M.C. Rajagopal vs Superintendent of Police, Crime Branch, Madras and Others

Kailasam, J.

(1) This writ appeal is preferred against the order of Jagadisan, refusing to issue writ of certiorari calling for and quashing the memorandum dated

23-4-1962 issued by the Superintendent of Police, Crime Branch, C. I. D. Madras, against the appellant.

(2) The appellant is a sub inspector of Police in the Madras Police service. He was investigating Crime No. 231 of 1961 Ponneri police, an

offence under S. 5 of the Essential Commodities Act and Fertilisers Act. It is alleged that he examined at Minjur two witnesses A. S. Ramaswami

Chetti and Venkatesh Chetti and ascertained that Ramaswami Chetti purchased 40 bags of Ammonium Sulphate at ""black market"" rate from

Nagabhushanam and Swaminathan, who were the accused in that case. It is the case of the department that the appellant used the circumstance of

purchase of Ammonium Sulphate at black market rate for threatening Rangaswami Chetti and Venkatesh with arrest and by that means obtained

from Ramaswami Chetti as bribe a sum of Rs. 1000 on the first occasion and another sum of Rs. 1000 on a subsequent occasion. The appellant

was placed under suspension on 21-4-1962 and was served with memo on 23-4-1962, charging him with grave misconduct in having received

illegal gratification in the discharge of his official duties and directing him to show cause against his dismissal from service.

The show cause notice also stated that the appellant would be given an oral enquiry and that witnesses would be examined to prove the charges

and called upon the appellant to furnish a list of witnesses whom he would like to examine. On 1-5-1962, the appellant applied for permission to

peruse certain records and asked for ten days time for filing an explanation. The Deputy Superintendent of Police, Crime Branch, permitted the

appellant to peruse the records and take notes thereof and informed him that the enquiry would be started on 6-5-1962, and was adjourned to

21-5-1962. On 21-5-1962 the appellant sent his explanation to the Superintendent of Police, Crime Branch, Madras. The appellant did not attend

the oral enquiry on 21-5-1962, but sent a petition to the Superintendent of Police requesting that the enquiry should be held buy an officer outside

the C. I. D. and that the enquiry should be deferred till the disposal of the case in Ponneri Crime No. 231/61. The Superintendent of Police

declined to comply with the appellant''s request. The enquiry was again fixed for 22-5-1962, and notice was issued to the appellant. The appellant

received the notice but failed to attend the oral enquiry on 22-5-1962. He went a representation to the Deputy Inspector General of Police, C. I.

D. Madras requesting that officers other than those of the C. I. D. should hold the enquiry and that the enquiry against him should be defended till

the case in Ponneri Crime No. 231 of 1961 was disposed of.

The Deputy Inspector General of Police C. I. D. Madras, also declined the appellant''s request on 24-5-1962. Again the appellant was called

upon to attend the oral enquiry on 25-5-1962. The appellant did not attend and the oral enquiry was posted on 30-5-11962 and the appellant was

informed that if he did not attend the enquiry, the enquiry would be carried on in his absence. The appellant did not attend the enquiry on 30-5-

1962, and the Superintendent of Police, who conducted the enquiry submitted his minutes dated 4-6-1963 to the Deputy Inspector General of

Police, C. I. D. The Deputy Inspector General of Police, C. I. D. by his memo dated 8-6-1962, called upon the appellant to make his further

representations on his provisional conclusion that the charge framed against the appellant was proved and asked the appellant to show cause why

he should not be dismissed from service. The appellant gave his further representation on 9-7-1962. In the meantime the appellant filed W. P. No.

760 of 1962 in this court on 26-5-1962, praying for the issue of a writ of certiorari for quashing the memo dated 23-4-1962 issued by the

Superintendent of Police, Crime Branch C. I. D. Madras.

(3) Jagadisan J. after considering the various questions raised by the appellant found that there were no grounds to issue a writ of certiorari as

prayed for and dismissed the petition, and this appeal is preferred against the order of the learned Judge.

(4) Mr. Ganapatisubramaniam, learned counsel for the appellant raised various contentions. He submitted that S. 243 of the Government of India

Act 1935 which enacted special provisions regarding the conditions of service of the subordinate police force in India is not continued in the

Constitution of India and therefore any different treatment of the conditions of service of the police force from that of the civil service would be

contrary to the Constitution of India and as such invalid. Secondly, he submitted that under Art. 309 of the Constitution, the Governor of a State is

empowered to make rules regulating the recruitment and conditions of service until provision is made by an Act of the legislature, but, as the

Madras Police Subordinate Services Discipline and Appeal Rules, 1955, were made by the Governor in exercise of the powers conferred under

S. 10 of the Madras District Police Act ad under S. 11 of the Madras City Police Act red with the proviso to Art. 309 of the Constitution of India,

the rules are not valid and enforceable.

According to the learned counsel, the Governor after the Constitution had come into force, had no authority to frame rules under the Madras

District Police Act and the Madras City Police Act, and as the rules were framed by invoking the powers under the two Police Acts, the rules are

invalid and unenforceable. Thirdly, he submitted that the appellant by being proceeded with under the Madras Police Subordinate Service

Discipline and Appeal Rules, 1955, has been deprived of the advantage of the procedure laid down under the Madras Civil Services (Disciplinary

Proceedings Tribunals) Rules and the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules 1955 in so far as they exclude their

operation to Government servants drawing a monthly salary of less than Rs. 200 and to all Government servants in the Subordinate ranks of the

police forces of the rank of Sub Inspector and below, are invalid as they are discriminatory and are therefore hit by Art. 14 of the Constitution of

India. Lastly, he submitted that the appellant has been deprived of his right to natural justice by the refusal of his request that the enquiry should be

conducted by any other officer than the Deputy Superintendent of Police, Crime Branch, C. I. D. Madras.

(5) Section 243 of the Government of India Act, 1935 provided that the conditions of service of the subordinate ranks of the various police forces

in India shall be such as may be determined by or under the Acts relating to those forces respectively. Under S. 241 of the Government of India

Act, regarding appointments to civil services in the case f services of the Federation the Governor General, and in the case of services of a

province Ss. 108(1)(d) and 108(2) of the Act, the legislature was not empowered to legislate without the previous sanction of the Governor

General any Bill or amendment to repeal or amend or affect any Act relating to any police in connection with the affairs of the Union or of any

State in the appropriate legislature subject to the provisions of the Constitution. The power was conferred on the executive under the 1935 Act

was given to the legislature under the Constitution. Article 311 of the Constitution reproduces clauses (2) and (3) of S. 24 of the Act of 1935 with

the addition of proviso (c) to clause (2). As pointed out by the Supreme Court in Jagannath Prasad v. State of Uttar Pradesh AIR 1961 SC 245 .

By the Constitution of India, the distinction between police officers and other civil servants in the matter of protection by constitutional guarantees

is abolished and as from 26-1-1950 the recruitment and conditions of service of all persons serving the Union or the State are now governed by

Art. 309 and their tenure by Art. 310 of the Constitution. By Art. 311 the protection granted under S. 240 clauses (2) and (3) of the Government

of India Act, is extended to members of the police force as well.

Thus, by the Constitution the appropriate legislature is empowered to regulate the recruitment and conditions of service of persons appointed to

public services, a power which was vested with the executive under the 1935 Act. Under the 1935 Act even the executive was not empowered to

repeal or amend or affect any Act relating to police forces without obtaining the previous sanction of the Governor General. After the Constitution

the power of regulating the recruitment and conditions of service of persons to public services, including the police forces, is vested with the

legislature. From the omission to incorporate S. 243 of the Government of India Act, it cannot be argued that the Constitution prohibits framing of

separate rules for governing the different services. Neither the powers conferred on the legislature to legislate nor the powers conferred on the

legislature to legislate nor the powers conferred on the Governor to frame rules regulating the recruitment and conditions of service until provision is

made by the legislature require that the conditions should apply uniformly to all services and that different conditions should not obtain with regard

to different services. The submission of the learned counsel that by not incorporating S. 243 of the Government of India Act, 1935 in the

Constitution of India, the Constitution of India specifically prohibits framing of separate rules regulating the recruitment and conditions of police

services cannot therefore is accepted.

(6) The Madras Police Subordinate Service Discipline and Appeal Rules 1955 were framed in exercise of the powers conferred by S. 10 of the

Madras District Police Act, 1859 and S. 11 of the Madras City Police Act, 1888, read with the proviso to Art. 309 of the Constitution of India

and in super session of the existing rules on the subject. Article 309 of the Constitution of India empowers the Governor to make rules regulating

the recruitment and conditions of service of persons appointed to State services and posts until provision is made in that behalf by the legislature.

The legislature has not yet made any provision under Art 309 and therefore it cannot be doubted that the Governor is empowered to make rules

on the subject. That the rules framed under the Police Act before the commencement of the Constitution of India would continue to be in force was

not seriously disputed by the learned counsel. Article 313 of the Constitution of India provides that until other provision is made under the

Constitution all the laws in force immediately before the commencement of the Constitution and applicable to any public service shall continue in

force. In Jagannath Prasad Sharma Vs. State of Uttar Pradesh and Others, it was held that by virtue of Art. 313 of the Constitution the Police

Regulations as well as the Tribunal Rules in so far as they were not inconsistent with the provisions of the Constitution remained in operation after

the Constitution. To the same effect is the observation of Subba Rao, J., in The State of Uttar Pradesh and Others Vs. Babu Ram Upadhya, where

the learned Judge observed at page 758 as follows:

The result is that the Police Act and the Police Regulations, made in exercise of the powers conferred on the Government under that Act, which

were preserved under S. 243 of the Government of India Act, 1935, continue to be in force after the Constitution so far as they are consistent with

the provisions of the Constitution

Therefore, it cannot be contended that the rules framed under the Police Acts before the Constitution came into force are not in force. Learned

counsel for the appellant questioned the validity of the Madras Police Subordinate Services Discipline and Appeal Rules, 1955, in a slightly

different manner. He submitted that the rules were framed in 1955, after the Constitution came into force. The Governor has powers to frame rules

only under Art. 309 of the Constitution for regulating the recruitment and conditions of persons in civil service. He is not empowered to frame any

rules under S. 10 of the Madras District Police Act, 1859 under S. 11 of the Madras City Police Act 1888. As the rules were framed by the

Governor invoking the powers under the two Police Acts, which did not confer any powers on him, the learned counsel submitted that it should be

held that the rules are invalid and without effect. He further submitted that the rules framed under the Police Acts before the Constitution came into

force were repealed by the Governor under the powers conferred on him under Art. 309 of the Constitution of India by framing the Madras Police

Subordinate Services Discipline and Appeal Rules 1955.

According to him, the old rules framed under the Police Acts were repealed and the new rules framed under the Madras Police Subordinate

Services Discipline and Appeal Rules,1955, were not validly framed. section 11 of the Madras City Police Act, 1888 empowers the

Commissioner of Police to dismiss or suspend or reduce any member of the subordinate ranks of the police. By itself S. 11 does not empower the

Governor to frame rules, and whatever power the Governor may have is only derived under Art. 309 of the Constitution. So also S. 10 of the

Madras District Police Act, 1859 empowers the Inspector General of Police, Deputy Inspector General of Police and the District Superintendent

of Police to dismiss, suspend or reduce any officer of a subordinate police, subject to such rules as the Government from time to time frame. This

section impliedly authorises the State Government to frame rules regarding the dismissal, suspension or reduction of a police officer and the

Inspector General, the Deputy Inspector General and the District Superintendent of Police are required to act subject to such rules.

Therefore neither under S. 11 of the Madras City Police Act nor under S. 10 of the Madras district Police Act the Governor has got any

independent powers apart from the powers conferred on him under the Constitution to frame rules regulating the recruitment and conditions of

service of persons. Therefore, the rules, though expressed to have been framed under S. 10 of the Madras District Police Act, 1859 and S. 11 of

the Madras City Police Act, 1888 read with the proviso to Art. 309 of the Constitution of India, they were in fact framed under the powers

conferred on the Governor under the proviso to Art. 309 of the Constitution of India. It has been held by the supreme Court in L. Hazari Mal

Kuthiala Vs. The Income Tax Officer, Special Circle, Ambala Cantt., that the exercise of a power would be referable to a jurisdiction which

conferred validity upon it and not to a jurisdiction under which it would be nugatory. Therefore, the rules framed by the Governor by virtue of the

powers conferred on him under the proviso to Art. 809 are valid, even though the powers under S. 10 of the Madras District Police Act and S. 11

of the Madras City Police Act were invoked.

(7) The next contention of the learned counsel for the appellant is that, while the Madras Civil Services (Disciplinary Proceedings Tribunal) Rules

1955 conferred upon the appellant a right to be inquired into by a judicial officer and a right to be defended by a counsel of his choice, those rights

were not available to him under the Madras Police Subordinate Services discipline and Appeal Rules 1955. In Jagannath Prasad Sharma Vs. State

of Uttar Pradesh and Others, , it was contended that the Tribunal Rules in Uttar Pradesh were prejudicial to a person, as they did not confer on

him a right of appeal and a right to engage a counsel of his choice to assist him which rights were conferred on him under the police regulations It

was held by the majority of the court that the fact that an order made by a police authority was made appealable whereas the order passed by the

Governor was not made appealable was not a ground on which the validity of the Tribunal rules could be challenged.

Their Lordships observed:--

Equal protection of the laws does not postulate equal treatment of all persons without distinction; it merely guarantees the application of the same

laws alike and without discrimination to all persons similarly situated. The powers of the legislature to make a distinction between persons to or

transactions based on a real differentia is not taken away by the equal protection clause. Therefore by providing a right of appeal against the order

of police authorities acting under the police regulations imposing penalties upon a member of the police force, and by providing no such right of

appeal when the order passed is by the Governor, no discrimination inviting the application of Article 14 is practised"".

In this case, contrary to the contention before the Supreme Court, it is urged that the proceedings under the Madras Police Subordinate Service

Discipline and Appeal Rules 1955 are prejudicial to the interests of the appellant. The two disadvantages enumerated are that the appellant is

deprived of a Tribunal presided over by a judicial officer and that he has no right to the service of a counsel of his own choice. The choice of a

judicial officer cannot be said to be a right in favour of the delinquent, the deprivation of which can be attacked as a discrimination. We do not find

any provision in the Madras Police Subordinate Services Discipline and Appeal Rules 1955 prohibiting the engagement of a counsel to assist the

appellant in the proceedings. The Madras Civil Services (Disciplinary Proceedings Tribunal Rules 1955 in excluding cases relating to Government

servants drawing a salary of less than Rs. 200 and cases arising against the Government servants in the subordinate ranks of the police forces of

the rank of Sub Inspector and below cannot be said to offend the provisions of Article 14 of the Constitution.

The rules are uniformly made applicable to all persons similarly situated without discrimination. The classification on pay and rank is based on a real

difference and cannot be said to be arbitrary to offend the provisions of Article 14 of the Constitution Class legislation is permissible provided the

classification bears a just and reason able relation to the object and purpose of such a legislation. It cannot be stated that a classification based on

administrative convenience prescribing different procedure for persons drawing different pay and occupying different ranks, offends Article 14 of

the constitution. It was also contended that, though the appellant''s pay on the date of the initiation of the proceedings was only Rs. 145, as the

scale of pay, on which the appellant was employed is one which reaches the maximum of Rs. 225, it should be held that he was on a monthly

salary of Rs. 200 and above and as such entitled to be enquired by a Tribunal. We are unable to accept this contention. The words used in rule

4(1)(a) of the Madras civil Services (Disciplinary Proceedings Tribunal) Rules 1955 are ""cases relating to Government servants on a monthly

salary of Rs. 200 and above"". The appellant was not a Government servant on a monthly salary of Rs. 200.

(8) Lastly, it was contended that by entrusting the enquiry to the Deputy Superintendent of Police, Crime Branch, Madras, the appellant has been

deprived of his right to natural justice. The appellant requested that the enquiry might not be conducted by the second respondent or other officers

of the Crime Branch as they had personal knowledge of the investigation by the appellant in the Ponneri case. This request was not allowed by the

Deputy Superintendent of Police or by the Deputy Inspector General of Police. In paragraph 18 of his affidavit the appellant stated that he was

working under the direct supervision of the Deputy Superintendent of Police, who was ordered to conduct the enquiry and that in view of the fact

that the Deputy Superintendent of Police was intimately connected with the investigation conducted by the appellant he was incompetent to

conduct the enquiry and that entrusting the enquiry to him was opposed to all canons of natural justice. The appellant has not alleged that the

Deputy Superintendent of Police conducting the enquiry was in any way biased or prejudiced against the appellant. There is no reason at all for the

appellant to suspect that either the officers of the Criminal Investigation department or the enquiring officer the Deputy Superintendent of Police

was in any way prejudiced against the appellant. This contention of the appellant also fails.

(9) In the result, we hold that there are no merits in this writ appeal. It is dismissed with costs. Counsel''s fee Rs. 150 only.

(10) Appeal dismissed