI. J.      Leave granted.        A  departmental proceeding  was initiated against the respondent, a Sub-Inspector of Police, on an allegation that in January  1988, while  he was  working as  PSI at Anthiyur Police Station, he not only did not register a criminal case against one  Smt. Jayalakshmi for the offences found to have been committed by her but let her off and delivered back the seized articles  after accepting  a bribe of Rs.2,000/- from her. A  Deputy Superintendent  of Police was appointed as an enquiry officer.  He framed  the charges and served the same on the respondent. He then held an enquiry and submitted his report to  the Deputy  Inspector General  of Police  who was competent to  award the  proposed penalty. The Dy. Inspector General of  Police agreed  with the findings recorded by the enquiry  officer  and  imposed  the  penalty  of  compulsory retirement by  an order  dated 26.3.91. The respondent filed an appeal  against that  order to  the Inspector  General of Police who dismissed it by an order dated 16.7.91.       The respondent then filed O.A. No. 4236 of 1991 before the Tamil  Nadu Administrative  Tribunal. It  was  contented before the  Tribunal that  only the  authority competent  to award the  proposed penalty could have framed and served the charge memo  and as  that was  done in this case by a Deputy Superintendent of  Police, only that penalty could have been lawfully imposed  upon the  respondent which  was within the powers of the Deputy Superintendent of Police. As the Deputy Superintendent of  Police was  not competent  to  award  the penalty of  compulsory retirement imposition of that penalty even  by  Deputy  Inspector  General  of  Police  should  be regarded as illegal. It was also contended that there was no evidence to  prove the  charge  against  the  respondent.  A contention was also raised that the respondent was not given a reasonable opportunity to defend himself. The Tribunal did

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not go  into the  other contentions raised by the respondent and allowed  his application as it was of the view that "the charge  memo  under  Rule  3(b)  should  be  issued  by  the disciplinary  authority  empowered  to  impose  the  penalty specified therein  and if  any lower authority has initiated proceedings by issuing the charge memo then the penalty will be limited  to those  that such lower authority can award to the delinquent  concerned". As  the Deputy  Superintended of Police could  not have  imposed the  penalty  of  compulsory retirement, the  Tribunal set aside the order of penalty and directed the  petitioners herein to reinstate the respondent and remitted  the case  back to the Deputy Inspector General of Police  to pass  an appropriate  order. Aggrieved by that order the  petitioners who  were respondents  in  O.A.  have filed this appeal.        The order of the Tribunal is challenged on the ground that it  is based  on an  erroneous interpretation  of  Rule 3(b). It  was submitted that Rule 3(b) does not specifically or even  by necessary  implication so  provide and  no  such requirement can justifiably be read into it.        Rule 2 of the said Rules specifies the penalties that can be  imposed upon  members  of  the  service.  Compulsory retirement is  specified is  a penalty in clause (h) of that Rule 2.  A Provides that the Governor or any other authority empowered by  him by  general or special order can institute disciplinary proceeding  against any  member of the service. Rule 4  specifies  the  authorities  which  can  impose  the penalties  prescribed   in  Rule  2.  Rule  3  provides  the procedure that  has to  be followed before an order imposing penalty is  passed. If  any of the minor penalties mentioned in clauses  (a), (b), (c), (e) and (f) of Rule 2 is proposed to be imposed then comparatively simple procedure prescribed in Rule  3 (a)  has to  be  followed.  If,  however,  it  is proposed to  impose any  major penalty  specified in clauses (d), (h), (i) and (j) of Rule 2 then the elaborate procedure mentioned in  clause (b)  of that  Rule is  required  to  be followed. Rules  3 (a)  and 3  (b)(i) and  3 (b)(ii) read as under :           "Rule 3(a) - In every case where it      is proposed  to impose  on a member of a      service any  of the  penalties mentioned      in clauses (a), (b), (c), (e) and (f) of      Rule 2  he shall  be given  a reasonable      opportunity of making any representation      that he  may desire  to  make  and  such      representation, if  any shall  be  taken      into  consideration   before  the  order      imposing the penalty is passed:"           "Rule 3(b)(i)-  In every case where      it is  proposed to impose on a member of      a service any of the penalties specified      in   clauses (d),  (h), (i)  and (j)  of      Rule  2  the  grounds  on  which  it  is      proposed to take action shall be reduced      to the  form of  a  definite  charge  or      charges, which  shall be communicated to      the  person   charged  together  with  a      statement of  the allegations  on  which      each charges  is framed and of any other      circumstances which  it is  proposed  to      take  into   consideration  in   passing      orders  on   the  case.   He  shall   be      required, within  a reasonable  time, to      put  in   a  written  statement  of  his      defence and  to state whether he desires

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    an oral  inquiry or  only to be heard in      person. An oral inquiry shall be held if      such an inquiry is desired by the person      charged or  is directed by the authority      concerned. At that inquiry oral evidence      shall   be   heard   as   to   such   of      theallegations as  are not admitted, the      person  charged  shall  be  entitled  to      cross-examine  the   witnesses  to  give      evidence in  person  and  to  have  such      witnesses called as he may wish, rovided      that the  officer conducting the inquiry      may, for  special and  sufficient reason      to be recorded in writing refuse to call      a witness.  After the  inquiry has  been      completed, the  person charged  shall be      entitled to  put in,  if he  so desires,      any further  written  statement  of  his      defence.           Whether or  not the  person charged      desired or had an oral enquiry, he shall      be heard in person at any stage if he so      desires before  final orders are passed.      A report  of  the  inquiry  or  personal      hearing (as  the case  may be)  shall be      prepared by  the authority  holding  the      inquiry or  personal hearing  whether or      not  such   authority  is  competent  to      impose the  penalty. Such  report  shall      contain a sufficient record of evidence,      if any,  and a statement of the findings      and the grounds thereof.            (ii) After the inquiry or personal      hearing referred  to in  clause (i)  has      been completed,  and  if  the  authority      competent   to    impose   the   penalty      mentioned  in   that   clause,isof   the      opinion, on  the basis  of the  evidence      adduced duringthe  inquiry that  any  of      the penalties   specified therein should      be imposed on the Government servant, it      shall  make   an  order,  imposing  such      penalty and it shall not be necessary to      give the person charged, any opportunity      of making  representation on the penalty      proposed to be imposed."       We have not set out the provisos to Rule 3(a) and Rule 3(b)(ii) as  they are  not material  for the purpose of this appeal.      Before we consider the requirement of Rule 3(b) we will refer to  the three  decisions cited  by the learned counsel for the  appellant. He  first invited  our attention  to the decision of this Court in state of Madhya Pradesh Vs.Shardul Singh 1970  (1) SCC 108. In that case a departmental enquiry was  initiated   against  a   Sub  Inspector  of  Police  by Superintendent of  Police who  after holding an enquiry sent his report to the Inspector General of Police who ultimately dismissed the  Sub Inspector  of Police  from  service.  The order of  dismissal from  service was  challenged before the High Court  of Madhya Pradesh on the ground that the enquiry held by  Superintendent of Police was against the mandate of Article 311(1)  of the Constitution as he was incompetent to conduct  the  enquiry.  The  Sub  Inspector  of  Police  was appointed by the Inspector General of Police. The High Court allowed the  petition. The State preferred an appeal to this

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Court. Rejecting  the contention  that the  guarantee  given under  Article  311(1)  includes  within  itself  a  further guarantee that  he  disciplinary  proceedings  resulting  in dismissal or  removal of a civil servant should be initiated or conducted  by the  authorities mentioned in that article, this Court held as under:      "This Article  does not in terms require      that the  authority empowered under that      provision  to   dismiss  or   remove  an      official,  should   itself  initiate  or      conduct  the   enquiry   preceding   the      dismissal or  removal of  the officer or      even that  enquiry should be done at its      instance. The only right guaranteed to a      civil servant  under that  provision  is      that  he   shall  not  be  dismissed  or      removed by  an authority  subordinate to      that by which he was appointed."      This Court  further held  that  "we  are      unable to  agree   with the  High  Court      that the  guarantee given  under Article      311(1) includes  within itself a further      guarantee    that    the    disciplinary      proceedings resulting  in  dismissal  or      removal of  a civil  servant should also      be  initiated   and  conducted   by  the      authorities mentioned in that Article.        The  learned counsel  also drew our attention to P.V. Srinivasa Sastry  Vs. Comptroller  and Auditor  General 1993 (1) SCC  419, wherein  this Court  in the context of Article 311(1) has  held that  in absence  of a  rule  any  superior authority who  can be  held to  be the controlling authority can initiate  a departmental  proceeding and that initiation of a  departmental proceeding  per se  does  not  visit  the officer concerned  with  any  evil  consequences.  Transport Commissioner, Madras  Vs. A. Radha Krishana Moorthy 1995 (1) SCC 332  was next  relied upon.  Therein also this Court has held that  initiation of  disciplinary enquiry  can be by an officer   subordinate    to   the    appointing   authority. Thesedecisions fully  support the  contention to the learned counsel for the appellants that initiation of a departmental proceeding and  conducting or enquiry can be by an authority other than  the authority  competent to  impose the proposed penalty.        As  to who  shall initiate and conduct a disciplinary proceeding, the  Rules are  silent. Rule  2 A which provides that the  Governor or  any other  authority empowered by him may  institute   disciplinary  proceedings  is  an  enabling provision. From  the way  it is worded it is not possible to infer that  the rule  making authority intended to take away the power  of  otherwise  competent  authorities,  like  the appointing authority, disciplinary authority or controlling, authority and  confine it  to the  authorities mentioned  in Rule 2  A only.  Moreover, it is difficult to appreciate how this provision can be helpful in deciding whether the charge should be  framed and  the enquiry  should be  held by  that authority only  which is  competent to  impose the penalties mentioned  in   Rule  3(b)(i).   An  act  of  instituting  a disciplinary proceeding  is quite  different from conducting an enquiry.  Rule 3(b)(i)  provides how an enquiry should be held in a case where it is proposed to impose on a member of the service   any of the penalties specified in clauses (d), (h),  and   (i)  and  (j)  of  Rule  2.  It  lays  down  the differentsteps that  have to  be taken  in the course of the enquiry proceedings.  This  Rule  is  completely  silent  as

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regards the person who should perform those acts except that the report  of  the  enquiry  has  to  be  prepared  by  the authority  holding   the  enquiry.   Rule   3(b)(i)   itself contemplates  that  the  enquiry  officer  may  not  be  the authority competent  to impose  the  penalties  referred  to therein and  that becomes apparent from the second paragraph of that  sub-rule. If  it was  intended by  the  rule-making authority that  the  disciplinary  authority  should  itself frame the charge and hold the enquiry then it would not have provided that  a report  of the enquiry shall be prepared by the authority  holding  the  enquiry  whether  or  not  such authority is  competent to  impose  the  penalty.  Generally speaking, it  is not  necessary that  the charges  should be framed by  the authority  competent to  award  the  proposed penalty or  that the  enquiry should  be conducted  by  such authority. We  do not find anything in the rules which would induce us to read in Rule 3(b)(i) such a requirement. In our opinion, the  view taken  by the  Tribunal that  in  a  case falling under  Rule 3(b) the charge memo should be issued by the disciplinary authority empowered to impose the penalties referred to  therein and if the charge memo is issued by any lower authority  then only that penalty can be imposed which that lower  authority  is  competent  to  ward,  is  clearly erroneous. We,  therefore,  allow  this  appeal.  The  order passed by the Tribunal is set aside and the case is remitted back to the Tribunal to consider the other contentions which were raised  before  it  and  to  dispose  of  the  case  in accordance with law.