Ashok Kumar vs State of Punjab and Others

Rameshwar Singh Malik, J.—Petitioner impugns the order dated 24.5.1990 (Annexure P-6) as well as order dated 7.11.1992 (Annexure P-8). He seeks a writ in the nature of Certiorari for quashing the impugned orders, primarily on the ground that impugned punishing order Annexure P-6 was passed by the Superintendent of Police, who did not have any jurisdiction to pass it. Notice of motion was issued and pursuant thereto, written statement was filed on behalf of the respondents. Writ petition was admitted for regular hearing, vide order dated 27.8.1993. That is how, this Court is seized of the matter.

Learned counsel for the petitioner submits that petitioner was enrolled in service by the Senior Superintendent of Police, but the impugned order was passed by the Superintendent of Police, who was not competent to pass the impugned order. He further submits that present case is squarely covered by the judgment of this Court in State of Punjab and Others Vs. Gursewak Singh, . He prays for allowing the present writ petition, by setting aside the impugned orders.

On the other hand, learned counsel for the State submits that posts of Senior Superintendent of Police as well as that of Superintendent of Police were in one and the same cadre. She submits that Superintendent of Police cannot be said to be a subordinate officer of the Senior Superintendent of Police. She places reliance on the judgment of the Hon''ble Supreme Court in Union of India (UOI) Vs. Jagjit Singh, . She prays for dismissal of the writ petition.

Having heard the learned counsel for the parties at considerable length, after careful perusal of record of the case and giving thoughtful consideration to the rival contentions raised, this Court is of the considered opinion that in the given fact situation of the present case, instant writ petition deserves to be allowed for the following more than one reasons.

It has gone undisputed on record that petitioner was appointed by the Senior Superintendent of Police and the impugned punishment order was passed by the Superintendent of Police. This plea was specifically raised by the petitioner in his statutory appeal. The appellate authority in para 3 of the impugned appellate order Annexure P-8, only referred to the plea raised by the petitioner, but failed to deal with the same, while passing the order. Having said that, this Court feels no hesitation to conclude that since the petitioner was enrolled by the Senior Superintendent of Police, the Superintendent of Police did not have any jurisdiction to pass the impugned order. Thus, impugned order cannot be sustained.

The abovesaid view taken by this Court also finds support from the judgment of this Court in Gursewak Singh''s case (supra). The relevant observations made by this Court in para 3 of the judgment, which can be gainfully followed in the present case, read as under:--

"It is the admitted fact that the plaintiff was appointed as Constable by the SSP Ludhiana on 16.4.1975. He was promoted as Head Constable by the same authority on 12.6.1980. Certainly, the post of Superintendent of Police is lower in rank to that of the Senior Superintendent of Police who was the appointing authority of the plaintiff. The SSP is considered to be the head of the District in the Police hierarchy in the State of Punjab, whereas the SP is below in rank to him. Though in Rule 12.1 of the Punjab Police Rule, 1934 (for short the Rules''), there is a mention that for the appointment of Constable and Head Constable, the Superintendent of Police would be the appointing authority, yet the court cannot lose sight of the fact that when the Rules were framed in the year 1934, there was no post of Senior Superintendent of Police in that State of Punjab and the Superintendent of Police used to be the Head of the District in the Police hierarchy. But with the creation of the post of Senior Superintendent of Police, the rank of Superintendent of Police cannot be equated with the rank of Senior Superintendent of Police. There is also no evidence on the record to show that the SSP Ludhiana had ever delegated his powers to the Superintendent of Police, Ludhiana, authorising him to make the appointments of Constables/Head Constables. In this view of the matter, it cannot be said that the rank of SP is no lower to the rank of SSP. Consequentially, I do not find any infirmity in the findings arrived at by the Courts below on the point. The First question posed at the outset is answered in the negative and it is held that the Punishing authority, who is lower in rank to the appointing authority, cannot dismiss an employee."

The abovesaid patent illegality in the impugned punishing order passed by the Superintendent of Police could have been rectified by the appellate authority itself by passing an appropriate order. However, even the appellate authority had failed to consider this material aspect of the matter in the correct perspective. The appellate authority also fell in serious error of law, while passing the impugned appellate order (Annexure P-8). No plausible reasons were assigned by the appellate authority, while passing the impugned order. In this view of the matter, it can be safely concluded that both the impugned orders are patently illegal and the same cannot be sustained.

No other argument was raised.

Considering the peculiar facts and circumstances of the case noted above, coupled with the reasons aforementioned, this Court is of the considered view that present writ petition deserves to be allowed and the same is hereby allowed. Consequently, both the impugned orders dated 24.5.1990 (Annexure P-6) and dated 7.11.1992 (Annexure P-8) are set aside. However, liberty is granted to the respondent authorities to pass a fresh order, in accordance with law. Resultantly, instant writ petition stands allowed, however, with no order as to costs.