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PETITIONER: STATE OF MYSORE AND ORS.

       Vs.

RESPONDENT: H. D. KOLKAR

DATE OF JUDGMENT10/10/1973

BENCH: MATHEW, KUTTYIL KURIEN BENCH: MATHEW, KUTTYIL KURIEN BEG, M. HAMEEDULLAH MUKHERJEA, B.K.

CITATION:  1974 AIR   19            1974 SCR  (1) 858  1974 SCC  (3)  46

ACT: Bombay  Police  Act,  1951--Section  25(2)(a),   25(c)--Rule 17--Rule 17(2) investing the State Government with power  to enhance the punishment whether ultra vires S. 25(c).

HEADNOTE: Sub-section  2(a) of s. 25 of the Bombay Police  Act,  1951, inter alia authorises the Superintendent of Police to impose the  punishment  mentioned in subclause (1)  on  any  Police officer subordinate to him.  By clause (c) of s. 25(2)  "the exercise  of any power conferred" by subsection 2(a)  "shall be subject always to such rules and orders as may be made by the  State Government" in this behalf.  In exercise  of  the power conferred under clause (c) the State Government framed Rule  17(2)  of the Bombay Police (Punishment  am(]  Appeal) Rule-,,  1956, by which the Government invested itself  with the  power to call for records and to revise  orders  passed under  sub-section  2(a)  of  s.  25  and  to  enhance   the punishment. Pursuant to disciplinary proceedings against the respondent, a  head constable, the Superintendent of Police demoted  him as a police constable.  The appeal to the D.I.G. police  was dismissed.   The respondent, thereafter, filet[  a  revision before  the  State Government under Rule 17  of  the  Bombay Police (punishment and appeal)Rules, 1956.  The  Government, thereafter  issued  a show cause notice  to  the  respondent stating  as  to why the punishment imposed upon him  by  the S.P.  should not be enhanced.  After hearing the  respondent the Government enhanced the punishment to one of dismissal. Respondent filed a writ petition before the High Court.   He urged  that  (i)  the  disciplinary  proceedings  were   not conducted  in accordance with law and (ii) that  enhancement of  punishment was beyond the competence of the  Government, as Rule 17(2) was ultra vires s. 25(c) of the Bombay  Police Act,  1951.   The  High Court  held  that  the  disciplinary proceedings  were conducted in accordance with law, but  the Government  had no jurisdiction to enhance  the  punishment. The  Court,  therefore  quashed  the  order  of  the   Govt. enhancing  the punishment.  The State appealed.   Dismissing the appeal, HELD  :It is clear from the language of cl. (c) of s.  25(2)

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that  only  rul and orders which could be  made  under  that clause  are rules and orders for the exercise of  the  power conferred by s. 25(2).  The words "the exercise of any power conferred by the sub-section shall be subject always to such rules and orders is may be made by the State Government", in s.  25(2)(c),  would indicate that the  Government  have  no power to make any rule and under arrogating to themselves  a power  of revision over an order of punishment passed  under s.  25(2)(a).  What is made subject to the rules and  orders is  "the exercise of any power" conferred under clause  2(a) of s. 25.  Sub-section 2 (c) of s. 25 can only mean that the Government  will  have power to pass rules  and  orders  for regulating  the  procedure  or such other  matters  for  the exercise of the power conferred by sub-section 2(a) of s. 25 by the officers mentioned therein.  The power to enhance the punishment is a power which can be exercised only after  the concerned officer has exercised his power under s. 25(2)(a). In  other  words,  rules  or  orders  can  be  made  by  the Government tinder s. 25(2)(c) only for guiding him either in the  matter of procedure, -of. the manner of arriving  at  a decision.  It is obvious from the language of 25(2)(a)  that while that power exercisable under s. 25(2)(a) is subject to rules  and  orders  made by  the  Government,  the  decision which . comes into being after the exercise of that power is not subject to the supervision of the Government by  framing a  rule or order making an order in that behalf.   Once  the exercise  of  such  power results in  the  imposition  of  a punishment, the punishment becomes final, subject only to an appeal which is authorised under S. 27.  The consequense  is that rule 17(2) of the rules by which the Government  sought to  acquire  power  to call for the records  and  to  revise orders passed 859 under  s. 25(2) (a) and to enhance the  punishment  imposed, was clearly beyond its competence. [861 D]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  2117  of 1968. From  the  judgment and order dated April 16,  1968  of  the Mysore Court in W.P. No. 2545 of 1965. S.V.Gupte and R. B. Datar for the appellants. V. Mayakrishnan and N. R. Choudhury, for the respondent. The Judgment of the Court was delivered by MATHEW, J.-The respondent in this appeal started service  as a  police  constable  in the State of Bombay  in  1935.   He became an head constable after he was allotted to the  State of  Mysore consequent oil the reorganization of the  states. In  the year 1962, disciplinary proceedings  were  commenced against him.  The charge was that he was found missing  from his post between 11.30 P.M. on March 21, 1962 and 3.30  P.M. on  the  next day.  The Superintendent of Police  found  him guilty of the charge and demoted him as a police constable. The  respondent preferred an appeal to the Deputy  Inspector General  of Police but that was dismissed.   The  respondent then filed a revision before the State Government under rule 17 of the Bombay Police (Punishment and Appeal) Rules, 1956, hereinafter  called the "Rules".  The Government  thereafter issued a show cause notice to the respondent stating why the punishment imposed upon him by the Superintendent of  Police should  not be enhanced.  After hearing the respondent,  the punishment   was  enhanced  to  one  of  dismissal  by   the Government.

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The  respondent filed a writ petition before the High  Court of Mysore to quash the order.  He raised two grounds in  the writ  petition: (1) that the disciplinary  proceedings  were not  conducted  in  accordance with law; and  (2)  that  the enhancement  of punishment was beyond the competence of  the Government  as rule 17 (2) of the Rules was  ultra vires  of s.  25(2)(c)  of  the Bombay Police  Act,  1951  hereinafter called the ’Act’. The  High Court held that the disciplinary proceedings  were conducted  in accordance with law, but that  the  Government had  no jurisdiction to enhance the punishment.   The  Court therefore quashed the order of the Government enhancing  the punishment.   It is against this order that the  appeal  has been preferred, on certificate, by the State of Mysore. The  appellant contended that rule 17(2) of the Rules  which authorized  the State Government to call for the records  of any  case in which an order has been passed by an  authority subordinate  to it and enhance the punishment  inflicted  by the order was not ultra vires s.25(2) (c) of the Act. It  is,  therefore, necessary to read s. 25 of the  Act  and rule 17(2) of the Rules.  The material part of s. 25 reads: 860 "25(l)  The  State Government or any officer  authorised  by sub-section (2) in that behalf may suspend, reduce,  dismiss or  remove  an inspector or any member  of  the  subordinate ranks  of  the  Police  Force whom  he  shall  think  cruel, perverse,  remiss or negligent in the discharge of his  duty or  unfit  for  the  same, and may fine  to  an  amount  not exceeding  one  month’s pay, any member of  the  subordinate ranks  of the Police Force, who is guilty of any  breach  of discipline or misconduct or any act rendering him unfit  for the  discharge  of  his duty, which  does  not  require  his suspension or dismissal. (2)  (a)  The Inspector-General, the  Commissioner  and  the Deputy  Inspector General shall have authority to punish  an Inspector or any member of the subordinate ranks under  sub- section (1).  A Superintendent shall have the like authority in  respect of any Police Officer subordinate to  him  below the  grade of Inspector and may suspend an Inspector who  is subordinate to him pending inquiry into a complaint  against such  Inspector and until an order of the Inspector  General or Deputy Inspector-General can be obtained. (c) The exercise of any power conferred by this  sub-section shall  be subject always to such rules and orders as may  be made by the State Government in that behalf." Rule 17 of the Rules reads: "  1.  The State Government shall alone have  the  power  of revision  and revision shall lie only in respect of  punish- ments which are appellate. (2)  The State Government, of its own motion  or  otherwise. may  call for the record of any case in which an  order  has been made by an authority subordinate to it in the  exercise of  any power conferred on such authority by the  Rules  and may: (a) confirm, modify, or reverse the order, or (b) direct that further enquiry be held in the case; (c) reduce or enhance the punishment inflicted by the order; (d) make such other order in the case as it may deem fit. Provided that where it is proposed to enhance the punishment inflicted  by any such order, the Police  Officer  concerned shall be given -in opportunity of showing cause against  the proposed enhancement." It  is  clear from sub-section (1) of S. 25 that  the  State Government or any officer authorised by the State Government under sub-section (2) of that section is competent to impose

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the  punishment  of  suspension,  reduction,  dismissal   or removal  on an Inspector or other member of the  subordinate rank  of the Police force on the grounds enumerated in  that section.  Sub-section 2(a) consists of two parts.  The first part  authorises  the  Inspector  General  of  Police,   the Commissioner, and the Deputy Inspector General of Police  to impose  punishment which the State Government  could  impose under sub-section (1).  The 861 other part of that sub-section says that a Superintendent of Police  shall  have  the like authority in  respect  of  any Police  Officer  subordinate,  to him  below  the  grade  of Inspector.   It was in the exercise of this power  that  the Superintendent of Police here reduced the respondent to  the rank of a police constable. Now the source of the power under which rule 17 was  framed, as stated in the preamble to the rules, is sub-section  2(c) of s. 25 of the Act and the question is whether this  clause really authorised the Government to acquire power by framing a  rule to enhance the punishment imposed under  sub-section 2(a) of S. 25. As  already stated, the High Court was of the  opinion  that the subsection could confer no authority to frame a rule, to invest  the  Government  with power to revise  an  order  of punishment made under S. 25 (2) (a). It is clear from the language of clause (c) of s.25 (2) that only rules and orders which could be made under that  clause are rules and orders for the exercise of the power conferred by  S.  25 (2) (a).  The words "the exercise  of  any  power conferred by this subsection shall be subject always to such rules and orders as may be made by the State Government"  in S.  25  (2) (c) would indicate that the Government  have  no power  to make any rule or order arrogating to themselves  a power  of revision over an order of punishment passed  under s.25(2)(a).  What is made subject to the rules or orders  to be  passed  or made by Government is "the  exercise  of  any power" conferred under clause 2(a) of s.25. Sub-section 2(c) of s.25 can only mean that the Goverment will have power  to pass  rules or orders for regulating the procedure  or  such other  matters  for the exercise of the power  conferred  by sub-section  (2)  (a)  of s.25  by  the  officers  mentioned therein.   The  power to enhance the punishment is  a  power which can be exercised only after the concerned officer  has exercised his power under s.25(2) (a).  In   other    words, rules or orders can be made by Government under   s.25(a)(c) only  for guiding him either in the matter of procedure,  or the  manner of arriving at a decision.  It is  obvious  from the language of s.25(2)(c) that while the power  exercisable under  s.25 (2) (a) is subject to the rules and orders  made by Government, the decision which comes into being after the exercise of that power is not subject to the supervision  of the  Goverment by framing a rule or making an order in  that behalf.   Once  the exercise of such power  results  in  the imposition  of  a punishment, the punishment  becomes  final subject only to an appeal which is authorised by s. 27.  The consequence  is that rule 17(2) of the Rules, by  which  the Government  sought to acquire power to call for the  records and  to  revise  orders passed under s.25  (2)  (a)  and  to enhance  the  punishment  imposed, was  clearly  beyond  its competence. We dismiss the appeal with costs. S.C.                         Appeal dismissed. 1

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