G.R. Misra, J.
The petitioner was convicted under Section 23 of the Police Act and sentenced to pay a fine of Rs. 75, in default, to undergo simple imprisonment for two months by the Sub-divisional Magistrate, Pari. The Sessions Judge set aside the sentence of fine and directed forfeiture of pay of the petitioner for fifteen days.
2. Prosecution case may be stated in brief. The Superintendent of Police, Pori, passed an older (Ex. 3) directing transfer of the petitioner, who was a constable attached to the Reserve Lines, to Baragarh outpost, under the Capital Police Station within the same district. The transfer order was communicated to the petitioner through the command certificate (Ex. 4) on 28 November 1964 at 8-30 a.m. He was directed to hand over charge and to report himself to duty at the Dew station on 30 November 1964. The petitioner refused to accept the command certificate and to sign it. He was produced before the Additional Superintendent of Police who explained to him the order passed by the Superintendent of Police and asked him to accept It. The petitioner disobeyed the order.
3. The defence of the petitioner was that during the relevant period he was (sic), that no order of transfer was intimated to him and that he has not wilfully violated any lawful order.
4. The Courts below accepted the prosecution case.
5. On behalf of the petitioner two contentions were raised:
(i) the petitioner was sick during the relevant period and no order of transfer was intimated to him, and
(ii) the order of transfer was not a lawful order and there was no wilful breach of the same.
6. The first contention involves pure questions of fact. In exercise of its revisional powers this Court does not interfere with the findings of fact unless special reasons are made out. The lower appellate Court fully analysed the relevant evidence and rejected the defence version. I agree with the finding of the learned Sessions Judge that the petitioner was not sick during the relevant period and refused to receive the transfer order and did not Join the new station.
7. In support of the contention that the transfer order was not a lawful one, Sri Rath placed reliance on Rules 90, 776 and 1038 of the Orissa Police Mannual. Those rules run thus:
90. Command certificates.-Whenever a subordinate police officer is deputed on any duty, a command certificate In P.M. Farm No. 9 shall be given to him. He shall carry it with him and produce it on his return before the officer-in-charge, who shall bring to the notice of the circle inspector all instances of delay in the performance of any duty. Command certificates shall be filled in the office of origin, except those for journeys involving payment of travelling allowance, escort charges, etc., which shall be submitted to the Superintendent (appendix 57).
776. (a) Transfers within district.- Superintendents may transfer any subordinate officer within their own district. In the case of inspectors the consent of the District Magistrate is necessary (Rule 22).
(b) All posting of officers and men shall be determined by the Superintendent who shall sternly discourages suggestions, written or otherwise, from the staff of the reserve office. In the case of assistant sub-inspectors, (sic)days and constables, the Superintendent shall enter his orders in his own handwriting in the last column of the disposition register (Rule 1038) and write the man's name against the post to which he is to be transferred. It is a sound procedure to post up on a notice-board In the reserve sit orders of transfer Immediately they are made. In the case of sub-inspectors and inspectors a written order may be issued separately.
1038. (a) Disposition register.-A register avowing the disposition if the force shall be kept by the reserve officer in P.M. Form No. 149.
(b) In the final column shall be noted the name of the place to which a man is transferred and the date of transfer.
'Incharge' shall be noted against sub-inspectors who are in charge of investigating centres or courts. All posting of officers and men shall be determined by the Superintendent and he shall enter his orders in this register in the manner prescribed by Rule 776(b) and publish them as quickly as possible.
8. On the basis of the aforesaid roles, it is contended that order of transfer is not lawful as the same was communicated through Ex. 4, which is not meant for the purpose, and there being no entry in the disposition register showing the place to which the petitioner was transferred and the date of transfer.
9. Rule 776 shows that within the district the superintendent of Police is the competent authority to transfer subordinate officers. In the case of constables, the Superintendent shall enter his orders in his own handwriting in the last column of the disposition register and write the man's name against the post to which he is transferred. The rule says that it is a sound procedure to post upon the notice-board in the reserve all orders of transfer immediately they are made. In the case of sub-inspectors and inspectors, a written order may be issued separately.
10. Thus in case of constables no written order is no be issued separately. Entry in the disposition register and posting up of the orders of transfer on the notice-board are sufficient compliance of communication to the constables. This rule is, however, directory and non-compliance thereof does not affect the jurisdiction of the competent authority to pass an order of transfer and to communicate the same to the constable without making an entry in the disposition register of posting it up on the notice board. The rule merely prescribes the procedure, but does not affect the substantive powers vested in the competent authority. The legality of a transfer order cannot be questioned if the same has been otherwise communicated to the constable on the ground that there was no entry in the disposition register or posting up on the notice-board. In place of a posting up on the notice-board, if an order of transfer is communicated in writing, a higher benefit in conferred upon the constable. It may, however, be clarified that the petitioner does not take the stand that there was no entry in the disposition register or posting up on the notice-board.
11. In this case, the order of transfer(Ex. 3) was communicated to the petitioner through the command certificate (Ex. 4) The command certificate In P. M. Form No. 9 has a column showing the date and hour of departure and arrival. In the case of transfer, there is no question of coming back to the old station so as to full(sic) up the form. There is nothing prohibitory for the use of the command certificate for communication of orders of transfer, in such a case, the unnecessary columns would not be filled up. In the case of constables, no order in writing is to be communicated. Posting upon the notice-board would be sufficient compliance. If in its place an order in writing is communicated, it does not cease to be lawful and within jurisdiction. Before any action is taken for wilful breach, two essential facts are to be proved. Those are : firstly, whether any transfer order was passed, and secondly; whether it was communicated to the delinquent. The communication would ordinarily be by posting up on the notice-board ; but no objection can be taken to a communication in writing without posting up the same on the notice-board. The rule to post up the transfer order on the notice-board is merely directory and does not affect the Jurisdiction of the authority passing the order. Communication of the substance of the order (Ex . 3) to the petitioner through the command certificate (Ex. 4) is lawful and within jurisdiction.
12. The prosecution established beyond reasonable doubt that the petitioner refused to act in accordance with the transfer order despite the position being clearly explained by the Additional Superintended of Police. The disobedience is clearly wilful breach of a lawful order of transfer.
13. Section 29 of the Police Act, 1861, so far as relevant, runs thus:
Every police officer, who shall be guilty of any violation of duty, or wilful breach; or neglect of any rule or regulation or lawful order made by a competent authority... shall be liable on conviction before a magistrate to a penalty not exceeding three months' pay, or to imprisonment, with or without hard labour; for a period not extending to three months or to both.
14. On the conclusion that the petitioner is guilty of wilful breach of a lawful order made by a competent authority, the conviction is well-founded. The sentence is not heavy.
15. The revision falls and is dismissed.