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Naut Ram Vs. Union of India - Court Judgment

LegalCrystal Citation
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 58 of 1972
Reported in1975RLR82
ActsPunjab Police Rules - Rule 16.38
AppellantNaut Ram
RespondentUnion of India
Advocates: Sital A.K. Dar and; Arun Kumar, Advs
Cases ReferredSat Pal v. Delhi Administration
(i) service - promotion - rule 16.38 of punjab police rules - petitioner was confirmed as a.s.i. and appointed by promotion as s.i. - matter for consideration is when petitioner confirmed - if person concerned was promoted to substantive post and there existed a vacancy in which he could be confirmed - in absence of any order reverting him within reasonable period of expiry of two years he would by necessary implication be deemed to have been automatically confirmed in that post. (ii) departmental enquiry - petitioner challenged departmental enquiry against petitioner for alleged theft - petitioner was only in charge of police post not police station - alleged theft case was not even registered - entire charges against petitioner did not fit to facts and misconceived. - - 61, in august. 61, one sewa ram of rajendra market complained to petitioner who was in charge of police post at tis hazari about theft of rs. 1,200.00 from his shop. on being asked to give details he promised to bring the same. sewa ram later on declined to lodge the complaint on the plea that the market panchayat had got him his stolen money from godar singh and mohan. petitioner took sewa ram and others to police station, sabzi mandi as tis hazari post was under that station. the s.h.o. on hearing sewa ram did not feel the necessity of registering the complaint. godar singh then complained that petitioner had harassed him by detention for a day to make him pay sewa ram. the anti-corruption branch of the police investigated this. an year later, order of district magistrate was sought.....

S. Rangarajant, J.

(1) [PETITIONER was selected and appointed as A.S.I. Ob 1.4 54 and confirmed on 1-4-57. On 27-12-57 he was appointed as S.I in a substantive vacancy against a permanent post. In August. 61, one Sewa Ram of Rajendra Market complained to petitioner who was in charge of police post at Tis Hazari about theft of Rs. 1,200.00 from his shop. On being asked to give details he promised to bring the same. Sewa Ram later on declined to lodge the complaint on the plea that the Market Panchayat had got him his stolen money from Godar Singh and Mohan. Petitioner took Sewa Ram and others to Police Station, Sabzi Mandi as Tis Hazari post was under that station. The S.H.O. on hearing Sewa Ram did not feel the necessity of registering the complaint. Godar Singh then complained that petitioner had harassed him by detention for a day to make him pay Sewa Ram. The Anti-Corruption branch of the police investigated this. An year later, order of District Magistrate was sought under Rule 16 38 of the Police Rules. By order of 10-4-63, forfeiture of one year's service was ordered. On 11-4-63, petitioner was relieved for joining Military Academy as Emergency Commissioned Officer. On 25-5-63, the DI.G., M.P. Singh issued a notice to him asking him to show cause why penalty should not be enhanced. The Academy suggested that he may be asked to show cause after completion of training. On 6-1-64 petitioner replied that without the documents and the papers, he could not give adequate reply. His reversion was ordered on 12-5-64 At the alleged insistence of D.I.G. the Army released petitioner on 25-11-65. Petitioner took medical leave up to 6-2-67 and resigned on 7-2-67. He was taken back in service by the new I.G. and was shown as A.S.I, and was assured that he would soon be made S.I. After lot of representation he was confirmed as S.I. on 15-8-70. S.P. then recommended him for being brought on the promotion list 'F'. The D.I.G. rejected it on the ground that he had not completed 6 years as S.I. After his appeal was rejected by the I.G and the representation by the Lt. Governor, he filed Writ claiming that as rules provided a maximum period of probation of 2 years he should be deemed as a confirmed S.I. from 27-12-59 and that the departmental enquiry was illegal and void. [Para 8 onwards, judgment is :-

(2) It was held by a Full Bench of the Punjab High Court in Hand Nandan Sarup V. The District Magistrate Patiala and others 1966 P.L.R. 747 that failure of the District Magistrate to record reasons for allowing a complaint against a police officer to be proceeded with departmentally instead of by Judicial process renders such order illegal because sub-rule (2) of Rule 16.38 is mandatory. Though in Delhi Administration V. Chanan Shah 1949 S.L.R. 217 the question whether Rule 16.38 concerning recording of reasons was mandatory or not was left open, reference was made to the previous decision of the Supreme Court in State of U.P. v. Babu Ram Upadhya : 1961CriLJ773 which held that a similar U.P. Police Regulation was mandatory. In a later decision in Union of India v. Ram Kishan 1972 S.L.R 11 Sikri C.J. (as he then was) following Delhi Administration v. Chanan Shah upheld the quashing of the dismissal of a police officer without complying with Rule 16.38. Rule is......

(3) It is clear, on a mere reading of the same, that there is a duty to record reasons laid on the District Magistrate for departing from the usual rule of a police officer, who is complained against, having to go before a court when a prime facie case existsThis is obviously meant for the protection of the concerned police officers ; in other words, only when valid reasons exist for the investigation of the complaint being made departmentally and such reasons are also recorded by the District Magistrate in his order could such a course be adopted.

(4) The next aspect to be noticed concerning the order of the District Magistrate is that information was not given to him immediately of any complaint received by the Superintendent of Police against the petitioner. While the theft, in respect of which the case was not registered, was alleged to have taken place in August 1961 and information had been given by Godar Singh against the petitioner concerning the same shortly thereafter it was not until 15.7.1962 that the Superintendent of Police (North District) Delhi wrote to the District Magistrate for orders under Rule 16.38. There was thus an interval of nearly a year. Shri Sital A.K. Dar learned counsel for the petitioner, has invited my attention to a decision of the Punjab & Haryana High Court in Bhajan Singh v. Bahal Singh 1967 S.L.R. 601) where Narula, J. (as he then was) held that placing of such a matter before the District Magistrate after a long time was contrary to law. Narula, J. followed his own earlier decision in S. Avtar Singh Uppal v. The Inspector General 1966. CLJ P&H; 318 and quoted extensively from it. Since effect has to be given to every word of the statutory rule the requirement of 'Immediate' information to the District Magistrate is mandatory. The District Magistrate issued instructions (vide circulars dated 29.12.1971 and 18.5.1973, copies of which are Annexures Z-20 and Z- 20A, respectively) that the delay in such cases should not exceed three months. The delay of nearly a year in informing the District Magistrate about the said complaint against the petitioner for the purpose of his passing order under Rule 16.38 was thus opposed to the mandatory requirement of the said rule and hence illegal. The entire proceedings taken against the petitioner are thus seen to be totally contrary to Rule 16.38 concerning both the above aspects; they are illegal, void and no effect whatever because an order passed against rules is void from its very inception. Government Servant can proceed on the footing that such a void order had not been passed at all. Reference was made by a Division Bench of the Mysore High Court (State of Mysore v. Bormma 1971 (1) S.L.R. 801) to a decision of the Court of Appeal in Barnand v. National Dock Labour Board 1953 (1) All ER 1113. In that case the power of suspension was exercised in pursuance of delegation which could not be legally made. It was stated that the order in pursuance of such delegation was a nullity. The above said view of the Court of Appeal was approved by the House of Lords in Vine v. National Dock Labour Board 1966 (3) All ER 939. Viscount Kulkuir, L, observed that the effect of removal of the plaintiff's name from a certain register illegally was that his name was never removed. The above decision of the House of Lords wag considered by the Supreme Court in Executive Committee of V.P. State Warehousing Corporation v. Chandra Kiran Tyagi : (1970)ILLJ32SC . The Supreme Court not only distinguished the above cases but referred to the decision of the Privy Council in Francis v. Municipal Councillors 1962 3 All ER 633 Which related to a purported termination of Contract of service. The contention that despite the dismissal, which was wrongful, the person concerned continued to be in service was rejected ; it was pointed out that his remedy lay in his claiming damages. The Privy Council also had distinguished the decision of the House of Lords in Vine's case and stated that the said cage was not comparable to the case before it. The Supreme Court, following the Privy Council, distinguished Vine's case and observed that in the case of a pure contract of employment the remedy of a dismissed employee was a claim for damages for wrongful dismissal or for breach of contract. The Division Bench of the Mysore High Court pointed out (in my view, rightly) that the principle of Vine's case about an illegal order being void had not been either dissented or departed from by the Privy Council. The Mysore High Court held in that case, that a Government servant who was retired prematurely in violation of the statutory rules did not so retire and that the said order retiring him was void ; the obvoius reason was that it was not a case of a mere contract of employment, but the employment was subject to and attracted the application of statutory rules.

(5) In a recent decision V. R. Krishna Iyer, J. speaking for himself and Sarkaria, J., in Nawabkhan Abbaskhan v. The State of Gujarat : 1974CriLJ1054 held that an order which is void might be 'directly and collaterally' challenged. Observed Krishna Iyer, J. 'When a competent court holds such official act or order invalid, or sets it aside, it operates from nativity, i.e., the impugned act or order was never valid. The French Jurists call it L' inexistence or outlawed order' etc.

(6) What has been said so far pertaining to the invalidity of the departmental action taken against the petitioner in respect of the above-said case of the alleged theft not being registered and of no effect would even seem to acquire a pathetic poignancy if the gravaman of the charge aganist the petitioner, as established in the above-said departmental enquiry, is understood correctly and viewed in the proper perspective. It is worth-recalling that even though the petitioner was also charged with having harassed Godar Singh and extorted the Stolen money from certain persons, who are seen to be bad characters, these charges were held not proved. The petitioner was only in charge of a Police Post, not a police Station. There is what is known as Register No. II...... (After discussing its requirement , judgment proceeds).

(7) The petitioner was not in charge of the Police Station but only of the Police Post; nor was he the clerk of the Police Station. The responsibility of making such entries lay with the S.H.O. (Shri Ram Nath) who was examined in the departmental enquiry as D.W. 3 and who had categorically stated that the petitioner had come to the Police Station on 17.8.1961 along with Sewa Ram, Godar Singh, Malkhan Singh and others of Rajinder Market and said that a theft had been committed in the shop of Sewa Ram: the petitioner told him that he wanted to register the case but the complainant (Sewa Ram) and other respectable persons of the Market had settled the matter and would not get the case registered. The S.H.O. also advised Sewa Ram to get the case registered but he would not lodge a report. There upon the S. H. 0. told the petitioner that if the complainant himself was not willing to lodge a repot the Police could do nothing in the respect. In this light it is needless to be detained by the further question whether the petitioner was present at the Police Post when the complaint regarding the theft was made the Moharrir Constable Ram Narain had said the petitioner was present and the finding of the enquiry officer was that he was present; this cannot, thereforee, be said to be a finding based on no evidence.

(8) The charge, which alone was found established against the petitioner, in the departmental enquiry may be quoted in extension in this context:

'WHILEyou (the petitioner) were posted as I/c P.P. Tis Hazari, on 16.8 61 you were informed in the morning by Sri Sewa Ram of Rajinder Market regarding theft of cash box containing Rs. 1,200.00 from his shop, but you did not register a case and investigate it as enjoined in P.P.R. 24 (7)'

(9) Rule 24(1) deals with how an F.I.R. should be registered, it quotes from decision of Punjab Chief Court (which later became the High Court). Except in a few cases (which do not apply here) the Officer in charge of the Police Station whenever he has reason to suspect the commission of an offence, which he is empowered under section 156 Cr. P.C, to investigate, shall enter in full such information or other intelligence as soon as practicable in the F.I.R. Register, shall have each copy signed, marked or sealed by the informant if present shall seal each with the stotion seal and shall dispose of the copies in accordance with rule 24.5, and in case he abstains from investigation under either of the provisos to section 157 of the Code he shall submit the copy intended for the Magistrate through the Suprintendeut. At the same time a reference to such report shall be entered in the Station Diary, Register No. 11. All such entries should, as far as possible be made by the Officer in charge himself, and, if not so possible, by the station clerk under his direction. In terms of Rule 22.49 read earlier it would be seen that regarding Police Post the Register No. Ii has only to contain matters mentioned in (a) to (c), extracted above-they do not include entering the kind of information which would empower action under section 156 Cr. P.C.

(10) My question to Shri Arun Kumar, learned counsel for the Delhi Administration, whether there was any regulation requiring the Officer in charge of a Police Post to record the substance of the information pertaining to the commission of theft etc. anywhere at the Police Post itself did not succeed in eliciting any other information except reference to Rule 22.49. It seems to me that in the case of all complaints made at the Police Post they have to be registered only at the Police Station itself by the S.H.O. or one empowered to do so as per Rule 24.1 to which rule alone reference was made in the charge framed against the petitioner. In any case, there appears to be no question of the petitioner, who was in charge only of the Police Post, either making the entries himself or causing the entries to be made in Register No. Ii maintained at the Police Station, which in this case was in the charge of S.H.O. (Shri Ram Nath) against the view held by the concerned S.H.O.

(11) It seems fairly clear that the entire charge against the petitioner in these circumstances did not fit the facts and was even totally misconceived The S.H.O. who was responsible for the entries to be made in the Register No. Ii of the Police Station Sabzi Mandi was obviously in charge having said that it was futile to make an entry when the maker of the complaint refused either to subscribe to it or give details concerning it, there could be no valid or even just charge against the petitioner in respect of the failure to make such an entry in the said register maintained at the Police Station.

(12) It seems a pity that such misconceived action was taken against the petitioner ; this is seen to be neither legal nor justifiable from any point of view. There seems to be great force in the petitioner's grievance that the then D.I.G. of Police (Shri M.P. Singh) did not like the petitioner joining the Emergency Commission (though he was anxious to serv he country at the time of need coupled with at hope that it might open future career possibilities for him) and actually did his lest to pre vent him from doing so. Speaking for myself I am unable to appreciate how a person who wanted to answer the call of the country during such an emergency should have been hindered from doing so ; by hindsight it does not seem possible to say that the petitioner was fleeing from justice or escaping departmental punishment It was only after getting the orders of I G of Police that the petitioner was able to get relief on 10-4-1963 in order to join the Indian Military Academy, Dehradun for training. Even afterwards the above chge was taken up with the Military authorities and the petitioner was allowed to reply after the training was over. The petitioner states that for his gallantary he was awarded the Military Seva medal (J&K;). promoted as Captain in a short while and also had become Officer Commanding of a unit, when he was relieved from the Army at the instance of Shri M.P. Singh. His record of service both in the Police force as well as in the Army was creditable except for the above- paid punishment meted out to him as a result of the above enquiry and 4 other censures awarded to him just about the same time. It is somewhat surprising that the award of punishment of forfeiture of one year's approved service, which had been imposed by the Superintendent of Police, was even enhanced by Shri M, Singh reverting the petitioner as A S.I.

(13) [AFTER briefly discussing the penalties of censures the judgment is]. It seems needless to go into the merits of the award of these censures in any view of the matter; for one thing, they all appear to have been at about the sane time as the unforunate theft incident, for another, a perusal of these files, which were shown to me at the hearing, do not even disclose anything seriously wrong about the petitioner's conduct as an official. Ordinarily, in the matter of a Government servant's carreer propsects when such minor punishments are even justifiably awarded in respect of certain faults or omissions they arc in the very nature of things not to be borne in mind against the officer when his promotional opportunities arise; such minor penalties serve their full purpose by their mere infliction. If they are to be considered whenever his chance for promotion comes up later on that would be to punish him twice over for the same thing and to transform these minor penalities into major ones. Even apart from this consideration for the mere fact that the petitioner was reinstated by the I.G. of Police [who ap(r) pears to have appreciated the position in which the petitioner was placed and did him the kindness which seems 10 have been due to him of securing the approval of the Home Ministry also to reinstate him in the post which he previously occupied) any of these events including the departmental enquiry, which were anterior to his rejoining the Department in such circumstances, could not be held against the petitioner; they must fall into place for it was quite an extraordinary step to secure the reinstatement of the petitioner, despite his resignation. His resignation was obviously the result of frustration arising out of the treatment meted out to him; this seems to have been appreciated not only by the I. G. of Police but also by the Home Ministry when the petitioner was reinstated.

(14) It is unfortunate that even in the return filed to this writ petition an effort has been made to justify what seems really unjusti fiable, the holding of a preliminary enquiry without even associating the petitioner with it in contravention of Rule 16.24 [1] [viii], not getting the District Magistrate's permission immediately after complaint against him but securing an order under Rule 16.38 nearly a year thereafter and to make it Appear that the petitioner's services were terminated by the Army under para 102 of the Army Regulations 1952 [on the ground of his being an undesirable officer] despite the certificate issued by the Army [copy of which is Annexure Z-19] that his services were satisfactory and the terminstion under Rule 102 was no bar to civil edi- ployement and the Discharge Certificate issued by the Police themselves as on 8.2.1967 [copy of which is Annexure Z-19A] that his character was 'Very Good'. It is worth referring to the quashing of such an enquiry by the Department itself in the case of one H. C. Vinodi Lal when he was not associated with preliminiary enquiry under Rule 24 [1] [viii] [Vide Annex- lire Z-21 to the rejoinder etc.] and to the case'of A.S.I. Ajit Singh [Annexure Z-20 A] in whose case the District Magistrate declined to pass an order under Rule 16.38 when he was moved more than three months after the information. It will be instructive in this connection to recall the observations .of V. R. Krishna lyer, J. [as he then was] which he made in P. P. Abubackar v. Union of India. : AIR1972Ker103 , which were again quoted by the Supreme Court in Dilbagh Rai Jarry v. Union of India [1974] 1 S.L.R. 1]. Reference was made therein to the difficulty which citizens have in the matter of litigation against the State, the kind of duty which the State owes to such litigants in a welfare State like ours etc. 'The State'. observed .V. R. Krishna lyer. J. 'is no ordinary party trying to win a case against one of its own citizens by hook or by crook'. In the above view not only were the departmental proceedings taken against the petitioner void and of no effect but they wolild fall into their proper place even if valid after the petitioner had been reinstated by the I.G. of Police despite his resigning his post in the circumstances referred to at length above, the same remarks would hold true of the above four censures as well. There is no need, thereforee, to be detained further brother aspects.

(15) The next aspect which arises for consideration is when was the petitioner con- firmed? He was confirmed as A.S.L on 1.4.1957 and appointed (by promotion) as S.I. on -27-12-57. The relevant of rule is 13.18(Yo1.II): In no case shall the-period of probation be extended beyond two years arid the-confirming authority must arrive at a definite decison within a reasonable time soon after the expiry of that period whether the officer should be confirmed or reversed.

(16) The above rule clearly precludes the extension of probation by 2 years. It is, thereforee not possible to make an inference in such a case that the officers probation was extended by implication. Bachawat, J. writing for the Supreme Court, had referred in the State of Punjab v. Dharam Singh 1968 S.L.R. 247 to some previous decisions of the court where it was held that an express order of confirmation was necessary to give employee a substantive right to the post; from the mere fact that he was allowed to continue in the post after the expiry of the specified period of probation it is not possible 10 hold that he should be deemed to have been confirmed. The reason for the said conclusion was said to be that where on the completion of the specified period of probation the employee was entitled to continue in the post without an order of confirmation, the only possible view to take, in the absence of anything to the contrary in the original order of appointment or promotion or the service rules, is that the initial period of probation has been extended by necessary implication. Bachawat, J. pointed out that in all these cases the conditions of service of the employee permitted extension of the probationary period for an indefinite time and there was no service rule forbidding its extention beyond the maximum period. The concerned Punjab Educational (Provincialised Cadre) Iii Rules, 1961 Rule 6(3), had forbidden the extension of the period of probation beyond three years : hence it was held in Dharam Singh's case that when the service ruled had fixed a certain period of time beyond which the probationary period could not be extended and an employee appointed or promoted to a position on probation was allowed to continue in that post after completion of the maximum period of probation, without an express order of confirmation, he could not be deemed to continue in that post as probationer by implication, the reason being that such an implication was negatived by the express service rule forbidding extension of the probation period beyond the maximum period fixed by it. Bachawat J. further held that it was permissible, in such cases, to draw the inference that the employee, who had been allowed to continue in the post on completion of the maximum period of probation, had been confirmed in the post by implication. In the present case the above said Rule, especially the portion underlined, prevents the probationary period being extended beyond two years. The confirmation authority is, however, permitted to arrive at definite decision within a reasonable time soon after the expiry of that period whether the officer should be confirmed or reverted. The relevant portion of that rule consists of two parts; (1) there could be no extension at all of the period of probation beyond two years; the confirming authority must state within a reasonable time soon after the expiry of that period whether the officer should be confirmed or reverted. It would not be permissible to read the second part of that rule as giving any right to the authority to extend the period of probation, beyond two years. What is expressly prohibited cannot be deemed to be permitted by implication. The mechanics by which the authority may indicate its decision is that the authority should state soon after the expiry of that period whether the officer should be confirmed or reverted; in other words, the decision, if it is to revert him, must be made within a reasonable time soon after the expiry of that period. When this does not happen and he is not so reverted within a reasonable period it follows by necessary implication that even without a formal order of confirmation being passed he must be deemed to have been confirmed on the expiry of two years, namely on 27.12.1959 in this case. The mere absence of a decision to revert within a reasonable period of probation is one side of the coin; the other side of it is that the person would be deemed to be confirmed in that post when there is no such decision. An exception of course may arise if the person was not appointed or promoted in a substantive vacancy or there is no existing vacancy for any reason, in which he could be confirmed. If the person concerned was promoted, as in this case, to a substantive post and there existed a vacancy in which he could be confirmed in the absence of any order reverting him within a reasonable period of the expiry of two years, he would, by necessary-implication, be deemed to have beep automatically confirmed in that post. It is not even contended in this case that there was no vacancy in which he could be confirmed. It will render the rule itself nugatory and. of, no effect if, by merely postponing such a decision, even after the expiry of that peiod it is possible to extend the period of probation beyond two years because the rule is very explicit and unambiguous, namely, that in no case shall the period of probation be extended beyond two years. It seems to me thereforee, thaf;the ratio of the Supreme Courts decision in Dharam Singh would directly .apply to the present case,

(17) My attention has also been invited to a decision of S.N. Shankar and B.C. Misra, JJ. in Sat Pal v. Delhi Administration 1971 LS.L.R. 733. B.C. Misra, J. read rule 13.18 as meaning that the period of probation can be extended, though the period of probation could be curtailed by the appointing authority. The appointing authority 'could not pick and choose those from amongst the police officers found fit for promotion' and give the benefit of-automatic confirmation under rule 13.18 to some and deny it to others. It was further pointed out that the appellants in that case had been kept in an officiating capacity for a number of years without consideration of their case for substantive promotion and without express determination of their fitness or otherwise for promotion in a substantive capacity and there was nothing against the officers concerned they should be promoted and confirmed. The above observations were made in the context of a senior officers fit for promotion being bypassed by keeping him in officiating capacity indefinitely and. a junior being appointed in that place 25. In the present case the petitioner having been confirmed as A.S.I, on 1.4.1957 and having been appointed as S.I. on 27.12.1957 in a substantive capacity to a permanant post and there having been no order reverting him on the ground of unfitness for the post within a reasonable period after the expiry of probationary period of two years the petitioner must be deemed to have been confirmed as an S.I. on the expiry of that period, namely, from 27.12.1959. The order of the D.I.G, of Police confirming the petitioner as S.I. from 15.8.1970 was not, thereforee, correct. The rejection by the D I.G. (Admn.) on 1.1.1971 of the recommendation of the S.P. (South) made on 21.12.1970 that the petitioner be included in list 'F', on the supposition that the petitioner had been confirmed as S.I. on 15.8,70 was also not correct. Petition allowed.

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