State of Mysore and Ors. v. H. D. Kolkar

MATHEW, /.-The respondent in this appeal started service as a police constable in the State of Bombay in 1935. He became an head constable after he was allotted to the State of Mysore consequent on the reorganization of the states. In the year !962, disciplinary proceed-ings were commenced against. him. The charge was that he was found missing from his post between 11.30 P.M. on March 21, .1962 and 3.30 P.M. on the next day. The Superintendent of Police found him .... guilty of the charge and demoted him as a police constable .

The respondent preferred an appeal to the Deputy Inspector Gene-ral of Police but that was dismissed. The respondent then filed a revision before the State Government under rule 17 of the Bombay Police (Punishment and Appeal) Rules, 1956, hereinafter called the "Rules". The Government thereafter issued a show cause notice to the respondent stating why the punishment imposed upon him by the. Superintendent of Police should not be enhanced. After hearing the respondent, the punishment was enhanced to one of dismissal by the Government.

The respondent filed a writ petition before-the High Court of Mysore to quash the order. He raised two grounds in the writ peti-tion: ( !) that the disciplinary proceedings were not conducted in accordance with law; and (2) that the enhancement of punisnment was beyond the competence of the Government as rule 17 (2) of the Rules was ultra vires of s. 25(2)(cJ of the Bombay Police Act, 1951 hereinafter called the •Act'.

The High Court held that the disciplinary proceedings were con-ducted in accordance with Jaw, but that the Government had no jnris-diCtion to enhance the punishment. The Court therefore quashed the order of the Government enhancing the punishment. It is against this order that the appeal has been preferred, on certificate, by the State of Mysore.

The appellant contended that rule 17(2) of the Rules which authorized the State Government to call for the records of any case in which an order has been passed by an authority subordinate to it "nd enhance the punishment inflicted by the order was not 11/tra vires II s.25(2) (c) of th_e Act.

It is, therefore, necessary to reads. 25 of the Act and rule 17(2) uf the Rules. The material part of s. 25 reads:

"25 (1) The State Government or any officer authori-sed by sub-section (2) in that behalf may suspend, reduce, dismiss or remove an Inspector or any member of the subor-dinate ranks of the Police Force whom he shall think cruel, P.Crverse, remiss or negligent in the discharge of his duty or unlit for the same, and may fine to an amount not exceeding one month's pay, any member of the subordinate ranks of the Police Force, who is guilty of any breach of discipline or misconduct or any act rendering him unfit for the discharge of his duty, which does not require his suspension or dismissal.

(2)(a) The Inspector-General, the Commissioner and the Deputy Inspector General shall have authority to punish an Inspector or any member of the subordinate ranks under sub-section ( 1). A Superintendent shall have the like autho-c. rity in respect of any Police Officer subordinate to him below the grade of Inspector and may suspend an lnspector who iS subordinate to him pending inquiry into a complaint against such Inspectpr and until· an order of the Inspector Gentrnl or Deputy Inspector-General ean be obtained .

* • • • • • (cl 'I'l1e' exercise otany po\\'er conferred:by this rnb-sec-ti-On Sball be st1b# always to such rules and Orders a!NDay 'be ina<k by1he State Government in that 'behalf."

Rule 17 of the Rules reads:

"1. The State Government shall. alone have the power of revision and revision sbal!'..lie only in respect of punist-ments which are appellate.

(2) The State Government, of its own motion or other-wise, may call for the record of any case in which an order has'been made by an authority subordinate to it in the exercise of any power conferred on such authority by the Rules and may:

(a) confirm, modify, or reverse the order, or (b) direct that further enquiry be held in the case;

( c) reduce or enhance the punishment inflicted by the order; ( d) make such other order in the case as it may deem fit. Provided that where it is proposed to enhance the punishment inflicted by any such order, the Police Offithcer concerned shhall be given an opportunity of showing cause against e proposed en ancement."

It is clear from sub-section (1 ) of s. 25 that the State Government or any officer authorisetl by the State Government under sub-section 2) of that section is competent to impose the punishment of su8-pension, reduction, dismissal or removal on an Inspector or other mem-ber of the subordinate rank of the Police force on the grounds enumera.. ted in that section. Sub-section 2(a) consists of two parts. The first part authorises the Inspector General of Police, the Commissioner, and the Deputy Inspector General of Police to impose punishment which the State Government could impose under sub-section ( 1). The other part of that sub-section says that-a Superintendent of Police· shall have the like authority in respect of any Police. Officer subordiaate to him below the grade of Inspector. It was in the~ of:tllis power that the Superintendent of Police here reduced, 11\e respondent to the rank of a police constable. .· .. ·" . .· ·

Now the source of the power under whlch rule 17 was framed, as stated in the preamble to the rules, is sub-section 2( c) of s. 25 of the Act and the question is whether this clause really autliorised the Govern-ment to acquire power by framing a rule to enhance the punishment imposed under sub-section 2(a) of s. 25.

As alfeady stated, the High Court was of the opinion that the sub-section could confer no authority to frame a rule to invest the Govern-ment \\ith power to revise an order of punishment made under s. 25 (2J (a).

It is clear from the language of clause (c) of s.25 (2) that only rules Jnd orders which could be made under that clause are rules and orders for the exercise of the power conferred bys. 25(2)(a). The words "the exercise of any power conferred by this sub-section shall be snb-jec.t always to such rules and orders as may be made by the State Government" in s. 25 (2 )( c) would indicate that the Government have no power to make any rule or order arrogating to themseives a power of revision over an order of punishment passed under s.25(2l(a). What is made subject to the rules or orders to be passed or made by Government is "the exercise of any power" conferred under clause 2(a) of s.25. Sub-section 2(c) of s.25 can only mean that the Gov-ernment will have power to pass rules or orders for regulating the procedure or such other matters for the exercise of the power conferred by sub-section (2){a) of s.25 by the officers mentioned therein. The power to enhance the punishment is a power which can be exercised only after the concerned officer has exercised his power under s.25(2) (a). In other words, rules or orders can be made by Government under s.25(al(c) only for guiding him either in the matter of proce-dure, or the manner of arriving at a decision. It is obvious from the language of s.25(2)(c) that while the power exercisable under s.25 (2)(a) is subject to the rules and orders made by Government, the decision which comes into being after the exercise of that power is not subject to the supervision of the Government by framing a rule or making an order in that behalf. Once the exercise of such power results in the imposition of a punishment, the punishment becomes final subject only to an appeal which is authorised by s. 27. 1'...e consequence is that rule 17(2) of the Rules, bv which the Government sought to acquire power to call for the records and to revise orders passed under s.25(2)(a) and to enhance the punishment imposed, was clearly beyond its competence.

We dismiss the appeal \\ith costs.

s.c. Appeal dismissed. L392Sup. C. T.174-2500-5-2-75-GIPF