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G.N. Nanjundiah Vs. Inspector General of Police in Mysore, Bangalore - Court Judgment

LegalCrystal Citation
SubjectService
CourtKarnataka High Court
Decided On
Case NumberW.P. No. 982 of 1964
Judge
Reported inAIR1967Kant179; AIR1967Mys179; (1966)2MysLJ682
ActsMysore Civil Services (Classification Control and Appeal) Rules - Rules 2, 8, 8(8), 9(2), 9(3), 11, 11(1), 11(2), 11(3), 11(4), 11(5), 11(6) and 11(7); Constitution of India - Article 116
AppellantG.N. Nanjundiah
Respondentinspector General of Police in Mysore, Bangalore
Appellant AdvocateM. Rama Jois, Adv.
Respondent AdvocateS.G. Doddakalegowda, Adv. for ;High Court Special Govt. Pleader and ;E.S. Venkataramiah, Adv.
Excerpt:
.....a charge that he failed to report himself to duty in time. we are not concerned with the other parts of rule-11. 4. it will, therefore, be observed that one of the main steps which cannot be dispensed with for the imposition of a major penalty like a penalty of dismissal, is the con-duel of an enquiry by a disciplinary authority or by an authority specially empowered by it, who, is referred to as the 'specially empowered authority .5. the question is whether there was such enquiry into the charge against the petitioner and we find that there was none. in a case like the one before us......rule-2 defines a disciplinary authority as the authority competent to impose a penalty under the rules. rule-9 enumerates those authorities, and. sub-rule (3) of that rule forbids the imposition of the penalties enumerated in clauses (v) to (viii) of rule 8 by an authority lower than the appointing authority. dismissal is one of them, and so, in the case of the petitioner the lowest disciplinary authority was the appointing authority and no one inferior to him could make an enquiry or appoint another to make it the identification of the petitioner's appointing authority is assisted by rule-2 (a) which defines an appointing authority. that clause rends:'2. interpretation: in these rules, unless the context otherwise requires- (a) 'appointing authority' in relation to a government.....
Judgment:

Somnath Iyer, J.

1. The petitioner was a Second Division clerk in the office of the Superintendent of Police in Mysore, and, disciplinary proceedings wore commenced against him by the Superintendent of Police of that district on a charge that he failed to report himself to duty in time. The Deputy Superintendent of Police was authorised to hold the enquiry, and on the basis of his report, the Superintendent of Police dismissed the petitioner.

2. The petitioner appealed to the Inspector General of Police, and, the contention urged before him was that the enquiry into the charge should have been made either by the Inspector-General of Police or by an authority specially empowered by him, and, that since the District Superintendent of Police was not the disciplinary authority and so the Deputy Superintendent of police could not have made the enquiry under his authority, the proceedings were void. The Inspector-General of Police upheld the contention that the punishment of dismissal imposed by the District Superintendent of Police was unsustainable, and so he set aside the punishment imposed by him What he next proceeded to do was to issue a notice to the petitioner to show cause why he should not himself dismiss him, and, after hearing the petitioner, he substituted his own punishment of dismissal for the punishment imposed by the District Superintendent of Police.

3. Mr. Rama Jois contends that this substitution was in law, impossible, and, we think that he is right. The punishment of dismissal is a major penalty falling within Clause (viii) of Rule 8 of the Mysore Civil Services (Classification, Control and Appeal) Rules and so, the procedure for the imposition of that penalty is what is prescribed by Rule 11 of those rules. Sub-rule (1) of that rule says that no major penalty shall he imposed except after an enquiry in manner provided by that rule The first step in the enquiry to be so held is that prescribed by Sub-rule (2) which directs that a disciplinary authority or an authority specially empowered by it in that behalf, shall frame charges which should be communicated with other enclosures to the concerned Government servant, who should be required to submit his statement of defence in writing. Sub-rule (3) authorises the inspection of relevant official records by the concerned Government servant for the preparation of his defence, although permission for such inspection may be refused if the disciplinary authority or the specially empowered authority is of opinion that the records of which an inspection is sought, are not relevant or public interest forbids such inspection Sub-rule (4) directs an enquiry by the disciplinaryauthority or the specially empowered authority on receipt of the written statement of defence or where no such statement is produced within the time allowed. Sub-rule (3) regulates the engagement of counsel and Sub-rule (6) directs the recording of evidence. Sub-rule (7) provides for the preparation of a report of enquiry. We are not concerned with the other parts of Rule-11.

4. It will, therefore, be observed that one of the main steps which cannot be dispensed with for the imposition of a major penalty like a penalty of dismissal, is the con-duel of an enquiry by a disciplinary authority or by an authority specially empowered by it, who, is referred to as the 'specially empowered authority .

5. The question is whether there was such enquiry into the charge against the petitioner and we find that there was none. The only authority which could bold that enquiry is the disciplinary authority or the specially empowered authority but the enquiry was held by a Deputy Superintendent of Police who was neither the one nor the other.

6. Rule-2 defines a disciplinary authority as the authority competent to impose a penalty under the Rules. Rule-9 enumerates those authorities, and. Sub-rule (3) of that rule forbids the imposition of the penalties enumerated in Clauses (v) to (viii) of Rule 8 by an authority lower than the appointing authority. Dismissal is one of them, and so, in the case of the petitioner the lowest disciplinary authority was the appointing authority and no one inferior to him could make an enquiry or appoint another to make it The identification of the petitioner's appointing authority is assisted by Rule-2 (a) which defines an appointing authority. That clause rends:

'2. Interpretation: In these rules, unless the context otherwise requires-

(a) 'Appointing Authority' in relation to a Government servant means -

(i) the authority empowered to make appointments to the service of which the Government servant is for the time being a member or To the grade of the service in which the Government Servant is for the time being included, or

(ii) the authority empowered to make appointments to the post which the Government servant for the time being holds, or

(iii) the authority which appointed the Government servant to such service, grade or post, as the case may be.

whichever authority is the highest authority;xx xx xx '.

7. So, in each case the highest authority among the authorities specified in Sub-clauses (i) to (iii) of the above clause would be the appointing authority, and. no authority lower in rank than that authority could be the disciplinary authority referred to in Clause (3) of Rule 9, and so within the meaning of rule 11 (4) It is not disputed that the Inspector-General of Police appointed the petitioner as a Second Division Clerk, and so, hebeing the highest authority amongthe authorities specified in Sub-clauses (i), (ii) and (iii) of Rule-2 (a), wasthe appointing authority in the case of the petitioner.

8. At one stage. Mr. Doddakalegowda, the learned Government Pleader, asked attention to the relevant part of Schedule II to the rules which says that, for the second division clerks in a District Police Office, one of the appointing authorities is the District Superintendent of Police who could impose any one of the punishments enumerated in Clauses (ii) to (viii) of Rule-8, one of which is a punishment of dismissal Mr. Government Pleader also depended upon Rule-9 (2) (c) which says that any of the penalties specified in Rule-8 may be imposed on a member of a State Civil Service by the appointing authority or the authority specified in the schedules to the rules It is on the basis of Rule 9(2)(c) and the relevant part of Schedule II that the argument was constructed that the District Superintendent of Police could impose a punishment of dismissal on the petitioner

9. But this argument overlooks the cleanprovisions of Rule-9 (3) which reads;

'9. Disciplinary Authorities:--

x x x x x(3) Notwithstanding anything contained in this rule, no penalty specified in Clauses (v) to (viii) of Rule 8 shall be imposed by any authority lower than the appointing Authority'

Dismissal being a punishment referred to in Rule 8 (viii) the embargo of Rule 9 (3) is that that punishment shall not be imposed by an authority lower than the appointing authority. The lowest authority which could impose that punishment is thus the appointing authority, and. as already observed. Rule 2(a) (iii) makes it clear that the appointing authority for the petitioner was the Inspector General of Police, and no one lower than him could impose a punishment of dismissal.

10. The Inspector-General of Police had, also no doubt in his mind that this was the only conclusion possible. So, h e displaced the punishment imposed by the District Superintendent of Police by a punishment of dismissal which he himself imposed. But it was not possible for the Inspector-General to do so unless the imposition of a punishment of dismissal was preceded by an enquiry conducted under Rule 11 (4). That enquiry as already demonstrated, could be made either by the disciplinary authority who in the case before us was the appointing authority who again could not be an authority lower than the Inspector-General of Police That enquiry could also have been held by a specially empowered authority, but that specially empowered authority could be appointed only by the disciplinary authority who in the case before us could not be one lower in rank than the Inspector-General of Police.

11. But, Mr. Doddakalegowda depended upon the explanation to Rule 11(2) which reads:

'11. Procedure for imposing major penal.

xxxxx

xxxxx

Explanation:-- In this sub-rule and in Sub-rule (3), the expression 'the Disciplinary authority'' shall include the authority competent under these rules to impose upon the Government servant any of the penalties specified in Clauses (i) to (iv) of Rule 8.' The argument maintained was that since it is indisputable that the District Superintendent of Police was competent to impose any one of the penalties specified in Clauses (i) to (iv) of Rule-8. he became the disciplinary authority for all purposes, and so could appoint the Deputy Superintendent of Police to make the enquiry and that that Deputy Superintendent of Police who was authorised to make it became the Specially empowered authority, So, we were asked to say that the enquiry made by the Deputy Superintendent of Police was an enquiry within the meaning of Rule 11 (4).

12. But this argument overlooks that the explanation to Rule-11 (2) is an explanation only for Sub-rules (2) and (3) and does not permeate Sub-rule (4). So, although the authority competent to impose a minor penalty is a disciplinary authority by force of the explanation for the purposes of Sub-rules (2) and (3) that authority would not be the disciplinary authority for the purposes of Sub-rule (4). So that lower disciplinary authority may frame the charges and communicate them to the concerned Government servant and call upon him to submit his written statement in defence under Sub-rule (2) and although that authority could decide under Sub-rule (3) whether the inspection of the relevant records should or should not be permitted, that authority would have no competence to hold the enquiry under Sub-rule (4), since the status of a disciplinary authority is conferred on that lower authority only for purposes of Sub-rule (2) and (3) and for the purpose of Sub-rule (4). The disciplinary authority for the impose of Sub-rule (4) is the disciplinary authority to which Rule-9 refers and that authority as decided in us could not be lower in rank than the Inspector general of Police

13. So it emerges that the District Superintendent of Police was not the disciplinary authority for the purpose of Rule- 11(4) and the Deputy Superintendent of police could not be a specially empowered authority within the meaning of that sub-rule The enquiry held by him was without competence and was not an enquiry enjoined by that sub-rule.

14. But it was said that there is a delay of nearly eight months in the presentation of this Writ Petition and we should, therefore, refuse to exercise our jurisdiction.

15. The Inspector-General of Police made his order on August 8, 1963, and the Writ Petition was presented on April 14, 1964. We donot think that there have been such great laches on the part of the petitioner so as to disentitlehim to relief in this Writ Petition. In a case like the one before us. The delay is not such as to persuade us to refuse in the petitioner the relief to which he is so plainly entitled.

16. So we set aside the impugned punishment of dismissal imposed by the Inspector-General of police which was not preceded by the enquiry directed by the mandatory requirement of rule 11(4).

17. No costs.

18. Petition allowed


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