AI Structured Summary
Not yet generated for this judgment
Judgment
D.K. Seth, J.—The petitioner, a SubInspector of Police, was transferred to Sitapur sometimes in June 1991. But he could not join his transferred post at Sitapur till 2081992, on account of his illness. A chargesheet dated 151993 was issued by the Deputy Superintendent of Police, Sitapur, on account of such absence till 441992. On the basis of the chargesheet a disciplinary proceeding was instituted. While posted at Sitapur the petitioner was under the control of Dy. Inspector General of Police, Lucknow. By an order dated 2441996 (annexure10 to the petition) the Dy. Inspector General of Police, Lucknow Range, Lucknow directed removal of the petitioner from service under Rule 4 of the U.P. Police Officer of Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as 1991 Rules). In the meantime the petitioner having been transferred to Varanasi he was working under the control of Dy. Inspector General of Police, Varanasi since January, 1996. On these background Sri Ashok Khare, learned counsel for the petitioner, has raised a very interesting question as to whether deputy Inspector General of Police, Lucknow could have jurisdiction or competence to pass order of punishment under Rule 7 of the said 1991 Rules, when he is posted under the control of Deputy Inspector General of Police, Varanasi.
According to his as soon the petitioner was transferred to Varanasi it was Deputy Inspector General of Police, Varanasi, who is the competent authority to pass order of punishment. From the moment the petitioner joined at Varanasi the Dy. Inspector General of Police, Lucknow ceased to have any jurisdiction to punish the petitioner. In support of his contention Sri Ashok Khare, learned counsel for the petitioner has relied on the provisions contained in Rules, (8) (i), (3) of the said 1991 Rules. He also relied upon the decision in the case of Allahabad Bank v. Prem Narain Pandey, (1995) 6 SCC 634,: 1991 (1) LBESR 63 (SC) Dharmendra Kumar Dilcshit v. Superintendent of Police, Kanpur, AIR 1956 SC 172, State of West Bangui v. Rajat Kanti Sharmadhikary, AIR 1965 Cal. 169, Anant Prasad Seth v. State of West Benagal and others, 1''975 Lab 1C 552 and State of Punjab v. Sarwan Singh, 1996 Lab I.C. 1045. in support of the contention. He has also relied on Regulation 479 of U.P. Police Regulations. He has also relied upon various other cases, to which reference would be made at the appropriate time.
Sri R.K. Saxena, learned Standing counsel on the other hand contended that in 1991 Rule it has not been specified that on transfer the Dy. Inspector General of Police, Lucknow ceased to have any competence or jurisdiction to inflict punishment upon the petitioner. According to him the disciplinary proceedings were initiated and carried on at Lucknow Range under the Deputy Inspector General of Police, Lucknow and the incident having taken place while the petitioner was posted under him, it was the Deputy Inspector General of Police, Lucknow, who is the authority competent to pass such an order. According to him a Sub Inspector of police is subordinate to the Deputy Inspector General of Police. He also relied on Chapter32 Regulation 477 to 491 of U.P. Police Regulations and on 1991 Rules, particularly Rule 7.
In order to appreciate the situation it is necessary to refer to the relevant rules which are necessary for our purpose. The definition clause provides as follows:
"3Definitions:
(a) "appointing authority" means the authority empowered to make appointments to the post which a Police Officer for the time being holds.
(c) .........
(f) "Deputy InspectorGeneral" means the Deputy Inspector General of Police and Officers of the equivalent rank.
(g) "Police Officer" means Police Officer of the subordinate ranks below the rank of Deputy Superintendent of police."
The procedure and power of punishment, place of inquiry, dismissal and removal of Police Officers is covered under 1991 Rules, are provided in rules, 5, 6, 7 and 8 the portions relevant for our present purpose are quoted below:
"6. Place of enquiry:
An enquiry against a Police Officer may be held either in the district in which the act or omission regarding which enquiry is proposed to be made, took place or where the Police Officer may be posted at the time of institution of the inquiry.
(7) Powers of punishment
(1) The Government or any Officer of police department not below the rank of the Deputy Inspector General may award and of the punishments mentioned in Rule4 on any Police Officer.
(2)........
(3).......
(4).......
(5)........
(8) dismissal and removal
(1) No Police Officer shall be dismissed or removed from service by an authority subordinate to the appointing authority.
(2)...........
(3) All orders of dismissal and removal of Head Constables or Constables shall be passed by the Superintendent of Police. Cases in which the Superintendent of Police recommends dismissal or removal of a SubInspector or an Inspector shall be forwarded to the Deputy InspectorGeneral concerned for orders.
(4)..........
The power to punish rests on the appointing authority or the authority specifically prescribed in the Service Rules governing service conditions of the incumbents. In the present case as prescribed in Rule7 power to punishment rests with the Government or any Officers of the police department not below the rank of Deputy InspectorGeneral. The punishment have been prescribed in Rule4. All the punishment prescribed in Rule4 can be inflicted by the Dy. InspectorGeneral in view of Rule 7. Rule5 prescribes that the punishment should proceed by a departmental proceeding as provided in Rules 14 and 15 respectively, depending on the nature of the penalty, which prescribed the manner how the departmental proceeding is to be conducted.
In the present case Sri Khare, has not impugned the departmental proceedings, at the moment he has only challenged the jurisdiction and competence and power to punish, as indicated above. Since the appeal is provided in Rule 20 against the order of punishment. It is also not necessary to go into the merit of the case. I, therefore, confine the issue only to the competence on jurisdiction to punish as raised by Sri Khare in the present writ petition.
Now the question has nexus with Rule6 which prescribes place of enquiry. Rule6 prescribes that the enquiry should be held either at the place where act or omission relevant to the enquiry had taken place or at the place the Police Officer may be posted at the time of institution of the enquiry. The place of enquiry does not specify in rule6 that the enquiry has also to be transferred in midway to the place where the incumbent is transferred. Admittedly the transfer of a delinquent is also not prohibited during the pendency of enquiry. In the present case, admittedly the Act or omission had taken place within the jurisdiction of the Deputy InspectorGeneral, Lucknow Range Lucknow and the petitioner was posted within the same jurisdiction where enquiry was initiated. Both the conditions had combined together in the case of the petitioner.
Sri Khare relying on subrule (1) of Rule8 contends that Police Officers can only be removed by the authority not subordinate to the appointing authority. It is not disputed in the present case that the Deputy Inspector General is the authority not subordinate to the appointing authority so far as a SubInspector is concerned. Now the question is as to whether the Deputy Inspector General, Lucknow or the Dy. Inspector General, Varanasi, would be the punishing authority, for the purposes of this rule. Subrule (3) of Rule 8 provides that in case of dismissal, or removal of a SubInspector the recommendation of the Supdt. of police is to be forwarded to the Deputy Inspector General concerned for orders. Relying on the expression "Deputy Inspector General concerned" Sri Khare contends that this would cannot ''Deputy Inspector General, Varanasi, because at the material point of time the petitioner was posted at Varanasi.
But the said submission suffers from an apparent flaw on the face of the Rules relating to punishment and appeal. The place of enquiry has relevance with the infliction of of punishment because of the existence of rule6 read with subrule (3) of Rule 8. It simply connotes that expression ''concerned'' is related to the place of enquiry where the enquiry was initiated. Unless the enquiry proceeding is enquiry cannot be handled by the Deputy Inspector General, Varanasi, with he was in no concerned. The expression "concerned" as used in rule (3) connotes the authority concerned with the enquiry. The said stand is fortified by the reasoning that as to where the enquiry is to be initiated at the time when a Police Officer is posted elsewhere on transfer after the Act or omission leading to the enquiry had taken place where the delinquent was posted prior to his transfer. In such case enquiry can either be initiated at the place where the act or omission had taken place or at the place where he is posted. It does not mean that the enquiry would also be transferred from place to place whereever a delinquent in transferred. The enquiry can be initiated or concluded either where the act or omission had taken place despite transfer of the delinquent at two successive place on successive transfer or once, as the case may be. Similarly, enquiry can be initiated at the place of posting. Once such enquiry is contemplated at a place it may not be transferred to any other place of transfer of the petitioner inasmuch as place of posting has relevance with the time of institution of enquiry. Therefore, the expression used in rule6 is "where Police Officer is posted at the time of institution of the enquiry". The use of the expression ''at the time of institution of the enquiry'' is relevant. In the said rule no where it has been provided that the enquiry once initiated would also stand transferred to the place where the petitioner would be transferred or in other words the enquiry would follow the petitioner on his transfer. On the other hand though posted elsewhere enquiry could very well be initiated at the place where the acts of misconduct took place. This provision clearly presupposes that due to this reason the expression "concerned" has used. The word concerned'' can not now be read in the context to the D.I.G. under whose control the petitioner is posted. In case the enquiry can be initiated at a place where act or omission had taken place despite the petitioner being posted elsewhere namely under the control of different Deputy Inspector General, in that even it can not be said that it is only Officer under whom delinquent is posted is competent to punish him. Holding of enquiry and punishment, therefore, has not been meant to be attached to the Deputy InspectorGeneral under whose control the delinquent is posted. The provision to held enquiry at the place of act and omission despite transfer of the delinquent and he is posted under the control of a different Deputy InspectorGeneral, does not bar holding of enquiry within the area of some other Dy. InspectorGeneral.
Now reference may be made to Regulation 479 (c) of U.P. Police Regulations, which provides "Deputy Inspector General" may punish all Officers of and below the rank of Inspector temporarily or permanently subordinate to them" cannot help Sri Khare despite his contention that it is only Deputy Inspector General to whom the delinquent is subordinate temporarily or permanently can punish. The 1991 Rules have been framed specifically dealing with the punishment which has been provided in Chapter32 for all kind of Officers. When special and specific rule has been made despite existence of the Regulation it will be the rule which would prevail. In case of any inconsistency special Statute will override the general Statute which principle is now well established. The 1991 Rule being Special Statute making special provision despite existence of similar provision in the Regulation in case of conflict the present Rule shall prevail. By Rule2, the 1991 Rules have been made applicable to all Police Officers of subordinate rank below the rank of Deputy Supdt. of Police for the purposes of punishment and appeal. The said rules are complete Code in itself which provides right from definition clause to all kind of punishment procedure, place of enquiry and various other details, many of which were absent in the Regulation supplementing the procedure and improving upon the same, laying down clear and specific procedure. Therefore it is these rules which would prevail even if there is any conflict. Then again temporarily or permanently subordinate may not be related to the subordination. It may be related to the service temporary or permanent because of the reasons of use of expression ''subordinate to them'', means aft Dy. InspectorGenerals. Be that as it may it is not necessary to go into the said question in view of specific provisions contained in the 1991 Rules. Admittedly the petitioner is subordinate to the Deputy InspectorGeneral and the reference to the Deputy InspectorGeneral concerned in subrule (3) of Rule8 refers to the fact of Deputy Inspector General being concerned with the disciplinary proceeding. Therefore, it is the Deputy Inspector General Lucknow where the disciplinary proceeding was initiated is the person to whom recommendation is to be forwarded and, therefore, it is he who can have the power of punishment as prescribed in Rule7. Then again Rule7 prescribes that any Officer of police department not below the rank of Deputy InspectorGeneral may award any punishment mentioned in Rule4 to any Police Officer. This provision abundantly makes it clear that any Deputy Inspector General may punish any Police Officer.
While interpreting the Statute, reconciled meaning is to be given. The interpretation is to be made on the basis of whole context not bereft of the same. The Deputy InspectorGeneral concerned as contemplated in Rule 8(3) is to be read with reference to Rules6 and 7, being place of enquiry and the power of punishment. A reconciled reading of the said Rules, 6,7 and 8 as indicated above, clearly indicates that any of the Deputy Inspector General including him under whom enquiry is initiated, is entitled to inflict punishment. Any other interpretation is very difficult to sustain.
Then again Section7 of the Police Act, 1961 provides for dismissal of inferior officer. The power of dismissal has been given to the Inspector General, Dy. InspectorGeneral, Assistant InspectorGeneral and Distt. Supdt. of Police in respect of Police Officers of subordinate rank. But the said power has been made subject to the provision of Article 311 of the Constitution and such rule as the State Government may make from time to time, under the Police Act. Now the 1991 rule has been framed under the Act. Therefore the power conferred under Section7 is subject to the said Rule. Regulations and the rules have been framed for the purposes of carrying out object and purpose of the said Act. Now the purpose of punishment have been made in Chapter32, Regulations 478497. Rule supplements regulation where it is lacking by making detailed procedure. Therefore, the said rule definitely prevail in case of contradiction, if there is any, with the Regulation. The regulation 479 (c), therefore, stands supplemented or supplanted by Rule 8(3). Under Regulation 490 (14) the disciplinary proceeding may be transferred from one Officer to another by the Inspector General of Police or the Deputy InspectorGeneral of Police for the reasons to be recorded in writing either on his own motion or on request. In the present case no such transfer was effected. Such transfer can be made only by the Deputy InspectorGeneral, Lucknow and the inquiry conducted in the case was under Deputy InspectorGeneral, Lucknow. The Superintendent of Police, therefore, can make recommendation only to the Deputy Inspector General, Lucknow. He could not have any occasion to sent the recommendation to the Deputy Inspector General, Varanasi. It was the Deputy Inspector General, Lucknow, who can transfer the same to the Deputy Inspector General, Varanasi, that too for the reasons to be recorded by him. There was no request by the delinquent for such transfer in the present case.
Regulation 490 provides for procedure for holding disciplinary proceeding. For our present purpose subregulations (8) to (14) are quoted below:
(8) The Superintendent of Police must write a finding. In the finding he must confine himself strictly to the subject of the charge and to the evidence on the record and must discuss every relevant plea raised by the officer charged. After arriving at a conclusion on the facts in issue, he should, if he had found the charge proved, take into consideration the character and previous conduct of the officer charged, before deciding what punishment, if any, is prima facie suitable should the Supdt. of Police consider that either dismissal, removal or reduction is an appropriate punishment he should in all cases m which he is empowered to inflict such punishments, supply the officer charged with a copy of his finding and call upon him to show cause within a reasonable time (which shall not be less than one week) against the imposition of these punishments. It should be made clear to the officer charged that any representation that he may make in this respect will be considered before any order of punishment is passed.
(9) In all cases in which the Superintendent of Police proposes the dismissal or removal of Inspectors or SubInspectors he shall forward the cases to the Deputy Inspector General of Police through the District Magistrate for final orders.
(10) When the Deputy Inspector General considers that the appropriate punishment is likely to be dismissal, removal or reduction he shall cause a copy of the finding of the Supdt. of Police to be delivered to the officer charged and shall simultaneously call upon him to show cause against the imposition of these punishments.
The Officer charged will be asked to submit his written representation, if any, within such fixed period, not less than one week, as the Deputy Inspector General considers reasonable. In all cases the Deputy Inspector General must also record the oral statement of the officer charged before he writes his finding and order.
(11) In any case on which the Supdt. of Police considers that special circumstances justify a departure from any of these rules he should record reasons for his decision and in any such case it will be for the Supdt. of Police to show in his finding that the officer charged has not been prejudiced by this departure from the usual procedure.
(12) the officer charged shall not be represented by counsel in any proceedings instituted under these rules.
(13) All or any of the functions exercisable by a Supdt. of Police under these rules may be exercised by a police authority superior to a Supdt. of Police.
(14) The Inspector General of Police or a Deputy Inspector General of Police, may, for reasons to be recorded in writing either on his own motion or on request from an Officer holding a departmental trial under Section 7 of the Police Act, transfer a case to any other Officer of corresponding rank."
Since the disciplinary proceedings was being conducted by the Supdt. of Police, Sitapur, he could send the same to the Deputy Inspector General, Lucknow through the District Magistrate, for final order in terms of subregulation (9) above, after complying with the procedure laid down in subregulation (8). Because of the provision contained in subregulation (8) and (10) there is no scope for suffering any prejudice by the delinquent. Then again regulation 479 (c) uses the following expression:
"479 (c) Deputy Inspector General may punish all Officers of and below the rank of Inspector temporarily or permanently subordinate to them."
This clearly indicated though the Deputy Inspector General has been used in singular noun but while using the expression subordinate "to them", it means that the Deputy Inspector General. Admittedly all SubInspectors and Inspectors are subordinate to the Deputy Inspector General. However, the regulation 479 (c) is to be reconsiled with regulation 490 supplemented by rule 8(3). A combined reading can only mean that the disciplinary authority remains unchanged unless the disciplinary authority, at any stage, is transferred else where. In absence of any specific regulation it is not mandatory to transfer the disciplinary proceeding at the stage provided in regulation 490 (9) to the Deputy Inspector General of Police where the delinquent is posted at the time of inflicting punishment. It is not possible to give such stretched meaning to the said rule, as has been sought to be made out by Sri Khare.
Now adverting to the decision cited by Sri Khare, it appears that the decision in the case of Dharmendra Kumar Dixit (supra) does not support Sri Khare''s contention inasmuch as in the said case the facts were completely different. In the said case the Inquiry Officer, a Deputy Supdt. of Police, working within the range was transferred outside the range. While interpreting Section7 of the Police Act it was held by the court that as soon the Inquiry Officer is transferred to some other range, his authority become inoperative. Therefore, it was the question of transfer of he Inquiry Officer to continue with the inquiry. The said decision has not laid down any ratio to the extent that when the delinquent is posted elsewhere he is no more subject to the disciplinary proceeding initiated in place of his posting before his transfer and that the authority of Dy. InspectorGeneral, Lucknow ceases with the transfer of the petitioner. Such a proposition would be contrary to rule6 providing initiation of the disciplinary proceeding at the place of occurrence despite transfer. Similarly, decision in the case otRajat Kanti Sharmadhikary (supra) does not help us on the present issue. In the said case the question was as to who was the appointing authority for the purposes of disciplinary action. In the present case it is not disputed that the Deputy InspectorGeneral had power to remove or dismiss the delinquent from service, in the facts and circumstances of the said case of Rajat Kanti Sharmadhikary (supra) the delinquent was appointed by Special Supdt: of Police, Maldah district. Subsequently he was posted under Supdt. of Police, Government Railway Police Sialdah, a different Police district. Whether for the purpose of disciplinary action the Supdt. Government Railway Police, Sialdah, was the appointing authority, was the question involved in the said case. There it was held that the appointing authority was the Supdt. Government Railway Police, Maldah District while interpreting rule5 of Bengal Subordinate Service (Discipline and Appeal) rules, 1936 read with Regulation 768 (b) of Bengal Police Regulation, which are little different from and not identical with the rules and regulation, we are concerned. Then again the said ratio that the authority under whose control the petitioner was posted was incompetent to take disciplinary action is contrary to the contention of Sri Khare. Inasmuch as in the said case posting of persons under the control of different office was held to be immaterial. Be that as it may since the rule governing the two cases are different the ratio decided is of no help for the purposes of present case. On the other hand the decision in the case of Anant Prasad Seth (supra), aforesaid, cited by Sri Khare, supports the view, I have taken on the reasoning that the Police department of a State is one unit and it can not be divided in different units though for the sake of administration there might be different formations. Though, however, the question involved therein is some what different from the question involved in the present case. In asmuch as in the said case the question was as to whether the Accounts Clerk belong to the Police force and against him disciplinary action can be taken by the Supdt. of Police. Therefore, the expression Deputy Inspector General of Police concerned was interpreted in the context of the said case, which is different from the context we are concerned with. Therefore the said decision does not help Sri Khare. Though on the other hand it might be of supportive view that the entire police force being one Deputy Inspector General, Lucknow, range was equally competent. Then again''the rule on the basis whereof the question was decided are not identical with that of the present rule, which is apparent from the said decision itself.
The decision in the case of Allahabad Bank (supra) can not be relied upon for deriving support to the contention of Sri Khare. In the said case after the transfer of a delinquent from Lucknow to Ranchi the Assistant General Manager, Zonal Officer, Allahabad Bank, Patna, took over as the disciplinary authority in respect of pending inquiry against the delinquent and the said Asst. General Manager was nominated by the competent authority to act as the disciplinary authority in respect of the inquiry against the delinquent. The said fact has been recorded in para5 with the following expression:
"5. It appears that after transfer of respondent 1 to Ranchi Branch of the Bank, the Assistant General Manager, Zonal Office, Allahabad Bank, Patna Zone, took over as the .disciplinary authority in respect of the pending enquiry against Respondent 1. On 2031986 the Assistant General Manager informed Respondent 1 Officer that he has been nominated by the competent authority to act as the disciplinary authority in respect of the enquiry against him."
In the present case the Deputy Inspector General, Varanasi did not take over as the disciplinary authority in respect of pending inquiry neither he was nominated to act as the disciplinary authority in respect of the said inquiry. Then again the rule governing the delinquent in the said case of Allahabad Bank (supra) does not appear to be identical with those of the present rule. In the said case it was held it two equally competent disciplinary authorities are empowered to take disciplinary action against the delinquent, anyone can exercise the same. In the present case, admittedly the Deputy InspectorGeneral, Lucknow was the competent authority, since the incident took place within his range while the Deputy Inspector General, Varanasi was equally competent to since the petitioner was posted under him. The disciplinary action can be taken by both of them, if both are equally competent then it cannot be branded as incompetent by one simply because at the time of inflicting punishment the petitioner was posted outside the range where the misconduct was alleged to have occurred. Therefore this decision does not support the contention of Sri Khare.
Similar decision in the case of Swaran Singh (supra) does not help the petitioner inasmuch as in the said the ratio was not decided. It was only held by the Apex Court that the said question requires a decision and the said question was accordingly referred back to the High Court for decision.
In the circumstances the contention raised by the learned counsel for the petitioner, in the present case, cannot be sustained. The writ petition, therefore, fails and is accordingly dismissed. There will, however, be no order as to costs.