K.L. Shrivastava, J.
1. This petition under Article 226 of the Constitution of India filed in February, 1983 is for quashing the order dated 23rd February, 1981 passed by the Superintendent of Police, Indore, the respondent No. 4 whereby in the Departmental Enquiry held against the petitioner and two others, he has been dismissed from service and also the appellate order dated 6th June, 1981,
2. It is not in dispute that at the relevant time the petitioner was holding the post of police constable at Indore. Charges dated 19th December 1980 framed by the Superintendent of Police, Indore were in respect of the activities dated 14th' December 1980 of the petitioner and others. City Superintendent of Police, Indore (East) working under the Superintendent of Police, Indore was the Inquiring Authority. There is no order for common proceedings against the petitioner and hiscode linquents.
3. The petitioner had moved an application before the Inquiring Authority that he apprehends retaliatory action by Shri Ashok Patel, the Superintendent of Police, Indore.
4. At the conclusion of the inquiry Shri Ashok Patel, Superintendent of Police, Indore passed the impugned order.
5. In the petition it is contended that the charges were not accompanied by documents and statements of the witnesses. Despite demand the same were not supplied to the petitioner. His prayer, for another officer as Inquiring Officer was not heeded to. Initiation of Departmental Enquiry by the Superintendent of Police, Indore was against the principles of natural justice and of the provisions embodied in the Control and Appeal Rules, and that the petitioner was also deprived of a reasonable opportunity of being heard. The impugned order was also characterised as perverse.
6. The Departmental Enquiry was challenged on the ground that it was violative of the provisions of Articles 14 and 311(2) of the Constitution and Rules 14 and 18 of the Control and Appeal Rules and also of the Police Regulations.
7. In the return filed by the respondents, the submissions made by the petitioner were denied. Also denying the applicability of the Control and Appeal Rules, it was contended that the Departmental Enquiry was conducted in all fairness and the petition deserves to be dismissed.
8. As pointed out in the decision in Hukumsingh 's case 1979M.P.L.J.625 the principle of doctrine of pleasure embodied in Article 310 of the Constitution is subject to the guarantee given by Article 311. Except to the extent of the guarantee contained in Article 311 and the provisions of the rules made under Article 309 the common law right of the Government to terminate the services of its servant continues. The result is that whenever aGovernment servant claims that the termination of his services is void and he is entitled to continue in service, he must show the breach of any of these provisions in order to substantiate his claim that the termination of his service is void and ineffective.
9. It must be remembered that Departmental Enquiry is not a matter of empty formality. It is a serious proceeding intended to give the servant concerned a chance to meet the charge and to prove his innocence. It has to be conducted according to relevant statutory rules regulating it and the principles of natural justice. In this connection the decision in Bal Krishna Tiwari v. Registrar A.P. S. University 1978 M.P.L.J. 172 is pertinent.
10. As pointed out in the decision in State of Orissa v. Bidyabhushan 1963-I L.L.J. 239 there are well settled limitations in exercising the extraordinary jurisdication under Article 226 of the Constitution.
11. Coming to the merits of the matter, the contention of the petitioner's learned Counsel is that Rules 14 and 18 of the Control and Appeal Rules have been infringed. It may be pointed out that Rule 14 prescribes the procedure for imposing major penalties including that of dismissal and Rule 18(1) providing for common proceedings is in these terms:
Where two or more Government servants are concerned in any case. The governor or any other authority competent to impose the penalty of dismissal from service on all such Government servants may make an order directing that disciplinary action against all of them may be taken in a common proceedings.
12. The learned Counsel for the respondents replying to the contention regarding the infraction of the Control and Appeal Rules contends that a perusal of Sections 1 to 4 of Chapter I of part II of the Police Regulations which according to the prefatory note at page 11 consist of rules and executive orders by the Government and the executive orders and rules of the Inspector General of Police show that the following four classes of police personnel are involved in the administration: (i) Gazetted staff-Indian Police service (ii) Gazetted Staff--State; (iii) Sub-ordinate staff--officers and (iv) subordinate staff--rank and file and in this context it has to be held that the expression 'State Police Service' occurring in Regulations 213 of the Police Regulations refers only to the gazetted staff State and not to the subordinate staff. In support of this submission he also invited my attention to Section 7 of the Police Act which deals with punishments only for subordinate staff and the Regulations 228 to 232 regarding Departmental Enquiry. Regulation 213 runs thus;-
The rules contained in the All India Service (Discipline and Appeal) Rules, 1955 and those in the Civil Services (Classification, Control and Appeal) Rules, will regulate the is punishment of and appeals from officers belonging to the Indian Police Service and the State Police Service respectively.
The respondent's learned Counsel in support of his aforesaid submission also invited my attention to Rule 3(1)(d) of the Control and Appeal Rules and urged that in view of the Police Act and the Police Regulations governing the question of punishments to subordinate staff of the police department, the applicability of the Control and Appeal Rules is clearly excluded. Reliance for the submission was placed on the decision in Mewa Ram Charan 's case A.I.R. 1954 All. 587. It is apposite to reproduce Rule 3(1)(d) referred as above:
3(1). These rules shall apply to every Government servant but shall not apply to (d) any person for whom Special provision is made, in respect of matters covered by these rules, by or under any law for the time being in force or by or under any agreement entered into by or with the previous approval of the Governor before or after the commencement of these rules, in regard to matters covered by such special provisions.
13. On a careful consideration of the arguments advanced by the learned Counsel for the parties and. a perusal of the relevant provisions, I am of the view that it cannot be held that the Control and Appeal Rules are wholly excluded in Departmental Enquiries against subordinate staff of the police department. The correct principle is as stated by Krishnan, J. in Premchandra v. State1970 MPLJ 430. There in it was observed as under:
Civil Service Regulations, as in force in the State are applicable to all civil Departments : including the police. Within that Department, there are the Police Regulations which naturally prevail wherever there is conflict between them and the Civil Service Regulations; but in a field like temporary employment, for which there is no special Police Regulation, the Civil Service Regulations as in force in this State, apply A probationary Sub-Inspector can be removed without a proceeding under Article 311, unless he has been confirmed during the interval of course. If a probationary officer is to be sent away with a black-mark, then proceedings would be necessary.
14. In the decision in Ashok Y. Naik v. The Administrator, Goa 1979 S.L.J. 84, it has been held that where there is no order by the competent Authority for common proceedings, the entire proceeding is vitiated being without jurisdiction irrespective of the question of proof of prejudice which must be implied. The decisions in Tripura Charon v. State of West Bengal 1979(1) S.L.R. 878 and Moot Chand's case 1982 MPWN 459 are also pertinent. As it is clear that Rule 18 of the Control and Appeal Rules has been violated the Departmental Enquiry is vitiated.
15. The petitioner's contention that principles of natural justice also stand violated in his case is also on firm foundation. It is clear from the record that in the agitation giving rise to the Departmental Enquiry slogans were shouted against Shri Ashok Patel, the then Superintendent of Police, Indore. He himself initiated the Departmental Enquiry. As already pointed out Rule 18 of the Control and Appeal Rules was also infringed by him.
16. It is rightly observed that the role of the accuser or the witness and of the Judge cannot be played by one and the same person and it is futile to expect when those roles are combined that the judge can hold the scales of justice even. In this connection the following observations in the decision in Arjun Chaubey's caseare pertinent in page 18-19 of 1984-11 L.L.J. 17.
Evidently, respondent No. 3 assessed the weight of his own accusations against the appellant and passed a judgment which is one of the easiest to pass, namely that he himself was a truthful person and the appellant a liar. In doing this, respondent No. 3 violated a fundamental principle of natural justice. The main thrust of the charges against the appellant related to his conduct qua respondent No. 3. Therefore, it was not open to the latter to sit in judgment over the explanation offered by the appellant and decide that the explanation was untrue. No person can be a judge in his own cause and no witness can certify that his own testimony is true. Any one who has a personal stake in an enquiry must keep himself aloof from the conduct of the inquiry.
In this very connection reference may also be made to the decisions in Rameshwar Singh v. Union of India : (1963)ILLJ792MP , and S. Venkatachalam Iyer v. State of Madras : AIR1957Mad623 .
17. In the decision in Ghulam Rasool v. State of Jammu and Kashmir A.I.R. 1957 J. and K. 17 it has been pointed out that the violation of the principles of natural justice comes within the purview of Article 14 of the Constitution. The following observations in the decision in S.L. Kapoor v. Jagmohan A.I.R. 1981 S.C. 36 may profitably be reproduced:
The principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.
18. On the question of delay in filing writ petitions the decisions in Inder singh H. v. State of M.P. 1981 J.L.J. 109, Sudamadevi v. Commissioner and Ors. 1983 J.L.J. Note 40 and Ramchandra v. State of Maharashtra : (1974)ILLJ221SC are pertinent.
19. From the foregoing discussion it is clear that in the instant case the impugned order is not only in utter disregard of the principles of natural justice but is also violative of Rule 18 of the Control and Appeal Rules.
20. In the circumstances of the case I am of the view that the extraordinary jurisdiction under Article 226 of the Constitution should not be crippled on any technical considerations allowing flagrantly unjust order to stand and defeating thereby the purpose for which that jurisdiction is conferred.
21. On a cumulative consideration of the facts and circumstances detailed above, I am of the view that condoning the delay the petition deserves to be allowed.
22 in the result the petition is allowed. The impugned order dated 23rd February, 1981, passed by the respondent No. 4 dismissing the petitioner from employment is set aside and so also the appellate order dated 6th June, 1981. The respondents are directed to let the petitioner continue in his employment uninterrupted granting him all the intervening benefits. Parties shall bear their own costs of this petition. The amount of security deposit be refunded to the petitioner.