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H.D. Kolkar Vs. State of Mysore by Its Chief Secretary, Vidhana Soudha, Bangalore and ors. - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberWrit Petn. No. 2545 of 1965
Judge
Reported inAIR1969Kant61; AIR1969Mys61; 1969CriLJ420; (1968)2MysLJ150
ActsBombay Police (Punishment and Appeal) Rules, 1956 - Rule 17 and 17(2); Mysore Police Act, 1963; Bombay Police Act, 1951 - Sections 5 and 25(2)
AppellantH.D. Kolkar
RespondentState of Mysore by Its Chief Secretary, Vidhana Soudha, Bangalore and ors.
Excerpt:
.....of dismissal on ground that disciplinary proceedings were not conducted in accordance with law and enhancement of punishment was beyond competence of government - order under disciplinary proceedings show that inspector general of police depended upon evidence produced in support of charge and also upon admission made by petitioner that he absented from his post at relevant point of time - power to enhance punishment is impossible under rule made under section 25 (2) (c) - held, punishment imposed by superintendent of police demoting petitioner stands restored - order of dismissal set aside. held see paras 7, 19, 20, 21 and 22. - motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [ram mohan reddy, j] quantum of compensation bodily injury - held, bodily injury is to be treated..........trouble by presentation of revision petition to the state government under rule 17 of the bombay police (punishment and appeal) rules, 1956. when that revision petition was presented, government asked him to show cause against the enhancement of the punishment imposed by the superintendent of police, and after hearing the petitioner, the punishment was enhanced to a punishment of dismissal.2. in this writ petition, mr. datar made two submission for the petitioner. the first was that the disciplinary proceeding was not conducted in accordance with laws, and the second was that the enhancement of the punishment was beyond the competence of government.3. in support of the first submission, more than one argument was advanced. it was first contended that the enquiring authority refused to.....
Judgment:

Somnath Iyer, J.

1. The petitioner who became a Head Constable after his allotment to the new State of Mysore, started service as a Police constable in the State of Bombay in the year 1935. A disciplinary proceeding against him was commenced in the new State of Mysore in the year 1962. The charge against him was that he was found missing from his post between 11-30 p.m. on March 21st, 1962 and 3-30 p.m. on the next day. The Assistant Superintendent of Police who conducted the enquiry submitted his report to the concerned Superintendent of Police who accepted it. The Superintendent of Police found the petitioner guilty of the charge, and demoted him as police constable. The appeal preferred by the petitioner to the Deputy Inspector General Police was dismissed and thereafter the petitioner invited trouble by presentation of revision petition to the State Government under rule 17 of the Bombay Police (Punishment and Appeal) Rules, 1956. When that revision petition was presented, Government asked him to show cause against the enhancement of the punishment imposed by the Superintendent of Police, and after hearing the petitioner, the punishment was enhanced to a punishment of dismissal.

2. In this writ petition, Mr. Datar made two submission for the petitioner. The first was that the disciplinary proceeding was not conducted in accordance with laws, and the second was that the enhancement of the punishment was beyond the competence of Government.

3. In support of the first submission, more than one argument was advanced. It was first contended that the enquiring authority refused to supply the petitioner copies of the statements of witnesses recorded during the preliminary enquiry to which the chargesheet, a copy of which was served on the petitioner, referred. It was next contended that not all the three documents to which the chargesheet referred as the basis of the disciplinary proceeding, were supplied to the petitioner.

4. There does not appear to be any substance in these submissions since in the statement of the petitioner recorded on May 14, 1962 by the enquiring authority, he admitted that all the documents referred to in the chargesheet had been supplied to him. It is true that the petitioner did make a requisition for the supply of certain documents on April 2, 1962 and on April 14, 1962, and that that requisition was turned down through the communications addressed to him by the enquiring authority on April 19, 1962 and April 19, 1962. But whatever might have been the position consequent upon those communications sent by way of reply, it is abundantly clear from the admission made by the petitioner on May 14, 1962 that all the documents referred to in the chargesheet had been supplied to him by then.

5. It was next contended that the Superintendent of Police made a mechanical adoption of the findings of the enquiring authority without an independent discussion of the material on record and of the arguments advanced on behalf of the petitioner.

6. It is true that the Superintendent of Police stated that all the contentions raised by the petitioner had been adequately discussed by the enquiring authority. But that does not mean that there was no independent application of the mind of the Superintendent of Police to these materials. We are convinced that there was no mechanical adoption of the findings of the enquiring authority and that there was an independent application of the mind of the Superintendent of Police to the evidence on which he rested his finding.

7. We are not impressed by the argument that the Inspector General of Police who heard the appeal did not make an adequate discussion of the evidence. We find that he did. It is seen from his order that he not only depended upon the evidence produced in support of the charge, but also upon the admission made by the petitioner that he had absented from his post at the relevant point of time. The Deputy Inspector General of Police considered his explanation and justification for such absence and discarded it for the reason that in his opinion the evidence produced by him in justification of his absence was untrustworthy.

8. We do not therefore accept the argument that the disciplinary proceeding was not conducted in accordance with law or that there was any abdication of appellate power by the Deputy Inspector General of Police.

9. We now proceed to consider the argument concerning the competence of Government to enhance the punishment imposed by the Superintendent of Police. As we have already stated that enhancement was made in a revision petition presented by the petitioner under rule 17 of the Bombay Police (Punishment and Appeal) Rules, 1956 to which we shall refer as the Rules in the course of the judgment. The rule reads:

1. The State Government shall alone have the power of revision and revision shall lie only in respect of punishments which are appealable.

2. The State Government of its own motion or otherwise 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 officer concerned shall be given an opportunity of showing cause against the proposed enhancement.'

10. The show cause notice issued to the petitioner when Government proposed to enhance the punishment was issued under sub-rule '2' of the above Rules. But by the time, the impugned enhancement was made by Government, the Mysore Police Act, 1963, had come into force, and that Act repealed the Bombay Police Act and the Rules made thereunder. The power to hear a revision petition and to make an enhancement of a punishment imposed in disciplinary proceeding was conferred on Government under the new Act by section 25(2) of that Act, the provisions of which are similar to the provisions of rule 17(2) of the Bombay Rules. So it was that when Government made the impugned enhancement on October 15, 1965, they purported to make that enhancement under section 25(2) of the new Mysore Police Act, 1963.

11. The twin argument presented by Mr. Datar about the competence to make the enhancement was firstly that with respect to a punishment imposed before the new Act came into force, power could not be exercised under the new Act, and secondly, that that part of rule 17(2) of the Bombay Rules which authorised enhancement of punishment by the State Government was invalid.

12. Mr. Narayana Rao, the learned Government Pleader, is, in our opinion, right in making the submission that although the impugned enhancement purports to have been made under S. 25(2) of the new Act, it is in substance an enhancement made under rule 17(2) of the Bombay Rules. It is clear from Section 25 of the new Act that the power to enhance the punishment imposed in a disciplinary proceeding could be exercised only where a punishment is imposed under section 23 of that Act. That being so and since it had not commenced to operate when that punishment was imposed by was imposed only under section 25(2)(a) of the Bombay Police Act, 1951, the power to make an enhancement if that power was available, was that which rule 17(2) of the Bombay Rules created. We are therefore of the opinion that notwithstanding the misdescription of the statutory provision under which the impugned enhancement was made, that enhancement was in reality made in the exercise of the power created by rule 17(2) of the Bombay Rules.

13. The question therefore is whether that part of rule 17(2) of the Bombay Rules which authorises Government to enhance a punishment is open to the denunciation that it is invalid. It is seen from the preamble to the Bombay Police (Punishment and Appeal) Rules, 1956 that they were made in the exercise of power conferred by section 25(2)(c) of the Bombay Police Act, 1951 read with section 5(b) of that Act. Section 5(b) which that preamble refers has really no relevance, since, that clause does no more than to authorise the State Government to determine the recruitment, pay, allowances and other conditions of service of the police force. The true source of the power in the exercise of which rule 17(2) was made is clearly section 25(2)(c) to which the preamble to the Rules refers.

14. Now section 25 consists of three parts. Sub-section (1) which is the first part authorises the State Government or any officer by sub-section (2) in that behalf to impose a punishment of suspension, reduction, dismissal or removal of an Inspector or other member of the subordinate ranks of the police on grounds enumerated in that sub-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 punishments which the State Government could impose under sub-section (1). The other part of that sub-section authorises a District Superintendent of Police to impose similar punishments on a police officer subordinate to him below the grade of an Inspector. It is in the exercise of this power that the Superintendent of Police reduced the petitioner from the rank of a head constable to the rank of a police constable.

15. Now, sub-section (2)(a) of section 25 reads:

'The Inspector General, the Commissioner and the Deputy Inspector General shall have the authority to punish an Inspector or any other member of the subordinate ranks under sub-section (1). A District Superintendent shall have the like authority in respect of any police officer subordinate to him below the grade of Inspector and may suspend an Inspector who is subordinate to him pending inquiry into a complaint against such Inspector and until an order of the Inspector General or Deputy Inspector General can be obtained.'

16. Clause (c) of section 25(2) which confers power on the Government to make rules for the regulation of the power conferred by Section 25(2) reads:--

'The exercise of any power conferred by this sub-section shall be subject always to such rules and orders as may be made by the State Government in that behalf.'

17. the source of the power in the exercise of which Rule 17(2) of the Rules was made by the State Government as stated in the preamble to those Rules is this clause, and the question is whether this clause authorises Government to acquire power under a rule made under this clause for the enhancement of a punishment imposed under sub-section (2)(a) of S. 25. In our opinion, it does not.

18. it is clear from the language of sub-clause (c) of section 25(2) that the only rules and orders which could be made under that clause are rules and orders to which the 'exercise' of the power conferred by section 25(2)(a) is 'subject'. The words 'the exercise of any power' with which clause (c) opens, demonstrate that a rule or order authorised by it could only control or regulate the power legislatively bestowed on the designated functionaries. Governmental supervision, so authorised by the clause, may include proper distribution of the power to be exercised, the prescription of procedure and regulation in other ways. But that power of supervision through a rule or order is restricted to the control of the power exercisable by the functionaries to whom it is confided by sub-section (2) which exhausts itself when it is exercised.

19. But, Rule 17(2) does not regulate such power. It bestows on Government an independent revisional jurisdiction and the power of enhancement, which could be exercised after the power exercised under section 25(2) has produced a decision. But it is obvious from the language of section 25(2)(c) that while the power exercisable under section 25(2) is subject to Governmental regulation, the decision which comes into being, as a consequence of such exercise is not.

20. Once the exercise of such power results in the imposition of a punishment or exoneration, that punishment or exoneration becomes final subject only to an appeal which is authorised by S. 27 and that power was exercised by the Deputy Inspector General of Police in the case before us. The Act does not authorise the exercise of any revisional jurisdiction by Government in that sphere and the acquisition of such jurisdiction or the power to enhance the punishment is plainly impossible under a rule made under section 25(2)(c).

21. That being so, rule 17(2) of the Bombay Rules by which Government by a rule made by themselves acquired power to exercise revisional jurisdiction and to make an enhancement of punishment was clearly beyond their competence.

22. We, therefore, set aside the impugned enhancement. The result is that the punishment imposed by the Superintendent of Police which was confirmed by the Deputy Inspector General of Police stands restored.

23. No costs.

24. Petition allowed.


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