V.D. Bhargava, J.
1. This is an application on behalf of Mohammad Sharif Khan under Articles 226 and 227 of the Constitution challenging his dismissal. The petitioner was originally appointed as a constable on 12th December 1938 and later on he was confirmed as an Armed Police Constable. After about three years he was promoted to the rank of a Naik in the Special Armed Constabulary at Allahabad.
In 1947 he was transferred to Bahraich and then he was deputed at Sitapur as an Instructor, He came back to Bahraich from there as a Head Constable Armed Constabulary and at the time the incident occurred, he was posted at Unnao. His immediate officer was Sri Kamta Singh a Sub-Inspector of Armed Police and it was said that rice worth Rs. 15/- was supplied by the petitioner to the aforesaid Kamta Singh and since the petitioner wanted the sum of Rs. 15/- back, he got annoyed with him. A complaint was lodged by the petitioner against the said Sri Kamta Singh to the higher authorities.
2. The Janam Asthimi and Milad Sharif were to be performed in the Police Lines and the petitioner was incharge of the Milad Sharif arrangements. The petitioner gave an application to Sri Kamta Singh for making arrangement for the realization of the subscription but he is said to have thrown away that application.
The petitioner thereafter approached the Reserve Inspector and he complained that Sri Kamta Eingh had thrown away his application. Thereupon Sri Kamta Singh was called by the Reserve Inspector and was asked to explain. Sri Kamta Singh said that he had not thrown the application but since the petitioner had made allegations of communal bias against him he did not want to do anything.
The petitioner is alleged to have been asked to withdraw the words spoken by him against Sri Kamta Singh and it is alleged in the petition that he withdrew the same. Sri Kamta Singh reported the matter to Sri G.K. Mathur, Deputy Superintendent of Police. Thereafter an enquiry was held and Sri G.K. Mathur Deputy Superintendent of Police reported that he be demoted to the post of a constable.
Thereafter the order of demotion was passed against which he appealed to the Deputy Inspector General of Police who issued notice to the petitioner to show cause why he should not be dismissed from service and after giving an opportunity he was dismissed and the appeal was also dismissed. Thereafter the petitioner went to the Inspector General of Police who maintained the order of the Deputy Inspector General of Police.
3. The petitioner has come to this Court and has urged three grounds on which he says the order is bad in law. The first ground was that no preliminary proper enquiry was made as contemplated by Rule 490 of the Police Regulations. In the supplementary affidavit which has been filed it is only alleged that the petitioner did not attend any preliminary enquiry after the incident and before the framing of the charge-sheet dated 5th March 1954.
There is no allegation in the whole of the affidavit that no preliminary proper enquiry was held. In the preliminary enquiry it is not necessary at all that the petitioner should have been called. It is only after a preliminary enquiry is made, notice to the petitioner will be given to show cause and to explain his conduct.
The preliminary enquiry contemplated in the Police Regulations is for the satisfaction of the officer and no right accrues to the petitioner to ask for the preliminary enquiry and if there is no right in the petitioner to ask for the preliminary enquiry, he cannot come to this court to complain that no preliminary enquiry was held. It is only, when the right of a petitioner is infringed that he has a right to come to this court.
4. The petitioner will have a right of a hearing when notice is given to him to show cause and he has at that time also right to produce defence and cross-examine witnesses. That right he has been given by Article 311 of the Constitution. The counter-affidavit filed by the opposite party clearly shows that the petitioner was given full opportunity.
A charge-sheet dated 5-3-1954 was served on the petitioner which was acknowledged by him on the same date and the petitioner was aked to submit his explanation in reply, by the 13th March 1954 and on that date the petitioner submitted his written explanation which is annexure 5 of the counter-affidavit. The witnesses produced against him were examined in his presence and he was given full opportunity to cross-examine those witnesses.
On 16th March 1954 the petitioner again asked for putting certain additional questions in cross-examination of certain witnesses. The petitioner was further given an opportunity to cross-examine them and on that date the petitioner submitted a list of witnesses which he wanted to produce in his defence. Thereafter the petitioner gave his oral statement also in defence.
If all this was done, it cannot be said that no proper opportunity was given to the petitioner. Thereafter the Superintendent of Police finally ordered that as his past record was fairly good in spite of one adverse comment he should only be reduced to the rank of a constable instead of dismissal and he did not agree with the report submitted by Sri G.K. Mathur, Deputy Superintendent of police ordering his dismissal.
5. The petitioner filed an appeal to the Deputy Inspector General of Police who issued notice to show cause as to why the petitioner should not be dismissed and while disposing of the appeal and the notice for enhancement of the sentence, the Deputy Inspector General of Police inter alia said that the petitioner tried to give communal colour to the whole affair which was very serious for a member of the disciplined force.
The petitioner had been for about 16 years in service and his past record was not very satisfactory. In 1947 he had been remarked as beingthoroughly indisciplined and unreliable who couldnot be trusted with any responsibility. He hadbeen awarded three misconduct entries besidesseveral petty punishments. Out of the misconduct entries, one in 1947 was for inciting the menunder him not to take food while incharge of aSection of R. P. P. on duty in connection withstrike in C. O. D. Chheoki, Allahabad.
His present behaviour showed that the in discipline mentality was lingering in his mind and he had not improved. It cannot be said that the Deputy Inspector General of Police while awarding the sentence of dismissal exceeded his powers given to him under Section 7 of the Police Act. What should be the punishment if there is negligence or indiscipline is a matter which could best be decided by the officers themselves and it is not for this court to decide the nature and the amount of punishment. If Section 7 had not applied at all then it would have been an entirely a different matter.
6. Reliance was placed by learned counsel for the petitioner on Rules 480 and 481 of the Police Regulations. Rule 480 provides that punishments will be inflicted only when they are absolutely necessary in the interests of discipline. Before inflicting or proposing a punishment a Superintendent Assistant or Deputy Superintendent or Reserve Inspector must consider whether a reprimand will not suffice.
To ensure that the power of reprimand is adequately exercised by the reserve inspector a defaulter's book will be maintained in the reserve lines. Petty misdemeanours in the case of a first or second offence will be entered in this book and the defaulter's thumb impression or signature taken. Thus it is clear that this rule is in the nature of the First Offenders Act.
When offence is of a petty nature and is only committed once or twice, the person concerned should be reprimanded. But here as I have shown, the order of the Deputy Inspector General of Police shows that he had been regularly indisciplined and it cannot be said that the recourse to Rule 480 should have been taken.
7. Rule 481 of the Police Regulations provides that an order of dismissal will be passed only when an officer's conduct renders his retention in the force undesirable. Dismissal must necessarily follow a sentence of rigorous imprisonment, and should, as a rule, follow a conviction for intentionally or negligently allowing a prisoner to escape from custody, even if the accused is sentenced to a fine.
Relying on this rule it was urged that since there has been no conviction, there should have been no dismissal. What the rule provides is that in case of conviction there would be no other penalty- except the dismissal but in other cases where the officer considers that the conduct of the person concerned was of such a nature that his retention in the force was undesirable, the officer can certainly dismiss him.
This is a matter of discretion of the officer and no hard and fast rule can be laid down as to what amount of indiscipline or mis-behaviour will be enough to disqualify him for remaining in the force. In the circumstances this court cannot enter into that question at all.
8. It may be that the sentence awarded may be excessive, tout that will be a matter which can only be decided by the officers concerned and this court cannot interfere with that punishment.
9. The application is accordingly dismissed.In the circumstances of the case, I make no orderas to costs.