JUDGMENT
R.K. Choudhary, J.
1. This appeal against the concurrent decisions of the courts below is presented by the plaintiff whose suit for a declaration that his dismissal from the police force is wrong, illegal and inoperative and for a direction for his reinstatement has been dismissed.
2. The short facts are these: The plaintiff was appointed as a police constable in the police force of the district of Monghyr in 1926. In the year 1948-49 he was attached to Nayagaon town out post of Jamalpur police station in that district. A proceeding for gross misconduct and negligence of duty was started against him and he was put under suspension. During the pendency of that proceeding he was called upon to take command certificate from Jamalpur police station to go to police lines. On the 10th of September, 1948, he accordingly went to that police station to take the command certificate. It appears that a report was submitted against the plaintiff to the effect that he came to take his command certificate for joining the line in a peculiar fashion wearing fine dhoti, fine malmal kurta, silk stocking, costly pump shoes and a garland of flowers attached with fifteen currency notes of ten rupee denomination, and when asked by the Inspector of Police as to why he was in that fashion, he retorted that he had been honoured in that way by his associates. On this report another proceeding, being proceeding No. 47 of 1948, was started against the plaintiff on the 22nd of September, 1948, and he was asked to show cause as to why he should not be removed from his service for his disorderly conduct subversive to discipline. At the direction of the Superintendent of Police, Monghyr, the Deputy Superintendent of Police of that place conducted an enquiry and he submitted his findings on the 3lst of December, 1948, against the plaintiff. On the basis of those findings the Superintendent of Police dismissed him from service by his order dated the 21st of January, 1949. The case of the plaintiff is that at Jamalpur he incurred the displeasure of the Havildar Gupteshwar Singh and the Sub-Inspector of Police, Bindeshwar Prasad Singh, as he refused to render personal service] to them. Mathura Prasad Singh, the then Inspector of Police, Jamalpur Circle, happened to be a relation of the said Gupteshwar Singh, Havildar, arid all these persons conspired to harass the plaintiff, and they accordingly got the previous proceeding referred to above started against him on false allegations. It is said that when he went to the police station to take the command certificate, he was threatened with dire consequences by the Inspector of Police, Mathura Prasad Singh, who wanted the plaintiff to withdraw his allegation against the above Havildar and the Sub-Inspector of Police. But, as he refused to do so, a false report was submitted against him charging him with disorderly conduct subversive to discipline. It is said that the plaintiff was dismissed by the Superintendent of Police who passed the order of dismissal relying upon the findings arrived at by the Deputy Superintendent of Police as stated above. The plaintiffs appeal before the Deputy Inspector-General of Police and the Inspector-General of Police also failed. On these al-legations he, after service of notice under Section 80 of the Code of Civil Procedure on the State of Bihar, filed the suit out of which this appeal arises for the reliefs stated above. The case of the plaintiff is that his dismissal was wrongful and illegal.
3. Defendant No. 1 is the State of Bihar, and defendant No. 2 is the Secretary, Political Department. Both of them filed a joint written statement and pleaded, inter alia, that the order of dismissal was legal and valid and that the plaintiff was guilty of disorderly conduct subversive to discipline. They also took some other pleas, but it is not necessary to refer to them as they are not at all relevant for the purpose of the present appeal.
4. The trial court found that the plaintiff did appear before his superior officer at the Jamalpur Police Station for taking the command certificate in a peculiar fashion with a garland of flowers to which currency notes were attached and his conduct in so appearing before his superior officer was disorderly and subversive to discipline. It also held that the order of dismissal was perfectly legal and valid, and, accordingly, dismissed the suit of the plaintiff. On appeal, the lower appellate court did not reverse the finding of the trial court as regards the appearance of the plaintiff in the police station with a garland of flowers attached with currency notes and agreed with its finding that the dismissal was legal and valid and not wrongful. The appeal was accordingly dismissed. Being, thus, aggrieved, the plaintiff has presented this appeal in this Court.
5. The first point, and that is the main point, which has been raised in support of the appeal, as that the plaintiff having been required to show cause as to why he should not be removed, the order of dismissal was bad in law inasmuch as he was never called upon to show cause as to why he should not be dismissed. This argument was raised also before the lower appellate court, and the learned Subordinate Judge over-ruled the same because, in his opinion, Article 311 of the Constitution of India could not be applicable as the order of dismissal was passed prior to the coming into force of the Constitution. He observed that the above contention raised on behalf of the plaintiff would have prevailed if the order of dismissal had been passed after the Constitution of India came into force. There is no doubt that in this case the order of dismissal was passed prior to the Constitution and Article 311 of the Constitution can have no application to it. The case is governed by the provisions of the Government of India Act, 1935. Section 243 of that Act states that notwithstanding anything in the foregoing provisions of this Chapter, the conditions of service of the subordinate ranks of the various police forces in India shall be such as may be determined by or under the Act relating to those forces respectively. The case of the plaintiff comes within the purview of this section and it has to be seen as to how far the conditions of his service have to be determined by or under any Act relating to Police service.
6. The Police Act (Act V of 1861) was enacted for the regulation of Police. Section 8 of this Act lays down that a police officer shall not by reason of being suspended from office cease to be a police officer and during the term of suspension the powers, functions and privileges vested in him as a police officer shall be in abeyance, but he shall continue subject to the same responsibilities, discipline and penalties and to the same authorities, as if he had not been suspended. It is thus clear that even though the plaintiff was under suspension, he continued to be a police officer for the purposes of responsibilities, discipline and penalties. Rule 828(a) framed under the provisions of the above Act says that (i) dismissal, (ii) removal, (iii) reduction in rank and some other punishments are regarded as major punishments. Rule 829 says that dismissal precludes reemployment in Government service of the person dismissed and removal does not preclude re-employment in Government service. Thus there is a vast difference as to the right of a service holder in the police force between an order of dismissal and that of removal. Clause (b) of Rule 828 states that without prejudice to the provisions of the Public Servants Act, 1850, no order of dismissal, removal or reduction shall be passed on any police officer (other than an order based on facts which have led to his conviction in a criminal court) unless he has been informed in writing of the grounds on which it is proposed to take action, aha has been afforded an adequate opportunity of defending himself. Taking into consideration the difference between an order of dismissal and an order of removal and the above provision it is manifest that no order of dismissal could be passed on a police officer unless he has been informed in writing of the grounds on which it is proposed to take action of dismissal and similarly no order of removal or reduction could be passed on him unless he has been informed in writing of the grounds on which it is proposed to take action of removal or reduction. In other words, Clause (b) of Rule 828, if construed properly and in the light of the provision of Rule 829, means that no order of dismissal, removal or reduction could be passed on a police officer unless he has been informed in writing of the grounds on which it is proposed to take action of dismissal, removal or reduction respectively. It is, therefore, clear that in order to pass an order of dismissal against the plaintiff, he should have been given an opportunity to show cause as to why he should not be dismissed and the order of dismissal could not be legally passed in a proceeding where he is required to show cause as to why he should not be removed. Reading Section 243 of the Government of India Act together with the above provisions of the Police Act and the rules framed thereunder, it is clear that the order of dismissal passed against the plaintiff was illegal and void.
7. In support of the appeal it has also been contended that the plaintiff was not guilty of disorderly conduct subversive to discipline. In this case, however, on the facts found by the trial court, which have not been reversed by the tower appellate court, it must be held that the plaintiff was guilty of such a disorderly conduct. The trial court has found that the plaintiff had put on a garland of flowers with currency notes attached to the same. This finding, as already stated, has not been reversed by the lower appellate court. If it is a fact that the plaintiff appeared before his Superior officer with a garland of flowers attached with currency notes on his person, he was undoubtedly guilty of disorderly conduct subversive to discipline. It is, however, contended that the lower appellate court has not given any definite finding on this point. Against the order of the Superintendent of police the plaintiff went in appeal before the Deputy Inspector General of Police and the Inspector General of Police, and they affirmed the finding of the Deputy Superintendent of Police, on the basis of which the order of dismissal was passed that the plaintiff had appeared with a garland on his person attached with currency notes. Clause (c) of Rule 851 makes the finding of the appellate authority final, and it has been contended on behalf of the State that this finding, being a pure finding of fact, could not be interfered with by a civil court. Since, however, it has been held that the order of dismissal was wrongful, it is not necessary to deal with this matter any further.
8. For the reasons given above, the plaintiff, in my opinion, is entitled to a declaration that the order of dismissal passed against him by the Superintendent of Police on the 21st of January, 1949, is illegal and void. The plaintiff has sought a further relief for a direction for re-instatement. It is not possible in this suit to pass any decree for re-in-statement because the question of re-instatement has to depend upon several considerations the materials for which are not at all on the record pt this case. The relief sought for by the plaintiff in that regard, therefore, has to be rejected.
9. The result, therefore, is that the appeal succeeds and the suit of the plaintiff is decreed in part as indicated above. It is declared that the order of dismissal passed against the plaintiff by the Superintendent of Police on the 21st of January, 1949, is illegal, void and inoperative. The plaintiff is entitled to his costs throughout.
Ramaswami, C.J.
10. I agree.