Bhagat Ram vs Inspector General of Police etc.

T.U. Mehta, C.J.—The Petitioner, Bhagat Ram, was recruited as a police contable on 27-4-1955 and thereafter he was promoted as Head Constable on 8-5-1965. He continued to serve as Head Constable thereafter for some time.

On 20-9-1967, the Petitioner was working as Head Constable in 1st H.P. S.S.B. Battalion. A Company Section 2 at a place known as Deorighat in Iv ahasu district. It is the allegation of the Department that on that day, the Petitioner left his camp at about 1.30 P.M. and went to the camp of Head Constable Gopal Singh at village Bh and al. It is said that at that time the Petitioner and Head Constable Gopal Singh chalked out a programme to go out of taking illicit liquor. Both of them took Surat Ram Constable with them as orderly and went to village Shil which was at the time a dry area. The Petitioner is said to have procured illicit liquor and consumed the same and stayed along with his colleague Gopal Singh at the house of one Shyam Singh. It is further alleged that after they left the house of Shyam Singh, they quarrelled with their orderly Surat Ram and during the course of that quarrel Surat Ram was beaten. The case of the Department is that the Petitioner and Head Constable Gopal Singh had excessive drink as a result of which they quarrelled and belaboured Surat Ram. Since they were under the influence of drink, they could not reach their camp till the morning of 21-9-1967. Surat Ram made the compliant of the behaviour the Petitioner and his colleague Gopal Singh. Thereafter preliminary enquiry was made by the Respondent No. 2 and then the Petitioner and Gopal Singh were regularly charge-sheeted. They pleaded guilty to the charge with the result that Respondent No. 3, who was authorised to conduct the enquiry, found him guilty and proposed and recommended a lenient punishment in view of the fact that the Petitioner had "a courage to make an admission of his guilty". Thereafter one N.R. Grover, who was the Comm and ant and was also holding the position of Superintendent of Police, passed the final order is found at Annexure ''B'' and punished the Petitioner with "forfeiture of approved service for one year permanently both for the purpose of increment as well as for pension". This order was passed on 18-1-1968. This final order was passed after issuing a second show cause notice for awarding the punishment in question.

Thereafter on 31-5-1968 the Inspector-General of Police appears to have proposed to review of the order of punishment awarded to the Petitioner under Police Rule 16.28 as applied to Himachal Pradesh and issued a show cause notice to the Petitioner as found at Annexure ''E'' calling upon him to show cause why the punishment awarded to him should not be enhanced to that of dismissal from service looking to the gravity of the charges proved against he Petitioner. After the Petitioner showed cause, the Inspector-General of Police passed the order found at Annexure ''F'' on 25-9-1968 awarding the enhanced penalty of reversion of the Petitioner to the rank of Constable from the frank of Head Constable. The Petitioner thereafter filed a mercy petition to the Inspector-General of Police but the same was rejected on 16-7-1969 as found at Annexure ''H''.

Being aggrieved by this above order of reduction to the rank of a Constable, the Petitioner has approached this Court by this writ petition praying for the order quashing the order of reversion passed by the Inspector-General of Police as well as the previous order of forfeiture passed by the Comm and ant Mr. Grover as found at Annexure ''B''.

In the amended win petition the Petitioner has fuither contended that Police Rule 16.1 under which the penalty of forfeiture of approved service could be imposed, and Rule 16.28 under which the power of review could be exercised by the Inspector-General of Police, are ultra vires provisions of the Police Act and, therefore, the penalty of forfeiture of approved service and the ultimate penalty of reduction in rank imposed by the Inspector-General of Police should be quashed.

Here it should be mentioned that this writ petition being the matter which could be heard by a single Judge of this Court, originally came up for hering before C.R. Thakur, J., but since the learned Judge found that the question whether Rule 16.1 and 16.28 were ultra vires the main statute, was an important question having farreacbing effect, he ordered the matter to be placed before the Chief Justice for decision by a larger Bench. Accordingly, this matter comes before us for final disposal.

It is first necessary to consider whether Rules 16.1 and 16.28 are ultra vires the provisions of the statute called the Police Act (Act 5 of 1861). These Police Rules are known and Punjab Police Rules, 1934. They are contained in an official publication called Punjab Police Rules, 1934. Rules themselves do not mention as to under which particular provision of the Police Act these were framed. However, a front page which does not form part of the rules, contains a note that they have been issued by and with the authority of the provincial Government under Sections 7 and 12 of the Act (Act 5 of 1861). It is immaterial whether the rules purport to have been issued under a specified Section , if the power to issue the rules is actually found to have been exercise under some different Section of the Act. On a perusal of the Police Act we find that there are three Section and not two as mentioned by the publisher in the front page of the published rules. These three Sections are Sections 7, 12 and 46 of the Police. Act. The Section 7 is in the following terms:

Appointment, dismissal, etc. of inferior officers.-Subject to the provisions of Article 31 of the Constitution and to such rules as the State Government may from time to time make under this Act, the Inspector-General, Deputy Inspector-General, Assistant Inspector-General and District Superintendents of Police may at anytime dismiss, suspend or reduce any police officer of the subordinate ranks which 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 punishment stoany police officer of the subordinate ranks who shall discharge his duty in a careless or negligent manner, or who any act of his own shall render himself unfit for the discharge thereof, namely:

(a) fine to any amount not exceeding one month''s pay,

(b) confinement to quarters for a term not exceeding fifteen days, with or without punishment drill, exrra guard, ratigue or the duty;

(c)deprivation of good conduct pay;

(d) removal from any office of distinction or special emolument.''

In fact, this Section 7 of the Act does not specifically provide for a rule making power but authorises certain officers named therein to award different types of punishments named therein. The rule making power is, therefore, to be sought elsewhere in the Act.

Section 12 of the Act provides for the power of the Inspector-General to make rules. This power is to be exercised by the Inspector-General subject to the approval of the State Government. This Section is in the following terms:

Power of Inspector-General to make rules. The Inspector-General of Police may, from time to time, subject to the approval of the State Government frame such orders and rules as he shall deem expedient relative to the organisation, classification and distribution of the Polite Force, the places at which the members of the Force shall reside, and the particular services to be performed by them; their inspection, the description of arms, accounterments and other necessaries to be furnished to them; the collecting and communicating by them of intelligence and information and all such other orders and rules relative to the Police Force as the Inspector-General shall, from time to time, deem expedient for preventing abuse or neglect of duty, and for tendering such force efficient in discharge of its duties.

A bare perusal of the provisions of this Section 12 shows that the power contemplated in this Section can be utilised only for specific purposes which are mentioned in the Section.

We find that the general rule making power which vests in the State Government, can be traced neither in Section 7 nor in Section 12, but in Section 46 of the Act, the relevant portion of which is in the following terms:

Scope of Act.-(1)...

(2)...

When the whole or any part of this Act shall have been so extended, the State Government may, from time to time, by notification in the Official Gazette, make rules consistent with this Act:

(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;

(b) to prescribe the time, manner and conditions within and under which claims for compensation u/s 15-A are to be made, the particulars to be stated in such claims, the manner in which the same are to be verified, and the proceedings (including local enquiries if necessary) which are to be taken consequent thereon; and

(c) generally, for giving effect to the provisions of this Act.

(3) All rules made under this Act may from time to time be amended, added to or cancelled by the State Government.

It is clear from the above quoted provisions of Section 46(2) that the State Government can frame rules, consistent with the Act, to regulate the procedure to be followed by the police officers in the discharge of duty by them under the Act, and generally for giving effect to the provisions of the Act. Therefore, under Sub-rule (2)(a) and (c) of Section 46, it is open to the State Government to frame rules showing how a particular police officer can effectively discharge his duties which are imposed upon him by the Act. Such rules can also provide for details with a view to give effect to any of the provisions of the Police Act.

Now, the first question is whether Rule 16.1 which'' contemplates the various types of penalties which can be imposed, could have been validly framed by the State Government under the powers vested in it by Clause (c) of Section 46(2). The relevant portion of Rule 16.1 is in the followg terms:

16.1 (1) No police officer shall be departmentally punished otherwise than as provided in these rules.

(2) Authorised punishments.-The Departmental punishments mentioned in the second column of the subjoined table may be inflicted on officers of the various ranks shown in the heading Nos. 3 to 6 by the officers named below each heading in each case or by any officer of higher rank.

Then follows the table, heading 5 of which is with regard to Head Constables. The table mentions at serial No. 3 a departmental punishment called "stoppage of increment or forfeiture of approved service for increment". This table further shows that such type of punishment could be inflicted on Head Constable by a Superintendent of Police.

Now the contention of the learned Advocate of the Petitioner is that Rule 16.1 cannot legally provide for the punishment of stoppage of increment or forfeiture of approved service in view of the fact that such type of punishment is not mentioned in Section 7.

We have already quoted Section 7 of the Police Act. Perusal of this Section shows that first part thereof contemplates three types of punishments, namely, (1) dismissal, (2) suspension, and (3) reduction of any police officer of subordinate rank who is found to be remiss or negligent in the discharge of his duties or who is found unfit for the same. Second Part of Section 7 contemplates some additional punishments which are of minor nature. There are four categories of such minor punishments found at Clauses (a), (b), (c) and (d).

Now, the argument of the learned Advocate of the Petitioner was that since Section 7 nowhere provides for the punishment of stoppage of increment or forfeiture of approved service, no provision for such a punishment could have been made by the delegated authority, namely the State, in Rule 16.1.

While considering the question whether a statutory rule which is framed under a delegated power of legislation, is valid or not, the Court should be guided by two considerations, namely (1) whether the delegated power so exercised is consistent with the parent legislation, and (2) whether the power in question could have been exercised under of any specific provision of the statute.

So far as the first criterion is concerned, we are of the opinion that Section 7 of the Act does not contain any exhaustive list of the punishments which could be awarded under the Act. It is undoubtedly true that some punishments would have been enumerated in both parts of Section 7. But there is nothing to suggest that this enumeration is fully exhaustive in nature. The types of punishments which are contemplated by Section 7 in both of its parts are merely enumerative. The Section also does not say anything to the effect that no punishment other than that which is specified in the Section could be awarded to a delinquent officer. In our "opinion, therefore, it is clear that Section 7 does not debar the rule making authority to prescribe the form of punishment which is not enumerated therein. That being the position, it is not possible to say that the punishment of stoppage of increment or forfeiture of approved service is in any manner contrary to the provisions of Section 7.

On the contrary, we find that such type of punishment would be covered by the punishment of "reduction" of the delinquent officer as contemplated by the first part of Section 7.

It may be recalled that this first part of Section 7 contemplates three types of punishments. The words used in the first part are "dismiss, suspend or reduce any police officer of the subordinate rank". The point to be noted is that reduction which is contemplated in the above clause is not merely the "reduction in rank". The use of the word "reduce" is comprehensive enough to suggest reduction in rank as well as other type of reduction. Now, when punishment of stoppage of increment or forfeiture of approved service is inflicted, it results not in the reduction of any rank, but it does result in reduction of the period of service and would, therefore, be covered by the comprehensive sense in which the word "reduce" is used in the fast part of Section 7. That being the position, it was open to the State Government to frame a rule providing for the punishment of forfeiture of approved service which is nothing but one aspect of reduction contemplated by Section 7. We find support to this particular view from the decision given by a Division Bench of the Rajasthan High Court in Longmal and Others Vs. Superintendent of Police and Others, where in considering exactly the same point, the Court has observed as under:

It is correct that withholding of increments is not a punishment provided as such in Section 7 of the Police Act. The argument of the learned Government Advocate however, is that the word "reduce" in Section 7 is comprehensive enough to include the punishment of withholding of increments. The language employed in Section 7 is "not reduction of rank" as employed in Article 311 of the Constitution but the only word used is ''reduce''. The grammatical meaning of the word ''reduce'' inter alia is to lesson in any way as in size, weight, amount, value, price etc., to diminish, to lower as in rank or position, to decreased. (See Welester''s NEW 20TH CENTURY DICTIONARY).

When the increments of an incumbent are stopped his future progress is brought to a st and still for a particular length of time. It is the stoppage of his increase which results in a sense in a decrease of his emoluments. In our opinion, therefore, the word ''reduce'' is wide enough to include the punishment of stoppage of increments. Stoppage of increments with future effect is a permanent reduction in the speed of progress so far as emoluments of an employee are concerned.

The learned Advocate of the Petitioner had in this connection put reliance upon the decision given by the Punjab and Haryana High Court in State of Punjab v. Inder Sain Sharma reported in 1968 SLR 519. Facts of this case show that the delinquent officer was awarded the punishment of forfeiture of three years'' approved service on permanent basis u/s 7 of the Pepsu Police Act which did not contain the penalty of stoppage of increment as was the case in the former State of Punjab where such a penalty was added to the Police Act 1861 by virtue of an amendment. The Court held that the Inspector-General of Police in Pepsu could not impose such a penalty u/s 7 of the Police Act since such a penalty did not exist in that Section. According to the High Court, therefore, the penalty imposed was illegal.

We have perused the above referred decision of the Punjab and Haryana High Court. It is not possible to know from the recorded judgment what were the actual words of Section 7 of the Police Act which was considered in that case. However, presuming that Section 7 of the Police Act was in the same words as Section 7 of the Police Act, we are of the opinion that this decision cannot be accepted as laying down the correct position of law in view of the fact that the High Court''s attention in that case was not drawn to the comprehensive meaning of the word "reduce" found in the first part of Section 7 of the Police Act. At any rate, this decion of the Punjab and Haryana High Court is not of much help to the Petitioner in this case in view of the fact that there the High Court was concerned only with the provisions and of Section 7 of the Pepsu Police Act without the aid of any rule providing for the penalty of forfeiture in question. It was in absence of such a rule that the High Court came to the conclusion that there was no statutory provision in the Pepsu Police Act for inflicting the specific punishment of forfeiture of approved service. So far as the case before us is concerned, we have got a specific rule namely Rule 16.1 is referred to above, providing specifically for the punishment of forfeiture of approved service, and unless this rule is shown to be contrary to Section 7, it cannot be struck down as ultra vires the statute. As we have already observed, this rule is not only not contrary to Section 7, but is covered by the phraseology of the Section itself, and therefore, it cannot be struck down as going against the provisions of Section 7.

Next criteria for deciding the validity of Section 7 is whether such a rule is enacted under any of the rule making powers of the delegated legislation. Here we find that the powers; which are delegated by Section 46(2)(a) and (c), are wide enough to enable the State Government to frame Rule 16.1. As already noted above, the State Government acting u/s 46 can frame rules to regulate the procedure to be followd by police officers in discharge of any duty imposed upon them by or under the Act and Clause (c) enables the State Government to ''frame rules for giving effect to the provisions of the Act. Now, in this connection reference should be to made other Sections of the Police Act, namely, Sections 3 and 4. Section 3 of the Act provides for the power of superintendence of the State Government and says 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. This Section , therefore, vests the power of superintendence in the State Government throughout all the police districts. Section 4 says the administration of the police throughout a general police district shall be vested in an officer to be styled as Inspector-General of Police and also in such Deputy Inspector-General of Police and the Assistant Inspector-General of Police as the State Government shall deem fit. Thus u/s 4 the administration of a police district is vested in the Inspector-General of Police or any other officers mentioned in that Section .

It follows from the provisions contained in Section 3 and 4 as referred to above that it is the duty of the State Government to supervise the police district. The object of Police Act is to recognise the police with, a view to make it more efficient instrument for prevention and detection of crime (vide the Preamble) . Therefore, when Clauses (a) and (c) of Section 46(2) speak about the regulation of procedure of the police officers in discharge of their duty and also about giving effect to the provisions of the Act, they clearly vest very wide power in the State Government to frame rules for the purpose of making the police force a more efficient instrument for the prevention and detection of crime. The provisions of the Act cannot be carried out properly unless suitable and detailed rules are made with a view to see that proper and appropriate punishment is awarded in a particular case consistent with the efficiency of the police force and the idea of prevention and detection of crime. When, therefore, the State Government framed Rule 16.1 and provided the lesser punishment of stoppage of increment or forfeiture of approved service, it was completely within its powers u/s 46 to frame such a rule. To sum up, therefore, we are of the opinion that it is not possible to contend successfully that Rule 16.1 which contemplates the punishment of stoppage of increment or forfeiture of approved service is in any maner ultra vires the statute.

So far as Rule 16.28 is concerned, it contemplates the power of the Inspector-General of Police to review the proceeings of the lower authority in the following terms:

16.28 (1) The Inspector-General, a Deputy Inspector-General, and a Superintendent of Police may call for the records of awards made by their subordinates and confirm, enhance, modify, or annul the same, or make further investigation or direct such to be made before passing orders.

(2) If an ward of dismissal is annulled, the officer annulling it shall state whether it is to be regarded as suspension followed by reinstatement, or not. The order should also state whether service previous to dismissal should count for pension or not.

(3) In all cases in which offices 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.

Sub-rule (1) empowers the Inspector-General to call for the record of award made by a subordinate and to confirm, enhance, modify or annul the same, an Sub-rule (3) provides that in all cases wherein it is proposed to enhance the award, the defaulter concerned should have an opportunity to show cause before the final order is passed. The contention was that such a power of review could not be provided in the rules in view of the fact that the Police Act itself does not contain any power of review. For the reasons already given by us with regard to the validity of Rule 16.1, we are of the opinion that even this contention should be rejected. It would not be out of place to emphasise that the provisions of the Police Act cannot be given effect properly, if there exist no provisions for reviewing the award which in the opinion of the highest authority in the Department, is such that it is liable to be set aside. Such a reviewing power is always reserved in special statutes with a view to see that subordinate authority does not pass any order which is not consistent with the spirit of the Act or which is either perverse or induced by corruption or nepotism. In fact, Section 4 of the Police Act, to which we have already made a reference above, specifically states that the administration of the police throughout the general police district shall be entrusted to the officer called the Inspector General of Police. Therefore, it follows that it is the duty of the Inspector General of Police to see that the administration of police in a police district is properly carried out. It is for the purpose of fulfilment of this object that the review power is provided by Rule 16.28. It is a well known position that no legislation can contemplate and provide for all the details with regard to the implementation of its provisions. Such details can, therefore, legitimately be contemplated to be filled by a subordinate legislation, and so long as such a subordinate legislation is not found contrary to the specific provisions of the Act, it would not be possible to hold that such a legislation is ultra vires the statute. That being the position We hold that even this Rule 16.28 cannot be held as ultra vires the statute.

This now brings us to the merits of the case. It was contended on behalf of the Petitioner that the departmental enquiry which was initiated against the Petitioner is illegal inasmuch as it did not comply with the provisions contained in Rule 16.38 of the Rules. The relevant portion of Rule 16.38 is contained in Sub-rule (1) thereof which is in the following terms:

"16.38 (1) Immediate information shall be given to the District Magistrate of any complaint received by the Superintendent of Police, which indicates the commission by a police officer of a criminal offence in connection with his official relations with the public. The District Magistrate will decide whether the investigation of the complaint shall be conducted by a police officer, or more made to a selected Magistrate having 1st Class powers.

Pointing out to these provisions of Rule 16.38, it was contended by the learned Advocate of the Petitioner that the offence which was enquired into departmentally should have been brought to the notice of the District Magistrate concerned and thereafter it was for that District Magistrate to decide whether investigation of the complaint should be conducted by any police officer or made over to a Magistrate having first class powers. It was contended that since these provisions of Rule 16.38 have been held to be m and atory, non-compliance thereof would vitiate the whole departmental enquiry.

We find that Rule 16.38 has no relevance to the facts of the present case and, therefore, it has no application. Even a cursory reading of the language employed by the above quoted portion of Rule 16.38 shows that it is not every type of offence which is required to be brought to the notice of the District Magistrate. The plain reading of the rule suggests very clearly that the criminal offence which is required to be brought to the notice of the District Magistrate should be one which should be found to have been committed "in connection with his official relations with the public". Therefore, unless it is found that the criminal offence, which a particular officer is said to have committed, was committed by him in connection with his official relations with the public, no question of the application of Rule 16.38 would arise. The words "in connection with his official relations with the public" have been explained by Delhi High Court in Ajit Singh v. Delhi Administration reported in 1973 (1) SLR 1100, wherein the view which we are taking in this case has been expressed in the following words:

The question to be decided is as to what is the import of the words ''the commission by a police officer of a criminal offence in connection with his official relations with the public''-occurring in the said rule. It shows that at the time of the commission of the alleged offence by a police officer he should be (1) discharging his duties as a police officer and (2) that on the discharge of those duties should bring him in contact with the public in relation to whom the offence is committed. In other words, it is not each and every offence which may come to be committed by a police officer that this rule will become applicable.

Now looking to the facts of this case, it is quite evident that the allegation of the department was that at the relevant time, the Petitioner left his camp, that is left his duty, went in a dry area, consumed liquor in excess, became tipsy and indulged in rowdyism. As a result of these acts, he was late in his duties. None of these acts could be said to have been committed by him in connection with his official relations with public. It was an offence which was committed by him in his personal capacity. That being the situation, we have no doubt in our mind that Rule 16.38 has no application to the facts of this case.

It was contended that Section 29 of the Police Act applies to the facts of the case and, therefore, departmental action should''not have been taken. Section 29 of the Police Act does contemplate penalty for neglect of duties and other offences for which the Petitioner could have been tried by a Magistrate. This is true but that does not mean that departmental enquiry could not have been instituted against him. Therefore, this argument is not of any avail to the Petitioner.

It was next contended that the provisions of Rule 16.24 have not been complied with in as much as the preliminary enquiry was made by the Respondent No. 3 who was not the punishing authority of the Petitioner. It was also pointed out that according to Clause (i) of Rule 16.24(1), the Petitioner should have been brought either before the officer empowered to punish him or such superior officer as the Superintendent of Police directed to conduct the enquiry, but since he was not so brought there was infringement of Rule 16.24.

We find absolutely no substance in any of these contentions. It is true that preliminary enquiry was conducted by Respondent No. 3, who was not the punishing authority of the Petitioner, but that enquiry was merely preliminary and the regular enquiry was started only after the report of the preliminary enquiry was received. It is not necessary that preliminary enquiry should be conducted by the person who is authorised to punish the delinquent officer. As a matter of fact, the punishment which is finally awarded is awarded by Mr. Grover who was the punishing authority in view of the fact that by virtue of the notification, dated 20-5-1965 he was promoted as Superintendent of Police. His another designation was that of a Comm and ant. But that does not change the fact that as Superintendent of Police he was the punishing authority, and that the actual order of punishment was passed by him. The officer who was appointed as the enquiry officer is found to have been properly authorise to enquire into the matter. Under the circumstances, we do not find anything which can be construed to have resulted in breach of the provisions contained in Clause (i) of Rule 16.24(1).

It was then contended that the Petitioner was not given an opportunity to defend himself. Now the papers of the enquiry which are produced in the case show that the Petitioner had admitted and had pleaded quality to the charges levelled against him. It is difficult to underst and what further opportunity the Petitioner required in view of his clear plea of guilty. The Petitioner has contended in the petition that he had never pleaded guilty. This is of course a bare assertion of an interested party. In fact, he has not filed any appeal challenging the allegation that he pleaded guilty.

There is no other contention which remains to be decided. The result, therefore, is that this writ petition fails and the same is therefore, dismissed and the rule is discharged without any order as to costs.