Skip to content


Balwantsingh Bhimsingh Vs. Inspector-general of Police [Rama Ayyar (N.)] and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 487 of 1964
Judge
Reported in(1966)7GLR1101; (1966)IILLJ517Guj
ActsConstitution of India - Articles 226 and 227; Bombay Police (Punishments and Appeals) Rules, 1956 - Rule 17; Bombay Police Act, 1951 - Sections 5; East Punjab Evacuees' (Administration of Property) (Amendment) Act, 1948; Administration of Evacuee Property Act, 1950 - Sections 48
AppellantBalwantsingh Bhimsingh
Respondentinspector-general of Police [Rama Ayyar (N.)] and anr.
Cases ReferredMemon Abdul Karim Haji Tayab v. Deputy Custodian
Excerpt:
labour and industrial - dismissal - rule 17 of bombay police (punishments and appeals) rules, 1956 and articles 226 and 227 of constitution of india - petitioner challenged order of dismissal by respondent reversing acquittal order passed by deputy inspector general of police on ground that amended sub-rule 1 of rule 17 not retrospective - amended rule did not create punishment - amendment invested highest police authority with power of reaching decision in regard to any delinquency either under act or under rules - no case of change of forum of revision as it was still state government - only revisional authority of respondent enlarged - held, amended rule had retrospective operation conferring power on respondent to revise order of acquittal passed in case which arose before.....miabhoy, c.j.1. this is a petition under arts. 226 and 227 of the constitution of india, in which the main point for consideration is whether the revisional power over an acquittal order conferred on the inspector-general of police, by an amendment introduced on 4 january, 1962 in rule 17 of the bombay police (punishments and appeals) rules, 1956 (hereafter called the rules), has or has not retrospective action. petitioner, balwantsingh bhimsingh was, at the relevant time, an unarmed policy constable attached to the dabhoi police station. on 9 may, 1961, an incident took place in which a bribe is alleged to have been taken by another member of the police force in the presence and with connivance of petitioner. on 12 july, 1961, petitioner was suspended. on 18 july, 1961, petitioner and.....
Judgment:

Miabhoy, C.J.

1. This is a petition under Arts. 226 and 227 of the Constitution of India, in which the main point for consideration is whether the revisional power over an acquittal order conferred on the Inspector-General of Police, by an amendment introduced on 4 January, 1962 in rule 17 of the Bombay Police (Punishments and Appeals) Rules, 1956 (hereafter called the rules), has or has not retrospective action. Petitioner, Balwantsingh Bhimsingh was, at the relevant time, an unarmed policy constable attached to the Dabhoi Police station. On 9 May, 1961, an incident took place in which a bribe is alleged to have been taken by another member of the police force in the presence and with connivance of petitioner. On 12 July, 1961, petitioner was suspended. On 18 July, 1961, petitioner and two more constables were chargesheeted, the charge being that they had committed gross dereliction of duty and moral turpitude involving corruption on 9 May, 1961 inasmuch as petitioner and those two others, after arresting three persons who were found drunk, had allowed all of them to go away without taking any further legal action after accepting an illegal gratification of Rs. 20, through one Vachan Jiva near the lake at Dabhoi. One Chaudhari, the District Superintendent of Police, Kaira, who was petitioner's superior officer, held an enquiry into the aforesaid charge. That officer held the charge to be proved and issued a show-cause notice to petitioner, stating that he intended to dismiss petitioner as he was satisfied that the charge was proved. Petitioner replied to the show-cause notice in November, 1961. However, on 20 December, 1961, the District Superintendent of Police held finally that the charge was proved and passed an order of dismissal. Petitioner then filed an appeal under rule 6 of the rules to the Deputy Inspector-General of Police. This appeal was filed on 1 January, 1962. On that date, rule 17 of the rules did not confer power in terms to revise any order of acquittal, whether original, appellate or revisional. However, on 4 January, 1962, the State of Gujarat, in exercise of the power conferred on it by Clause (c) of Sub-section (2) of S. 25, read with Clause (b) of S. 5 of the Bombay Police Act, 1951 (hereafter called the Act), amended rule 17. Substantially, by that amendment, the Inspector-General of Police was given the power of revising an order of acquittal, whether original, appellate or revisional. On 27 July, 1962, the Deputy Inspector-General of Police, the appellate authority, allowed petitioner's appeal, set aside the order of dismissal passed by the District Superintendent of Police and ordered petitioner's reinstatement in police service. On 24 August, 1962, petitioner reported for duty and he was posted at the Sankheda police station. On 21 May, 1963, Nagarwala, the then Inspector-General of Police and the predecessor-in-office of respondent 1, issued a show-cause notice, purporting to act under the amended rule 17. In that notice, he recorded a provisional finding that petitioner was guilty of the charge levelled against him and called upon petitioner to show cause why he should not be dismissed from service. After petitioner had shown cause. Nagarwala, by his order dated 19 September, 1963, held petitioner to be guilty and ordered his dismissal from police service. Petitioner preferred an appeal to the State Government, respondent 2. That respondent, by its order 27 July, 1964, dismissed the appeal. Aggrieved by the orders of Nagarwala and respondent 2 dated respectively 19 September, 1963 and 27 July, 1964, petitioner filed the present petition in which he prayed for an appropriate writ or order or direction for quashing the order of dismissal passed by Nagarwala and for restoring the order passed by the Deputy Inspector-General of Police.

2. Petitioner has attacked the impugned order on a number of grounds in the memo of petition. However, at the time of the arguments, Sri Thakore, learned advocate for petitioner, stated that though he proposed to challenge the impugned orders only on two grounds, now he could not press one of them in view of the decision recorded by this Court in Special Civil Application No. 913 of 1963 by the judgment dated 30 June/1 July, 1966. That point, which Sri Thakore stated he could not press, was that sub-rule (1) of rule 17 was ultra vires S. 25, Sub-section (2), Clause (c) of the Act, in the context of an order of acquittal. Therefore, the point which Sri Thakore formulated and pressed for decision, was the second point and that point was that, having regard to the facts of the present case, the then Inspector-General of Police had no power to revise the order of acquittal passed in appeal by the Deputy Inspector-General of Police under amended rule 17, Sub-rule (1), on the ground that the amended sub-rule cannot have retrospective operation. Therefore, the point which arises for determination in the present petition is whether, on a true construction of the amended sub-rule (1) of rule 17, the power of the Inspector-General of Police to interfere in revision against an order of acquittal can or cannot act retrospectively on an order of acquittal recorded in an appeal which was pending at the time when the rule was amended.

3. In order to decide the aforesaid point, it will be convenient to mention the true position obtaining in regard to the action taken against petitioner before the rule was amended, and the position obtaining after the same was so amended in case the amendment is held to be retrospective. The incident, on the basis of which petitioner has been dismissed, took place on 9 May, 1961. It cannot be disputed that if that incident is established. then petitioner is liable to be punished with any one of the punishments mentioned in S. 25, Sub-section (1) and rule 3 by any one of the authorities mentioned in that section or rule 5. Amongst the authorities mentioned in S. 25 and rule is the District Superintendent of Police and one of the punishments which can be inflicted by that officer on an officer of the subordinate rank, to which rank petitioner belongs, is the punishment of dismissal. Under Sub-section (2), Clause (c), of S. 25, the exercise of that power of dismissal is subject to the rules to be made by the State Government. Section 5, Clause (b), of the Act also confers power upon the State Government to make rules subject to the provisions of the Act in regard inter alia to the conditions of service of the police force. By virtue of these powers, the then Government of Bombay issued the rules. Rule 2 enacts that no police officer, to whom the rules apply, shall be departmentally punished otherwise than in accordance with the provisions of the rules. There is no doubt that petitioner, being a member of the subordinate police force, is, and was at all relevant times, governed by the aforesaid rules. Rule 3, sub-rules (1) and (2), prescribe various kinds of punishments including the punishment of dismissal. Rule 4 again emphasizes what has been provided in rule 2 in regard to certain specified punishments. It says that, in regard to such specified punishments, no punishment shall be imposed on any police officer unless a departmental enquiry into his conduct is held. The rules themselves do not provide specifically as to the manner in which a departmental enquiry is to be held, except that, in rule 4, it is provided that a note of the enquiry with the reasons for passing an order imposing a specified punishment shall be made in writing under the signature of the punishing authority. The manner in which an enquiry is to be held is provided for by special orders, circulars or resolutions of the Government some of which are reproduced in the Police Manual, Vol. I. Rule 5 then mention the officers who have the power to inflict punishments and the schedules mention the kinds of punishments which each officer can inflict. Rule 6 then provides that every police officer shall have a right of appeal to the authority specified in rule 9 against an order of punishment of the kind specified in rule 6, and says that no second appeal shall lie from an appellate order. Rule 15 mentions the duties of the appellate authority and says that such authority may, after considering the matters provided therefor in the rule, pass such orders as it thinks just and proper. The appellate authority has also been given the power of enhancing punishment. Rule 17, as it stood before it was amended, gave power to the Inspector-general of Police to call for and examine the record of any case in which an order had been made by a subordinate authority and in which an appeal lay. The proviso to rule 17 gave the Inspector-General of police the power to enhance punishments. Rule 19 gives power to an immediately superior officer to revise an order passed by an authority from whose order an appeal does not lie to any other authority. Rule 18 confers on the State Government a general power of revision. It confers a power not only to revise an order of conviction, but also an order of acquittal, whether original, appellate or revisional.

4. Thus, on the date on which petitioner committed the delinquency, on the basis of which he has been dismissed, he was liable to be departmentally prosecuted under the rules. One of the authorities who had the power of holding a departmental enquiry was the District Superintendent of Police. In case the District Superintendent of Police passed an order of conviction, petitioner had the right of filling an appeal to the Deputy Inspector-General of Police and, in case the Deputy Inspector-General of Police dismissed his appeal, petitioner had a right of going in revision to the Inspector-General of Police, and, in case that officer confirmed the order of punishment, he had a further right of going in revision to the State Government. In case a non-appealable order was passed against petitioner, petitioner had the right of preferring a revision application to the immediately superior officer of the District Superintendent of Police. As we have pointed out in our judgment dated 30 June/1 July, 1966, in Special Civil Application No. 913 of 1963, a delinquent has also a right of preferring an appeal under S. 27 of the Act from any order, original, appellate or revisional, passed by any of the authorities mentioned in the rules and passed in a departmental enquiry held under the rules. But, however, if, during the course of the departmental enquiry the competent officer happened to pass an order of acquittal, then, there is no doubt whatsoever that, under the rules as they existed at the time when the delinquency was committed, the department had no right of preferring an appeal from the order of acquittal, nor had any authority other than the State Government the power of revising the order of acquittal. Under the rules, the power of revising an order of acquittal rested with the Government and this power was conferred on the State Government by rule 18.

5. Petitioner was convicted on 20 December, 1961 and he preferred his appeal to the Deputy Inspector-General of Police on 1 January, 1962. Therefore, on 1 January, 1962, the position was that petitioner had already been punished and unless his order of conviction was set aside by the competent authority, under the rules, he was bound to suffer the punishment. But, when petitioner filed the appeal, the order of conviction became fluid and became subject to any order which the appellate authority might pass in appeal. However, it was not possible to say, on 1 January, 1962, what order would be passed by the appellate authority in petitioner's appeal. The order might have been one of confirmation, of reversal or of remand. Different consequences might flow according as the appellate authority happened to passed one or the other kind of the order. Therefore, it was not possible to postulate as to what exactly would be the position which petitioner would occupy on the date on which the appellate authority happened to pass the order. Having regard to the fact that, on 1 January, 1962, there was already an order of conviction against petitioner, it is quite clear that petitioner cannot get any advantage from out of the order of acquittal which came to be passed subsequently, after rule 17 was amended. Petitioner can take advantage of his having filed an appeal only if, on a construction of the amended rule, the Court comes to the conclusion that it is not retrospective, or if it comes to the conclusion that, as a result of the proceeding having been started at a date earlier to the date of the amendment, some right of petitioner, which had become vested in him, was either destroyed or impaired. But, even the order of acquittal which was passed by the appellate authority had not the attribute of absolute finality in it under the rules. As already pointed out, that order of acquittal was subject to the revisional power of the State Government under rule 18. Therefore, there is no doubt whatsoever that, on the date on which the delinquency took place, on the date on which the departmental enquiry started and on the date on which the appeal was filed, on all these three material dates, the exercise of the authority by any of the officers empowered to deal with the delinquency was subject to the overall revisional power of the State Government and, in that particular sense, any order passed by any of the aforesaid series of authorities cannot be said to be final.

6. After the amendment was made, the change which took place was that, whereas an order of acquittal which, if passed either by the original authority or the appellate authority, could have been revised only by the State Government, became also revisable by the Inspector-General of Police. In other words, the change which took place was that the revisional authority of the Inspector-General of Police was interposed between the order of acquittal and the revisional authority of the State Government. However, it is noteworthy that any order of conviction which the Inspector-General of Police may pass, or any order of confirmation of an order of acquittal which that officer may pass, was itself subject to the revisional authority of the State Government. Therefore, as a result of the aforesaid amendment, the quality which an order of acquittal possessed of being revised by the State Government did not come to be affected by the amendment at all.

7. Bearing in mind the aforesaid effects of the rules and the amendment, we proceed now to consider the various aspects which were presented by learned advocates on both sides on the question regarding the retrospectivity of the amended rule. Sri Thakore first contends that the amended portion must be read with reference to the date of the amendment and, if it is read in that particular manner, them the amended part as it stands does not take within its purview the revisional authority of the Inspector-General of Police on the appellate order of acquittal. The words which are used in rule 17, sub-rule (1), as introduced by the amendment, are

'any case arising under these rules in which an order of acquittal . . . has been made by such authority ...'

8. Sri Thakore argues that the word 'case' in the context must be interpreted as the appellate case and in order that the amended part may apply, that case must arise under the rules and it is that case in which the order of acquittal must be passed. He contends that it is only when all these conditions are satisfied that the amended part will attract the revisional authority of the Inspector-General of Police. His contention is that, though there was an appellate case, that case did not arise under rules before they were amended by the amended rule. He contends that the appellate case arose under rules before they were so amended. Therefore, according to Sri Thakore, the case, having arisen at the time when rule 17 was unamended the phrase 'arising under these rules' cannot apply to the facts of the present case, Secondly, Sri Thakore emphasize the use of the expression 'has been made.' He contends that, at the time when the appellate case arose, there was no order of acquittal made at all. Sri Thakore contends that, if the rule-making authority had intended the revisional power to attach to a pending appellate case, then, instead of saying that the case must be one in which an order of acquittal has been made, the proper expression which would be used would be.

'a case in which an order of acquittal may happen to be made.'

9. In our judgment, the whole approach of Sri Thakore is wrong. In the first instance, we must bear in mind that the amendment was introduced by an amendatory rule and not by a repealing rule. The amendatory rule is of a kind where, by the amendment, an addition is engrafted on the main rule which remains intact. There is high authority for the proposition that, when such is the case the earlier rule must be thereafter read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the amended words were therefrom the beginning. This is what their lordships have observed in Shamrao V. Parulekar v. District Magistrate, Thana, Bombay, and others [A.I.R. 1952 S.C. 324 at 326] :

'The construction of an Act which has been amended is now governed by technical rules and we must first be clear regarding the proper canons of construction. The rule is that when a subsequent Act amends an earlier one in such a way as to incorporate itself, or a part of itself, into the earlier, them the earlier Act must thereafter be read and construed (except where that would lead to a repugnancy, inconsistency or absurdity) as if the altered words had been written into the earlier Act with (sic, the same) pen and ink and the old words scored out so that thereafter there is no need to refer to the amending Act at all.'

10. Therefore, in our judgment, it would not be proper to construe the amended rule in the manner suggested by Sri Thakore. Reading the amended rule in the manner laid down by their lordships in the aforesaid case, there cannot be any doubt that the amended part of the rule will apply to the appellate order of acquittal passed by the Deputy Inspector-General of Police in favour of petitioner. However, that does not answer the question as to whether the aforesaid part of the rule has or has not retroactive action. That the aforesaid rule of construction cannot be a sufficient guide on the question of retroactivity of a legislative enactment is quite clear from the way in which their lordships have explained the aforesaid passage in Ram Narain v. S.B. & I. Co. [A.I.R. 1956 S.C. 614 at 621]. After quoting the aforesaid passage which we have reproduced above, their lordships proceed to explain the passage in the following way :

'Now there is no question about the correctness of this dictum. But it appears to us that it has no application to this case. It is perfectly true as stated therein that whenever an amended Act has to be applied subsequent to the date of the amendment, the various unamended provisions of the Act have to be read along with the amended provisions as though they are part of it. This is for the purpose of determining what the meaning of any particular provision of the Act as amended is, whether it is in the unamended part or in the amended part.

But this is not the same thing as saying that the amendment itself must be taken to have been in existence as from the date of the earlier Act. That would be imputing to the amendment retrospective operation which would only be done if such retrospective operation is given by the amending Act either expressly or by necessary implication.'

11. Under the circumstances, the question has yet to be answer as to whether the amended part of the rule has or has not retrospective operation. Now on that point, judicial approach is now well-settled. The question in the ultimate analysis resolves itself into discovering what the legislative will on the subject is. If the legislature decides in express words that that particular enactment should be given retrospective action, then the Court is bound by the expression of such will and nothing further needs to be decided. The legislature may also express its will be necessary intendment. If that is so, then also, once the Court reaches the conclusion that the legislature has, by necessary intendment, expressed its will that a legislative provision should have retrospective action, then the Court is bound by the expression of the will and must give effect to it. Now, in the present case, it is not the contention of Sri Sompura, learned Assistant Government Pleader, that the rule making authority has expressed its intention in express terms on the aforesaid subject. What Sri Sompura contends is that there are two provision in the Act which shows that the legislature had willed that any rule or order which may be passed in exercise of the authority to be presently mentioned, the rule or the order must always have a retrospective action. On the other hand, strangely enough, Sri R. C. Mankad, who was heard by us in support of the aforesaid submission of Sri Thakore, raises quite a contrary contention that same provisions, on which Sri Sompura relies, enacts that the rule-making authority cannot give retrospective action to any of its rules or orders. The provisions on which Sri Sompura relies are S. 25, Sub-section (2), Clause (c), and S. 5(b) of the Act, under which the aforesaid rules, including the amending rule, were made by the State Government. Section 25, Sub-section (2), Clause (c) enacts that the exercise of any power conferred by Sub-section (2)

'Shall be subject always to such rules and orders as may be made by the State Government in that behalf.'

12. Section 5, Clause (b), enacts that, subject to the provisions of the Act, amongst others, the conditions of service of police force

'shall be such as may from time to time be determined by the State Government by general or special order.'

13. Sri Sompura's contention is that the use of the word 'always' in Clause (c) and the expression 'from time to time' in Clause (b) aforesaid shows that the legislature has enacted in express terms that whenever a rule happens to be made, i.e., whenever the Government is exercising its power of subjecting the exercise of the authority of any of the police officers or laying down a rule relating to the condition of service of any such officer, necessarily that rule or order must have retrospective action. On the other hand, Sri Mankad contends that, under Clause (c), the only power which the State Government has been given is the power to subject, not the power of any police officer, but the exercise of that power, to its rule-making authority, and, he contends that the rule-making power can be exercised by the State Government only so long as the exercise of the authority of the police officer subsists and not after the exercise of power has been exhausted. Similarly, he contends that, under Clause (b) also, the conditions of service can be affected by the rule-making authority only so as to operate after the date on which the rule is published and not before. In our judgment, both the aforesaid constructions are wrong. The construction for which Sri Mankad contends must necessarily be rejected, because otherwise the use of the word 'always' in Clause (c) aforesaid would be rendered superfluous as also the expression 'from time to time' used in Clause (b) of S. 5. In our judgment, the expression 'always' emphasizes that the use of the power is at all times subject to the rule-making authority of the State Government and, having regard to the fact that that subjection can be effected not only by a rule but even by an order, and having regard to the further fact that the subordination of all police officers has been placed in the hands of the State Government which has full powers of superintendence over the whole police force, the intention of the legislature by using the word 'always' appears to be to make the exercise of the power of police officers subject to the overall will of the State Government which has the final control over all actions of the police, including discipline. But, in our judgment, which this is so, it does not necessarily follow that the aforesaid language yields this construction that the rule-making authority has no choice when it makes a rule that the rule must always be retrospective and not prospective. In our judgment, the aforesaid expressions 'always' and 'from time to time' only emphasize that the rule-making authority has the power of enacting a retrospective rule, or making retrospective order, the choice being left to the State Government as to whether in a given case it should or should not exercise its power one way or the other. In our judgment, therefore, the aforesaid two provisions of the Act, on which reliance has been placed by rival sides, only mean that the State Government has the power of enacting or making retrospective rules or orders, and that is all.

14. It is not the contention of Sri Sompura that a retrospective operation is intended by necessary intendment. But what Sri Sompura contends is that, even though this is so, the Court must act on presumptions arising from the entire enactment itself. For example, it is well-known that, when the Court deals with a declaratory enactment, then usually the Court presumes that the legislature intends to give it a retrospective operation. Therefore, the nature of the enactment, the retrospectivity of which has got to be determined, plays an important role in aiding the Court in answering the question as to whether a particular enactment is prospective or retrospective. The rival contentions on this particular subject are as follows : According to Sri Thakore, the amendatory rule is penal in character and, according to Sri Sompura, it is essentially procedural. Sri Sompura further contends that, in any case, the amendatory rule is remedial in character and, in the submission of Sri Sompura, in the case of both the aforesaid kinds of enactments, a presumption must be raised that the intention of the rule-making authority is retrospective and not prospective. On the other hand, Sri Thakore and Sri Mankad contend that the amendatory rule being penal in character, the presumption must be that no retrospective action is intended. In the alternative, Sri Thakore contends that, even if the rule is procedural or remedial, the rule must be given prospective operation only on the ground that the rule affects, if not destroys, valuable vested rights of petitioner, or, in any case, creates a fresh liability which did not exist at the time when the amendatory rule was enacted.

15. Now, we cannot uphold the contention that the mandatory rule is penal in character. In order that a rule may be penal in character, the rule itself must prescribe a punishment. It is quite clear that the amendatory does not do anything of the kind. The punishment for the delinquency is prescribed by S. 25 of the Act and rule 3. That punishment is neither changed nor added to by the amendatory rule. What the amendatory rule does is that, whereas formerly an authority which had the power of inflicting punishments happened to pass an order of acquittal it was not subject to the revisional authority of the Inspector-General of Police, it now subjects such an order of acquittal to such authority. Therefore, the rule itself does not prescribe any punishment. What the rule only does is to give power to the Inspector-General of Police to determine the correctness or otherwise of the order of acquittal on the merits and, if he is satisfied that the order of acquittal is wrong, then, he has been given the power of setting the matter right on the basis that the delinquent was in fact guilty though he had been by the Inspector-General of Police's subordinate officer not to be guilty. Such a distinction is pointed out by Maxwell in his Interpretation of Statutes, 10th Edn. at p. 225, in the following passage :

'It matters not that the effect of a procedural alteration is to make a prosecution under a penal Act possible, where formerly it had been impossible. Although to make a law punish that which, at the time when it was done, was not punishable, is contrary to sound principle, a law which merely alter the procedure may, with perfect propriety, be made applicable to past as well as future transactions ...'

16. In our judgment, this passage also supports the submission of Sri Sompura that the amendment is procedural in character. There is no doubt whatsoever that the amendment does not in any way deal with any substantive rights of petitioner as such, nor does it create a new liability, nor does it affect an old one. We shall deal with an argument advanced by Sri Thakore based on rule 2 against this proposition just in a moment. The rule provides that before inflicting a punishment upon a delinquent, the competent authority shall hold a departmental enquiry. The rules further provide for appeals and revisions from order passed in such departmental enquiries. It cannot be denied that the question regarding the institution of a departmental enquiry and the manner in which a departmental enquiry is to be held relate to the procedure to be adopted at the departmental enquiry. When the rule confers a right of appeal, it certainly confers a substantive right. But, when the rule provides as to who shall be the authority who shall hold a departmental enquiry, it is difficult to accede to the argument that such a provision relates to any substantive right. The question as to who shall be the competent authority to hold an enquiry is a question relating to the power of the officer concerned or his jurisdiction to deal with the matter. It cannot be said that the forum created by the authority concerned confers a substantive right upon the delinquent. A delinquent who commits a delinquency has no right that his case shall be tried only by a particular individual and no other. That is a matter which the law must deal with and to which the delinquent must submit. Therefore, when the amendatory rule confers revisional authority, it gives power to the Inspector-General of Police to revise an order of his subordinate. In our judgment this is essentially a matter relating to procedure. The power has been given to the Inspector-General of Police more in the interests of the discipline and to advance interests of justice than for any other reason. The Inspector-General of Police is the highest police authority charged with the duty of administering police functions and upholding the discipline in the department. It is in the interest of the discipline of the department, and consequently public interest, that, if and when a delinquency happens to be committed by a member of the police force, the correctness or otherwise of a decision regarding the commission or non-commission of the delinquency should be ultimately left in the hands of the highest authority. According to the rules as they existed before the amendment, the final power of reaching a decision on such a subject was with the State Government. The Inspector-General of Police was also given the same power, but the power was restricted only to orders of conviction and it could not operate against orders of acquittal. The latter power vested only in the State Government. By the amendatory rule, the intention of the rule-making authority was to give complete powers, including the power against orders of acquittal, to the Inspector-General of Police too. In our judgment, the provision was introduced more with a view to full in a gap noticed in the procedure of the Inspector-General of Police not having power of revising an order of acquittal and giving that officer such a power so that before the revisional power of the State Government, the highest authority, is invoked, the Inspector-General of Police may exercise such a power if it is necessary to do so. That a matter conferring power of appeal or revision is procedural is also decided by the highest authority in the land in Indira Sohanlal v. Custodian of Evacuee Property, Delhi, and others [A.I.R. 1956 S.C. 77]. In that case, their lordships had to deal with the East Punjab Evacuees' (Administration of Property) (Amendment) Act, 1948 (East Punjab Act 26 of 1948), which inserted two new Ss. 5A and 5B, prescribing the requirement of confirmation of transactions relating to evacuee property and providing a right of appeal or revision therefrom. In connexion with the provision providing for appeal and a right of revision, their lordships observed at p. 84 as follows :

'It is difficult to see that such provisions, in those circumstances, are anything more than alterations in procedure.'

17. In our judgment, the circumstances obtaining in the present case are not different from the circumstances prevailing when S. 5A was introduced in the aforesaid Punjab Act. In a still later case in Memon Abdul Karim Haji Tayab v. Deputy Custodian-General, New Delhi, and others [A.I.R. 1964 S.C. 1256], their lordships had to deal with the Administration of Evacuee Property Act, 1950, S. 48 of which was amended by the amending Act 91 of 1956. By the amendment, the power of deciding the question whether any sum is payable to the Government or to the Custodian in respect of an evacuee property was conferred for the first time on the Custodian. In connexion with the conferment of this power their lordships observed at p. 1258 that Sub-section (2) was procedural in character, under the circumstances, in our judgment. there cannot be any doubt whatsoever that the amendatory rule was procedural in character. As their lordships have pointed out in the latter case that, when such is the case, then, the presumption is that the enactment is retrospective unless the enactment or the rule destroys or impairs vested rights. In this view of the matter, it is not necessary for us to consider the further submission of Sri Sompura that the aforesaid provision is remedial in character.

18. But Sri Thakore contends that the amendatory rule destroys a vested right of petitioner. His submission is based on rule 2 of the rules. As already stated, that rule prohibits a police officer from punishing another police officer otherwise than in accordance with the provisions of the rules. Sri Thakore contends that, at the time when the delinquency was committed and also at the time when the appeal was filed, petitioner had a right not to be punished except in accordance with the provisions of the rules, which would mean the rules prevailing then. Therefore, Sri Thakore contends that, at the time when either the delinquency was committed or the appeal was filed, in case there was an order of acquittal, according to the rules subsisting before the amendment, petitioner was not liable to be punished by an order of the Inspector-General of Police in case any one of his subordinates passed an order of acquittal. Sri Thakore contends that, by the amendatory rule, he was deprived of the aforesaid right and a new liability was created of being punished by the Inspector-General of Police. We are unable to agree with this contention. It is difficult to construe rule 2 as conferring any right on a delinquent of the kind mentioned by Sri Thakore. It would be strange if the legislature had given the power to the State Government to create rights of the aforesaid character. The rules, as already stated, are framed under the power vesting in the Government under Clause (c) of Sub-section (2) of S. 25 and S. 5(b) of the Act. Those provisions confer power on the Government to regulate the exercise of the punitive power vested in certain officers mentioned in Sub-section (2) and to provide for the conditions of service. In our judgment, rule 2 has got to be read in this context. Read in that context, it can only mean that the rule-making authority has given a directive to the punitive officers that they shall not punish any police officer except by holding a departmental enquiry in accordance with the rules, and perhaps it is one of the conditions of service which has been mentioned. Therefore, in our judgment, the aforesaid rule is more a directive issued by the rule-making authority to the punitive officers than the conferment of a right on the subordinate police officers. Under the circumstances, in our judgment, there was no right in petitioner not to be subjected to the revisional authority of the Inspector-General of Police at the time when either the delinquency was committed or the appeal was filed and, therefore, there is no question of the destruction or impairment of any such right.

19. We also cannot agree with the submission if Sri Thakore that a new liability is created against petitioner by the amendatory rule. We have already pointed out the exact effect of the amendatory rule. It does not create any punishment. All that it does is that it invests the highest police authority with the power of reaching a decision in regard to any delinquency which can be the subject-matter of punishment, either under the Act or under the rules.

20. Then Sri Thakore contends that, in any case, when the order of acquittal was made, that order had a qualified finality in the sense that, thought it could be disturbed by the State Government, it could not have been disturbed by the Inspector-General of Police and, by the amendatory rule, that qualified finality was taken away. It is true that the amendatory rule has such an effect. But the question is whether such an effect can rebut the presumption which otherwise arises in the case of a procedural law that it is retrospective in character. There is highest authority for the proposition that such is not the case even when an order has the quality of finality. In Indira Sohanlal case [A.I.R. 1956 S.C. 77] (vide supra) their lordships say that no one has a vested right in an order which has the attribute of finality. The legislature can, by a retrospective piece of legislation, deprive an order of finality which it otherwise possessed. But this is a case much stronger than Indira Sohanlal case (vide supra). In the present case, the order had not the quality of absolute finality at all. The order of acquittal had only a qualified finality and the order could have been, before the amendatory rule was introduced, disturbed by the State Government. What has happened in the Present case is that the revisional authority of the Inspector-General of Police is interposed between the order of acquittal and the revisional power of the State Government. There is no question of any prejudice having been caused to petitioner at all by the amendatory rule because, we have already pointed out, even from the order of the Inspector-General of Police, revision under rule 18 or an appeal under S. 27 lies.

21. Then, Sri Thakore argues that, in any case, the forum of revision has been changed by the amendatory rule and he submits that. When such is the case, the presumption of retrospectivity is rebutted. However, Sri Thakore is not able to point out to us any authority in support of the proposition that, when a revisional forum is changed, any vested right is affected or a new liability is created. On the facts of the present case, it does not appear to be a case of a change of forum at all. The forum of revision which the State Government was remains intact. Only the revisional authority, which the Inspector-General of Police formerly possessed, happens to be enlarged. We are not prepared to proceed on the assumption that a person has a vested right in a forum. The question as to whether a particular Court or authority should or should not have jurisdiction over a cause of action is a matter essentially for the legislative authority to determine and, even in a pending action, it is possible for the legislature to do this. The matter may require an examination if the original forum is totally destroyed and the forum which was destroyed was of the highest authority. But we are not called upon to decide any such question of this character and, therefore, we do not propose to express any opinion on this aspect.

22. For the aforesaid reasons, we have come to the conclusion that the rule, as amended on 4 January, 1962, has retrospective action and it confers power on the Inspector-General of police to revise an order of acquittal passed in a case which arose before the date of the amendment. In that view of the matter, we do not propose to consider the efficacy of another argument which Sri Sompura made in opposition to the petition. The arguments was that the order of acquittal having been passed after the rule was amended, there was no question of giving retrospective operation to the amendatory rule and that on the facts of the present case, the rule was applied prospectively.

23. For the aforesaid reasons, in our judgment the petition has no merit and deserves to be dismissed. Rule discharged. In the circumstances of the case, there shall be no order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //