Skip to content


Madho Singh Daulat Singh Vs. State of Bombay (Through Secretary Home Department) and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Appln. No. 39 of 1959
Judge
Reported in(1959)61BOMLR1537
ActsConstitution of India - Article 309; Police Act, 1861 - Sections 7; Central Provinces and Berar Police Regulations - Regulations 64, 217 and 226
AppellantMadho Singh Daulat Singh
RespondentState of Bombay (Through Secretary Home Department) and ors.
Appellant AdvocateB.B. Ranade, Adv.
Respondent AdvocateG.R. Mudholkar, Asst. Apl. Govt. Pleader
Excerpt:
.....be taken against them for their misconduct outside their employment -- central provinces and berar police regulations, rr. 64(11), 214, 217, 226 -- police act (v of 1861), section 7.;in order to enable a master to take disciplinary action against his servant it is not a condition precedent that the misconduct on the part of the servant must arise within his employment and not outside his employment. the test in each case will be whether the servant is conducting himself in a way inconsistent with the faithful discharge of his obligations undertaken by him either expressly or impliedly in accepting the service. the inconsistency may arise on account of any act of the servant either in the course of his employment or outside it, which injures or has the tendency to injure his master's..........he observed :'it is true that there is an appreciable distinction between the two capacities of a police officer, one as a member of the public and the other as police officer. at the same time, these cannot be regarded as watertight compartments. the appellant's acts as a member of the public do have a bearing on his character as a police officer and being a police officer the appellant should have acted with unfailing patience, courtyesy and tact and refrained from losing his temper.'the petitioner then filed a revision application before the inspector general of police. this application was dismissed by the inspector general of police on 17-1-1959. the petitioner has therefore preferred this petition in this court.(3) mr. ranade, learned counsel for the petitioner, in the first.....
Judgment:

Tambe, J.

(1) This is a petition under Articles 226 and 227 of the Constitution of India, by Police constable Madhosingh. It is directed against the order of the District Superintendent of Police, Wardha, second respondent hereto, made on 8-5-1958, whereunder the petitioner is reduced in pay by Rs. 2/ p.m. for a period of two years beginning with the month of May 1958 and with a further order that this reduction will have the effect of postponinghis future increments, and the affirming orders in appeal and revision made on 29-7-58 and 17-1-59 by the Deputy Inspector General of Police and the Inspector General of Police respondents 3 nd 4 respectively.

(2) Facts in brief are that the petitioner at the material time was posted as police constable in Wardha, a district place in the Vidarbha region. The petitioner was residing on the ground floor of a house. In the same house on the upper floor Shri Desai, Company Commandant of the Home Guards Wardha and one Bhagwansingh were residing. This house had no pucca latrine. A temporary latrine was therefore put up by the said Bhagwansingh and it was used by Bhagwansingh ad Shri Desai. They also did not raise any objection to the use of that latrine by the petitioner. It appears that on 9-2-1958, the petitioner was trying to prevent Shri Desai's children from using the latrine and thus there was some altercation in this respect between the petitioner nd Dashrath, peon of Shri Desai. Shri Desai who was nearabout, getting ready to go out intervenedand asked the petitioner as to what the matter was. The petitioner then lost his temper and replied 'Have you no eyes, the latrine is full, it is smelling and who is going to clean it.' Shri Desai told him that there was a sweeperess and that she would clean it. The petitioner then advanced towards Shri Desai in a threatening attitude and talked to him rudely in the first person singular. Shri Desai then went to the Police Lines and reported the matter to the Lines Officer. Later Shri Desai also reported the incident to the District Superintendent of Police, who asked the Station House Officer to enquire into the matter. The Station House Officer submitted his reort on 10-2-58 and the petitioner was suspended on that vry day by the District Superintendent of Police, Wardha. On 11-2-1958, a charge sheet was served on the petitioner and the charge the petitioner was called upon to answer was

'rude and improper behaviour with Shri Desai, Company Commandant, Home Guards, Wardha, on 9-2-1958 over the use of common latrine in the house of one Bhandekar of Gandhi Nagar.'

A Departmental Inquiry was then hld by the District Superintendent of Police, Wardha. It was inter alia contended by the petitioner that the misbehaviour even if any being outside the employment, disciplinary acton could not be taken against him. The District Superintendent of Police held that there was no proper justification for the petitioner to behave as he did with Shri Desai, Company Commandant Home Guards. He further took the view that the default on the part of the petitioner was of a very serious nature. He negatived the contention of the petitoner that no diciplinary action could be taken against him for miscoduct outside the employment. The District Superintendent of Police therefore issued a notice on 17-4-1958 calling upon the petitioner to show cause why he should not be dismissed from the police force. The petitioner by his reply showed cause. The second respondent then made the following order on 8-5-1958 :

'Constable Mahadevsing No.125 of Lines is reduced in pay by Rs. 2/- p.m. for a period of two years beginning with the month of May 1958. Thereduction willhave the effect of postponing his future increments. The constable is reinstated in service but his period of suspension so far will be treated as such.'

The petitioner then took an appeal to the Deputy Inspector General of Police and the same contention was again reiterated by the petitioner in appeal. The contention was negatived y the Deputy Inspector General of Police and he dismissed the appeal on 29-7-1958. In the course of the order he observed :

'It is true that there is an appreciable distinction between the two capacities of a Police Officer, one as a member of the public and the other as police officer. At the same time, these cannot be regarded as watertight compartments. The appellant's acts as a member of the public do have a bearing on his character as a Police Officer and being a police officer the appellant should have acted with unfailing patience, courtyesy and tact and refrained from losing his temper.'

The petitioner then filed a revision application before the Inspector General of Police. This application was dismissed by the Inspector General of Police on 17-1-1959. The petitioner has therefore preferred this petition in this Court.

(3) Mr. Ranade, learned counsel for the petitioner, in the first instance, contends that the misconduct as found was committed by the petitioner not during the course of the employment but was open to the Police authorities to take any disciplinary action against the petitioner in that respect. We find it difficult to accept this contention. It is true that the misconduct in respect of which disciplinary action is taken against a servant must have reasonable relation to the nature of the service, but it need not necessarily arise in the course of employment. When a person accepts an employment by necessary implications he agrees to so conduct and behave himself as would not be inconsistent with the nature of his service. If he behaves and conducts himself in a manner which would be inconsistent with the nature of his service then that would affect or at any rate would be likely to affect the interests or good name of his employer. If and when it happens it is reasonable to hold tat it would entitle the employer to take such disciplinary action against his employee as the nature and degree of misconduct would require and law would permit. It is not that interests or good name of an employer is likely to be adversely affected only by an act of an employee during the course of an employment. We also do not find any provision either in the Police Act or Regulations to restrict recourse to taking disciplinary action against a police officer's action to acts done by him during the course of employment only

(4) Regulation 64 of the Police Regulations deals with general conditions of service of a police officer and clause (11) thereof provides that the police officer shall act with respect and deference towards all officers of Government, and with forbearance, kindness and civility towards private persons of all ranks. In a private life he shall set an example of peaceful behaviour and shall avoid all partisanship. This clause makes it clear that it is one of the conditions of his service that a police officer conducts himself both during the course of his employment as well as outside his employment with civility and courteousness. It necessarily follows that his acting otherwise, though in private life, would be inconsistent with the general conditions of his service. The law relating to the disciplinary action which could be taken by a private individual against his servant is not that no disciplinary action can be taken by his master against the servant for any misconduct of his servant outside the employment. In considering the case of dismissal of a private servant Lord Esher M. R. in Pearce v. Foster, (1886) 17 Q.B.D. 536 observed :

'The rule of law is, that where a person has entered into the position of servant, if he does anything incompatible with the due or faithful discharge of his duty to his master, the latter has a right to dismiss him. The relation of master and servant implies necessarily that the servant shall be in a position to perform his duty duly and faithfully, and if by his own act he prevents himself from doing so, the master may dismiss him. . . . . . . . What circumstances will put a servant into the position of not being able to perform, in a due manner, his duties, or of not being able to perform his duty in a faithful manner, it is impossible to enumerate. Innumerable circumstances have actually occurred which fall within that proposition, and innumerable other circumstances which never have yet occurred, will occur, which also will fall within the proposition. But if a servant is guilty of such a crime outside his services as to make it unsafe for a master to keep him in his employ, the servant may be dismissed by his master; and if the servant's conduct is so grossly immoral that all reasonable men would say that he cannot be trusted, the master may dismiss him.'

Dealing with the same question in the same case Lord Justice Lopes observed :

'If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master.'

We are not aware of any decision taking a contrary view, and none is shown to us.

(5) The ratio deducible then is that in order to enable a master to take disciplinary action against his servant it is not a condition precedent that the misconduct on the part of the servant must arise within his employment and not outside his employment. The test in each case will be whether the servant himself in a way inconsistent with the faithful discharge of his obligations undertaken by him either expressly or impliedly in accepting the service. The incosistency may arise on account of any act of the servant, wither in the course of his employment or outside it, which injures or has the tendencyto injure his master's business or interests or reputation. There is no reason why this principle hould not apply to public servants. There ishowever one very material difference between the two and that must be kept in view. In case of a private servant it is the master who in his own discretion decides the question of the disciplinary action to be taken against his servant. In the case of a public servant it is not the master but certain officers of the same master who decide this question but their powers in that respect are regulated by the Act or rules framed thereunder.

(6) In the instant case, as we have already shown, it was expected of the petitioner, being a police officer, to behave with civility and courteousness with a memner of the public even in his private life. It has been found that he has very rudely behaved with Shri Desai. There is no doubt that the petitioner has conducted himself in a way inconsistent with the faithful discharge of his service inasmuch as he acted contrary to the dicipline prescribed for a police officer in clause (11) of Regulation 64. Such a conduct is likely to bring disrepute to the police force. He has herefore exposed himself to a disciplinary action.

(7) The second contention raised relates to the jurisdiction or powers of the second respondent to impose the punishment he has imposed for the offence of which the petitioner has been found guilty. It has therefore to be seen whether the second respondent has acted within his authority in awarding the punishment which he awarded for the misconduct found. If he has, we are not concerned with its quantum.

(8) Secion 7 of the Police Act provides that subject to such rules as the Provincial Government may from time to time makethe Inspector-General of Polce, Duputy Inspector General of Police, Assistant Inspector General and District Superintendent of Police may impose on police officers certain punishments mentioned therein. In exercise of the powers conferred by this section the Provincial Governmet has made certain rules (referred to as Regulations). They are contained in Chapter VIII of the book 'C. P. and Berar Police Regulations' published under the authority of the Government of the Central Provinces and Berar. Regulation 214 enumerates the various kind of publishments which could be imposed on police officers belonging to the Subordinate Police Service. The punishment imposed on the petitioner is twofold: (I) there is reduction in his pay by Rs. 2/- p.m. for a period of two years beginning with the month of May 1958 and (ii) this reduction is to have the effect of postponding his future increments. On the language of regulation 214 the punishment imposed falls within clauses (ii) and (iii) of regulation 214, that is, withholding of increments and reduction to a lower stage in a time scale. Regulation 215 deals with certain additional penalties which could be imposed on non-gazetted officers. We are hwever not concerned with those punishments in the instant case. Regulation 216 enumerates certain additional punishments which could also be imposed on Head Constables and Constables. Regulation 217 enumerates some more punishments which could also be imposed on Constaables. In the instant case, the petitioner is a constable. Clause (a) of this regulation provides that a constable may also be punished with deprivation or withholding of increment (for a period not exceeding one yar at any one time). In the instant case, the punishment authority, i.e. the second respondent, has at one time withheld the increment of the petitioner for period of two years, which is contrary to the provisions of clause (a) of regulation 217. Regulations 219 to 223 deal with the powers of punishment conferred on various officers. Regulations 224 and 225 contain general instructions relating to award of punishment. Regulation 226 lays down rules to be observed by the disciplinary authority in determining what penalty should be awarded for any particular offence.

(9) It would thus be seen that the power of the disciplinary authority to impose a penalty is regulated and controlled by the provisions of the aforesaid regulations which is a complete code by itself. It would therefore be not open to it to impose a penalty which it deems proper unless it is authorised by the regulation.

(10) The offence of which the petitioner has been found guilty by the second respndent is that his (petitioner's) behaviour was rude and improper towards Shri R. R. Desai, Company Commandant of the Home Guards, and in the words of the third respondent the appellant (petitioner) being a police officer he should have acted with unfailing patience, courtesy and tact and refrained from losing his temper. It has to be seen whether the penalty imposed by the second respondent on the petitioner and confirmed by the third and fourth respondents is warranted nder any one or more clauses of regulation 226.

(11) It will be convenien at this stage to refer to certain other facts that weighed with the second respondent in awarding the punishment which he has awarded. From paragraphs 21 and 22 of the preliminary order dated 17-4-58 it appears that the second respondent after coming to the conclusion that the petitioner was guilty of the aforesaid offence, ooked into his service record and from it he found that during his 12 years' service he had received two major punishments and 11 minor punishments and had received 18 rewards. Miscellaneous remark in his service record was that the petitioner was a constable of an average calibre. One of the previous major punishments which was awarded in 1950 related to misbehaviour with member of the public and for indiciplinary conduct in the presence of his Station Officer. The punishment imposed was reduction in pay from Rs. 31/- to Rs. 30/- for a period of six months. Second default occured in 1952 when he was reduced from Rs. 32/- to Rs. 31/- p.m. for a period of 12 months for onniving at a breach of Motor Vehicle Rules committed in his presence and for insolently refusing to submit his explanation to the Station Officer. Two of the minor punishments related to quarrelling and indisciplinary behaviour towards the Station Officer (years not mentioned). On account of this previous record the second respondent though that the previous punishments have not deterred the petitioner from improper, rude and indiciplinary behaviour towards others and in his opinion it was not likely that he would improve thereby. He further was of opinion that the present default was of a very serious nature and he did not see any case for showing any leniency to the petitioner. He therefore issued a notice to the petitioner to show cause why he should not be dismissed from the police force. In the final order in awarding the punishment the second respondent observed :

'I however feel that the punishment of dissmissal stated in my show cause notice is a little too service especiall in view of the fact that in Vidarbha area constables have not yet become fully used to the idea f of police ehaviour towards the members of the public. I therefore feel that one more chance may be given o the accused constable to mend his ways. If such behaviour is repeated in future, it will be necessary to dismiss him from service.'

And in this view of the matter, the second respondent imposed on the petitioner the aforesaid punishment. If therefore appears that the punishment imposed by the second respondent is not merely on account of the offence of which the petitioner has been found guilty but also on account of the previous record which in the opinion of the second respondent merited dismissal but on second thought he thought it too severe and therefore imposed the aforesad punishment.

(12) Now turning to the provisions of regulation 22, rude or discourteous behaviour toward a member of the public in private life outside employment, even if repeated, does not afford a ground for even imposing any penalty under cls. (ii) to (iv) of regulation 226 much less of dismissal under clause (i) of regulation 226. Regarding first and second clauses together it appears that th punishment of dismissal or reduction in rank is awarded or could be awarded for incompetence, or cases of serious dereliction of duty. Clause (iii) provides that punishment of withholdin of increment, either temporary or permanent, can be imposed only in the case of serious dereliction of duty or for culpable ignorance of polce procedure, laziness of apathy in conducting the work of the station-house, and the like. Clause (iv) provide that an increment which has fallen due may be withheld for a definite period for inefficiency or unsatisfactory service. It however specifically prohibits, withholding of increments of constables for a period more than one year in the first instance. Discourteous or rude behaviour towards a member of the public in private life can hardly be termed as incompetence in the discharge of his duty as police constable or serious dereliction of duty, or cupable ignorance of police procedure of other offences mentioned in cls. (iii) and (iv). Clauses (v) relates to imposition of fines. It however prohibits fining of constables.

(13) After going through the entire regulation 226 we do not find any clause under which the instant case would fall, except clause (vi). We have no advantage of knowing from the orders of any of the respondents the clause or clauses of the regulation 226 under which the second respondent purported to act in imposing the punishment on the petitioner. We asked the leaned council for the respondents topoint out to us the clause which would be attracted to the facts of the present case. He frankly conceded that there is no clause in regulation 226 which would get attracted to the facts of the case except clause (vi). It reads :

'(vi) In the case of head constables and constables, minor offences against discipline should be dealt with, firstly by warning, and if this proves ineffectual, by the infliction of the minor punishments specified in regulations 216 and 217(b), or by detailing the offender to a course of more irksome and unpopular duties.'

Now, punishments specified in Regulations 216 and 217(b) are not withholding of increment or reduction to a lower stage in a time scale, but, on the other hand, they are (i) confinement to quarters for a term not exceeding 15 days, (ii) punishment drill, (iii) extra guard duty, (iv) tent pitching, (v) drain digging, (vi) cutting grass, clearing jungle and cleaning parade grounds, (vii) repairing huts and butts and similar work in the lines, (viii) cleaning arms.

(14) In our opinion, therefore, though the conduct on the part of the petitioner entitled the second respondent to take a disciplinary action against him the punishment awarded by him to the petitioner is in excess of his authority and powers conferred on him under the provisions of regulation 226, and further the punishment awarded awarded contravenes the specific provisions of clause (a) of Regulation 217. The orders of the second, third and fourth respondents, therefore, cannot be sustained.

(15) In the result, the petition is allowed, and the aforesaid orders of 8-5-1958, 29-7-1958 and 17-1-1959 are quahed. We want to make it clear that we should not be understood to have said that it is no more open to the respondents to take such disciplinary action against the petitioner as could be taken against him under the regulations.

(16) We make no order as to costs as, in our opinion, the petitioner is not free from blame.

(17) Petition allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //