1. This petition under Article 226 of the Constitutionis directed against the dismissal of the petitioner fromservice as a result of a departmental enquiry which washeld against him.
2. Before 1st November 1956, the petitioner was a Sub-Inspector of Police serving at Sironj in the state or Rajas than. As a consequence of Reorganisation of states, the Sironi region became a part of the new State of Mannya Pradesh and the services of the petitioner were allotrea to that State. In the year 1960, a departmental enquiry was held against the petitioner on the following charge.
'That the petitioner had accepted Rs. 20/- each as illegal gratification from Ganpat son of Doongaji, Rupe, son. of Bhairao and Nathu son of Kesar, all residents of village Mowdia, Police Station Agar, on 10-5-1960 under the Pretext that all these three persons have stolen Batassas the departmental enquiry was conducted by Shri Balmukund paliwal, Deputy Superintendent of ponce, who submittea his report dated 11th September 1960 to the effect that the charge was fully proved. Thereupon, a notice to snow cause was duly served or the petitioner on 28th January 1961 and, after he submitted his reply, Shri I. J. Jonar, Deputy inspector-General of Police, who had been appointed to be in charge of the current duties of the office of the Inspector-General of Police in addition to his own, passed an order dated 13th April 1961 by which he dismissed the petitioner. Being aggrieved by this order, the petitioner filed an appeal to the State Government, but that appeal was dismissed on 2nd March 1962.
3. The petitioner hag challenged the departmental enquiry and the two orders dated 13th April 1961 and 2nd March 1962 inter alia on the following grounds:
(i) Contrary to the instructions issued by the Deputy inspector-general of police, the enquiry officer answer Shri Karansmgh, Station Officer, Agar, to remain present in the enquiry with the consequence that he exerted undue pressure on the witnesses to the prejudice of the petitioner
(ii) Copies of statements of witnesses recorned outing the preliminary enquiry and other papers, which were applied for, were not supplied to the petitioner until after the conclusion of the enquiry on 10th September 1960.
(iii) Even after the conclusion of the enquiry, one witness was examined to support the case against the peti-tioner, but he was thereafter denied an opportunity tclead further evidence.
(iv) The punishing authority denied to the pentioner an opportunity to present his case personally.
(v) The appellate authority passed its order mecchanically and dismissed the appeal without giving any resons or applying its mind to the matter.
(vl) As required by Note IV below Regulation 239 on the Madhya Bharat Police Regulations and the instruction? issued in relation thereto, no autonomy interior to that of District Superintendent of Police was competent to hold departmental enquiry 'against a Sub-Inspector of Police. The enquiry held in this case by the Deputy Supermtenaem of Police was, therefore, tad law.
(vii) The power to dismiss vesting in the inspection-General of Police was unconstitutionally delegated to Deputy inspector-General of Police.
(viii) The petitioner was not finally allotted to me new state of Madhya Pradesh and he could not be punisned by any authority in this State.
4. The contention that the enquiry officer allowed sub-inspector Karansingh to remain present during the enquiry and thus to influence the witness was not accepted by the punishing authority. It has also been controverted in the return. Even so, the fact remains that two of the writnesses, on whom reliance was placed by the punishing authority, sent to the Deputy inspector-general of police. Western Range, sworn affidavits to say that the statements they made in the departmental enquiry were false. No doubt, in their further affidavits they affirmed the correctness of what they had stated in the enquiry, but they again sent fresh affidavits re-affirming the faislty of their departmental enquiry statements and complaining that sub-inspector Karansingh was harassing and threatening tnero. the Deputy Inspector-General, to whom these affidavits were sent, was impelled to observe as follows:
'It is absolutely clear from these statements that certain Police Officers have been playing a dubious game' in this D.E. which requires a thorough and detailed enquiry,' All that we need say is that it is not for us to assess the value of -the statements of these witnesses, thougn, if we were required so to do, we would have found it aithcuter to accept or act upon those statements.
5. The next contention that the petitioner was demeo a reasonable opportunity to defend himself in that copies of certain statements, which he had applied for, were supplied to him only after the conclusion of the evidence does not appear to be well founded. It appears that the first application was made on 23rd August 1960 when nearly alt the witnesses tendered against the petitioner had been examined. This indicates that he did not want those statements for cross-examination of witnesses. In any case, after the petitioner obtained the copies on 22nd September 1960, he did not want the witnesses to be recalled for cross-examination and, in his detailed reply to the notice to show cause, he did not make such a grievance. We are, therefore, of opinion that, on this ground it cannot be found that he was denied a reasonable opporunny of defending himself.
6. It is true that Nainsingh P. W. 19 was called after She close of the enquiry and he produced a document, out the contention that the petitioner was not given .an opportunity to meet that evidence is not correct. In his application dated 3rd September 1960, he wanted only to recall NamSingn V. W. 19 with certain documents, This request Was allowed and the witness was further examined on turn September 1960.
7. Since the rules of natural justice do not icclude an opportunity for a personal hearing, the enquiry in this case is not vitiated: by the consideration that the petitioner was denied an opportunity to present his case personally. As pointed out by the Supreme Court in Sardar Kapur Singh v. with & Union' of India, (1960) 2 SCR 569: (AIR 1960 SC 493) an opportunity of making oral representation is not a necessary postulate of an opportunity of showing cause within, the meaning of Article 311(2)) of the Constitution. The further contention that the dismissal of the petitioner's appeal is bad because the Appellate Authority am not give any reasons for its order is equally untenable, it should be remembered that the dismissal of a civil servant, is an administrative- matter, though Article 311(2) commands that the civil servant proceeded against must fie attoraea a fair opportunity to correct or contradict any relevant and prejudicial material produced against him: Pradyat Kumar Bose v. Hon'ble the Chief Justice of Calcutta High Court, (1955) 2 SCR 1331: ((S) AIR 1956 SC 285). mat being so, the order dismissing the petitioner's appeal, which is administrative in character, cannot be assailed or the ground that it does not disclose in detail the reason's Tor making it.
8. The sixth ground is based on an erroneous assumption that the Madhya Bharat Police Regulations apply to this case. Having regard to the provisions of Section us ot the- States Reorganisation Act, 1955, this case is governed by th& Rajasthan Police Regulations, 1948. Regulation 89(T) of those Regulations does provide that, when there is a serious charge of corruption against a Sub-inspector or any officer of lower rank, the Superintendent cf Ponce-will himself take action in the matter, we do not think that, in this case, the petty charge of corruption against the petitioner is a serious charge within the meaning of that Regulation. Even apart from this, these Regulations, which have not been made under any statute, do not have the force and effect of statutory rules. That being so, a disregard of Regulation 89(1), which in the circumstances can only be regarded as directory, does not vitiate the enquiry. This is what the Supreme Court stated in Praayat Kumar Bose's case, (1955) 2 SCR 1331; ((S) AIR 1956 SC 285) (supra):
'But the exercise of the power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power. It is nonetheless so, by reason OT the fact that an opportunity to show cause and an enquiry simulating judicial standards have to precede the exercise-thereof. It is wen recognised that a statutory functionary exercising such a power cannot be said to have deiegatea his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative powers, what ran-not be delegated except where the law specifically so provides is the ultimate! responsibility for the exercise of such power. As pointed out by the House of Lords m Board or Education v, Rice, 1911 AC 179 at p. 182 a functionary who has to decide an administrative matter, of the nature Involved in this case, can obtain the material on which he is to act in such manner as may be feasible and convenient, provided only the affected party 'has a fair opportunity to correct or contradict any relevant and prejudicial material'.'
9. it is, however, urged that there was, or this case, a contravention ot Article 311(1) of the Constitution in, that the power to dismiss the petitioner, which vestea in the Inspector-General of Police, was delegated to snn I. J. Johar, Deputy Inspector-General of Police, special Armed Korces, Having heard the counsel, we nave icrmeo the opinion that this contention is well founded and must be accepted.
10. In view of Article 311(1) of the constitution, a civil servant cannot be lawfully dismissed by any authority subordinate to that by which he was appointed, her purposes of this (Clause, the appointing authority is the authority who in fact appointed the civil servant, even though at may be superior1 to the authority entitled under the Departmental rules to appoint that person: Somasundaram v. State of Madras, (S) AIR 195& Mad 419. The Clause does not, however, require that the dismissal must be ordered by the same authority, who made the appointment, or his direct superior. There is sufficient compliance with the requirements of this Clause if the dismissing authority is of the same rank or grade: Mahesh Prasad v. State of Uttar Pradesh, (1955) 1 SCR 965: ((S) AIR 1955 SC /U).
11. The petitioner averred in paragraph if of the petition as follows:
'The power of dismissal is not capame ot delegation and is required to be exercised by the: authority to wnom it is given by the duties (Vide R.T. Rangachari v. secy, of State, AIR 1937 PC 27). Contrary to this, the tormer power has been exercised by the Dy. .G. of Special Armed Forces, Shri johar, while the appointing authority was the i.e. me order of dismissal is therefore witnout jurisdiction.' this was answered in the return in this way: 'The contents of this paragraph are denied.' it issubmitted that Shri Johar, Dy. I.G. was officiating as I.G-of Police when he passed the order of dismissal AnnexureRule 5. The contentions raised therefore are misconceived.'Although the petitioner did not disclose in- his petitionthe name cf the authority which appointed him, he produced before us a copy of the order of the mspector-Generai of Police of Rajasthan by which he was appoinreda Sub-Inspector of Police with effect from 15 July 1948.In view of that fact and the further fact that, in consequence of reorganisation of States, he was allotted to tnenew State of Madhya Pradesh, he could be dismissed oythe corresponding authority of that State, inis was alsoconceded when it was submitted that the petitioner wasactually dismissed by the officiating inspector-General orPolice. Alhough we accept the submission that a personappointed to a higher post in an officiating capacity notedthe rank of that post, the question is whether Shri I. J.Johar was appointed to officiate as Inspector-General OTPolice.
12. The relevant Government Notification reads;
'Shri I. J.. Johar I.P.Section, Deputy Inspector-General of Police, SectionA.F., Bhopal, is appointed to hold charge of the current duties of the inspector-General of police, Madhya Pradesh, from 21st March 1961 (afternoon) in addition to his own duties.'
There is a difference between a person who is appointee to officiate on a higher post and a person who is appointed to be in charge of the current duties ot mat post m addition to his own. This is well recognised for fiscal purposes, as indicated by Cfvil Service Regulations 162 anu 165, which are reproduced beiow:
'162. A Local Government may, without We sanction ot the Government ot India, appoint one otficer to hold substantiveiy as a temporary measure, or to officiate in, two or more independent appointments at one time, in such cases, tne emoluments are regulated as follows-
(i) He draws the highest salary to which he would be entitled if he held, or as the case may be, officiated in, any one of the appointments alone.
(ii) for the other appointment or appointments he draws such allowances as the Local Government may fix, not exceeding tor each appointment half the salary which he would draw if he held, or, as the case may Be, afficated in, it alone.
(iii) Provided that this aggregate salary shall not exceed the pay which he would draw in the most hignly paid or the appointments, if he held it substantiveiy and alone,'
'165. fin Officer appointed to be in charge of the current duties of an office in addition to nis own auties may, if the charge in the opinion of the Local Government entails a substantial increase of responsiDility anu some additional work, be granted a charge allowance to be fixed by the Local Government, not exceeding one-tenth or the pay of the office; provided that if the office is open to, and may in practice be held by, a memoer of the Indian Civil Service or a Military Officer, the allowance shall not bet less than Rs. 100.' in their Instructions under Fundamental Rule 43 (corresponding to C.s.R. 162)'. Government of India stated that the Rule does not apply if the person holding one post is not formally appointed to another in addition and he is merely placed in. charge of the current duties of that other post to addition (G.I.F.D. No. F. 15 (U) Rule 1/31, dated 2 June 1931). Even apart from the tjscai aspect, the fact of the matter is that Shri Johar was not appointed to officiate as tne Inspector-General of ponce and that explains why it became necessary for the State Government to specify in the notification the duties of which he was placed irr charge. As we read this notification1, Shri jonar wa(s appointed merely to be in charge of the current duties of tne Inspector-General of Police and he was not appointed to officiate on that post.
13. The crucial question is whether a' subordinate authority, who is not formally appointed to the post OT the appointing authority either permanently or in an attichat ing capacity, can be validly appointed to exercise his power of dismissal in view of the inhibition contained in Article 311(1) of the Constitution, in 64 Ind App 4U: (AIR 1937 PC 27) Lord Roche stated:
'The purported dismissal of the appellant on lebruary 28, 1928, emanated from arr official lower in rank marc the Inspector-General who appointed the appellant to nis office. The Courts below held that the power of dismissal was in fact delegated, and was lawfully delegated, to the person who purported to- exercise it. Counsel for the respondent candidly expressed a doubt as to the possibility OT maintaining this view, and indeed it is manifest that IT power to delegate this power could be taken under rules, it would wipe out a proviso and destroy a protection contained not in rules but in the section itself, their Lora-ships are clearly of opinion that the dismissal purporting to be thus ordered in February was by reason of its origin bad and inoperative.' (at p. 53 (of Ind App): (at p. 30 of AIR)).
In Suraj Naraln Anantf v. The North-West Frontier province, 1941 F.C.R. 37: (AIR 1942 FC 3) Varadacnariar J. stated:
'in the Act of 1935, Sub-section (2) of section 240 ; has been enacted in unqualified terms, and there is accordingly for the contention, that this provision can be qualified or taken away by statutory rules, unless the. plaintiff is for any reason precluded from relying on this declaration, his dismissal by the Deputy inspector General of Police must, on the authority of the decision in Kanga-chari's case, 64 Ind App 40: (AIR 1937 PC 27) be held to Be inoperative as one 'made by an official who is prohibited by statute from making it'.' this view was affirmed by the rnvy Council in Norm-west frontier Province v. Suraj Naram Anand, 75 Ind App 34J:. (AIR 1949 PC 112). in The State of Bihar v. Abdul Majid. 1954 SCR 786: (AIR 1954 SC 245) the Supreme Court stated:
'The respondent here was dismissed by the Ueputy inspector-General of Police, though he was appointed by the inspector-General of Police. This was clearly contrary to. the provisions of Section 240(3) of the (government or India Act, 1935, which provides that no person snail be dismissed from the service of His Majesty by an authority subordinate to that by which he was appointed,' (at PP-. /89-90 (Of SCR) : (at p. 247 of AIR) J.
it will be noticed tnat, in each of these cases, a Sub :Inspector of Police, who was appointed by the inspecter-General of Police, was dismissed by a Deputy inspector-General of Police. These authorities clearly lay downthat a protection likei the one given by Article 311(2) cannot be taken away even by rules framed either under Article 309 or under any relevant statute. The reason is tnat,by sucn rules, tne subordinate authority is entrusted winthe functions of the appointing authority without giving tohim the rank of that authority. In Clause (1) of Article 311,the word 'subordinate' has reference to, the rank and notto functions: Ramchandra Gopairao v. D.I.G. or ponce,AIR 1957 Madh Pra 126 and Mrs. priti George Veanayagamv. State of MSdhya Pra Misc. iPetn. No. 193 of 1059, Under8-4-1960 (Madh Pra). The same view has been taken in M. r,Roy v. SectionN. Chstterjee, lLn J3 Pat 148: (AIR 1954 Pat 285,K. Krishna Murthy v. State of Andhra (Now Andh Pra),AIR I960 Andh Pra 29 and Anukul Chandra v. Commr. of income-tax, AIR 1962 cai 3. In the Patna case, ILR 33 Par.148: (AIR 1954 Pat 285) (supra), the subordinate officer,who passed the order of dismissal, had been subsequentlyauthorised by the State Government to exercise all the powers of appointment, suspension and dismissal ever certain members of the staff which used to be exercised bythe appointing authority. Ramaswami J. (as he then wasstated:
'The argument of the Government Advocate is that the Deputy Superintendent has been completely vested with powers of appointment and dismissal of the staff. It was contended that the Deputy Superintendent was not subordinate to the Superintendent but his authority was co-ex-' tensive witft that ot the Superintendent. It was argued that the designation of a particular officer was, immaterial but, on the contrary, we must look to the powers ana duties conferred on a particular officer. The question at issue turns therefore upon the proper interpretation or Article 311 of the Constitution; m other woros, what is' the meaning of the word 'subordinate1 used in this Article? Irr my opinion, the word 'subordinate- must be properly construed to mean subordination- in rank and not' subordination, of function; otherwise the protection reterrea to in Article 311 would be1 illusory', (at pp. 1523 (or ILR Pat) : (at p. 286 of AIR)). in the instant case, Shri I. J. johar was appointed and authorised to perform the current duties of the Inspector General ot Ponce without being clothed with his rank, that being so, the impugned order ot dismissed which be purported to pass in disregard ot Article 311 12), is bad sud inoperative.
14. The only other point which survives is whethertne petitioner was not finally allotted to the new stateof Madhya Pradesn and cannot, therefore, be pusnised byany authority in this State. We are reluctant to accept trialfinal orders regarding the petitioner's allotment nave notyet been passed by the Central Government. The oraer OTabsorption Armexure Rule 6 indicates that the petitioner mustflave been allotted to this State under section 115 (3) OTtne states Reorganisation Act, 1956. Since this point wasfaintly argued, we do not wish to pursue the matter, wemay add that, it this contention is well tounoed, it willhereafter be duly taken into account.(15) (n the view we have taken about the origin oftne order of dismissal, this petition succeeds and is allowed. The orders dated 13th April 1961 and 2nd warcn1932 are quashed. The respondents shall bear tneir owncosts and pay those incurred by the petitioner, to wnomthe security amount shall also be refunded hearing feeSection 100/-.