Sarjoo Prosad, C.J.
1. This is an application under Article 226 of the Constitution, in which the petitioner has prayed for quashing or setting aside an order of dismissal passed against him by an appropriate writ.
2. The facts giving rise to this application have been elaborately set out in the application and have not been controverted on behalf of the Government. The material facts are these:
On the relevant date, the petitioner was an Assistant Sub-Inspector of Police attached to the Sibsagar District. He was actually appointed in the Police Force sometime in February, 1937, but confirmed as Assistant Sub-Inspector in September, 1950. In July 1950, he was attached to Amguri Police Station in the District of Sibsagar in that capacity. At about 11 A.M. on the 29th of that month, one Nandeswar Phukan of village Bhuyanhat Phukanchuk within the jurisdiction of that Police Station, lodged a written 'ejahar' at the Police Station against one Babula Gogoi alias Konthiram Khongia of village Ahukal Chuk. In that 'ejahar', Nandeswar alleged that the accused Babula had taken his bullock on hire for paddy cultivation, but although the season was over, he had been dishonestly detaining the bullock on false pretexts. The complainant charged Babula for criminal breach of trust under Section 406, Penal Code. The petitioner, as Assistant Sub-Inspector of Police, registered the 'ejahar' and instituted a case against the said accused Babula. This accused, it is stated, happened to be a member of the Sibsagar District Congress Committee and President of the Janjhi Anchalic Committee under the District Congress Committee and, as such, a man of some influence in the locality. After the 'ejahar' had been recorded, the accused, coming to know of it, called at the Police Station and made enquiries about it asking the petitioner to furnish him with a copy of the same, which the petitioner declined to do. The accused probably was dissatisfied with this refusal and on 30-7-1950, he sent a written complaint to the President of the District Congress Committee alleging maltreatment by the petitioner and of threats being given by him of sending up the accused on the basis of the complaint unless the accused paid him some money. He further alleged that the petitioner had wrongfully detained him for several hours and allowed him to leave only when the petitioner discovered that the accused was a Congress worker. A copy of the report by Nandeswar Phukan to the District Congress Committee also appears to have been sent to one Sri Bimala Prasad Chaliha, then Parliamentary Secretary to the Government of Assam and member of the Assam Legislature representing that constituency. This report seems to have produced its effect in that on 19-10-51, the Deputy Inspector General of Police, Assam, directed the Superintendent of Police, Jorhat to draw up proceedings against the petitioner. The then Superintendent of Police, Jorhat, thereupon directed under order, dated 23-10-51, one Mr. N. K. Das, the then Sub-Divisional Police Officer, Sibsagar, to draw up the proceedings. The order in question passed by the Superintendent of Police, Jorhat, has been quoted in extenso in para 9 of this petition. Mr. N. K. Das then drew up proceedings against the petitioner which purported to be under Section 29 of the Police Act, read with Section 342/161, I. P. Code; and on 30-10-1951, he framed charges against the petitioner. The charges are material, and I may just as well quote them here-under:
Charge 1824 of 1-11-51.
A.S.I. Bhugiram Hazarika of Sibsagar District Police, now posted at Golaghat P. S.
You are hereby charged Under Section 29, Police Act (Act V of 1881) read with Section 342/161, I. P. C. in that on 29-7-50, while you were attached to Amguri P. S., you unlawfully detained one Konthiram Khongia alias Babula Gogoi, s/o L. Thanuram Gogoi of Janji Dibrualgaon, P. S. Amguri, from 1 P.M. to 6 P.M. and demanded a sum of Rs. 100/- as illegal gratification, failing which, you threatened to forward him in custody and, as such, you thereby violated your legitimate duty as a Police Officer.
You are, therefore, called upon to explain -within three days from the receipt of this copy as to why you should not be dismissed or punished with some such other punishment.
Sd/ N.K. Das, S. D. P. O. (S)
3. It is obvious from the above charges that the allegation against the petitioner was for wrongful detention of Kanthirarn Khongia alias Babula Gogoi on 29-7-50, and for demanding illegal gratification from him on threat of forwarding him in custody in case of his failure to do so. It also appears from the charges that the authorities had not till then made up their mind as to what punishment should be inflicted on the petitioner - whether dismissal or some other punishment. The proceedings concluded and Mr. Das submitted his findings dated 7-2-52 to the Superintendent of Police. He summed up his conclusion thus:
Taking all these together, it appears to me that there is no proof to establish the charge of wrongful detention and also asking for illegal gratification against the accused A. S. I, Bhugiram Hazarika.
Submitted to S. P. for orders.
When the findings came before the Superintendent of Police (by this time Mr G. Hamilton had succeeded to that office), the officer. by his order dated 22-4-52, held that there was no conclusive proof to establish the charge of wrongful detention and also of demanding illegal gratification against the petitioner. This finding should have concluded the matter. But the Superintendent of Police proceeded to observe that although the charges might not be proved, the conduct of the petitioner throughout the whole affair was 'not free from suspicion.' He thought that the registration of the case based on the ejahar was 'not necessary at all. It is unnecessary harassment.' He referred in his order to an arrest which is said to have been effected by the petitioner of the said accused Konthiram Khongia on 15-8-50 just after the accused had probably finished presiding over some Independence Day meeting at Janjee. The officer considered that this arrest 'if at all necessary, it could have been done at any other date.' He also referred in his order to some proceeding under Section 107, Cr. P. Code, against Nandeswar Phukan which was enquired into by the petitioner and on which no action was taken by him. On these grounds the Superintendent of Police ordered the petitioner to be censured, and the petitioner was further warned that any recurrence of such a nature would entail dismissal.
4. It is necessary to point out that these grounds referred to in the order of the Superintendent of Police were not the subject-matter of the charges at all. The petitioner had no opportunity to show cause against these allegations and no proceeding had been started on that basis and with reference to those matters. A copy of the above order of the Superintendent of Police was sent to the petitioner on 29-4-52, the petitioner having been in the meantime transferred to Golaghat Police Station. The petitioner did not protest against the order; but apparently the matter did not rest there. There could be no doubt, as admitted by both parties, that the Superintendent of Police was the appointing authority, so far as the petitioner was concerned. Several months after, on 4-1-53, the petitioner was surprised to receive a fresh order from the then Superintendent of Police, Sibsagar. This was in the following terms:
A. S. I. Bhugiram Hazarika will be dismissed from the Force with effect from the date of receipt of this order as the proceedings No. 4/52 against him clearly show that he acted mala fide in registering the case and in arresting the accused which was unnecessary and uncalled for harassment of a public man, vide Govt. letter Wo. C. 509/50/22 of 11-10-52 conveyed in A. I. G.'s Memo No. F/XXXIII/4/12/16430 of 19-12-52.
Sd/ S.C. Majumdar,
Superintendent of Police.
4-1-53. Sibsagar, Jorhat.
5. This was almost like a bolt from the blue; the petitioner having least suspected that there would be a fresh order of punishment resulting in his 'dismissal' with reference to the same proceeding which had resulted in his 'censure'. The petitioner alleges that on receipt of this order of dismissal, he applied to the Superintendent of Police for copies of the relevant proceedings, and the said officer permitted him to take necessary copies after inspection of the record. The petitioner then discovered that on 11-10-52, the Joint Secretary to the Government of Assam had written to the Inspector General of Police, Assam, as follows:
Subject : Allegation against Shri Bhugiram Hazarika, Amguri P.S., Sibsagar.
I am directed to say that Shri Bhugiram Hazarika, A.S.I., Amguri P.S., Sibsagar District, should be immediately dismissed from service and the Government informed of (he action taken. The order of the Superintendent of Police in the proceedings clearly showed that he acted mala fide in registering the case and in arresting the accused which was unnecessary and uncalled for harassment of a public man.
On receipt of this letter from Government, Mr. R. C. Dutta, Assistant Inspector General of Police, Assam, wrote to the Superintendent of Police, Sibsagar, on 19-12-1952, as fellows:
Subject : Allegation against Shri Bhugiram Hazarika, Amguri Police Station, Sibsagar.
In enclosing herewith a copy of Government letter No. C. 569/50/22, dated 11-10-1952, I am directed to say that Assistant Sub-Inspector Bhugiram Hazarika of the Amguri police Station should be dismissed at once from the Force and the fact of doing so should be reported to this office
Assistant I. G. of Police, Assam.
Then followed the dismissal order by the Superintendent of Police, to which I have already referred.
6. The petitioner submits that the order of dismissal is entirely without jurisdiction and in complete violation of the rules relating to the departmental proceedings. The learned Counsel on his behalf submitted that the Superintendent of Police being the appointing authority, his order was final, subject to a right of appeal which the petitioner had against that order to the Deputy Inspector General of Police. The petitioner .having submitted to the order of censure passed against him, this order should have been taken to be final and decisive in the matter. He further submitted that even the order of censure passed against him was without jurisdiction because there was no charge whatsoever framed against the petitioner in respect of the matters on which the order of censure was based.
7. It would be useful to refer to some of the relevant rules in order to appreciate the contention of the petitioner. The charges Show that they related to offences under Section 29 of the Police Act read with Section 342/161, PenalCodc for illegal detention and for demanding illegal gratification. These offences were triable by a Magistrate, and a departmental enquiry in regard to such offences was not called for unless the petitioner had been duly tried and found guilty or otherwise, in a Court of law. But, for the present, I shall proceed on the assumption that such offences could form the subject-matter of a departmental proceeding. The rule which regulates such proceedings, as framed under the Police Act, is Rule 66 of the Assam Police Manual, Part III. The punishment of dismissal or punishments of the like nature, including censures, are regarded as major punishments under the rules. Rule 66 provides that in every case in which the question of an officer meriting major punishment arises, the order shall, except when it is based on facts or conclusions established at a judicial trial, or when the officer concerned has absconded with the accusation hanging over him, shall be preceded by a properly recorded departmental enquiry. The proceedings shall open with a statement of the offence alleged or suspected to have been committed and the officer, except when the evidence consists of records only and no witnesses are examined, shall be allowed to be present at such enquiry, and the evidence recorded in his presence, giving him at the same time an opportunity of questioning the witnesses. Clause (b) of the Rule further provides that a specific charge or charges shall then be drawn up in writing on the strength of the evidence recorded and copies given to the officer complained against who shall be afforded every reasonable opportunity to submit his explanation in reply to the charges which explanation shall be recorded in the proceedings and if he desires to examine any witnesses in defence, the evidence of those witnesses should also be recorded. The Superintendent of Police should then discuss fully and separately each charge and arrive at a finding. The Rule enjoins that the procedure as described above should be strictly followed as an error in procedure may vitiate the whole enquiry and leave the appellate authority no option but to set it aside (vide Clause (d) of Rule 66).
8. In the present case, the only charges framed against the petitioner were charges of wrongful detention of the accused and of the attempt to extort illegal gratification from him on 29-7-50. There were no other charges against him, nor any explanation called for from him in regard to any other matter. The Superintendent of Police who is the appointing authority, very definitely held, in agreement with the officer who made the enquiry, that there was no conclusive proof to establish the said charges. The matter, therefore, should have ended there. There was no justification for the Superintendent of Police to proceed to censure him on matters for which he was never charged and which he was never called upon to explain. If he desired that those matters should have been investigated, it was open to him to direct a further investigation after drawing up relevant charges on those points, and giving the petitioner' an opportunity of being heard on those points. But nothing of the kind was done. It is, of course, not for me to question the merits of the order passed by the Superintendent of Police so long as he did so after due observance of the rules in a proceeding appropriately framed for that purpose. The order passed by the Superintendent of Police is a speaking order and it, is, therefore, open to me to examine the reasonings which he gives in support thereof. He observed that the fact that the petitioner registered a case under Section 406, I. P. C. on the basis of the 'ejahar' lodged by Nandeswar was unnecessary and amounted to unnecessary harassment. I fail to see the Strength of this reasoning. Was it possible for the petitioner who was in the position of an Assistant Sub-Inspector of Police to refuse to record the 'ejahar'' and to decide for himself whether the allegations made therein were true or false, or whether they were merely in the nature of civil dispute? Was it not his duty on the other hand to record the 'ejahar' and to proceed to deal with it according to law? A petty Police officer in his position should have probably found safety in adopting the latter course. He also suggests that there was some motive underlying the arrest of the accused on 15-8-50 and if the arrest was at all necessary, it could have been done on some other date. I do not know under what circumstances the arrest was made by the petitioner - possibly he might have been able to explain the same if a separate charge had been framed on the point. But I do not understand the significance of Superintendent's remark that if the arrest was at all necessary It should not have been effected on that particular date but on some other date. Nor is it clear from the order that the petitioner was thoroughly unjustified in not taking any action against Nandeswar Phukon on the petition under Section 107, Cr. P. Code, filed against him. It may be that on enquiry the petitioner was not satisfied that any such proceeding could be started. In any event the petitioner was never called upon to meet these charges and, therefore, there was absolutely no justification for the Superintendent of Police to inflict the punishment of censure which was one of the major punishments according to the rules.
9. The petitioner, however, being a Sub- ordinate Police Officer, meekly submitted to this illegal order of the appointing authority. Probably he could not do otherwise; and if the matter had rested there, possibly this illegal order of the Superintendent of Police would not have come in for scrutiny. But the letter of the Joint Secretary to the Government of Assam dated 11-10-52 sought to substitute a severer punishment on those grounds, and the petitioner had then no option left but to challenge the order. The letter directed the Inspector General of Police that the petitioner should be immediately dismissed from service and the Government informed of the action taken. In the letter there is nothing to show that Government came to a different finding on the charges framed against the petitioner, but this order of Government also proceeds en the assumption that the petitioner 'acted mala fide in registering the case and in arresting the accused which was unnecessary and uncalled for harassment of a public man'. In the eye of law, a public man has no better position than an ordinary citizen of the land and the rights and liberties of each are equally valuable. Mr. Goswami draws our attention to the rule wherein it is provided that nothing in the rules shall preclude the Governor from revising any order passed by any authority subordinate to him in exercise of the powers conferred by the rules, and that an order of punishment passed by or with the concurrence of a higher authority should be deemed to be an order passed by the authority himself. The rules also provide for memorials being submitted to Government. This authority of the Governor to revise an order of his subordinate authority is not in question; but then there must be a regular proceeding; on which the Governor or his Advisers can act. If there is no proper proceeding whatsoever in regard to the particular matters alleged against the petitioner and the petitioner has been never called upon to explain them, the Governor cannot, in the exercise of his powers of revision, regularise a proceeding which either did not exist or was thoroughly irregular and illegal. The other orders, namely, that of the Assistant Inspector General of Police and subsequently the order of dismissal, followed merely in the ordinary course in the wake of the letter of the Joint Secretary to the Government referred to above. There is, therefore, every force in the contention that the order of dismissal passed against the petitioner was quite illegal and without jurisdiction, being in complete violation of the rules governing the conduct of such proceedings.
10. There is another fatal defect to the proceedings in question to which the learned Counsel has drawn our attention. This arises in view of Article 311 of the Constitution. Clause (2) of the Article enacts that no person who Is a member of a civil service of a State or holds a civil post under a State shall be dismissed or removed or reduced in rank until he has been given a reasonable opportunity of showing cause against the action proposed to be taken in regard to him. I need not refer to the various provisos because they are not relevant at present. There can be no doubt that the petitioner holds a civil post in the State of Assam and he is entitled to the protection of, that clause. It was, therefore, incumbent on the authorities to comply with the requirements of that Article of the Constitution before they proceeded to dismiss him. An analogous provision, namely, Section 240(3), Government of India Act, 1935, came in for consideration by the Judicial Committee of the Privy Council in - 'High Commr. for India and Pakistan v. I.M. Lall' AIR 1948 PC 121 (A). Lord Thankerton there observed that the said provision was mandatory and an order of dismissal passed against a civil servant without giving him the opportunity provided under the section was void and inoperative, and the person concerned would continue to be a member of the service notwithstanding the order. It is not sufficient that the petitioner should have received a general invitation to show cause against the possible dismissal (amongst other possible punishments included at the end of the charges originally served on him) but that he should have been given an opportunity to show cause against the punishment of dismissal itself, after dismissal had passed from being a possible punishment to the punishment proposed and recommended. In this case, at no time he was given an opportunity, before the dismissal, of making a representation against the accuracy of the facts alleged in the order of the Superintendent of Police or in the order of the Government directing his dismissal. Mr. Goswami has endeavoured to distinguish Article 311(2) of the Constitution from Section 240, Sub-section (3), Government of India Act, 1935; but I see no substantial difference between the two, even in their language, except for Sub-clause (c) of the proviso to Article 311(2), which was not in Section 240(3), Govt. of India Act. Mr. Goswami relies on Clause (3) of Article 311 to support an argument that there was a finality to the decision of the authority concerned, but the application of the said clause does not come in except with reference to Sub-clause (b) of the proviso, and the decision of the authority is final with reference to the question whether it was reasonable or practical to give to any person an opportunity of showing cause under Clause (2). There is nothing to indicate in the present case that the authorities concerned ever thought of denying such an opportunity to the petitioner of showing cause against their contemplated order of dismissal. If they thought so, they* were bound to record their reasons in writing. The order was based purely on a misconception of the scope and real nature of the proceedings. The position, therefore, is that the order directing the dismissal of the petitioner is wholly void and the petitioner would be deemed to continue to be a member of the service.
11. It has been also urged that the decision of the Judicial Committee is not binding upon this Court, but whether it. is so or not, it is good law so far as the interpretation of an analogous provision of the Government of India Act is concerned, and the sound reasoning on which it is based defies any attempt to assail it. Mr. Goswami has also relied upon a decision of mine sitting with Ramaswami J, in - 'Ajit Kumar v. Chief Operating Superintendent, East Indian Railway' : AIR1953Pat92 . That was a case of mere termination of service, as Ramaswami J. pointed out in that case, and I refused to interfere ' because the circumstances of the case did not warrant interference under Article 226 of the Constitution. In a recent case, in - Tribhuwannath Pandey v. Govt. of the Union of India' AIR 1953 Nag 138 (C), a Division Bench of the Nagpur High Court did interfere under similar circumstances under Article 226 of the Constitution, and set aside the order of removal from service of the petitioner concerned in that case. I should not be understood to hold that I accept all the reasonings of that decision; but it is only to indicate that where an order is found to be wholly unjustified, the High Court can and should interfere under Article 226 of the Constitution. It was rightly pointed out in that case that
it is imperative on the State to frame specific charges with full particularity, intimate those charges to the Government servant concerned, give him an adequate opportunity to answer those charges and after considering his answers to take its decision.
12. For the reasons stated above, I am constrained to hold that both the order of censure passed by the Superintendent of Police against the petitioner as also the subsequent order of dismissal passed against him, are entirely without jurisdiction and in utter disregard of the rules relating to the conduct of departmental proceedings. It is unfortunate that in a matter involving the dismissal of a public servant of the State, the authorities concerned should have shown such scant regard for the salutary rules framed on the point which should have guided and governed their conduct of the proceedings against the petitioner.
13. The application must, therefore, be allowed; the Rule nisi must be made absolute and the order of dismissal set aside and the petitioner should be held to continue to be a member of the Police service. I do not think that we can allow any costs to the petitioner in the present case.
14. I agree.