PETITIONER: MAKESHWAR NATH SRIVASTAVA Vs. RESPONDENT: STATE OF BIHAR & ORS. DATE OF JUDGMENT02/03/1971 BENCH: SHELAT, J.M. BENCH: SHELAT, J.M. SIKRI, S.M. (CJ) VAIDYIALINGAM, C.A. CITATION: 1971 AIR 1106 1971 SCR (3) 863 1971 SCC (1) 662 CITATOR INFO : RF 1980 SC 326 (16) D 1983 SC 990 (5,13) ACT: Police Act 5 of 1861 Rules under s. 46 of Act embodied in Bihar and Orissa Police Manual 1930-Order by Inspector- General under s. 7 of Act-Appellate powers of Government under r. 851(b)-Revisional Powers under s. 853-Power of Superintendence under s. 3-Scope of. HEADNOTE: At the relevant time the appellant was in the service of the State of Bihar as officiating Inspector of police. After a departmental inquiry against him the report of the enquiry officer was submitted to the Inspector General of Police with the recommendation that the appellant should be given exemplary punishment. Under s. 7 of the Police Act, 1861 the Inspector General had power to impose in suitable cases penalty of dismissal, suspension and reduction. The Inspector General exonerated the appellant, from the charges laid against him but on the basis of certain adverse remarks in the confidential character roll of the appellant he passed an order reverting the appellant to the substantive rank of sub-inspector of police for a period of one year. These adverse remarks had never been notified to the appellant nor was,any opportunity to explain them ever offered to him before the order of reversion was passed. In appeal the State Government set aside the order of reversion passed by the Inspector General on the ground that no opportunity had been given to the appellant to explain the adverse remarks, but the Government instead passed an order of dismissal disagreeing with the findings of the Inspector General and agreeing with the findings given by the enquiry officer by whom the appellant had been found guilty. On further appeal to the Governor having been dismissed by the Government the appellant filed a writ petition in the High Court. The High Court allowed the writ petition but directed that the appellant's appeal should go back to the government for disposal according to law. The Government thereupon served notices on the appellant to show cause why he should not be dismissed from service. The notice was issued oh the strength of rr. 851(b) and 853 of the Bihar and Orissa Police Manual, 1930. The appellant thereupon gave his reply. About a year after the High Court's order quashing the Government's order of dismissal, the Government issued an order reinstating the appellant but at the same time suspending him from service. This was followed by an order dismissing the appellant from service. The appellant once more filed a petition in the High Court which was dismissed in liming. By special leave the present appeal, was filed. The question for consideration was, whether it was competent for the Government, in an appeal filed by the appellant against the order of reversion passed by the Inspect(* General of Police to set aside the findings of that officer by which he exonerated the appellant from charges against him, which findings were not appealed against by the department, and then pass an order of dismissal accepting the findings of the enquiry officer. HELD:(1) The Act itself confers on the Inspector- General power to impose in suitable cases the penalty of dismissal, suspension and reduc -L1100Sup.Cl/71 864 tion,subject to the provisions of Art. 311 and the rules made under the Act. The power of superintendence conferred, on the State Government by s.3 must, therefore, be read in the light of the provisions of S. 7 under which the legislature has conferred specified powers to the officers mentioned therein. Further, an appeal before the Government having been provided for under r. 851 (b), presumably both by the delinquent police officer, as also the department, if aggrieved by an order passed by the Inspector-General, there would also be no question of the Government exercising its general power of superintendence under s. 3 of the Act. The exercise of such a power is ordinarily possible when there is no provision for an appeal unless there are other provisions providing for it. [867 D- 869 A] (ii)Under r. 851(b) the only question before the Government was whether the order of revision- should be sustained or not. There was no other matter by way of an appeal before the Government by the department or by anyone else being aggrieved against the order of the Inspector-General by which he held that the charges against the appellant had not been established. That being so, the Government could pass in exercise of its appellate power, under r. 851 (b) such an order as it' thought fit in the appeal filed by the appellant i.e., either upholding the order of reversion or setting it aside. In the absence of any other appeal, the Government could not sit in judgment over the findings of the Inspector General given by him under the power conferred on him by s. 7 of the Act [868 E-G] (iii)The order of the Govertunent could not also be defended under r. 853. Assuming that under r. 853 the Government could suo moto revise the order of the Inspector- General, on appeal having been filed before it, it could not so act. The fact that the power of revision is conferred on the authority possessed of appellate power indicates that the power of revision is intended to be used when an appeal could not for some reason be filed and the appeuate authority felt that the order was so unjust or unreasonable that it should act under its revisional power. That wae not the case of the Government in the present case. [869 D E] [whether the order of the Government could be defended under r. 853A could not be considered because the existence of the rule was not proved.] JUDGMENT:
CIBVIL APPELLATE JURISDICTION: Civil Appeal No. 23 of 1967.
Appeal by special leave from the judgment and order dated
October 9, 1963 of the Patna High Court in M.J.C. No. 824 of
1963.
S. N. Prasad and R. B. Datar, for the appellant.
B. P. Jha, for respondents Nos. 1 and 2.
The Judgment of the Court was delivered by
Shelat, J,-This appeal, by special leave, is against the
judgment of the High Court of Pitna dismissing in limine the
writ petition Med by the appellant challenging the order of
his dismissal from service passed by the Government of
Bihar.
865
The appellant was first appointed as a stenographer, Sub-
Inspector of Police in 1940 in the Police Service of the
State. After the requisite training in the Police Training
College at Hazaribagh, he was posted as a-Sub-Inspector in
1950 in Champaran District. In 1954, he was promoted to
officiate as an Inspector of Police. In June 1955, he
worked in Saharsa District as an- officiating Inspector of
Police.
In July 1955, he received a notice to show cause why
disciplinary proceedings should not be taken against him in
a matter relatng to certain cloth recovered- at Katihar
Police Station in a Police Case under ss. 379 and 414 of the
Penal Code. The appellant submitted his reply denying any
misapropriation by him. On September 26, 1955, he was
served with a charge sheet heet alleging misappropriation
and connivance by him of misappropriation by two constables
named therein . This was followd by an enquiry held by the
Deputy Superintendent of Railway police at Samastipur.The
appellant alleged that the enquiry was held at partially
behind his back and was, therefore, bad.’ In April 1956,
the Deputy Superintendent of Police submitted his findings
to the Superintendent of Railway Police, Samastipur holding
that the charges against the appellant had been established.
These findings were than submitted to the Inspector General
of Police with a recommendation that the appellant should be
awarded exemplary punishment. In September 1957, the
Inspector-General served a second show cause notice on the
appellant to show cause why he should not be dismissed. The
appellant submitted his reply and also appeared in person.
By his order dated September 30, 1958, the Inspector-General
exonerated the appellant from the said charges. But on the
basis of certain adverse remarks in the confidential
character roll of the appellant, he passed an order
reverting the appellant to his substantive rank of Sub-
Inspector of Police for a period of one year. This order
clearly was one of penalty. Admittedly, there was no charge
against the appellant founded on the said adverse remarks.
The adverse remarks on the basis of which the order of
reversion was passed were, as the said order itself pointed
out, never notified to the appellant. Nor was–any
opportunity to explain those remarks ever afforded to the
appellant before the order of reversion was passed.
Aggrieved by the said order the appellant filed an appeal
before the Government. On November 7, 1959, the Government
set aside the order of reversion passed by the Inspector-
General. That was the relief prayed for by the appellant in
his said appeal. The order was set aside on the ground that
no opportunity had been given to the appellant to explain
the said adverse remarks,
866
and that therefore, it was legally unsustainable. But the
Govern-, ment passed instead an order of dismissal
disagreeing with the findings of the Inspector-General and
agreeing with the findings given by the enquiry officer, by
whom the appellant had been found guilty.
On a further appeal to the Governor having been dismissed by
the Government, the. appellant filed a writ petition in the
High Court. On January 18, 1962, the High Court allowed the
writ petition setting aside the Government’s order of
dismissal, but directed that the appellant’s appeal should
go back to the Government for disposal according to law.’,
The Government thereupon served a notice on the appellant to
show cause why he should not be dismissed from service.
That notice was issued on, the strength of rr. 851 (b) and
853-A of the Bihar & Orissa Manual, 1930. The appellant
thereupon gave his reply and requested for a personal
hearing. The request for personal hearing was rejected.
About a year after the High Court’s order quashing the
Government’s order of dismissal, the Government issued an
order dated March 5, 1963 reinstating the appellant, but at
the same time suspending him from service. On June. 15,
1963, the Government passed the order dismissing the
appellant from service. Hence, the appellant filed once
more the present petition which the High Court dismissed in
limine.
The question is whether it was competent for the Government,
in an appeal filed by the appellant against the said order
of reversion passed by the Inspector-General Police, to set
aside the findings of that officer by which he exonerated
the appellant from the said charges against him, which
findings were not appealed against by the department, and
then pass an order of dismissal accepting the findings of
the enquiry officer.
The appellant was governed by the Police Act, 5 of 1861.
Sec. 2 of the Act deals with the constitution of the police
force and provides that the entire police establishment
under a State Government shall, for the purposes of the Act,
be deemed to be one police force, and shall be constituted
is such manner as shall from the to time be ordered by the
State Government. Sec. 3 provides that “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.” Under s. 4, the
admistration of the police throughout a general police
district is vested in the Inspector-General of Police, and
in such Deputy Inspectors-General of Police and Assistant
InspectorsGeneral as the State Government shall deem fit.
Sec. 7 runs as follows
“Subject to the provisions of article 3 1 1 of
the Constitution, and to such rules as the
State Government may
867
from time to time make under this Act, the
InspectorGeneral, Deputy Inspectors-General,
Assistant inspectors-General and District
Superintendents of Police may at any time
dismiss, suspend or reduce any police officer
of the sub-ordinate ranks whom they shall
think remiss or negligent in the discharge of
his duty, or unfit for the same, or may award
any one or more of the following punishments-
to any police officer of the subordinate rank
who shall discharge his duty in a careless or
negligent manner, or who by any act of his own
shall render himself unfit for the discharge
thereof, namely.”
The section then sets out the punishments which the said
officers can impose, namely, fine, confinement to quarters,
deprivation of good-conduct pay and removal from any office
of distinction or special emolument.
It is clear that the Act itself confers on the Inspector-
General power to impose in suitable cases the penalty of
dismissal, suspension and reduction, subject of course, to
the provisions of Art. 311 and the rules made under the Act.
The power of superintendence conferred on the State
Government by S. 3 must, therefore, be read in the light of
the provisions of S., 7 under which the Legislature has
conferred specific powers to the officers mentioned therein.
Therefore, the State Government cannot interfere with, under
the purported exercise of the general power of
superintendence under s. 3 with an order passed by any one
of the officers mentioned in S. 7 in exercise of the
power conferred on them by that section, unless there is
some provision which authorises or envisages such
interference. Under S. 46(2), the State Government has been
given the power to make rules from time to time by
notification in the official gazette consistent with the
Act, Inter alia :
“(a) to regulate the procedure to be followed
by Magistrates and police-officers in the
discharge of any duty imposed-upon them by or
under this Act;
(c)generally, for giving effect to the
provisions of this Act.”
It would seem that in pursuance of the rule making power
under S. 46 (2) rules have been made which are to be found
in the Bihar & Orissa Police Manual, 1930. The Manual has
not been produced before us. But we find r. 851 set out by
the High Court
868
in its judgment in the first writ, petition filed by the
appellant, reported in Makeshwar Nath vs. Bihar(1). The
rule so set out reads ‘as follows :
“General rules as to appeals
(a)…………
(b) Against an order of, dismissal, removal
reduction, withholding of promotion or peri-
odical increment…… there shall be one
appeal in each case as follows;
Against an order passed by a Superintendent,
to the Deputy Inspector_General;
Against an original order passed by a Deputy
Inspector General, to the Inspector General;
Against an original(order passed by the
Inspector-General, to the Local Government.
(c) The order of the appellate authority on
any such appeal shall be final.”
Under this rule an appeal would lie before the Government
against the order of the Inspector-General reverting the
appellant to his substantive post of Sub-Inspector for one
year. Such an appeal was in fact filed by the appellant.
But no appeal was filed by the department against the order
of the Inspector-General exonerating the appellant of the
charges of misappropriation and connivance of
misappropriation by the two constables. Under r. 851 (b),
therefore, the only question before the Government was
whether the order of reversion should be sustained or not.
There was no other matter by way of an appeal before the
Government by the department or by any one else being
aggrieved against the order of the Inspector-General by
which he held that the charges. against the appellant had
not been established. That being so, the Government could
pass in exercise of its appellate power under r. 851 (b)
such an order as it thought fit in the appeal filed by the
appellant, i.e. either upholding the order of reversion or
setting it aside. In the absence, of any other appeal, the
Government could not sit in judgment over the findings of
the Inspector-General given by him under the power conferred
upon him by S. 7 of the Act. An appeal before the
Government having been provided for under r. 851 (b),
presumably both by the delinquent police officer, as also by
the department, if aggrieved by an order passed by the
Inspector-General, there would also be no question of the
Government exercising, its general power of superintendence
under S. 3 of the Act. The
(1) A.I.R. 1962 Pat. 276.
869
exercise of such a power is ordinarily possible when there
is no provision for an appear unless there are other
provisions providing for it. The order of dismissal passed
by the Government in the appeal filed by the appellant
therefore, was not sustainable.
We are, however, informed by counsel that the Government of
Bihar has framed two rules, r. 853 and r. 853-A. Rule 853,
a copy, of which has been furnished to us, provides
“Memorials and Revision.-No petition or
memorial 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 enter am the
appeal.
No memorial or revision was filed either by the appellant or
any one else before the Government, which was the
appellate authority which could-entertain such a
memorial or revision. Assuming that under r. 853 the
Government could suo moto revise the order of the Inspector-
General, an appeal having been filed before I it, it
could not so act. The fact that the power of revision is con
feared on the authority possessed of appellate power
indicates that the power of revision is intended to be
used when an appeal could not for some reason be filed
and the appellate authority felt that the order was
so unjust or unreasonable that it shold act under its
revisional power. That was not the case of the Government
before us. Nor did the Government say so in the impugned
order. Therefore, there was no occasion for the
Government to revise the order passed by the Inspector-
General exonerating the appellant of the charges
preferred against him.
In its order, dated January 31, 1963, the Government, no
doubt, has referred to rr. 8 5 1 (b) and 8 5 3 A as being
the rules under which it purported to act for the
purpose of making the impugned order of dismissal. Rule 851
(b), as already pointed out, however, confers no such
power. As regards r. 853-A, it is neither set out in the
impugned order, nor in the statement of case of the
respondent-State. We called for its production, or even its
copy but counsel for the State expressed his inability
to produce the same. Further, counsel for the appellant
told us that even if r.853 A had been framed, it cannot
operate because so far it has, not been published in
the official gazette as required by S. 46(2). Counsel for
the State was not in a position to throw any light whether
the said rule has been framed or not and if framed whether
it was notified in the Gazette. In these circumstance he
could not rely upon that rule to sustain the order of
dismissal passed by the Government. We have, therefore,
to go upon r. 851 (b), which clearly does not empower
the Government to pass an order such as the one impugned
by the appellant on the ground
870
of its revisional power or any such similar power under s. 3
of the Act. In the absence of any other provision of law or
any rule conferring on the- State Government the, power to
pass an order of dismissal in exercise of its revisional
power or power of general superintendence, the general
principle must prevail, namely, that an appellate authority
in an appeal by an aggrieved party may either dismiss his
appeal or allow it either wholly or partly and uphold or set
aside or modify the order challenged in such appeal. It
cannot surely impose on such an appellant a higher penalty
and condemn him to a position worse than the one he would be
in if he had not hazarded to file an appeal. Since under r.
851 (b) an appeal to the Government has been provided for
and the Government had under that rule the appellate
authority to dispose of appeals filed before it against the
original order passed by the Ins-pector-General, it could
not resort to any general power of superintendence except in
cases where there is a provision conferring such a power in
addition to its appellate authority and in the manner
envisaged by such a provision.
In our view, the High Court was not right in dismissing the
appellant’s writ petition. The appeal has, therefore, to be
allowed and the order of the State Government quashed as
being without jurisdiction. The consequence is as if the
appellant was never dismissed, and continued to remain in
the, police force to which he was attached. The respondent-
State will pay to the appellant the costs both of this
appeal and also of the writ petition filed by him in the
High Court.
G.C.
Appeal allowed.
871