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The State of Kerala and anr. Vs. K. Madhavan - Court Judgment

LegalCrystal Citation
SubjectService
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 109 of 1963
Judge
Reported inAIR1964Ker254
ActsKerala Police Departmental Enquiries, Punishment and Appeal Rules, 1958 - Rule 8(1)
AppellantThe State of Kerala and anr.
RespondentK. Madhavan
Appellant AdvocateGovt. Pleader
Respondent Advocate V.R. Krishna Iyer, Adv.
DispositionAppeal allowed
Cases ReferredThe State of Punjab v. Kharaiti Lal
Excerpt:
.....in columns i and 2 shall include officers of corresponding ranks in units like the malabar special police, special armed police battalion, district armed reserves, etc. it was contended before the high court and it was repeated before us that the consent should have been given to every individual member of the special police establishment and that a general consent would not be a good consent. ' the dicta in the above decisions indicate clearly that a general authorisation or appointment as made in the instant circular of august i, 1958, would satisfy well the requirements of rule 8 (i) (iii) of the kerala police departmental enquiries, punishment and appeal rules......establishment should be specifically authorised to exercise jurisdiction in that area, though the state government can do so. when a state government can authorise a single officer to exercise the said jurisdiction, we do not see any legal objection why it could not authorise the entire force operating in that area belonging to that establishment to make such investigation. the authorization filed in this case sufficiently complies with the provisions of section 6 of the delhi special police establishment act, 1946, and there are no merits in this contention.'again, section 7(3) of the east punjab essential services (maintenance) act, 1947, enacted:'no court shall take cognisance of any offence under this act except upon complaint in writing made by a person authorised in this behalf by.....
Judgment:

Madhavan Nair, J.

1. This appeal is against an order of Vaidialin-gam J. quashing the order of dismissal of a police constable by the Inspector General of Police, after an enquiry on his misconduct by the Circle Inspector of Police under whom he was then serving, which order has, on appeal, been confirmed by the Government after consultation with the Public Service Commission--the ground for quashing being that the Circle Inspector was incompetent to hold the enquiry that led to his dismissal. Counsel agree, that the authority to conduct a disciplinary enquiry regarding a Police Officer has to bo traced under Rule 8 of the Kerala Police Departmental Enquiries', Punishment and Appeal Rules, 1958. The said Rule reads:

'8. Authority to conduct oral inquiry: - (i) An inquiry which is likely to result in the imposition of any of the penalties mentioned in Clauses (j) (k) (1) or (m) of Sub-rule (i) of Rule 15 may be held by:

(i) the Appointing Authority, or

(ii) the Head of Department, or

(iii) an Officer of the Department appointed by the Appointing Authority or Head of Department who has nothing to do with the subject matter of the inquiry or who is not connected otherwise with the Government Servant whose conduct is under inquiry, or

(iv) a Special Officer or Tribunal appointed by the Government for the purpose.

2. Subject to the provisions of Sub-rule (i) such inquiry against members of the Service men. tioned in Column I below shall be conducted by the Class of Officers noted in the column 2.

Column 1 Column 2Constables and Head ConstablesBy Circle Inspectors and aboveSub Inspectors and Circle Inspectors By Assistant/Deputy Superintendent and aboveOther OfficersImmediate Superior in Office or other Superior Officer nominated by the Inspector General of Police or the Government.

Note.---Officers mentioned in columns I and 2 shall include Officers of corresponding ranks in Units like the Malabar Special Police, Special Armed Police Battalion, District Armed Reserves, etc., where different designations are also used.

3. If an Officer conducting an oral inquiry is succeeded in Office by another Officer before the inquiry has been completed and the proceedings thereof have been drawn up in accordance with the provisions of Rule 6, the latter Officer shall continue and complete the proceedings:

Provided that (a) the latter Officer may, if he considers it necessary in the interest of justice, resummon and examine afresh any of the witnesses previously examined. When a witness is so recalled he can be examined, cross-examined and re-examined as the Inquiry Officer may permit.

(b) The authority superior to the Inquiry Officer may, if deemed necessary in the interest. of convenience, or for other reasons, direct the continuance and completion of the inquiry or other proceedings by the former Officer himself'.

The Inspector General of Police is both the appointing Authority and the Head of the Department in this case. He has issued a circular on August I, 1958, which reads thus:

'Under the authority vested in me in Rule 8 (r) {iii) of the 'Kerala Police Departmental Inquiries, Punishment and Appeal Rules, 1958, I hereby appoint the Class of Officers noted in column 2 of Sub-rule (2) of Rule 8 to conduct, against the corresponding Classes of Officers as specified in Col. I, every enquiry which is likely to result in the imposition of any of the penalties mentioned in clauses (j), (k), (1) or (m) of sub-rule (i) of Rule 15.

Provided that individual officers who may be personally connected with the subject matter of the inquiry, or the person whose conduct is under inquiry shall not conduct such an inquiry.'

(The punishment under clause (m) of sub-rule (i) of Rule 15 is dismissal from service.)

It has to be stated here that the above circular authorisation was not produced or pressed into service before the learned Judge when his Lordship-disposed of the writ petition.

2. Counsel for the respondent contends that an appointment under Rule 8 (i) (iii) should be of a particular officer to hold a particular enquiry, and that a general appointment of the kind made in the aforesaid circular is ineffective for the purpose. We do not accept this contention.

A similar contention has been repelled by the Supreme Court in E. G. Barsay v. State of Bombay, AIR 1961 SC 1762. Under Section 6 of the Delhi Special Police Establishment Act, 1946, no member of the said Establishment can exercise powers and jurisdiction in any area in a State without the consent of the Government of that State. In proof of such consent reliance was had on a letter of the Government of Bombay addressed to the Government of India, dated August 13, 1949, wherein it was stated:

'. . . . I am directed to state that this Government re-affirms, with reference to Section 6 a, the Delhi Special Police Establishment Act, 1946, the consent given for an indefinite period urder its letter No. 50427/2-D, dated the 6th November, 1946, to the members of the Delhi Special Police Establishment exercising powers and jurisdiction in the area of the province of Bombay'.

Their Lordships observed:

'It was contended before the High Court and it was repeated before us that the consent should have been given to every individual member of the Special Police Establishment and that a general consent would not be a good consent. We do not see any force in this argument. Under Section 6 of the Delhi Special Police Establishment Act, no member of the said Establishment can exercise powers and jurisdiction in any area in a Stats without the consent of the Government of that State. That section does not lay down that every member of the said Establishment should be specifically authorised to exercise jurisdiction in that area, though the State Government can do so. When a State Government can authorise a single officer to exercise the said jurisdiction, we do not see any legal objection why it could not authorise the entire force operating in that area belonging to that Establishment to make such investigation. The authorization filed in this case sufficiently complies with the provisions of Section 6 of the Delhi Special Police Establishment Act, 1946, and there Are no merits in this contention.'

Again, Section 7(3) of the East Punjab Essential Services (Maintenance) Act, 1947, enacted:

'No court shall take cognisance of any offence under this Act except upon complaint in writing made by a person authorised in this behalf by the State Government.'

A notification was issued by the Punjab Government authorising all Police Officers above the ranks of Deputy Superintendent of Police and the Heads of the various Government Departments to make complaints in writing to a Court in respect of alleged offences against the Act. It read:

'In exercise of the powers conferred by Subsection (3) of Section 7 of the East Punjab Essential Services (Maintenance) Act 1947, the Govern-nor of the East Punjab is pleased to authorise all police officers of and above the rank of Deputy Superintendent of police and Heads of the various Government Departments to make complaints in writing to a court against persons of their respective Departments, who are alleged to have committed offences against the Act.'

Meeting a preliminary objection to the maintainabllity of a prosecution under the Act the Supreme Court has, in The State of Punjab v. Kharaiti Lal, (S) AIR 1956 SC 551, observed thus:

'.,... it was argued on behalf of the respondent that there was nothing to show that the complaint on the basis of which the prosecution had been initiated in this case had been authorised by the State Government. The law does not require that the particular complaint should have been authorised by the State Government. What is required is that the complaint should have been filed by a person authorised by the State Government to do so. The notification has authorised a Superintendent of Police to file a complaint in respect of a contravention of the provisions of the Act by a person in his department. It is not defied that the respondent was such a person. Henca the preliminary objection must be overruled.'

The dicta in the above decisions indicate clearly that a general authorisation or appointment as made in the instant circular of August I, 1958, would satisfy well the requirements of Rule 8 (i) (iii) of the Kerala Police Departmental Enquiries, Punishment and Appeal Rules. The only defect on which the learned Judge has held the disciplinary proceedings to be without jurisdiction being thus found to be unsubstantial, the order quashing the dismissal of the delinquent Police Constable has tobe discharged.

3. The appeal 13 therefore allowed; and O. P. No. 2905 of 1961 is dismissed hereby. We make no order as to costs here.


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