Abdul Majid vs State of J & K

This writ petition challenges the validity and legality of the show cause notice that has been issued by respondent, Director General of Police

vide his No. Appl10/87/ 2483334 dated: 14.06.91. This notice calls upon the petitioner to show cause as to why should he not demoted to the

rank of Assistant SubInspector of Police from which he had been promoted vide the D.I.G.'s order No, 404 of 1981 dated: 19.09.1981.

The facts which appear to be uncontrovertible are that having served in the police force for a couple of decades the petitioner earned his

promotion, vide the above said D.I.G's order, to the cadre of SubInspector. Having remained on that post for a period of time, it somehow got

revealed to the higher ups in the police hierarchy that the petitioner could not have been promoted because of his having the stigma of punishment,

in the nature of stoppage of increments for half a dozen months, which had been imposed on him by the Assistant Inspector General of Transport

under his No.5 of 1980, dated: 30.01.1980. an enquiry was allegedly initiated about the circumstances in which this fact of punishment had been

deliberately kept back from the characterrolls of the petitioner. It is suggested that this enquiry file had, with the active connivance of the petitioner,

been got misplaced or destroyed.

The Director General issued the impugned notice in the apparent exercise of his jurisdiction of review that stemmed from Rule 363 of the Police

Rules.

The show cause notice is impugned on the grounds that it is without jurisdiction as the powers of review do not vest with the Director General of

Police, and that the impugned notice suffers from the infirmity of having been issued without compliance to the due process of law rules.

The petition was admitted to hearing vide the order recorded on 16121992. The Senior Additional Advocate General appeared for the

respondents with the prayer that the objections filed at the preadmission stage be treated as the counter. The objections being not on the affidavit,

opportunity was afforded to either file a fresh counter or to file an affidavit in support of the objections. Neither having been done, the matter has

thus come up for conclusion without there being a counter.

The meat of the matter is whether a show cause notice in respect of a proposed action is justiciable under the writ jurisdiction. It is being

vehemently contended that since the impugned notice is without jurisdiction so the extra ordinary writ powers can be invoked to quash it. It is

further argued that the D.G.P. has issued the notice without obedience to the due processes of law.

Rule 363 of the Police Rules confers the review jurisdiction on the topbrass of the police force. In order to fathom the scope of this rule it is

pertinent to quote it:

Power to review proceedings..(1) The Inspector General or a Deputy Inspector General of Police may call for the records of award made by

their subordinates and confirm, enhance, modify, or annual the same or make further investigation or direct such to be made before passing orders.

(2) In all cases in which officers propose to enhance an award they shall before passing final order give the defaulter concerned an opportunity of

showing cause, either personally or in writing why his punishment should not be enhanced.

The bare reading of the rule shows it that power of review is exfacie vested in the Inspector General or Deputy Inspector General of Police. The

Rule clothes them with the authority to call for the records of any order or award made by any subordinate and to confirm, modify or annual the

said order or to direct any further investigation into the matter form which any such order or award had sprung. The Rule however, provides that

before passing any final order in the exercise of the review jurisdiction the concerned defaulter shall have the right to show cause, either personally

or in writing, about the punishment proposed to be enhanced or confirmed,

Vide Rule No. 3 of the Police Rules the Inspector General of Police was recognised at the Rule framing time, to be the head of the Police

Department. The review jurisdiction under rule 363, was thus vested with the I.G.P or the D.I.G One cannot now loose the sight of the fact that

though the I.G.P was the head of the department at the time when the Rules were drafted and applied, yet it is the Director General who

undisputably, is now the head of the Police Department. It is by necessary implication to be accepted that all those powers which were exercisable

by the I.G.P. as the head of the department now vest with the Director General, as such head of the department. It is hard to accept that the

power of review conferred by Rule 363 Police Rules cannot be exercised by the Director General, though that power is admittedly available to his

subordinate namely the Inspector General or the Deputy Inspector General. The Rule has to be interpreted and applied in such a manner as

enhances its purpose without of course, violence being done to the scheme of the Police Rules. Power of review of proceedings or order is as per

necessary implication, available to the Director General and his subordinates, inspectors General of Police. It has to be borne in mind that the Rule

363 refers to single Inspector General of Police as at the time of their drafting the head of the department of the Police Force was the Inspector

General. We have a number of Inspectors General in police at this time, so neither collectively nor individually can anyone of them be treated as the

head of the department to exercise all those powers which under the Police Rules vest with the office of the head of the department. I am unable to

agree thus with the petitioner's contention that the Director General no power under Rule 363 to review an earlier order passed by his subordinate

whereby, the petitioner had got promoted from the rank of Assistant SubInspector to the cadre of SubInspectothers

While advancing the contention that a show cause notice is justiciable under Article 226 of the Constitution, the petitioner seeks reliance on the

case, Chief of the Army Staff and others, appellants Vs. Major Dharam Pal Kukrety respondent, 1985 (2) SCC 412. The relevant observations

are:

Where the threat of a pre judicial action is wholly without jurisdiction, a person cannot be asked to wait for the injury to be caused to him before

seeking the court's protection. If on the other hand the Chief of the Army Staff had the power in law to issue the said notice, it would not be open

to the respondent to approach this court under article 226 of the Constitution at the stage of notice only and in such an event his writ petition could

be said to be pre mature. This was however, not a contention which could have been decided at the threshold until the court had come to a finding

with respect to the jurisdiction of the Chief of the Army Staff to issue the impugned notice. Having held that the impugned notice was issued

without any jurisdiction, the High Court was right in further holding that the respondent's writ petition was not premature and was maintainable.

The apex court has thus ruled that where the actions sought to betaken is wholly without jurisdiction, the person apprehending the prejudicial

results from such an action can invoke the writ jurisdiction of the High Court to quash the impugned action. The expressions ""wholly without

jurisdiction"" or ""without jurisdiction"" in the authority have to be given their due weightage while applying it to the case at hand.

The Director General issued, in the case at hand, the show cause notice by virtue of his powers arising from Rules 363 of the Police Rules as in

his view the petitioner could not have been promoted to the rank of Sub Inspector because of the punishment that he had invited for himself by his

misconduct as Assistant Sub Inspector. This alleged fact had as per the language of the impugned notice been suppressed or kept back from the

departmental promotion committee on whose recommendation the petitioner had been promoted by the Dy. Inspector General. I am unable to see

as to how can it be said, in the totality of the circumstances and the set up of the police hierarchy as at present, that the issuance of impugned

notice by the Director General was without jurisdiction. The Director General being the head of the department had as per the scheme of the

Police Act and the Rules there under, the jurisdiction to review, by calling the records of any order made by his subordinate and to confirm, modify

or annul it. It is held thus that the Director General of Police had the jurisdiction to issue the impugned notice and it is in that situation not open to

the petitioner to approach this court at the stage of notice only to pray for its quashment. The writ petition is premature in so far as the impugned

notice issued by the competent authority in exercise of legal powers is not without jurisdiction and the petitioner has no cause as yet to agitate. The

petitioner can go to the Director General, respondent No.2, and explain his position. May be that he succeeds in persuading the Director General

not to annul the order of promotion and in case he somehow fails to carry the day and the proposed action is transformed into an order then he can

have recourse to the legal remedies available.

The other plan of attack on the impugned notice is that while issuing it the Director General did not adhere to the due course of law.

Elaborating this point, it is contended that before issuing the impugned notice the Director General ought to have called upon the petitioner to show

cause against the issuance of the impugned notice. This argument is devoid of any force and bereft of any weight. The Director General has not so

far committed such an act by issuance of the notice as could be labelled to have prejudiced the petitioner. Nowhere do the Rules provide that

before issuance of show cause notice the defaulter or the delinquent official shall be required to explain his position. The very purpose of issuing the

show cause notice is to afford to the delinquent or the defaulter the opportunity to explain his position before any action is taken against him. I am

thus unable to find any substance in the petitioner's grievance that he was entitled to a notice prior to the issuance of the impugned notice.

On no count can the petition be sustained to quash the impugned show cause notice which requires the petitioner to explain as to why should

not his promotion to the rank of SubInspector affected by DIG's Order No. 404 of 1981, dated 19.09.1981, be cancelled and the demoted

because of his prior punishment imposed on him by AIG of transport vide his No.5 of 1980. The proposed action is made subject to the

petitioner's explanation by the impugned notice. It is for this reason rightly said for the respondents that the writ petition is premature. The petition is

thus hereby, dismissed as being premature.