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Abdul Aziz (K.M.) Vs. Deputy Inspector-general of Police and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKerala High Court
Decided On
Judge
Reported in(1968)ILLJ396Ker
AppellantAbdul Aziz (K.M.)
RespondentDeputy Inspector-general of Police and anr.
Excerpt:
- - 2, respondent 2 clearly stated that is was authorized by the deputy inspector-general of police, southern branch, (respondent 1) to hold an oral inquiry against the petitioner for misconduct, as per order no. a 'sub-inspector,'and that the connotation of the term was well-understood in police parlance. i am not satisfied that the petitioner is a member of the superior police force. 12. that respondent 1 is competent to remove or dismiss a sub-inspector like the petitioner is also clear from rule 18 of the 1958 rules read with the annexure [item 5(a)], the second ground of objection urged by the petitioner also falls......to the provisions of article 311 of the constitution and to such rules as the government may from time to time make under this act, the inspector-general, deputy inspector-general, assistant inspector-general and district superintendents of police may, at any time, dismiss, remove, suspend or reduce to a lower post or time-scale or to a lower stage in time-scale, any officer of the subordinate police whom they shall think remiss or negligent in the discharge of his duty or otherwise unfit for the came, and may order the recovery from the pay of any such police officer of the whole or part any pecuniary less caused to the government by his negligence or breach of orders. the travancore cochin police act 2 of 1952 was itself repealed by the kerala police act 5 of 19c1 which cams into.....
Judgment:

V.P. Gopalan Nambiyar, J.

1. The petitioner is a sub-inspector of police who was suspended from service by respondent 1 pending enquiry Into the allegation of assault on one Varkey Joseph, who was P.W. 1 In Crime No. 1 of 19665 of Edathawa Police Station. A copy of the order of suspension is Ex. P. 1. A memorandum of charges dated 24 February 1965 was served on the petitioner by respondent 2. The petitioner submitted his written statement of defence (copy Ex. P. 3). Respondent 2 who was authorized by respondent 1 in that behalf inquired into the allegation against the petitioner and submitted his report, a copy of which has been produced as Ex.P. 4. The said report was accepted by respondent 1 and by a notice (copy produced as Ex, p. 5), the petitioner was asked to show cause against the proposed provisional punishment of removal from service. This original petition has been filed to quash Exs. P. 1, P. 4 and P. 6 and for consequential reliefs.

2. Three grounds were urged by the counsel for the petitioner in support of the above original petition:

(1) that respondent 2 had no jurisdiction to conduct the Inquiry ;

(2) that respondent 1 had no power to remove the petitioner from Service and the proposed removal from service was violative of Article 311(1) of the Constitution ; and

(3) that the inquiry by respondent 2 was vitiated by bias and violated the principles of natural justice.

3. In the memorandum of charges evidenced by Ex. P. 2, respondent 2 clearly stated that is was authorized by the Deputy Inspector-General of Police, Southern Branch, (respondent 1) to hold an oral inquiry against the petitioner for misconduct, as per order No. A2-12/65/PR/SR/dated 27 January 1965. In the petitioner's written statement of defence no objection was taken to the jurisdiction or authority of respondent 2 to hold the inquiry. On the other hand, in Para. 8 thereof, the petitioner prayed for an oral inquiry and proceeded to give the details of witnesses whom he proposed to examine at the inquiry and also of the documents needed for his defence. It is admitted by the petitioner in Para. 4 of his affidavit that at the inquiry eleven witnesses wore examined for the prosecution and three for the defence without any demur to the Jurisdiction of respondent 2. These are factors to be taken Into account against the petitioner in granting the discretionary relief under Article 226 of the constitution.

4. The want of jurisdiction of respondent a to conduct an inquiry was sought to be rested on the provisions of 8(1) of the Kerala Police Departmental Enquiries, Punishment and Appeal Rules, 1958, which reads as follows:

8.(1) Authority to conduct oral inquiry.- 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 (1) of Rule 16 may be Meld 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.

The penalty mentioned in Clause (1) of Rule 15 is removal from service.

5. The petitioner's case is that respondent 2 we a neither the appointing authority nor an officer of the department appointed by the appointing authority or head of the department. The argument was based on Section 6 of the Travanece-Cochin Police Act 2 of 1952, under which, with certain exceptions which are not material, the appointment of police officers shall vest with the Inspector General, subject to such rules as may be framed by the Government. The section is unavailable to the petitioner as it was substituted by the Travanoore-Cochin Police (Amendment) Act 5 of 1956. The substituted section reads as follows:

6. Dismissal, suspension or reduction of officers of the subordinate police,--Subject to the provisions of Article 311 of the Constitution and to such rules as the Government may from time to time make under this Act, the Inspector-General, Deputy Inspector-General, Assistant Inspector-General and District Superintendents of Police may, at any time, dismiss, remove, suspend or reduce to a lower post or time-scale or to a lower stage in time-scale, any officer of the subordinate police whom they shall think remiss or negligent in the discharge of his duty or otherwise unfit for the came, and may order the recovery from the pay of any such police officer of the whole or part any pecuniary less caused to the Government by his negligence or breach of orders.

The Travancore Cochin Police Act 2 of 1952 was itself repealed by the Kerala Police Act 5 of 19C1 which cams into force on 14 February 1981 long before the petitioner's appointment on 21 March 1962. The argument based on Section 6 of the Travancore-Coohin Police Act 2 of 1952 must, therefore, fall.

6. The learned Government Pleader pointed out that the petitioner's appointment itself was by respondent 1. A true copy of the order of appointment by respondent 1 was produced as Ex. R. 1 along with the counter-affidavit of respondent 2. It was admitted that. Ex. R. 1 was a true copy of the order of appointment of the petitioner The delegation by the Government of the power of appointment of sub-Inspectors to the Deputy Inspector-General was by GO. Ms. No 25, dated 33 January 1958 A true copy of the same was produced along with the supplementary counter-affidavit, as Ex R. 2. This Government order was after the substitution of Section 6 of the Tvavancore-Cochin Police Act by the amendment; Act 5 of 1956; and before the pausing of the Kerala Police Act 5 of 1961. is was argued that after the Kerala Police Act 5 of 1961, rules regulating the recruitment and conditions of service of the a police officers had to be consistent with the provisions of the Act. But it was admitted that no rules ad contemplated by Section 69 of the Kerala Policy Act, 1961, have Lean framed so far. Nothing was shown to Invalidate the delegatloo of authority made by the Government in the Government order evidenced by Ex R. 3. Besides, there is no challenge against the validity of the Government order and the Government who promulgated the Government order is not a party to the original petition. The petitioner himself has accepted appointment from the authority constituted under the very Government order which he now seeks to repudiate. For all these reasons, I am of the view that the petitioner was appointed by respondent 1 in pursuance of a valid delegation of authority evidenced by Ex. R. 2.

7. The learnsd Government Pleader pointed out that in Original Petitin No. 954 of 1952 my learned brother Govindan Nair, J., had taken the view that the Government order evidenced by Ex. R. 2 could be regarded as a rule promulgated titular Section 71 of the Travancore-Cohin Police Act 2 of 1952. In the view that. I have taken it is unnecessary to express myself on the question.

8. A minor point was raised by the petitioner's counsel against the Government order evidenced by Ex. R. 2 on the ground that the statement appended to the Government order referred to the Deputy Inspector-General of Police as ' the proponed appointing authority ' in respect of sub-inspector, etc., and it was contended that there was in fact no constitution in praesenti of the Deputy inspector-General as the appointing authority. This infirmity in the language of the Government order was considered by a Division Bench of this Court in Original Petition No. 213 of 1962 and it was observed:

We do not understand the significance of the word 'proposed.' In the context in which it is used, the chances are that its presence in the heading is due to a clerical error as suggested by the learned Government Pleader.

9. In a the light of what is stated above, it is plain that the petitioner was appointed by respondent 1 under a valid delegation of authority by the Government. It is admitted in Para, 4 of the petitioner's affidavit, and it is seen from Ex P. 2 that respondent 2 was authorized by respondent 1 to hold the inquiry. The objection against the Jurisdiction of respondent 2, to hold the inquiry is without force and must be rejected.

10. From the above assessment of the statutory provisions and powers of the authorities in regard to the appointment of the petitioner, it will be been that respondent 1 was the appointing authority in respect of sub inspector and that the petitioner was in fact appointed by him, There can be no contravention of Article 311(1) of the Constitution in the issue of the show-cause notice (Ex. P. 5) by respondent 1 as the appointing authority, proposing to remove the petitioner from service.

11. Counsel for the petitioner relied upon Section 6 of the Kerala Police Act, 1960 (5 of 1961), which come into force on 14 February 1961. The said section reads as follows:

6. Dismissal, suspension or reduction of officers of the subordinate police.--Subject to the provision of Article 311 of the Constitution and to such rules as the Government may from time to time make under this Act, the Inspector-General, Deputy Inspector -General and Superintendents of Police may, at any time, dismiss, remove, suspend or reduce to a lower post or time-scale or to a stage in time-scale, any officer of the subordinate police whom they shall think remiss or negligent in the discharge of his duty or otherwise unfit for the same, and may order the recovery from the pay of any such police officer of the whole or part of any pecuniary loss caused to the Government by his negligence or breach of orders.

It was argued that the power conferred by the above section in only in respect of an officer of the ' Subordinate Police,' and that the petitioner who was a member of the 'Superior Police' could be dismissed or removed only by the Government. Reference was made to the definition of ' Subordinate Police ' in Section 2(9) of the Act, to mean all police officers below the rank of an inspector, and to the term ' Superior Police ' in Section 2(10) to mean officers of and above the rank of an inspector. It was contended that the sub-inspector is included in the category of an inspector. stress was laid on the provision in Section 7 of the Act, for a formal enrolment of an officer of a Subordinate Police and the award of a certificate on enrolment under the seal of the Inspector* General, and it was claimed that the petitioner had never been so enrolled. On behalf of the State, it was contended that the term ' inspector ' takes in only a ' circle inspector' and not; a ' sub-inspector,' and that the connotation of the term was well-understood in police parlance. The contention of the State is entitled to acceptance. It receives added support from the definition of the terms ' Superior Police ' and ' Sub -ordinate Police ' in Sections 2(14) and 2(16) of the Travancore-Cochin Police Act, from which it. can be inferred that the term 'inspector' signifies a circle inspector. The provisions of the Madras District Police Act 24 of 1859 also point to the same conclusion. If the petitioner was not a member of the Superior Police, the fact that there was no compliance with the provisions of Section 7, will not exalt him into the category of superior police. Besides, the allegation that there was no enrolment or award of certificate to the petitioner has been made only in the reply-affidavit of the petitioner. I am not satisfied that the petitioner is a member of the Superior Police Force.

12. That respondent 1 is competent to remove or dismiss a sub-inspector like the petitioner is also clear from Rule 18 of the 1958 rules read with the annexure [item 5(a)], The second ground of objection urged by the petitioner also falls.

13. Regarding the third and the last of the grounds urged by the petitioner's counsel little had been said to make out any bias on the part of respondent 2 against the petitioner. The fact that respondent 2 had issued the chargesheet against the petitioner does not by itself unfit him from holding the enquiry. The allegations made in Para. 10 of the petitioner's affidavit have been controverted in Para. 6 of the counter-affidavit of respondent 2 dated 15 October 1965. It was admitted by the petitioner's counsel that the reliance placed on the note to Rule 15(7) of Chap. 5 of the Kerala Civil Services (classification, Control and Appeal) Rules, l960, is misplaced and that the relevant portion of the said note was deleted by an amendment made to Rule 15 by GO. Ms. No. 246, Public (Service D), dated 23 April 1962, published in Kerala Gazette No. 19, dated 8 May 1962. It was also the contention of the learned Government Pleader that the enquiry was governed by the Police Departmental Enquiries, Punishment and Appeal Rules, 1958 (referred to above as the 1958 rules), and not by the Civil Services (Classification, Control and Appeal) Rules.

14. The original petition fails and is dismissed with costs.


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