Bireswar Saikia vs State of Assam and Others

J.M. Srivastava, J.—The Petitioner a former Havildar in the 1st Assam Police Battalion at Dergaon, by this petition under Article 226 of the Constitution of India, challenges the validity of the order of his dismissal from service dated 3.6.74 made by the Commandant of the aforesaid Battalion (Respondent No. 4 in this petition).

The Petitioner''s case, briefly is, that be was appointed as Constable in the aforesaid Battalion on 18.6.53. On 30.10.63 he was promoted and appointed as Havildar (equivalent to Assistant Sub-Inspector) by the Inspector General of Police, Assam, and was confirmed as Havildar in the said Battalion with effect from 7.4.68 by the Inspector General of Police, Assam. While working us Havildar on 19,3,73, the Petitioner Was deputed to Nagabasti, under Jorhat Police Station for duty. The Petitioner learnt that Madan Basumatary a sepoy of his platoon, had been beaten up. The Petitioner went out, found the said sepoy tied up, and made enquiry. The Second Officer of the reserve, Kashi Nath Bora hit the Petitioner from behind and the Petitioner fell down unconscious. The Petitioner on regaining consciousness found the Superintendent of Police at the spot. The Petitioner latter came to know that the Reserve Officer had informed the Superintendent of Police that the Petitioner under the influence of liquor had misbehaved. The Petitioner was medically examined but the Jorhat Civil Hospital authorities gave report that the Petitioner was not found to have taken any liquor. The Petitioner thereafter was sent back to Dergaon. The Petitioner was served with an order of suspension on 21.3.73 and charges were framed against him. A joint enquiry along with three other personnel, said to have been involved in the aforesaid incident, was conducted under of the Commandant of the aforesaid Battalion. Mr. Biswas, Second in Command of the said Battalion conducted the enquiry. After the enquiry the Petitioner was asked to show cause. The Petitioner submitted his reply to the Commandant, 1st Assam Police Battalion, Dergaon. By impugned order dated 3.6.74, the Commandant, 1st Assam Police Battalion, dismissed the Petitioner from service. The Petitioner preferred an appeal before Deputy Inspector General (A) Assam, (Respondent No. 2), who rejected the appeal by order dated 13.11.76. The Petitioner, thereafter, filed this writ petition, in which he challenged the order of dismissal on the grounds, firstly, that he was appointed by the Inspector General of Police but was dismissed by the order of Commandant, an authority lower in rank to the authority which appointed him, which is in violation of the provisions of Article 311(1) of the Constitution of India, secondly, the joint enquiry against the Petitioner along with three others was not envisaged in law and was illegal, thirdly, there has been violation of statutory provisions of Rule 57 of the Police Mannual (Vol. III) under which major punishment could be inflicted only for acts involving moral turpitude and punishment of dismissal was not permissible under the aforesaid rule, fourthly, the charges framed against him were not in prescribed form, there was serious violation of statutory rule for conduct of enquiry that no opportunity was given to him to adduce evidence in defence and lastly the main charge of drunkenness had not been proved and accordingly the order of dismissal was incorrect and illegal.

The Respondent No. 4, the Commandant of the aforesaid Bittalion, filed a counter-affidavit for Respondents 1 to 4, refuting the Petitioner''s contentions. It has been asserted that the Petitioner had been promoted and appointed as Havildar by the Commandant of the 1st Assam Battalion and that the Petitioner had been confirmed as Havildar by the order of the Commandant. While on duty at Nagabasti, the Petitioner along with other constables indulged in irresponsible and indisciplined behaviour and under the influence of liquor in the Nagabasti assaulted the Officer-in-Charge, Jorhat Police Station. The Petitioner had led the other persons in the aforesaid indisciplined activities. Although the Medical Officer had observed that "no smell of liquor was coming out from his mouth", but the conduct of the Petitioner was that of a drunken man. The enquiry was rightly ordered by the Commandant and conducted according to the procedure laid down. A joint enquiry was held because the charged delinquents were involved in the same transaction, and no prejudice was caused to the Petitioner. The Petitioner had full opportunity to defend himself and as a matter of fact, three witnesses besides the Petitioner were examined defence. The Enquiry Officer had found all the three charges framed against the Petitioner established. In view of the grave misconduct, lack of supervision and control over his subordinates, absence from lines without leave or permission etc., the Petitioner was dismissed from service by the Commandant who was the disciplinary authority under the rules. The Petitioner had been appointed Havildar by the Commandant and there was no infringement of provisions of Article 3/1(1) of the Constitution. The Respondents also assert that the Commandants of the Battalions are the appointing authorities of Havildars and have been empowered to award major punishment of dismissal. The appeal preferred by the Petitioner to the Deputy Inspector General had also been duly considered and rightly rejected.

The Petitioner filed an affidavit-in-reply in which he reiterated his earlier submissions.

We have heard the learned Counsel for the parties and considered the materials placed before us.

Shri Saikia, learned Counsel for the Petitioner, has strenuously urged that the Petitioner was promoted and appointed as Havildar by the Inspector General of Police and has relied upon the assertion of the Petitioner in the affidavit and the recital in Annexure-1. The Petitioner has stated in the affidavit that his original order of appointment as Havildar has been lost. Annexure-1 is a copy of B.O. No. 2230-A dated 31.12.70 made by the Commandant, 1st Assam Police Battalion. It has a recital to the effect that "By order of the Inspector General of Police, Assam, Shillong dated 1.12.70 and conveyed by Deputy Inspector General (P)s, Memo No. F(A)/1/32/144 dated 22.12.70. The following officiating Havildars are confirmed in the rank of Havildars with effect from the date noted against their names". The Petitioner''s name is at Sl. No. 241 and the date of confirmation is 7.4.68. On the other hand, the learned Counsel for the Respondents has referred to the assertion in the counter-affidavit that the Petitioner was promoted and appointed by the orders of the Commandant and it is contended that Annexure-1 on which the Petitioner relies, is, in fact, the order of the commandant and that the earlier recital relating to the order of Inspector General of Police is only by way of clearance of posts etc. against which the persons were confirmed. The learned Counsel for the Respondent bas also referred to the provisions of the schedule of "appointing and disciplinary aothorities" under Rule-6/6 of the Assam Police Manual-III. At Sl. No. 4 of the Schedule, in Col. I for Assistant Sub-Inspector of Police and Head Constable etc. including personnel of equivalent rank of Armed Battalions etc., vide Column-11 Commandants of Battalions, are the appointing authorities and vide Column-IV are also the authority competent to impose major penalties. The learned Counsel for the Respondents has also filed the service sheet of the Petitioner in which at page-10 there are entries under the signature of Commandant, 1st Assam Police Battalion, Dergaon, to the effect, "Promoted temporarily to the rank of Havildar.... His promotion will take effect from the date of joining in No. 1 Battalion vide B.O. No. 2692 dated 11.10.63". The two following entries also under the signatures of the Commandant are in relation to the Petitioner''s appointing and taking over as Havildar w.e.f. 30.10.63. There is no reference to any order of the Inspector General of Police in regard to the appointment. At page 14(A) of service sheet the entry is that "He is confirmed to the rank of Havildar w.e.f. 7.4.68 against the existing vacancy of Kamrup DEF vide Deputy Inspector General (P)''s M/No. F(A)/1/32/144 dated 22.12.70. B.0. No. 2220-A dt. 31.12.70" The learned Counsel for the Respondents contended that the Petitioner had been promoted and appointed by the orders of the Commondant and not by the Inspector General of Police as contended by the Petitioner. The learned Counsel for the Petitioner has submitted that these entries do not establish that Petitioner was not appointed by the Inspector General of Police and the same are only record of events in the Petitioner''s service career.

We have considered the matter. We have found it difficult to accept the Petitioner''s contention that he was promoted and appointed Hivildar by the Inspector General of Police. On the contrary, we are inclined to think that the Petitioner was appointed and promoted as Havildar by the orders of the Commandant of the aforesaid battalion, for the reasons that under the rules contained in the Assam Police Manual the competent appointing authority for Havildar, which is equivalent to the rank of Assistant Sub-Inspector of Police, was and is the Commandant and there is no explanation at all as to why when the Commandant was the appointing authority, the Inspector General of Police should have made an exception in the case of the Petitioner and appointed the Petitioner as Havildar in 1963. The order of appointment has not been produced before us by the petitioner and is stated to have been lost. The fact remains that the order of appointment is not before us. The recital in Annexure-1 on which reliance is placed by the learned Counsel for the Petitioner, in our view, is not sufficient to establish that the Inspector General of Police had made the appointment. We are of the view, that there could be other explanation of the said recital in the Commandant''s order, such as administrative clearance and the availability of posts etc. against which the Petitioner and others could be confirmed, was conveyed and the Commandant then made the order of confirmation. It may be noted that the Petitioner was confirmed against KAMRUP, DEF. The learned Counsel for the Petitioner bas cited 1975 (2) S.L.R. 683 Ram Karan v. Union of India where the order signed by the Assistant Inspector General of Police was held to be an order of the Inspector General of Police, and has argued, that this authority fully supports the Petitioner''s case. We do not agree. While Assistant inspector General, obviously, may function on behalf of the Inspector General, the Commandant of the battalion who in fact issued the order, in the instant case, should not be considered to have done so on behalf of the Inspector General of Police.

We have, therefore, found it difficult to accept the Petitioner''s contention on the basis of the said recital in Annexure-1 that he was appointed Havildar by the Inspector General of Police, Assam. Moreover, during the enquiry the Petitioner never raised any objection relating to the competency or jurisdiction of the Commandant on the said ground to initiate the proceedings against him not did the Petitioner challenge the validity of the order of dismissal made by the Commandant in appeal before the Deputy Inspector General on the aforesaid ground. As evidence of conduct it was very inconvenient with the present contention which appears to us to be in the nature of after thought.

We are, therefore, of the opinion that the Petitioner was not appointed as Havildar and confirmed as such, by the Inspector General of Police; but was so appointed by the Commandant of the 1st Assam Police Battalion.

The Petitioner having been appointed as Havildar by the Commandant of the Battalion, the impugned order of dismissal from service made by the Commandant is not illegal, because there was no violation of provisions of Article 311(1) of the Constitution of India. The authorities 1976 (I) SLR 555; Mohinder Singh v. State of Himachal Pradesh AIR 1949 Nag 118 Provincial Govt. C.P. and Berar v. Shamsul Hussain cited by the learned Counsel for the Petitioner have no application on the facts of this case because the Petitioner was not dismissed by an authority lower in rank to the authority which appointed him.

The learned Counsel fort he Petitioner argued that the Commandant had no jurisdiction to make the order of dismissal. The Commandant being in fact the Petitioner''s appointing authority and also the authority which appointed him, could dismiss the Petitioner from service. Under the provisions of Section 7 of the Police Act, 1861, read with the provisions of Assam Enhanced Disciplinary Powers Act, 1950, the Commandant had the powers to dismiss Police personnel of the rank of the Petitioner. The appointing and disciplinary authorities in regard to the personnel of the ranK of the Petitioner as specified in the schedule under Rule 66 of the Assam Police Manual also shows that the Commandant had the necessary powers to dismiss the Petitioner from service. The contention of want of jurisdiction therefore has no merits. The authority cited by the learned Counsel for the Kotwal (T.C.) Vs. State of Jammu and Kashmir and Another, T.C. Kotwal v. State of J. and K. is not attracted in the present case where the authority which dismissed the Petitioner was his appointing authority. The other cases referred Om Prakash Gupta Swadheen Vs. Union of India (UOI) and Others, Om Prakash Gupta v. Union of India to the effect that "appointing authority must be understood in its plain and natural meaning namely the authority which appointed him" AIR 1927 SLR 237 Mysore State Road Transport Corporation v. Mirza Khasim Ali Beg to the effect that ''Guarantee provided by Article 311(I) cannot be taken away by an Fakir Chandra Chiki Vs. S. Chakravarti and Others, , The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, State of U.P. v. Babu Ram have no application on the facts of the present case.

The next submission of the learned Counsel of the Petitioner relating to joint enquiry, in our view, is not tenable, because the Petitioner and the three other persons against whom the enquiry was jointly held were involved in committing various acts of misconduct in the same transaction which were the subject matter of the charges, against the Petitioner and the said other persons. While the relevant disciplinary rules did not specifically provide for joint enquiry, yet we find no violation of any principles of natural justice in the conduct of joint enquiry. Nothing substantial has been shown as to how any prejudice in the defence of the Petitioner had been caused by the joint enquiry. We, therefore, think that the joint enquiry not having caused any prejudice in defence, to the Petitioner, the disciplinary proceeding and the action taken against the Petitioner was not vitiated.

The next contention that there was violation of provisions of Rule 57 of the Assam Police Manual in the imposition of major penalty of dismissal has no merits, Rule 57 aforesaid only contains general instruction about punishment for guidance and lays down that there should not he undur business in the imposition of punishment. Since the misconduct with which the Petitioner had been charged were very grave, for a member of a force in uniform, in view of the facts established at the enquiry relating to the charges, we think that the punishment of dismissal imposed on the Petitioner, was not disproportionate to the gravity of his misconduct and was not excessive. Accordingly we think that there is no ground for interference by us in the matter, on the said score.

The next contention for the Petitioner that the charges framed were not in prescribed form, that the charges were not proved or that the main charge of drunkenness had not been proved and the action taken was vitiated, also has no merits. All the three charges, except the act of drunkenness, had been held to be proved in well considered report and orders by the enquiry officer, by the Commandant and in appeal also by the Appellate Authority viz, the Deputy Inspector General of Police. A perusal of the enquiry report in 31 pages Annexure-VIII, the order of the Commandant Annexure-II and the appellate order of the Deputy Inspector General of police in 10 pages Annexure-XI clearly show that the submission that the charges had not been proved is not correct. The Enquiry Officer at page 21 of the report Annexure-VIII held "The following facts of charge No. 1 have in my opinion therefore been proved", "As regards second charge.... I am satisfied that it has been fully established" and at page 22 "Broadly speaking the third charge has also been proved beyond all reasonable doubts".

The Commandant, the disciplinary authority in his order Annexure-II has observed "As regards the 1st charge I fully agree with the findings of the Enquiry Officer.... The second charge of.... I agree with the finding of the Enquiry Officer and hold the Havildar guilty of the charge.... The third charge.... attempting to assault the Officer-in Charge, Jorhat Police Station by giving blow to him has been established against...without any doubt".

The Deputy Inspector General of Police in his appellate order Annexure-XI upheld the findings and order of the Commandant

The mere fact that one of the ingredients, namely, drunkenness in the charge was not proved does not at all lead to the further conclusion that the main charge was not proved. While drunkenness, no doubt, was a charge absence from lines without permission, in disciplinary conduct, obstruction to police vehicle, assault on or attempt to assault the Officer-in-charge, Jorhat Police Station have been held to be proved and were equally grave charges.

Rule 66(iii) of the Assam Police Manual only requires that the ground on which action is proposed to be taken should be reduced to the form of a definite charge or charges. We think the charges framed Annexure-III with Annexure-III(A), were quite clear and there was no scope for any confusion about the same, as could cause any difficulty or prejudice in defence.

The Petitioner had full opportunity to produce his evidence in defence. The Enquiry Officer bad examined three defence witnesses and the Petitioner was also examined in defence. We think that in the facts and circumstances of the case no prejudice bad been caused to the Petitioner during the enquiry. Accordingly we take the view that the enquiry was fairly and properly conducted.

For the aforesaid reasons, the submissions for the Petitioner have no merits. The petition fails and is dismissed, No costs.