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PETITIONER: UNION OF INDIA

       Vs.

RESPONDENT: JAGJIT SINGH

DATE OF JUDGMENT: 01/04/1969

BENCH: MITTER, G.K. BENCH: MITTER, G.K. HIDAYATULLAH, M. (CJ) SHAH, J.C. RAMASWAMI, V. GROVER, A.N.

CITATION:  1970 AIR  122            1970 SCR  (1) 163  1969 SCC  (2) 108  CITATOR INFO :  R          1971 SC1402  (4)

ACT: Police  Act (5 of 1861), s. 4 and Punjab Police Rules,  1934 rr.  1.8,  16.24  (1)(1)  and  16.38  (1)  and   (2)-Whether ’Superintendent  of Police’ and ’District Superintendent  of Police’ same-Scope of r. 16.24 (1)(1).

HEADNOTE: The respondent, who was appointed a Sub-Inspector of Police, was  posted  in Delhi in 1949.  A Deputy  Superintendent  of Police,  in the City of Delhi who had already  retired  from service  was  directed  to conduct  a  departmental  inquiry against   the   respondent.   The  enquiring   Officer   was reemployed   from  the  date  of  retirement  as  a   Deputy Superintendent of Police (Enforcement Department), and after such  reemployment,  had conducted the enquiry  against  the respondent   and   found   him   guilty.    Thereupon    the Superintendent  of Police, Delhi Police Force,  ordered  the dismissal   of  the  respondent.   The   respondent’s   suit challenging  the dismissal was decreed and the  decree.  was confirmed by the High Court. In  appeal to this Court, on the questions : (1) Vhether  an officer  functioning as a Superintendent of Police  but  was not  designated as a District Superintendent of  Police  was competent  to pass the order of dismissal; (2)  Whether  the officer,  entrusted  with the enquiry was a  police  officer competent to hold the inquiry; and (3) Whether the procedure prescribed  by Rule 16.38 (1) and (2) of the  Punjab  Police Rules,  1934, was followed before holding  the  departmental enquiry. HELD : (1) Though the Police Act, 1861, uses the  expression ’District  Superintendent of Police’ and the  Punjab  Police Rules use the expression ’Superintendent of Police’ the  two expressions  refer to one and the same authority.  Under  R. 1.8  of the Punjab Police Rules, there could be  -more  than one  Superintendent  of  Police in a  district.   Since  the police force expanded considerably between 1861 when the Act

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was  passed  and 1934 when the Punjab  Police  Rule,-,  were framed,  a  Magisterial district was  divided  into  smaller areas  for  the better enforcement of law and  order  and  a Superintendent  was placed in charge of each such area.   In the Delhi area there were two Superintendents of Police  one for  the  city of Delhi and the other for  New  Delhi.   The Superintendent of Police; City of Delhi, would therefore  be the  District Superintendent of Police for the  purposes  of the  Police  Act with jurisdiction over the  police  station where the’plaintiff was posted, and he was competent to pass the order of dismissal. [167 E-, 168 B-C, F] (2)Under R. 16.24 (1)(1) the officer conducting the  enquiry must  be  an officer empowered to punish  or  such  superior officer whom the superintendent might direct to conduct  the enquiry. [168 H] In  the present cam, the officer who conducted  the  enquiry had  been re-employed as it Deputy Superintendent of  Police in  the Enforcement Department of the police force  and  had taken  over  charge from another  Deputy  Superintendent  of Police.  Therefore, he was a police officer superior to  the respondent. [168 B, C-D, E] 164 (3)The file relating to the departmental enquiry against the plaintiff had been destroyed under the relevant police rule, long  before the institution of the suit.  There is thus  no documentary evidence, but the oral evidence showed that  the procedure,  prescribed  by  R. 16.38 (1) and  (2)  had  been followed. [171 B-C] State  of  U.P. v. Babu Ram, [1961] 2 S.C.R. 679  and  Delhi Administration v. Chanan Shah, [1969] 3 S.C.R. 653, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1111 of 1965. Appeal  by special leave from the judgment and  order  dated April  11, 1963 of the Punjab High Court, Circuit  Bench  at Delhi in Letters Patent Appeal No. 36-D of  1963. B. Sen and R. N. Sachthey, for the appellant. Frank  Anthony,  D.  R. Sehgal and D.  D.  Sharma,  for  the respondent. The Judgment of the Court was delivered by Mitter,  J. This is an appeal by special leave from a  judg- ment and order dated April 11, 1963 of the Punjab High Court (Circuit  Bench at Delhi) in a Letters Patent  Appeal  which summarily  dismissed the appeal preferred by  the  appellant from  a judgment and order in a Second Appeal upholding  the decree in favour of the respondent passed by the  Additional District Judge, Delhi. The  questions  canvassed in this appeal were:  whether  the dismissal of the respondent from service in the police force was  illegal on the ground that the officer  entrusted  with the  departmental enquiry against the respondent was  not  a police  officer;  secondly, whether the order  of  dismissal passed  by Shri Jagannath was invalid because he was  not  a District  Superinendent of Police; and thirdly, whether  the dismissal  was  void on account of  noncompliance  with  the provisions of Rule 16.38 of the Punjab Police Rules. In order to appreciate the points raised, it is necessary to state the following relevant facts.  The respondent had been appointed a Sub-Inspector of Police by the Inspector-General of  Police  in Sind before the partition of  India  and  was thereafter  posted in Delhi by the Deputy  Inspector-General

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of  Police Delhi after his migration to India.  In the  year 1949  he  was posted as Sub Inspector of  Police  in  Police Station  Daryaganj,  Delhi.   A  departmental  enquiry   was launched against him on the charge of acceptance of bribe in connection  with  a  criminal case in the  same  year.   The officer entrusted with the enquiry was one Diwanchand Dhatia who was employed up to April 1949 as a Deputy Supe-                             165 rintendent of Police in the City of Delhi.  He retired  from service  in that month but was re-employed from the date  of retirement as a Deputy Superintendent of Police (Enforcement Department).   The enquiry against the respondent had  taken place after the retirement of the said Diwanchand but during the  -period of his reemployment.  The respondent was  found guilty  of the charge and was dismissed from service by  the order  dated December 8, 1949 , passed by one  Jagannath,  a Superintendent  of  Police in the Delhi Police  Force.   The appellant  filed  a suit challenging his  dismissal  on  the grounds  already mentioned in the court of  the  Subordinate Judge  Delhi  on January 12, 1954.  The  defendant-Union  of India filed its written statement disputing the  contentions of  the  plaintiff.  The Subordinate  Judge  framed  several issues;  -the  principal ones relate to  the  competency  of Jagannath  to pass the order of dismissal and of  Diwanchand Bhatia  to  conduct  the  enquiry  against  the   plaintiff. Finding  in favour of the plaintiff on both the  issues,  he decreed  the suit.  This decree was upheld in appeal by  the Additional  District Judge, Delhi and in Second Appeal by  a single  Judge  of  the Punjab High Court  who  modified  the decree by an alteration in the figure of the salary  claimed by the plaintiff but upholding his claim on the main issues. The Letters Patent Appeal, as already stated, was  dismissed summarily. The  first  contention on behalf of the appellant  was  that Jagannath who was functioning as a Superintendent of  Police but  not designated as a District Superintendent  of  Police was  quite competent to pass the order of dismissal  against the respondent.  Under s. 4 of the Police Act V of 1861,  an Act for the regulation of Police,               "The administration of the police throughout a               general police-district shall be vested in  an               officer to be styled the Inspector-General  of               Police, and in such Deputy  Inspectors-General               and  Assistant  InspectorsGeneral  as  to  the               State Government shall deem fit.               The  administration of the  police  throughout               the  local jurisdiction of the  Magistrate  of               the district shall, under the general  control               and direction of such Magistrate, be vested in               a  District Superintendent and such  Assistant               District  Superintendent as the State  Govern.               ment shall consider necessary."               Section 3 reads :               "The superintendence of the Police  throughout               a  general police district shall vest  in  and               shall be exercised by the State Government  to               which such district is subordinate; and except               as authorised under the provisions               166               of this Act, no person, officer or Court shall               be  empowered  by  the  State  Government   to               supersede or control any police functionary"               Section   7  provides  for  the   appointment,               dismissal  etc.,  of inferior  officers.   The               relevant portion thereof reads :

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             "Subject to the provisions of article 3 1 1 of               the  Constitution,  and to such rules  as  the               State  Government may from time to  time  make               under  this Act, the InspectorGeneral,  Deputy               Inspectors-General,   Assistant    lnspectors-               General and District Superintendents of Police               may at any time dismiss, suspend or reduce any               police -officer of the subordinate ranks  whom               they  shall think remiss or negligent  in  the               discharge  of  his  duty,  or  unfit  for  the               same......" The difference between the texts of the sections, after  the coming  into  force  of the  Constitution  and  that  before January   1950   is  immaterial  for   our   purpose.    The interpretation clause is section 1 under which (a)  ’police’ shall  include all persons who shall be enrolled under  this Act;  (b) the words ’general police-district’ shall  embrace any  presidency  (State)  or  place,  or  any  part  of  any presidency  (State)  or place, in which this  Act  shall  be ordered  to take effect; (c) "District  Superintendent"  and "District  Superintendent  of  Police"  shall  include   any Assistant District Superintendent or other person  appointed by  general  or  special order of the  State  Government  to perform   all   or  any  of  the  duties   of   a   District Superintendent of Police under this Act in any district; and (d)  ’Magistrate  of  the district’  shall  mean  the  chief officer  charged  with  the executive  administration  of  a district  and  exercising the powers of  a  Magistrate,  by- whatever  designation  the Chief officer charged  with  such executive  administration is styled.  Under s. 2 of the  Act the  entire  police establishment under a  State  Government shall,  for  the purposes of this Act, be deemed to  be  one police-force,  and  shall be formally  enrolled;  and  shall )consist  of such number of officers and men, and  shall  be constituted  in such manner as shall from time to  time  be’ ordered by the State Government. It is to be noted that the words "Superintendent of  Police" do  not  occur  anywhere  in  the  Act.   In  the  Act  this expression  is  always prefixed by the words  "District"  or "Assistant  District".  Under Rule 11 of the  Punjab  Police Rules,  1934  framed under the Police Act,  the  Punjab  was divided into general police districts, viz., the  Provincial Police District and Railway Police district and all ranks of police  employed in the province were appointed or  enrolled under s. 2 of the Act.  Rule 12 shows that the                             167 responsibility  for  the command of the  police  force,  its recruitment, discipline, internal economy and administration throughout  the  general  police  districts  vested  in  the Inspector-General  of Police who was to be assisted  in  the control  and  administration  of the police  force  by  such number   of   Deputy   Inspectors-General   and    Assistant Inspectors-General  as the Provincial Government might  from time to time appoint.  Rule 14 gave the administrative divi- sion  of the police force.  Rule 16 gives the  functions  of the  Deputy Inspectors-General of Police and lays down  that in  the  exercise  of  such  responsibility  they  were   to interfere as little as possible with the executive authority of the Superintendents under them.  Under R. 13.               "The Superintendent of Police is the executive               head  of  the district police  force.   He  is               directly responsible for the matters  relating               to   its   internal  economy,   training   and               management,  and  for the maintenance  of  its               discipline  and the efficient  performance  of

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             all its duties.               In  every district there shall be one or  more               Superintendents  and such number of  Assistant               Superintendents,    Deputy    Superintendents,               inspectors,     sergeants,     sub-inspectors,               assistant sub-inspectors, head constables  and               constables  as the Provincial  Government  may               direct." The  important thing to note in this connection is that  the expression  "District Superintendent of Police" is not  used in  the rules and the last mentioned rule shows that it  was possible to have more than one Superintendent of Police in a district. Chapter XII of the Rules deals with appointments and  enrol- ments  in  the police force.  Rule 12.1  contains  -a  table summarising   the   directions  given  by   the   Provincial Government  under  cl. (b) of sub-s. (1) of s.  241  of  the Government  of India Act, 1935 in regard to the  authorities competent  to make appointments to the  non-gazetted  ranks. In respect of sub-inspectors the authority to whom the power of appointment is delegated is               "Superintendents   of   Police   and    Deputy               Superintendent  (Administrative),   Government               Railway  Police and Assistant  Superintendent,               Government Railway Police." This  authority  is  given  full  powers  subject  to  rules governing the conditions of service as defined in the Police Rules. Chapter XVI deals with punishments and sub-r. (1) of  R.16.1 of  this Chapter lays down that no police officer  shall  be departmentally punished otherwise than as provided in  these rules.   Subr.  (2)  of R.16.1 gives  a  table  showing  the departmental  punishments  which can be  inflicted  and  the authorities competent to inflict the same.  The table  shows that the order of dismissal of 168 a Sub Inspector can be passed by a Superintendent of  Police and   Deputy  superintendent  (Administrative),   Government Railway Police. The  question therefore arises whether the  words  "Superin- tendent  of  Police" in the Rules and  the  words  "District Superintendent  of Police" in the Act refer to one  and  the same  authority,  or  whether there is  any  distinction  or difference between the two.  In our opinion, there is  none. Section 4 of the Police Act shows that the administration of police  throughout the local jurisdiction of the  Magistrate of the. district under the general control and direction  of such  Magistrate  -is to be vested in  a  District  Superin- tendent.   It  is  common knowledge that  the  police  force expanded very considerably in between the year 1861 when the Act was passed and the year 1934 when the Rules were  framed and  a Magisterial district was divided into  smaller  areas for the purpose of better enforcement of law and order and a Superintendent  of Police was placed in charge of each  such area.   This  finds  support from  the  testimony  of  Abdul Rehman,  D.W. 1, Superintendent of Police,  C.I.D.  Lucknow. He  said that he was posted as Superintendent of  Police  at the  headquarters at Delhi in 1950.  According to  him,  the District  Magistrate was in charge of the entire Delhi  area including  New Delhi, Old Delhi and rural  areas.   Further, the  police  officer in charge of the entire  area  was  the Inspector-General    of   Police   and   there   were    two Superintendents of Police, one for Delhi City and the  other for  New  Delhi.  Shri Jagannath was the  Superintendent  of Police,  City and all the police stations of the  city  were

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under his charge.  It is nobody’s case that a Superintendent of  Police  is an authority inferior to that of  a  District Superintendent  of Police, each Magisterial district  having in many cases more than one Superintendent of Police.  There is  thus no incongruity between the Act and the Rules  which have to be read together and as Jagannath, Superintendent of Police,  was undoubtedly the Superintendent of Police,  City of  Delhi  with jurisdiction over the  police  station  Faiz Bazar  where the plaintiff was posted, he was  competent  to pass the order of dismissal on him. On the question of the competence of Diwanchand Bhatia,  the relevant  rule  is  R. 16-24 in chapter XVI  of  the  Punjab Police Rules which lays down the procedure to be followed in departmental  enquiries.  Sub-r. (1) of R.16.24(1)  provides that:               "The  police  officer  accused  of  misconduct               shall  be brought before an officer  empowered               to punish him, or such superior officer as the               Superintendent may direct               to conduct the enquiry." On  behalf of the appellant it was contended before us  that all that this rule requires was that the officer  conducting the enquiry                             169 must  be  superior  in status to  the  person  against  whom charges  had  been levelled and there can be no  doubt  that Deputy Superintendent of Police was an officer superior to a Sub Inspector of Police.  According to counsel it was really not  necessary  to  consider whether he was  also  a  police officer but on the facts of this case there can be no  doubt that Diwanchand Bhatia was a police officer.  Ex.  D-5 is  a certificate to the effect that Diwanchand Bhatia had on  the forenoon of 28th April 1949 received charge of the office of the Deputy Superintendent of Police, Enforcement, Delhi with the   designation  "Officiating  Deputy  Superintendent   of Police."  Ex.   D-4, the order of the  Inspector-General  of Police,  Delhi  dated  June 6, 1949  shows  that  Diwanchand Bhatia was "posted to city vice Malik Bodh Raj, Deputy Supe- rintendent  of Police, who will take over charge  as  Deputy Superintendent  of Police, Enforcement." There is  also  the oral  testimony of Diwanchand Bhatia to the effect  that  he had  taken over charge as shown in those documents and  that he had conducted the enquiry against the respondent.  It was sought to be argued before us by counsel for the  respondent that  Diwanchand Bhatia, when he conducted the  enquiry  had already  retired from the post of police officer and he  was only  re-employed  in the Enforcement  Department  and  this would  not  make him a police officer.  We see no  force  in this  contention as the Enforcement Department was  still  a police  department  and a Deputy  Superintendent  of  Police (Enforcement)  was still a Deputy Superintendent of  Police. The  word ’enforcement’ merely specifies the  department  to which  he was attached and the order Ex.  D-4 shows that  he was to take over charge from Malik Bodh Raj who in turn  was another Deputy Superintendent of Police. The  third point canvassed before us does not seem  to  have engaged  the  attention  of the courts  hearing  the  matter although   it  was  raised  in  the  plaint.   It  was   the plaintiff’s case in paragraph -A of the amended plaint  that the  departmental enquiry could have been started after  the taking  of certain essential preliminary steps and  that  it was  necessary  for  the- police  first  to  give  immediate information  to  the  District  Magistrate  of  the  alleged commission of a crime by the plaintiff and it was for  -that officer to decide whether the enquiry was to be conducted by

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;a  police officer or by a selected Magistrate  First  Class and  that  in  his case the departmental  enquiry  had  been started without following the above procedure.  Although the plaint does not mention the rule in the Punjab Police  Rules referred to by the ,plaintiff in paragraph 6-A there can  be no  doubt that the reference was to R.16.38 of Chapter  XVI, sub-rr. (1) and (2) whereof run as follows               "(1)  Immediate information shall be given  to               the  District  Magistrate  of  -any  complaint               received by the SupeL12Sup.CI/69-12               170               rintendent  of  Police,  which  indicates  the               commission  by a police officer of a  criminal               offence   in  connection--With  his   official               relations  with the public.  The District  Ma-               gistrate will decide whether the investigation               of  the  complaint  shall be  conducted  by  a               police  officer,  or made over to  a  selected               magistrate having First Class powers.               (2)When  investigation of such a  complaint               establishes  a  prima facie  case  a  judicial               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.               (3) to (6)........." It  was the contention of the respondent that there  was  no evidence  to  show complaince with the above rule.  -It  was contended that the evidence on record was not sufficient for the  purpose.  Diwanchand Bhatia stated in his  evidence  in chief  that  he had received an application  for  making  an enquiry against the plaintiff from Jagannath, Superintendent of Police -and that after making a preliminary enquiry  when he  found a prima facie case against the plaintiff  he  sent the same to the District Magistrate for approval.  Thereupon the District Magistrate wrote that a departmental enquiry be made  against  the plaintiff and it was only  following  the direction  of the District Magistrate that the  enquiry  was made.   The Superintendent of Police, Jagannath,  stated  in his  evidence  in chief that he could not  say  whether  the sanction  of the District Magistrate had been  obtained  for the enquiry by Diwanchand Bhatia. Mr. Anthony who argued on behalf of the respondent drew  our attention to a judgment of this Court in The State of  Uttar Pradesh and others v. Babu Ram(1) where it was observed that the  Police Act and the Rules made thereunder constituted  a selfcontained  Code providing for the appointment of  police officers  and prescribing the procedure for  their  removal. According  to him no departure from the rules  was  possible and in order to justify a dismissal strict compliance of the rules was mandatory.  Observations to a similar effect  were also  quoted  from  the  judgment of  this  Court  in  Delhi Administration v. Chanan Shah (2 There what was said was:               "It  is  not necessary to decide  whether  the               provisions of Rule 16.38 of the Punjab  Police               Rules are               (1) [1961] 2 S.C.R.679.               (2) [1969] 3 S.C.R. 653                                    171               mandatory  or directory.  Even  assuming  that

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             the rule is directory, we find that there  has               been   no  substantial  compliance  with   its               provisions." We  do not think that the same can be said of the  facts  of this case.  We see no reason to disbelieve the testimony  of Diwanchand Bhatia.  The learned trial Judge did not frame an issue on this point and Abdul Rehman, the Superintendent  of Police,  C.I.D. who gave evidence in this case  stated  that the  file relating to the departmental enquiry  against  the plaintiff had been destroyed under Police Rule 12.35 by  his order.   He also referred to the document Ex.  D-2 which  is an extract regarding the destruction of Fauji Missals.   The order  seems to have been passed on 15th January  1953  long before  the  institution of the plaintiff’s  suit.   In  the circumstances, we see no reason not to- accept the  evidence of  Diwanchand Bhatia according to which R.16.38 of  Chapter XVI had been complied with. In the result, the appeal is allowed, the judgment and order of  the  courts below set aside and the suit  filed  by  the respondent  dismissed.  As the special leave was given 1  in this case on condition that the appellant will in any  event pay  the  costs of the respondent, we make no  order  as  to costs  of  this  appeal and do not  think  it  necessary  to disturb the previous order for costs. V.P.S.      Appeal allowed. 172