http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 5  

PETITIONER: THE STATE OF BIHAR & ORS

       Vs.

RESPONDENT: SHEO NARAYAN SINGH

DATE OF JUDGMENT:       27/01/1997

BENCH: J.S. VERMA, SUHAS C. SEN, S.P. KURDUKAR

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T SEN, J.      When the  case was  taken up  for hearing,  Shri  Gopal Singh, Advocate  who was  appearing for  the respondent Sheo Narayan Singh  all throughout  submitted that his client had taken away  the papers  from him and he had instructions not to represent   him  in this appeal. He stated that he has no represent him  in this  appeal. he  stated that  he  has  no instruction to  appear in  this matter. Since the respondent had already  been served  and since  he had  taken away  the papers from  his advocate  and had  instructed  him  not  to appear for  him, if  was his  duty  to  arrange  for  proper representation of  his case.  Since nobody  has appeared for the respondent,  we have  decided to proceed with the matter ex parte.      This is an appeal against the judgment and order passed by  the   Division  bench   of  the   Patna  High  Court  on 8/15.12.1993 by  which an  order  of  Inspector  General  of Police Dated 10.9.1993 was quashed.      The facts of the case are as under :      Sheo Narayan  Singh was appointed as Constable in Bihar Military Police  in the  year 1984.  The allegation  against sheo  Narayan  Singh  was  that  in  order  to  procure  the appointment, he  had manipulated  records  of  his  military service. He  had suppressed  the fact that while serving the Army, he was sentenced to dour months’ Civil Imprisonment by a Court  Martial, and  thereafter,  he  was  dismissed  from military service.  he had  forged the  service  records  for getting job as Constable in Bihar Military Police. Coming to know of  the true  facts  about  his  career  in  the  Army, disciplinary  proceedings   were  commenced   against   him. Ultimately sheo  Narayan Singh  was dismissed  from  service after having been found guilty of the charges.      On 7th  February, 1991, Sheo Narayan Singh preferred an appeal before  the Deputy  Inspector General, Bihar Military Police who  allowed the  appeal and  set aside  the order of dismissal. On 3rd June, 1992, the Director General of Police set aside  the order  passed by the Deputy Inspector General and restored  the order  of dismissal  in  exercise  of  his powers under  Rule   853-A (a)  of the  Bihar Police Manual.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 5  

This order  of the Director General of Police was challenged by Sheo  Narayan Singh by filing a writ petition in the High Court.      The High  Court found  that prior to the passing of the order by  the Director  General, the petitioner was not give any notice  to show  cause  nor  was,  otherwise,  give  any opportunity of  being heard.  The High Court was of the view that the  impugned order  was passed by the Director General of Police  without compliance with the principles of natural justice. The  writ petition  was, therefore, allowed and the impugned order was quashed. The Court, however, directed the Director General  to pass  a fresh  order  after  giving  an opportunity of being heard to Sheo Narayan Singh.      Thereupon, the  Director General  of Police  as well as the Acting  Inspector General  asked the  appellant  for  an explanation s  to why  he should not be removed from service by memo  dated 3.5.1993.  An explanation  was given  by Sheo narayan Singh in which he raised mainly two issues:      (1)  The    Additional     Director           General had  no right  to  ask           for any explanation.      (2)  After the  charge against  him           had been  quashed by  the High           Court, there  was no scope for           initiating        disciplinary           proceedings de novo.      Both the  contentions were  rejected  by  the  Director General.  It  was  pointed  out  that  the  explanation  was properly called  for. It  was further  pointed out  that the High  Court  had  not  quashed  the  charge-sheet,  but  had directed the  Director General  to pass  fresh  order  after giving on opportunity of hearing to the writ petitioner. The Director General,  therefore, passed an order dismissing the appellant from services once again.      In the  order, it  was specifically  noted that  at the time  of  his  appointment  the  appellant  had  produced  a discharge book  from the  army in which it was shown that he had been  discharged from  service at his own request on the ground of  domestic problem.  On verification  from the army authorities, it  transpired that  the ’Sepoy  (Sheo  Narayan Singh) had  been sentenced  by the  court Martial to undergo imprisonment in a civil jail for a period of four months and he  was   dismissed  from   service.  These   facts  clearly established decientfulness  and forgery  on the  part of the Sepoy on the strength of which the appointment was made.      After the  second order  passed by the Director General of Police,  a further  writ petition  was filed in the Patna High Court which was herd by another Division Bench in which the only contention was that in Rule 853 of the Bihar Police Manual, there was no provision by which the department could prefer a  memorial or revision against the order exonerating a police  officer.  The  memorials/revision  could  only  be preferred by  the party  against whom an order of punishment had been  passed. This argument was upheld by the High Court which held  that Rule  853 was  meant to provide a forum for officers against whom an order of punishment had been passed in a  disciplinary proceeding.  The court  also adverted  to Rule 853-A  of the  Police Manual and held that the suo motu powers of the Inspector General and the State Government did not envisage  a case where an officer had been exonerated in a departmental  proceeding. In  that view of the matter, the order dated  10.9.1993 passed  by the  Director  General  of Police was set aside.      The State  of Bihar  has come  in appeal  against  this order of the Patna High Court.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 5  

    We are  of the  view that the high Court clearly failed to appreciate the scope and effect of Rules 853 and 853-A of the Bihar Police Manual which are as under:      "853. Memorials  and revision. - No      memorial or  petition, which  is  a      representation  against   an  order      passed in a disciplinary case shall      be submitted to any authority other      than the authority which  under the      rule for  the time  being  in force      is  empowered   to  entertain   the      appeal:           Provided that  an  officer  of      the rank not below the rank of Sub-      Inspector may,  if a final order of      dismissal, removal, or reduction in      rank  has  been  passed  in  appeal      against him in a disciplinary case,      submit to  Government  through  the      proper channel  a memorial  against      such order, within six months after      the  date   of  which  the  officer      submitting   the    memorial    was      informed of the order on appeal:           Provided     further      that      memorials of and below the  rank of      Assistant Sub-Inspectors  shall  be      entertained  by  Inspector  General      only in cases of dismissal, removal      or reduction  in rank  if they  are      submitted within  a period  of  six      months after  the date on which the      memorialist  was  informed  of  the      order passed in the appeal:           Provided  further   that   the      Inspector-General   shall    submit      quarterly to Government a statement      of memorials  from Police  Officers      below  the  rank  of  Sub-Inspector      which have  been  withheld  by  him      under  the   provisions  of   these      rules.      853-A.  (a)  Inspector-General  may      call for  the file in any case even      when no  appeal lies  and pass such      order  as  he  may  deem  fit.  The      Deputy Inspector-General  may  call      for any file but he should refer it      to the  Inspector General  with his      recommendation for   his order. The      above action should be taken within      a reasonable  time form the date of      final   order    in    departmental      proceeding.      (b)    Notwithstanding     anything      contained in  these rules the State      Government   any   call   for   the      proceedings in any diciplinary case      even when  no  appeal  or  memorial      lies, and pass such order as it may      deem fit.      (c)  When an  appeal has been filed      and   the    Inspector-General   on      applying his  mind thinks  that  he      should enhance  the punishment,  he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 5  

    can dismiss  the  appeal  but  must      simultaneously  mention   in   that      order that  as per powers given  in      the rule  853-A (a), he has decided      to review  it for  enhancement  and      take action  for obtaining  a  show      cause, etc., where necessary."      Rule  853  deals  with  "memorials  and  revision".  It declares that  no memorial  or  petition  against  an  order passed in  a disciplinary  proceeding shall  be submitted to any  authority other than the authority which under the rule in force  was empowered to entertain the appeal. The proviso enables an  office of the rank of sub-Inspector or of higher rank to submit to the Government a memorial against an order of "dismissal,  removal or  reduction in  rank". The  second proviso enables  officers below  the rank  of Assistant Sub- Inspector to  prefer memorial to the Inspector General "only in cases of dismissal, removal and reduction in rank" within the period of time prescribed in the proviso.      Rule 853-A, however, is not restricted in any manner by the provisions  of Rule 853. This rule enables the Inspector General to call for the file in any case even when no appeal lay and  pass such  order as  he may  deem fit.  The  Deputy Inspector General is also empowered to call for any file but he is  not empowered to pass an order. All that he can do is to  refer   the  file   to  the   Inspector   General   with recommendations for  his orders.  Sub-rule (b) of Rule 853-A also  empowers  the  State  Government  to  call  for    the proceedings in  any disciplinary  proceedings even  when  no appeal lay or no memorial could be filed and pass such order as it  deems fit.  Sub-clause (c) of Rule 853-A deals with a case where appeal has been filed and Inspector General is of the view that the punishment should be enhanced. he can then dismiss the  appeal, but  he must  simultaneously mention in that order  that as  per his  powers given in Rule 853-A, he had decided  to review  it for  enhancement and  take action after issuing a show cause notice where necessary.      These provisions  of Rule  853-A go  to show  that  the Inspector General has been given suo motu power to pass such order as he may deem fit when an appeal lay and also when no appeal could  be filed.  Even when an appeal had been filed, the Inspector  General could  pass in  order  enhancing  the punishment. From  this, it however, does not follow that the Inspector General  could not pass any order under Rule 853-A unless and  until an  order of punishment had been passed by the authority. After the authority had erroneously passed an order exonerating  the sepoy of the charges levelled against him, the  Inspector General could under sub-rule (a) of Rule 853-A Call  for the  file and  pass such  order as he deemed fit. This  wide  power  enables  the  Inspector  General  to inflict a  punishment when  such an  order is  called for an exonerate an  officer of punishment when such punishment has been wrongly  given. There is nothing in the wording of Rule 853 to  suggest that the Inspector General can act only when an order  of punishment  has been  passed by  the  authority below him  and not when an order has been passed exonerating an officer of the charge levelled against him.      The scope  and purpose  of Rules 853 and 853A are quite different. Rule  853 deals with memorials and revision which were  filed   by  a  person  against  whom  final  order  of dismissal, removal or reduction in rank had been passed. The power under  Rule 853-A  is not to be exercised on the basis of a memorial or a revision filed by an aggrieved party. The power is  to be  exercised whenever the Inspector General is of the  view that the impugned order calls for revision. The

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

order contemplated  under Rule  853-A need  not be against a final order of "dismissal, removal or reduction in rank".      The High  Court was  clearly in  error in  reading into Rule 853-A  the requirements  of Rule 853. The two rules are independent of each other.      We, therefore,  allow this appeal and restore the order of the  Director General  of Police  dated 10.9.1993.  There would be no order as to costs.