Kapoor Chand Bhagat vs State And Ors. on 7 December, 2004

Jammu High Court
Kapoor Chand Bhagat vs State And Ors. on 7 December, 2004
Equivalent citations: 2005 (1) JKJ 163
Author: Y Nargotra
Bench: Y Nargotra


JUDGMENT

Y.P. Nargotra, J.

1. The petitioner, who was working as Inspector in the Police Department, has called in question order dated 22.7.2000 passed by the Dy. Inspector General of Police SSG HQr. Srinagar whereby a punishment of withholding of an increment for a period of one year from the date it was due next has been imposed upon him.

2. The petitioner was working as Inspector SSG Srinagar. Vide order dated 26.8.1998 his transfer stood ordered to Traffic Wing of J&K Police. As a part of in-service training exercise, joint trip of NSG/SSG staff to Pahlgam on 1.8.1998 was ordered. Sh. M.A. Anjum, IPS, SSP SSG HQRs with responsibility to arrange for the trip detailed the petitioner to supervise the purchase of food items from the market and proceed to Pahalgam at 0630 hours on 1.8.1998 as Incharge Ist Adm. party for ensuring Adm. arrangements at Pahalgam. The directions in this regard were conveyed to the petitioner on 31.7.1998 through Lines Officer. The petitioner refused to perform the said duty. Later constable Driver Ram Parshad No. 638-K was deputed to the residence of the petitioner vide DD report No. 18 dated 31.7.98 for reinforming him regarding his duty. Said constable Ram Parshad reported back in SSG Lines and informed the Lines Officer that the petitioner had refused to perform the duty assigned to him by the then senior officer. Accordingly report was entered in DD vide No. 19 dated 31,7.98 and consequently another officer was detailed to do the same duty which had been assigned to the petitioner. On 01.8.1998 SSP, SSG HQRs. Alongwith other officers came to SSG Lines/Control Room at 0830 hour sand supervised the move arrangements and remained present there till 0945 hours but till that time the petitioner had not reported for duty. Later on he came to SSG Lines at 11000 hours and entered his departure report from SSG in view of his transfer to Traffic wing vide DD report dated 23.1.1998 mentioning the time of the report as 0735 hours. He thus allegedly falsified the report with reference to timing. The petitioner, though his order for transfer received in SSG had not been relieved for want of substitute and stood informed by the Senior officers that he would be relieved only after his reliever reports in the lines but the petitioner adopted the departure report from SSG Lines without having been formally relieved at a time when he had refused to obey lawful orders for proceeding alongwith contingent to Pahalgam.

3. On the aforesaid allegations the petitioner was placed under suspension by the SSP SSG HQr vide DD report No. 7 dated 2.8.98 confirmed vide order No. 147 of 1998 dated 4.8.98.The petitioner then reported back in SSG Lines under orders of IGP Traffic. Then SSP SSG initiated departmental enquiry against the petitioner. The enquiry was conducted by SSP Sh. M. A. Anjum who submitted his enquiry report to DIG SSG vide letter No. 237 dated 22.7.1999. DIG SSG on coming to the conclusion that the enquiry had not been conducted by following the procedure laid down under J&K Police Manual, ordered denovo enquiry by SSP P.R. Manhas. Summary of allegations was served upon the petitioner and statements of the witnesses were recorded and on finding that the allegations had been substantiated, a charge sheet was issued to the petitioner and he was called upon to furnish his reply to the charges. The petitioner submitted his reply. After the completion of enquiry by SSP SSG the Inquiry Officer submitted his report to DIG SSG HQr. who was the disciplinary authority of the petitioner. The disciplinary authority after examining the record of the enquiry and the reply of the petitioner came to the conclusion that the charges leveled against the petitioner stood proved beyond any iota of doubt and accordingly accepted the finding arrived at by the Inquiry Officer and by order impugned dated 22.7.2000 imposed the aforesaid punishment upon the petitioner.

4. I have heard the learned counsel for the parties and perused the record of the case.

5. The only submission made by learned counsel for the petitioner is that the enquiry has not been conducted against the petitioner by a competent person, therefore, the punishment imposed though by an officer competent to impose the same is illegal. He submits that Rule 359 of the Police Rules envisages enquiry by the disciplinary authority himself or by a Gazetted officer, specially empowered in that behalf by the Minister Incharge. Mr. Hali submits that in the present case the enquiry was not conducted by the disciplinary authority himself but by SSP SSG, a Gazetted officer, though but not specially authorized by the Minister Incharge and therefore the enquiry is vitiated for having been conducted by an officer incompetent to hold the same and thus the punishment imposed is bad in law arid deserves to be set aside. He further submits that the disciplinary powers have to be exercised by the disciplinary authority alone and the said powers pertain to framing of charge, holding of enquiry, issuance of show caused notice, suspension etc. These powers according to him cannot be delegated by a disciplinary authority unless there is a statutory rule authorizing such delegation.

6. The contention of Mr. Sethi, learned AAG, is that the submission of learned counsel for the petitioner is not based on correct understanding of Rule 359. He submits that the disciplinary authority in exercise of his administrative functions can under law appoint an officer to hold the enquiry against a delinquent official reserving his power of imposing punishment with him. In support of his contention he relies upon a case titled Prayadat Kumar Bose v. Hon’ble the Chief Justice of Calcutta High Court, reported in AIR 1956 SC 285.

7. The petitioner has been awarded punishment of withholding of one increment. Rule 334 of J&K Police Rules defines withholding of increment as a major punishment. Under rule 335 power to impose punishment of withholding increment is vested with the Dy. Inspector General of Police. The procedure for conducting departmental enquiries is described in rule 359. Clause 1(a) of Sub-rule (1) of Rule 359 reads as follows:-

“The enquiry shall, whenever possible be conducted by a Gazetted officer empowered to inflict a major punishment upon the accused officer. Any other gazetted officer or an Inspector specially empowered by the Minister I/C Police Department, to hold departmental enquiries (vide order No. 636-C dated 27.6.1945) may be deputed to hold an inquiry or may institute an enquiry on his own initiative against an accused police officer who is directly subordinate to him, except that in the case of a complaint against a constable the inquiry may be conducted by an Inspector. The final order however may be passed only by an officer empowered to inflict a major punishment upon the accused police officer.”

8. From the bare reading of the rule it is manifest that an enquiry against a police officer may be conducted by a gazetted officer himself who is empowered to inflict a major punishment upon the accused police officer, or it may be conducted by any other gazetted officer or an Inspector specially empowered by the Minister Incharge Police Department. In case the enquiry is not conducted by a gazetted officer empowered to inflict major punishment upon the accused officer, the rule requires that the final order however shall be passed by an officer who is empowered to impose the major punishment upon the accused police officer. Mr. Hali learned counsel for the petitioner submits that words “any other gazetted officer or an Inspector specially empowered by the Minister Incharge Police Department” used in the above quoted rule indicate that if the enquiry is to be conducted by the gazetted officer who is not empowered to inflict a major punishment upon the accused police officer, such gazetted officer must have been specially empowered by the Minister Incharge Police Department to do so. Admittedly in the present case the enquiry has not been conducted by the DIG but by the SSP who was not specially empowered by the Minister Incharge police department, therefore, according to Mr. Hali, the enquiry is invalid. The contention of Mr. Sethi on the other hand is that the requirement of being specially powered by the Minister Incharge Police Department for conducting the enquiry applies only to the case where enquiry is to be conducted by an Inspector and not by a gazetted officer.

9. I am in agreement with Mr. Sethi. From the bare reading of the rule requirement of being specially empowered by the Minister Incharge refers to the Inspector only. The requirement cannot be read under the rule to be applicable to the case of a gazetted officer also in view of the fact that the legislature has not put a coma after the word “Inspector” in the rule and have used the word “or” after the word “any other gazetted officer”. The use of word “or”, a disjunctive and absence of coma are indicative of the intention of the rule framing authority that if the enquiry is to be conducted by an Inspector who is not a gazetted officer he must have been specially empowered by the Minister Incharge Police Department.

10. In Pradyat Kumar’s case (AIR 1956 SC 285 supra) their lordships of the Supreme court has observed as under:-

“It is true that no judicial tribunal can delegate its functions unless it is enabled to do so expressly or by necessary implication. But the exercise of the power to appoint or dismiss an officer is the exercise not of judicial power but of an administrative power. It is nonetheless so, by reason of the fact that an opportunity to show cause and an enquiry simulating judicial standards have to precede the exercise thereof. It is well recognized that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. What cannot be delegated except where the law specifically so provides is the ultimate responsibility for exercise of such power. A functionary who has to decide an administrative matter, such as the dismissal of a member of the staff, can obtain the material on which he is to act in such manner as may be feasible and convenient, provided only the affected party has a fair opportunity to correct or contradict any relevant and prejudicial material. Where, therefore, charges are made against a member of the staff of the High Court, the Chief Justice is competent to delegate to another Judge the inquiry into the charges.”

11. In view of the aforesaid observations of their lordships of the Supreme court learned counsel for the petitioner cannot successfully urge that the enquiry held by SSP SSG HQr was incompetent for the reason of delegation of power to hold the inquiry. The punishment which has been imposed upon the petitioner has been imposed by an authority legally competent to impose the same. The enquiry against the petitioner has been conducted by the SSP SSG who was a Gazetted officer empowered to hold the inquiry by the disciplinary authority, there being no requirement of his being specially empowered in this behalf by the Minister Incharge Police Department, the enquiry conducted by him cannot be faulted with and report of the Enquiry Officer thus could be taken into consideration by the disciplinary authority i.e. D.I.G. SSG for considering the question of imposition of punishment. In this view of the position, there is no force in the submissions of the learned counsel for the petitioner.

12. There is thus no merit in the writ petition. Same is accordingly dismissed, alongwith connected CMPs. Interim direction if any shall stand vacated.

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