Rachiah, R. vs Dy. Inspector General of Police and Others

In this writ petition in which an Ex-Police, Constable of the Police Department of the State Government has prayed for quashing the order of the Superintendent of Policy Mysore District, imposing penalty of dismissal against him, which order was confirmed in appeal by the Deputy Inspector General of Police, Southern Range, Mysore, the following question of law arises for consideration:

"Whether a penalty imposed on a, civil servant though by an authority competent to impose such penalty on the basis of findings recorded in a joint enquiry, is valid, if the initiation of joint enquiry was not by the authority competent to order joint enquiry?"

2.Facts: The petitioner was working as a Police Constable in K.R. Police Station, Mysore. A joint departmental inquiry was instituted against him and the Sub-Inspector of Police by name Mehboob Jan of the same Police Station, by an order made by the Superintendent of Police. The Deputy Superintendent of Police was appointed as the enquiry officer. After holding the inquiry, the enquiry officer found the petitioner guilty of two out of four charges famed against him. Accepting the findings recorded by the enquiry officer, the Superintendent of Police issued a, show-cause notice under Art. 311 (2) of the Constitution. The petitioner furnished his reply to the show-cause notice. Thereafter the Superintendent of Police passed order dated 9-8-1975 (Ext.-C) imposing penalty of dismissal against him. Against the said order, the petitioner preferred an appeal under S. 25 of the Karnataka Police Act to the prescribed appellate authority, namely, the Deputy Inspector General of Police, Southern Range, Mysore. the said appeal was dismissed by order dated 25-3-1976 (Ext.-E) Aggrieved by these orders, the petitioner has presented this writ petition.

Sri B.V. Acharya learned counsel for the petitioner, contended that the inquiry proceedings from its inception are liable to be set aside as the inquiry was initiated by the Superintendent of Police, who had no authority to institute a joint inquiry in view of R. 8 of the Karnataka State Policy (Disciplinary Proceedings) Rules, 1965. He submitted that though the Superintendent of Police had the competence to institute disciplinary proceedings against Police Constables, as joint enquiry was instituted against him as well as the Sub-Inspector of Police the authority competent to institute disciplinary proceedings and name the disciplinary authority was the authority who was competent to impose penalty of dismissal against the Sub-Inspector of Police. He, pointed out that only the Deputy Inspector General of Police had he competence, under the Rules to impose penalty of dismissal against the Sub-Inspector of Police and, therefore, as a joint enquiry was instituted against the petitioner and the Sub-Inspector of Police, such an enquiry could have been ordered only by the Deputy Inspector General of Police.

Under the provisions of the Karnataka Police Act and the Rules framed thereunder, the Superintendent of Police is the appointing authority in respect of Police Constables and consequently he is also the disciplinary authority to impose all the penalties against a Police Constable. Similarly, under the Rules, the Deputy Inspector General of Police is the appointing authority in respect of Sub-Inspectors of Police and therefore both having regard to the provisions under the, Rules and also read with Art. 311 of the Constitution of India, no authority lower in rank than the, Deputy Inspector General of Police could impose a penalty of dismissal against the Sub-Inspector of Police. On these points there is no dispute. Rule 8 of the Rules which provides for institution of joint inquiry reads as follows:

"8. Joint Inquiry.-(1) Where two or more police officers are concerned in any case, the authority competent to impose the penalty of dismissal from service on all such police officers may make an order directing that disciplinary action against all of them may be taken in a common proceeding.

(2) Such order shall specify the authority which may function as the; Disciplinary Authority for the purpose of such common proceeding.

From the wording of the rule, it is clear that if institution of a, joint inquiry-is considered necessary against more than one police officer, the authority competent to impose penalty of dismissal from service on all such police officers has to order that disciplinary inquiry against all of them may be taken in a common proceeding. Sub-rule (2) of rule 8 further provides that such an order passed by a competent authority shall also specify the authority which may function as the disciplinary authority for purposes of a common proceeding. As stated earlier, the Deputy Inspector General of Police is the authority, who is competent to impose penalty of dismissal of Sub-Inspector of Police. He has also necessary competence to impose penalty of dismissal against the petitioner, who is a Police Constable, because he happens to be the authority higher in, rank than the appointing authority. Therefore, as the joint inquiry was contemplated against the Police constable and the Sub-Inspector of Police, the joint inquiry could have been initiated only by an order of the Deputy Inspector General of Police. In the present case, admittedly the Superintendent of Police initiated the joint inquiry against the Police Constable and the Sub-Inspector of Police. In view of rule, 8 of the Rules, the initiation of the disciplinary proceedings by the Superintendent of Police was not competent.

The petitioner in his appeal to the Deputy Inspector General of Police specifically raised this question which is dealt with in para-9 of his order. He rejected the contention of the petitioner on the ground that because the Superintendent of Police is the competent authority to impose penalty of dismissal against the petitioner, the omission is a minor one. I do hot think that the appellate authority was right in rejecting the grounds urged by the petitioner.

Institution of joint disciplinary proceedings is a matter which is specifically provided for under the Rules. If the Superintendent of Police had no authority to institute a joint enquiry, but nevertheless he did it, the initiation of the inquiry itself being incompetent, the appellate authority ought to have set aside the proceedings and directed de novo inquiry.

Sri B.B. Mandappa learned High Court Government Pleader, however, submitted that as the petitioner had failed to raise the objection at the earliest point of time, the petitioner is precluded from challenging the validity of the initiation of the inquiry or the appointment of the enquiry officer. In support of his submit on he relied on the decision of this Court in Syed Hassan Ali v. State of Mysore, (1965) 1 Mys.L.J. 422 In the said case, the petitioner was a Sub-Inspector of Police and he raised for the first time before this High Court in a petition under Art. 226 of the, Constitution that nomination of the enquiry officer was not valid. This Court after considering the provisions of rule 22 (1) (c) of the Hyderabad Civil Services (Classification, Control and Appeal) Rules came, to the conclusion that nomination of the enquiry officer was valid. Having held that there was no substance in the contention of that petitioner about the invalidity of the appointment of the enquiry officer in that case, this Court observed obviously having regard to the several facts of that case which showed that enquiry officer was changed at the instance of the petitioner therein as also the long history of that case, even assuming that such a nomination was not proper, the delinquent having acquiesced or submitted to the jurisdiction cannot be permitted to turn round to contend at that stage that the enquiry officer was not competent to hold the inquiry. It should be pointed out that the petitioner therein had not raised the objection regarding the validity of the appointment of enquiry officer in the departmental appeal preferred by him before the Inspector General of Police and it was raised for the first time in the writ petition. In this case as already pointed out, the petitioner had specifically raised this point before the appellate authority. The appellate authority rejected the said plea on the ground that it was only a minor omission. It is the correctness of the view taken by the appellate authority that is challenged in this of writ petition. Further the observation in Syed Hassan Ali''s case, (1965) 1 Mys.L.J. 422 that the petitioner could not be permitted to raise the ground in the writ petition was unnecessary for the reason on the facts of that case the Court came to the conclusion that the appointment of the enquiry officer was valid.

The next question for consideration is as to whether the penalty imposed though by a competent authority on the basis of findings recorded in an inquiry initiated by a incompetent authority is valid? A similar question came up for consideration before this Court in G.N. Naniundiah v. Inspector General of Police, (1966) 2 Mys. L.J. 682 The petitioner in the said case had been appointed as a I Division Clerk in the Police Department by the Inspector General of Police. Therefore under the Rules then in force, the Inspector General of Police alone was competent to institute disciplinary proceedings and impose penalty of dismissal. However, the Superintendent of Police, Kolar, instituted disciplinary proceedings against him and dismissed him from service. In the appeal before the Inspector General of Police one of the contentions urged for the petitioner therein was that the initiation of disciplinary proceedings by the Superintendent of Police was incompetent as he had no competence to initiate disciplinary proceedings and impose penalty of dismissed. When such a contention was, raised, the Inspector General of Police set aside the order of dismissal passed by the Superintendent of Police, but himself issued a show cause notice to the petitioner calling upon him to show-cause as to why he (that petitioner) should not be dismissed from service accepting the finding recorded by the enquiry officer, who was appointed by the Superintendent of Police and thereafter dismissed him from service. In the said case this Court held that though the Inspector General of Police was competent to impose tenuity of dismissal against the petitioner therein and actually the final order was also passed by him, the order was invalid for the reason that it was based on the findings recorded by the enquiry officer appointed by an incompetent authority. Consequently the penalty imposed by the Inspector General of Police, though he was competent to impose penalty, was set aside. The said decision applies on all fours to this case. In this case also though the final order of penalty was imposed against the petitioner by the Superintendent of Police, who was competent to impose penalty of dismissal against him, it was based on the findings recorded in a joint inquiry, which was initiated by him, though he had no competence to do so and only the Deputy Inspector General of Police was competent to institute such a joint inquiry.

In the circumstances, I am of the opinion that the imposition of penalty of dismissal against the petitioner by the Superintendent of Police, though he had the competence to impose such penalty, was invalid as it was based, on the findings recorded in a, joint inquiry, initiation of which by the Superintendent of Police was invalid in view of rule 8 of the Rules which authorised only the Deputy Inspector General of Police to order a joint inquiry against the petitioner and the Sub-Inspector of Police and also nominate the Disciplinary Authority for the purpose of such common proceedings.

The petitioner has raised several other contentions. As I have accepted the above contention urged for the petitioner, it is unnecessary for me to deal with all other contentions.

For the reasons aforesaid, I make the following order:

(i) Rule made absolute.

(ii) The order of the Superintendent of Police, Mysore District, Mysore, dated 9.8.1975 (Exhibit-C) and the order of the Deputy Inspector General of Police, Southern Range, Mysore, dated 25.3.1976 (Exhibit-E), in so, far it relates to the petitioner, are quashed. The petitioner shall be entitled to all consequential benefits flowing from the quashing of the orders. The respondents are, however at liberty to nutate de novo inquiry if they want to do so.

(iii) No costs.