D. Falshaw, C.J.
1. This second appeal which has been referred by a Single Judge to a larger Bench has arisen in the following circumstances :
Gurumukh Singh Appellant was appointed as an Assistant Sub-Inspectof in the Punjab Police in Multan district on the 24th of July 1945. His appointment was made by the Deputy Inspector General of Police, Multan Range. He was placed on two years' probation as from the 1st of April 1946. After independence in 1947 he was absorbed into the Police Force of Delhi State in which he was appointed as Assistant Sub-Inspector by the then Deputy Inspector General on the 22nd of September 1947. He was confirmed in this rank by the Inspector General of Police on the 29th of November 1948 as from the 1st of April 1948.
2. It seems that an allegation of corruption was made against him in 1949 and alter an inquiry had been held against him by an officer named Diwan Chand Bhatia with the rank of Deputy Superintendent of Police he was dismissed from service by the Senior Superintendent of Police, Delhi, on the 11th of May 1950. His appeal was dismissed by the Inspector General of Police.
3. He instituted the suit from which this appeal has arisen on April 1953 claiming a declaration that his dismissal was illegal and inoperative on certain grounds and that he was, therefore a member of the Delhi Police Force holding the rank which he held on the 11th of May 19SO. He also claimed Rs. 336A on account of arrears of salary.
4. The nature of the grounds on which the suit was based can be seen from the issues framed by the trial Court as follows:
1. Whether the plaintiff was dismissed from service by an officer subordinate in rank to the appointing authority? If so, to what effect?
2. Whether reasonable opportunity was not afforded to the plaintiff to defend himself in the inquiry which resulted in his dismissal
3. Whether the officer who held the inquiry was not competent to hold the same and to what effect ?.
4. Whether the departmental inquiry against the plaintiff and his dismissal from service were wrongful and malicious and to what effect 7.
5 Whether the suit is within time?
5. The three points decided against the plaintiff by the trial Court were on issues (2), (3) and (4), it being held that he had reasonable opportunity to defend himself in the inquiry, that the officer who held the inquiry was competent to do so and that the inquiry and his dismissal were not malicious. It was however, held in his favour that the suit was within time and that his dismissal could not stand because the order dismissing him was passed by an officer subordinate to the officer who had appointed him. He was accordingly granted a decree for the declaration prayed for and for Rs. 336/- on account of salary.
6. The Government's appeal against this decree was decided in May 1956 by the learned District Judge Mr. S.B. Capoor (now a Judge of this Court). He upheld the findings of the lower court which were against the plaintiff, but reversed the finding on the first issue and held that the dismissal was not bad as having been made by an officer subordinate to the officer who had appointed the plaintiff. He accordingly accepted the appeal and dismissed the suit. It is unfortunate that although the learned Single Judge who thought it necessary to refer the case to a larger Bench passed his order on the 25th of August 1960, the matter has taken so long to reach the Division Bench.
7. One of the grounds which impelied the learned single Judge to refer the matter was a new point raised before him in the form of an argument that in fact the appointment of the petitioner as an Assistant Sub-Inspector in the Delhi Police Force had not been made by the Deputy Inspector General, but by the Inspector General. This point was raised to strengthen the plaintiff's argument on the first issue and perhaps to meet the grounds on which the learned District Judge had decided the case against him. The argument is that although he was appointed as an Assistant Sub-Inspector at Delhi by the order of the Deputy Inspector General dated the 22nd of September 1947, this was really only a probationary appointment and his real appointment only began when he was confirmed by the Inspector General in 1948. This argument undoubtedly receives some support from the decision in Nand Shankar v. State of Rajasthan, AIR 1957 Raj 148, where the fads were that the petitioner in a petition under Article 228 of the Constitution had been appointed on probation as a Sub-Inspector of Police by the Inspector General and later confirmed in his appointment by the Deputy Inspector General who later dismissed him. The view was taken that his appointment was made by the Deputy Inspector General in these circumstances and his dismissal was therefore held not to be bad as having been made by an officer subordinate to the officer who had appointed him.
With the respect I doubt the correctness of this view and I am of the opinion that confirmation to substantive rank is something quite different from appointment.
I do not consider that there is any doubt in the present case that the officer who appointed the plaintiff as an Assistant Sub-Inspector in the Delhi Police was the Deputy Inspector General. The other case cited in support of this argument, Dr. Ishwar Narain Sinha v. Union of India, AIR 1957 All 439, does not in my opinion help the plaintiff, in that case 9 letter containing certain instructions, but not relating to individuals, had been issued by the General Manager of the Railway, but the appellant was actually appointed in his post in the medical service of the Railway in accordance with the principles contained in the letter by the Chief Medical Officer, and it was held that the latter was the appointing officer.
8. The main question is whether the plaintiff, having been appointed as an Assistant Sub-Inspector by the Deputy Inspector General, could be dismissed by an order of the Senior Superintendent of Police in view of the words of Article 311(1) of the Constitution which reads, 'No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.' There can be no doubt on the point that in the Police Force a Superintendent of Police, even where he is designated Senior Superintendent of Police posted in the same place, is subordinate to a Deputy Inspector General, and at first sight there appears to be a plain infringement of the provisions of Article 311(1) of the Constitution in the dismissal of the plaintiff by the Senior Superintendent of Police after he had been appointed by the Deputy Inspector General. The matter, however, was decided in favour of the Government by the learned District Judge on account of the peculiar state of affairs in the Police Force which obtained in Delhi during the material period.
9. It is not in dispute that before independence the senior officer in the Delhi Police Force was the Senior Superintendent of Police who, by an order of the Chief Commissioner passed in the year 1933, had been vested with certain powers ordinarily exercisable only by the Deputy Inspector General in the matter of appointment and punishment. After India became independent in August 1947 for a time there ceased to be a senior Superintendent of Police and the officer who was at fhe head of the Delhi Police was given the rank of Deputy Inspector General. In February 1948 a further change was made and an officer of the rank of Inspector General was put in charge of the Delhi State Police. The post of Deputy Inspector General then ceased to exist, the post of S.S.P. being revived instead and at the relevant period the two senior-most officers in the police force, were the Inspector General and the Senior Superintendent of Police. It seems to be agreed that at no stage throughout that period, though the position may now have changed, did officers of the rank of Deputy Inspector General and Senior Superintendent of Police co-exist.
10. The view taken by the learned District Judge was that in those circumstances, since there was no Deputy Inspector General and the Senior Superintendent of Police had been vested with the powers of the Deputy Inspector General with regard to appointments and punishments, the Senior Superintendent of Police who passed the order of dismissal could not be said to be subordinate to the Deputy Inspector General who had appointed the plaintiff. There were in fact two officers with different ranks both exercising the same powers at different times, but never together.
11. Some attempt was made to argue before us that it was not even proved that the Senior Superintendent of Police was vested with the powers ot the Deputy Inspector General in these matters at the material time, but it is recorded by the learned District Judge in his judgment that this was not disputed and I therefore do not think the point should be allowed to be raised now.
12. There is no doubt that there is a certain amount of plausibility about the argument which was accepted by the learned District Judge, but I am nevertheless of the opinion that there has been a violation of the provisions of Article 311(1) in this case. To put the matter in another way, I am of the opinion that although a Senior Superintendent of Police may be competent under rules vesting in him certain powers of the Deputy Inspector General to dismiss some officers with the ranks of Assistant Sub-Inspector or Sub-Inspector whom the nevertheless (sic) cannot pass an order dismissing such an officer who had been appointed by an officer of the rank of Deputy Inspector General i.e. of definitely a higher rank, and so far as any rule or statute permits such an action, that rule or statute must be held to be ultra vires as infringing the provisions of Aricle 311 (1) of the Constitution.
13. This point was considered by their Lordships of the Privy Council in R.T. Rangachari v. Secretary of State, AIR 1937 PC 27, as follows:
'There is, however, another point raised and in the Courts below decided adversely to the plaintiff which has given their Lordships considerable anxiety. Section 96B (of the Govt. of India Act, 1919) contains the following proviso: 'But no person in that service (the Civil Service of the Crown) may be dismissed by any authority subordinate to, that by which he was appointed.' The purported dismissal of the appellant on the 28th oi February 1928 emanated from an official lower in rank than the Inspector General who appointed the appellant to his 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 of maintaining this view and indeed it is manifest that if power to delegate this power could be taken under the rules, it would wipe out a proviso and destroy a protection contained not in the rules but in the section itself. Their Lordships are clearly of opinion that the dismissal purporting to be thus ordered in February was by reason of its origin bad and inoperative.'
The same matter came up again in North-West Frontier Province v. Suraj Narain Anand, AIR 1949 PC 112. In that case the plaintiff had been appointed as a Sub-Inspector of Police by the Inspector General, N.W.F.P., but ho was dismissed by a Deputy Inspector General. The Governmant relied on an amendment.of the rules inserted in January 1934 by which the Deputy Inspector General was substituted for the Inspector General as the person entitled to dismiss a Sub-Inspector. The, view taken in Rangachari's case, AIR 1937 PC 27 was again restated.
14. In my opinion the only proper course when the question of dismissing the plaintiff in this case came up was that if there was no officer of the rank of Deputy Inspector General, then the order of dismissal should have been passed by the Inspector General himself. In my opinion the meaning of Article 311(1) is that if there is no officer of equal rank to the appointing officer available then the order will have to be passed by an officer of superior rank. In no circumstances can such as order be passed by an officer of lesser rank. What in effect the learned counsel 101 the State Is asking us to do In this case is to read Article 311(1) as if it had been amended so as to read. 'No Person who is a member of a civil service ........ shall bedismissed or removed by an authority subordinate to that by which he was appointed unless such subordinate authority has by Rule or otherwise been vested with powers of superior tank'. There is no dearth of authorities on the point that in this context 'Subordinate' means subordinate in rank and not with reference to functions exercised. I am therefore of the opinion that the view taken by the trial Court in this matter was correct.
15. There is one other point on which the plaintiff appears to have a good case although it was decided against him by both the Courts below. This relates to the third issue whether the officer to whom the lask of conducting the inquiry against the plaintiff was entrusted was competent to carry on his functions. The Police rules require that a departmental inquiry must be carried out by a police officer. The position in the present case was that Diwan Chand Bhatia had been a regular Police officer, but had retired from the Police service, and at the lime of the inquiry he had been re-employed in the Civil Supplies Department. The Chief Commissioner of Delhi, however, had ordered that the Enforcement staff of that Department should be regarded as a branch of the Police organisation, and Diwan Chand Bhatia was given the designation of Deputy Superintendent of Police (Enforcement).
16. This very same point arose in the case of another police officer who was dismissed as the result of an inquiry conducted by that officer. This is Union of India v. Jagjit Singh, S. A. No. 205-D of 1957, decided as recently as the 22nd of November 1962 by Capoor J., who as I have said decided the first, appeal in the present case when he was District Judge. He fully considered the position in that case and found that the Inquiring Officer was not a police officer within the meaning of the Police act and the rules, and in fact he has observed that had been conceded before the lower appellate court that he was not a police officer when he conducted the inquiry. It is thus clear that if the plaintiff had not succeeded on the main point in the present appeal he might have succeeded on that ground alone. The result is that I would accept the appeal and restore the decree of the trial court with costs to the plaintiff throughout March 26, 1963.
Tek Chand, J.
17. I agree.